The law enforcement reform bill introduced last week in the House by the Democrat majority – the “Justice in Policing Act of 2020” – contains a number of proposals worthy of serious debate and bipartisan support. However, where the legislation proposes detailed, in-the-weeds standards for the use of deadly force by police officers, it suggests a “one-size-fits-all” solution that would be utterly unworkable and, if implemented, lead to far more serious problems than it could hope to solve.
As to the positive aspects of the bill, for example the proposals for improved and increased training for federal law enforcement officers directly, and for state and local law enforcement indirectly through grants, should garner support from both sides of the congressional aisle and the president as well. A poorly trained officer is in many ways a problem waiting to happen.
The Justice in Policing Act also would reduce the “militarization” footprint of local police departments, by cutting back on the surplus military equipment the federal government has been providing to those departments for the past three decades; everything from fully automatic weapons to armored vehicles. This proposal would help to de-emphasize the military perspective of law enforcement in favor of the civilian, which is and must always be predicated on the Constitution and laws flowing therefrom.
Moving to rein in the use of “no knock warrants” by federal and local police – which very often lead to unnecessarily deadly confrontations – is another positive measure addressed in the legislation.
When the bill gets into the weeds of actual law enforcement, things become more problematic by virtue of its imprecise and overly expansive wording. For example, in seeking to outlaw “chokeholds” by police officers, the legislation declares that any “application [by a police officer] of pressure to the throat or windpipe” of a person being detained constitutes a violation of an individual’s civil rights. It is one thing to outlaw true and purposeful chokeholds; it is quite another to declare that any pressure to a person’s throat or windpipe provides the basis for a civil rights lawsuit against an officer.
Use of deadly force by law enforcement officers is a critical aspect of policing, and always subject to open, vigorous, and reasoned debate. More than other standards under which officers must operate, use-of-deadly-force reviews must consider the circumstances on the ground facing the officer at the very time he or she makes such a decision.
In respecting this, courts have long recognized that the standard by which such action has to be judged, is not an after-the-fact perspective buttressed by 20/20 hindsight. Rather, such force may be employed “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.”
This “reasonable belief” standard may be viewed by critics as providing overly broad and lenient “qualified immunity” for the officer who uses deadly force. In point of fact, it does not immunize the officer from being held accountable for improperly using deadly force. It simply requires the trier of fact (judge or jury as the case may be) to consider the matter from the perspective of the officer’s “reasonable belief” of the dangers he or she faces at the time – not afterwards by some other officer or individual.
It is here that the “Justice in Policing Act” goes off the rails. For an officer’s use of deadly force to be held lawful according to the standards in this legislation, he or she would be judged not by their reasonable perspective of factors at the time, but by how some other law enforcement officer “would objectively conclude, under the totality of the circumstances, that there was no reasonable alternative to the use of force.” Try grappling with that as a juror, or in the first place by the police officer on the ground.
The bill’s language gets even more cumbersome and unrealistic. For example, the bill would require that “human rights organizations” (among other groups) will be consulted to develop further guidelines on the use of force by police officers, in order to ensure such actions are minimized against individuals who may be pregnant, who are “experiencing perceptual or cognitive impairments” (whatever that means), or who might be “suffering from a serious medical condition.”
The GOP would be well-advised to separate out the positive substantive reform measures in this legislation and work with the other side of the aisle to implement them. Republicans, however, should strictly avoid being seen as supporting the many red herrings lurking in the Democrat proposal, such as those relating to use-of-force standards.
Bob Barr represented Georgia’s 7 District in the U.S. House of Representatives from 1995 to 2003 and was the U.S. Attorney for the Northern District of Georgia from 1986 to 1990. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.