In the wake of the Derek Chauvin verdict, and with police killings of Black people continuing to be publicized, you might wonder what if there’s anything the legal system can do to deter unjustified violent acts by cops. In fact, there are quite a lot of things.
First, end qualified immunity. This has gotten a lot of publicity, and has become a priority of a lot of activist groups, congressional Democrats, and Republican Congressman Justin Amash. It would be a really important reform. What qualified immunity does is make it difficult to sue police officers for violating your civil rights. Unless there is already “clearly established law” prohibiting whatever the cop did, the officer is immune from suit, and can even get an immediate appeal sometimes and delay a trial if the trial judge rules there is no immunity. And “clearly established law” gets defined in a relatively defendant-friendly direction- i.e., you usually need a court case that has facts that are close enough to the plaintiff’s case to analogize to, or the courts will deny relief. It’s too strict a standard.
Civil rights lawsuits are one of the best deterrents of police behavior. Municipalities expect their police departments to bring in revenue in the form of fines. When the police department is costing money in the form of big judgments, tax-sensitive city councils and similar local government bodies have an incentive to tell the police department to get its officers under control.
Second, revive the Bivens doctrine. I have discussed this one before. Right now, even with qualified immunity, if a cop working for a state or local government violates your clearly established rights, you can sue her and win. But if a federal law enforcement agent does the exact same thing to you, you can’t, because the Supreme Court has cut back on the Bivens rule which allowed such suits. Obviously much of the violence comes from local law enforcement, but we don’t want a legal rule that allows the feds to rough you up and not face accountability for it.
Third, create a sentencing enhancement for cops who abuse their power. Right now, even when you convict a cop, he faces a lower sentence than a civilian would get. Chauvin, according to Minnesota law experts, will be sentenced to something around 13 years in prison for kneeling on George Floyd’s neck; an ordinary civilian who did the same thing would probably be looking at a life sentence or at least a couple of decades. Police already receive broader self-defense protections and also usually get charged with a lower degree of homicide, when, in fact, a police officer actually should be held to a higher standard than a civilian in doing his duty to protect people’s lives.
We already have sentencing enhancements for numerous things that increase sentences that ordinary Americans have to serve- homicide during the commission of other crimes, hate crimes, exceptionally depraved homicides, etc. A police officer who abuses his authority to commit homicide is engaged in a particularly heinous act, and is betraying the public trust. It should carry a sentencing enhancement.
Fourth, prosecute cops who interfere with video recording of their duties. There have been numerous cases of cops trying to prevent third parties from recording traffic stops and other interactions with citizens. There have also been cops who disabled their own recording devices or “forgot” to turn them on. Interfering with the video recording of a police officer’s official duties should be defined and prosecuted as a form of obstruction of justice.
This issue is particularly important because video really has been the obvious game changer. Sometimes activists focus too much on the hardcore right wingers who will find a reason to always say the cop was right no matter what the video shows, but they are very much a minority. Most people, including even many conservatives, are outraged by videos that show police violence. South Carolina, one of the most conservative states in the union, reacted in horror to the 2014 video of an unarmed Black driver shot by a highway patrolman in a gas station. Before video, you would have never seen a reaction like this, because the cop would have simply made up a justification for the shooting and most South Carolinians would have believed it.
So obstructing video is obstructing the single most important process for deterring police misconduct. Indeed, the cops know this. That’s why they go after people with cameras.
Fifth, prosecute cops who interfere with journalist observers. This has gotten a lot of publicity lately, and for good reason. A journalist who is observing a protest, or observing police activity, is not participating, and is clearly identifiable should not be the target of the police. The cops claim that they can’t tell the difference between journalists and protesters, but we all know this is BS. Police officers who harass reporters are interfering with a basic civil right. They should be prosecuted.
Sixth, pass laws that create incentives for snitching on bad cops. One of the big problems in the pre-video era was the “blue wall of silence”, where even those officers who were not involved in violent acts were afraid to snitch on their fellow cops. Legislatures can reverse these incentives by creating bounties on bad cops. Any report that leads to a successful prosecution or civil rights suit against a fellow officer should lead to a monetary reward. We create rewards for citizens to bring in dangerous criminals- why not create rewards for cops to turn in dangerous police officers?
This is a partial list. But if all these things were implemented, the calculus on police violence would almost certainly change.