Justice and Due Process

Police Reform? Here are Past and Future Ideas

Riots erupted over the weekend in response to the death of George Floyd in Minneapolis—a clearly problematic use of force by several police officers. Part of the frustration no doubt stems from the feeling many share that this is a trend that is not reversing, and that excessive use of force by law enforcement, especially with ethnic minorities often being the victim, is not met with proper accountability.

Libertas Institute has been at the forefront of reform in Utah since shortly after Matthew David Stewart’s home was invaded by police in Ogden nine years ago because of some marijuana plants he was growing. A shootout ensued with multiple officers being injured, and one dying. Matthew was shot several times, and later died in his jail cell. This incident, and our reform effort, attracted national attention.

Over the years, with supportive legislative sponsors and organizational allies, we have succeeded in pursuing various law enforcement reforms, each in response to different circumstances and concerns that emerged along the way:

  1. Police are limited in how they can use forcible entry to invade a person’s home. Among other restrictions, officers “may use only that force which is reasonable and necessary,” and must take “reasonable precautions in execution of any search warrant to minimize the risks of unnecessarily confrontational or invasive methods which may result in harm to any person.” Further, officers must identify themselves as police officers, wear a body camera, and may not use forcible entry for a case involving only drug possession.
  2. Require annual disclosure of how forcible entry and SWAT teams are used; we are the only state to require such transparency. Here is an example report.
  3. Law enforcement is restricted in how they can use a person’s mobile device to locate/surveil them. This was followed up last year with our comprehensive digital data privacy proposal, now the strongest law in the country.
  4. Civil asset forfeiture has been repeatedly restricted, minimizing the ability of law enforcement to be incentivized by taking people’s property during a roadside stop or other encounter.
  5. Police must obtain a warrant to access a person’s blood without consent.
  6. Individuals now have a legal right to record police officers.
  7. Police quotas are banned.
  8. Law enforcement officers have comprehensive restrictions and guidelines on how body cameras are to be used.
  9. Police use of drones is restricted.
  10. Officers wishing to use a radar or other device to see into a person’s home or other building must obtain a warrant.

There’s plenty more to do.

Indeed, this past week’s events have made clear how urgently there needs to be systemic reform to ensure justice, promote accountability, and put in place the right incentives to ensure that those who “protect and serve” the public do not abuse their authority.

Molly Davis, our criminal justice policy analyst, has been researching this topic for some time. With her input, below is a list of 10 future reforms we propose pursuing to address some very clear problems in modern policing:

  1. Liability insurance and immunity reform
    When an officer violates a person’s rights, the affected parties may try to sue. And because of qualified immunity which shields individual government actors from suit, the government agency ends up financially responsible for their actions. This is harmful to taxpayers who pay for the mistakes of bad actors, and bad policy for agencies as it disincentivizes personal responsibility because of lack of individual liability. Consequently, police officers should be required to purchase liability insurance so they can be held accountable for individual actions rather than shifting the burden to taxpayers with agency-wide payouts. In practice, this would work similarly to medical malpractice insurance that doctors are required to have. This would incentivize good behavior because the more mistakes made, the higher the cost would be. And eventually, if the officer is too high of a risk, they would no longer be able to qualify for insurance which is a good indicator that they probably shouldn’t be employed by the government to use force on people.  

    When an officer is involved in wrongdoing on the job, there is little chance they will be held financially liable for their actions because they are protected under a doctrine called “qualified immunity” which shields government actors from lawsuits. A lawsuit can only move forward if they can find precedent with “clearly established” rights violations in a court case with nearly identical facts — this is nearly impossible. This means in cases where an officer violates a person’s human or constitutional rights, if a prosecutor declines to press charges, and an identical case isn’t established, chances for justice are extremely low. When this happens, private citizens have no other recourse to hold responsible parties accountable. Despite Congress passing a law requiring strict liability, the Supreme Court gutted it in a bit of judicial activism that has remained for decades. The Court is considering hearing 13 different petitions to reconsider the qualified immunity doctrine, and a bill has been introduced in Congress to abolish the Court’s actions so that bad actors can be held accountable. While federal reform is critical, there are also areas of opportunity to reform immunity at the state level.

  2. De-escalation training
    For every hour spent by a law enforcement officer training with a firearm or other weapon, two hours should be spent on de-escalation training. A superior officer’s review of any critical incident shall analyze de-escalation tactics used and inconsistencies with the officer’s de-escalation training. Positive uses of de-escalation should be shared in team-wide meetings on a quarterly basis to create a culture where such behavior is expected and praised. In addition to encouraging training, an audit should be performed of POST (Police Officer Standards and Training), which trains and certifies officers, regarding the agency’s training of officers and the degree to which such training includes de-escalation tactics. Recommendations should be made for how such training might be modified to better ensure officers are trained to not use excessive force or escalate a conflict from a minor issue into a critical incident.
  3. Mandatory reporting of misconduct by fellow officers
    Officers should hold each other accountable internally for any wrongdoing. But according to the Department of Justice, “84 percent of police officers report that they’ve seen colleagues use excessive force on civilians, and 61 percent admit they don’t always report ‘even serious criminal violations that involve abuse of authority by fellow officers.’” Officers should be legally obligated to report their colleagues who abuse their power or use excessive force—and if they don’t, they should be held accountable and possibly terminated.

    Further, there should be consequences if an officer intentionally omits information from their report that hides their or their colleague’s misconduct. When the public’s trust is broken, it should be punished swiftly to help deter any such behavior by other officers. When officers bring forward complaints about misconduct by fellow officers, agencies must ensure they don’t face professional repercussions for doing the right thing. This could mean protecting the identity of the reporter, and ensuring they can remain anonymous to avoid social retribution. In addition, police departments should not be able to deny promotional opportunities to those who shine light on abuse of power. It takes courage to report a colleague’s actions, and for this, officers need to be rewarded—not reprimanded or shamed by their colleagues.

  4. End the “militarization” of police
    The “1033 program” enables local law enforcement agencies to freely acquire surplus military equipment, including tanks, grenade launchers, helicopters, firearms, and more. This program has fed criticisms of the police being over-militarized. Utah police have spent $16 million on armored vehicles, rifles, and more. The Legislature should prohibit police agencies from participating in this program; local taxpayers should fund the resources needed by the law enforcement that serves them. Police should not be incentivized by freebies from the feds.
  5. Roadside stop reform
    Police often rely on minor traffic violations as an excuse to pull someone over and search their car to seek out non-traffic-related wrongdoing. And there’s no way of preventing inherent biases from coming to play when deciding who to pull over and who to search, be they an ethnic minority, female, etc. Because traffic laws are historically ambiguous, this pullover and search tactic is pretty easy to do. Studies have shown that individuals rarely utilize their constitutional right to refuse consent to searches because of the pressure and intimidation they feel when an officer makes a request. Because of this, officers have broad searching power—but should they? Individuals should not be subject to fishing expeditions, and broader law enforcement investigation, when the initial offense was a relatively minor, driving-related violation.
  6. Create a legal standard of excessive force
    State law should narrowly describe the level of force that is reasonably appropriate to use in any given law enforcement encounter. For example:

    • Once an individual is restrained with handcuffs, officers should not be able to employ additional force in restraint of the individual unless the person somehow poses an imminent threat to an officer (e.g. he attempts to bite the officer).
    • Neck restraints (choking, asphyxiation) should be banned.
    • The degree of force used must be proportional to the threat posed to the officer or public.

    Once there is a legal standard for appropriate use of force, there must be accountability for violating this standard. Officers must directly feel the consequence, otherwise they will not be incentivized to stay within the limits of appropriate force. For example:

    • An officer that uses excessive force shall be automatically stripped of their police credentials for five years.
    • Any payments made to the officer for paid administrative leave after the excessive use of force shall be paid back to the government by the officer within two years, after which time interest and late fees shall accrue.
    • Half of any money paid by the agency as part of a settlement or court-awarded damages to the victim or victim’s family shall be deducted from the officer’s retirement plan. (This provision would be repealed if officers are required to obtain insurance, which would cover such costs.)
  7. Mandatory body cameras for critical incidents
    Utah’s comprehensive body camera regulations only apply to “any law enforcement agency that uses body-worn cameras.” As such, some agencies choose not to use them, often due to the cost of archiving large amounts of footage. Because recordings have proven to be essential to showing a complete picture of events—especially when the story told by law enforcement about those events was quite different—it is now time to mandate body camera use when force is used by an officer or when a warrant is being served, beginning with agencies working in counties of the 1st, 2nd, or 3rd class (the more populous ones). If needed, support for funding should come from the state’s forfeiture grant program that uses the leftover proceeds of forfeiture cases to issue grants to law enforcement agencies.
  8. Publicize investigations involving use of force
    When an officer-involved critical incident occurs in Utah, state law requires an investigation be made. The policies and procedures used to select the investigatory agency must be made public, alongside the protocols to ensure a thorough, impartial and professional investigation. But the findings and details of the investigation are not required to be made public — and this should change. The public deserves to know the results of all investigatory findings conducted by police when they use force. Transparency is the only way to build trust and hold individuals accountable for wrongdoing. Legislation that relies on external reviews should be considered to provide a more independent analysis.
  9. Forcible entry reform
    No knock warrants—invading a person’s home—should be banned unless there a serious, imminent danger to an occupant (i.e. a kidnapping, domestic violence, etc.). Knock-and-announce warrants must involve multiple announcements of police presence and intention to enter the property prior to forcible entry. Other reforms should include:

    • Requiring officers to be specific in their affidavit for a warrant that other individuals live in the home, or may be in the home at the time, if this information is known. The age and gender of each occupant should be specified. A judge should not grant a request for forcible entry if innocent bystanders may be harmed and there are less restrictive means of serving the warrant.
    • A supervisor and prosecutor shall review a request for forcible entry before submitting it to a judge.
    • Forcible entry warrants shall only be issued for service during daytime hours, unless the judge specifically authorizes a nighttime warrant service and makes a finding as to why it is necessary.
    • A warrant affidavit requesting forcible entry must specify the investigative activities that took place to ensure officers have the correct location, will reduce/eliminate risk to third parties, etc.
    • The mere presence of weapons in a residence shall not justify a forcible entry warrant; Utah’s high rate of gun ownership should not mean that officers should be able to invade their homes merely because they are worried about a gun that the owner may have.
  10. Loss of certification for misconduct
    Part of preventing future uses of force is appropriately punishing earlier misconduct and weeding out the “bad apples.” Officers who are guilty of a DUI, domestic violence, or assault, should lose their police certification automatically for three years, rather than leaving such discipline up to the discretion of the POST council, the majority of which is staffed by fellow law enforcement officers. Further, this council should be reconstituted to be a majority of civilians and/or elected officials who can be better held accountable to voters for their decisions pertaining to officer discipline. Fellow law enforcement shouldn’t be “watching the watchers.”

Police reform is only part of broader criminal justice reforms that are essential if indeed we are to have a system that provides “liberty and justice for all.” There are silver linings in every dark cloud, and while the tragic events surrounding George Floyd’s death and the protests and rioting that it sparked are cause for concern, we have an opportunity before us to press for fundamental changes that bring peace and justice. Many of these issues have been ignored for too long, quietly fought in courtrooms if they are ever challenged at all. It’s time for more transparency, more accountability, and open conversations in the light of legislative hearings and proposals.

There’s work to be done, and we’re eager to see it happen.