Can We Fix Police Misconduct?

Arthur Rizer and Jonathan Haggerty

Last month it was a viral video of a California sheriff’s deputy manhandling an unarmed teenager. Last week it was a more gruesome video that revealed an officer’s abuse of force in Minnesota. This time, the abuse ended a man’s life.

Naturally, riots and protests erupted in Minnesota and across the country. The officer who killed Floyd has been fired. Protesters and advocates would like a judicial finding of guilt, and the overwhelming message has been “this must change.” But how? Advocates must arm themselves with a clear list of policy demands to ensure these incidents become far less frequent.

First and foremost, officers must be held accountable. The officer who killed George Floyd had 18 previous complaints regarding misuse of force. It is not at all uncommon for such prominent examples of police abuse to feature an officer with a long history of misconduct.

We discussed two important policies that must change in order to hold problem officers accountable: the SCOTUS-invented legal doctrine of qualified immunity and state laws outlining a “law enforcement officer bill of rights.” The former creates a nearly impossible standard for complainants to prove an officer’s guilt in civil suits, while the latter establishes significant extra-legal protections for officers under investigation — far more robust than what a civilian would receive in the court of law — and often allows officers who do manage to get themselves fired to simply move to another department. Both policies must go.

Next is the problem of overcriminalization — a term describing the ever-growing number of laws and regulation that criminalize relatively innocuous behaviors. George Floyd was killed over a petty forgery arrest, Eric Garner over selling illicit cigarettes. The Rancho Cordova deputy who handed a beatdown to an unarmed teenager half his size was responding to a call about an illegal cigarillo exchange. Sandra Bland hung herself in a jail cell after an arrest for a traffic violation.

The common denominator among all these events is a police interaction over an insignificant infraction that turned violent. These events should prompt us to question whether any proposed law with criminal penalties attached to it is worth it. It should compel us to ask: is this law worth killing to enforce? The answer is not necessarily to legalize petty forgery, selling cigarettes to kids, or violating traffic laws. Instead, police reform will require us to be much more skeptical of laws that come with criminal enforcement. Reducing police misconduct necessitates reducing the number of potential incidents that could go wrong.

Puzzlingly enough, some on the left who rightfully protest police violence and call for reform are also pushing a nationwide ban on all kinds of tobacco products — including menthol cigarettes and flavored vaping products.

But a law that uniformly bans such a widely used product entails some enforcement mechanism. Enforcing bans will cultivate more of these encounters, and increase the likelihood of more interactions turning violent.

It isn’t just the left pushing policies that would exacerbate overcriminalization. Conservatives crusading against voter fraud have also called for new laws aggressively punishing illegal voting. Republican proposals in Texas and Tennessee would add stiff criminal penalties for voting illegally or aiding the act of voter fraud. Regardless of the fact that voter fraud is already illegal, the proposal shares something in common with tobacco prohibition. Partisan lawmakers are telling their supporters “we are serious about this problem.”

A serious approach to police reform, however, requires us to consider the unintended consequences of using arrests and jails to cure social problems. Banning and criminalizing a product or behavior doesn’t make it magically disappear. It might make it somewhat rarer, but to do that requires the coercive power of government. And, as we’ve seen, such power, ultimately, means the power to take an individual’s liberty and their life.

The tragically long list of names of people that have died at the hands of an abusive officer has shown us that a problem exists. George Floyd’s death should prompt a national conversation about how to solve it. We must push for accountability through repealing qualified immunity and law enforcement officer bills of rights, and reduce the number of police encounters by fighting overcriminalization. No policy is a silver bullet, but these measures are a necessary first step.

Arthur Rizer is a retired police officer and the Director of Criminal Justice and Civil Liberties Policy at the R Street Institute, a non-partisan, non-profit think tank in Washington D.C. Follow him on Twitter @ArthurRizer. Jonathan Haggerty is a Criminal Justice Resident Fellow at R Street. Follow him @JHaggrid.

By Tomasz Warszewski

Arthur Rizer is an Adjunct Professor at Antonin Scalia Law School, GMU.