The hyperlocalized nature of policing in the United States is one factor here; the country has more than 18,000 police agencies, the majority of which (more than 15,000) are organized at the city or county level. Reforms tend to target single agencies. But it is not just the Minneapolis Police Department that needs reform; it is American policing as a whole.
What we desperately need, but have so far lacked, is political will. America needs to do more than throw good reform dollars at bad agencies. Elected officials at all levels—federal, state, and local—need to commit attention and public resources to changing the legal, administrative, and social frameworks that contribute to officer misconduct. As the University of Colorado law professor Ben Levin recently wrote, “Feigned powerlessness by lawmakers is common & frustrating. It reflects political cowardice or actual acquiescence in the violence of policing.” It’s time for that to change. Here is a blueprint for what they should do.
At the federal level, Congress should focus on three objectives.
The first is getting rid of qualified immunity. Qualified immunity is a judicial doctrine that protects officers who violate someone’s constitutional rights from civil-rights lawsuits unless the officers’ actions were clearly established as unconstitutional at the time. As the University of Chicago legal scholar William Baude has persuasively argued, the Supreme Court has provided multiple justifications for qualified immunity—including that it is the modern evolution of a common-law “good faith” defense, and that it ensures that government officials are not exposed to liability without “fair warning” that their actions are wrong—but neither the Court’s historical nor doctrinal justifications can bear the burden of scrutiny. Nevertheless, as the Court has described it, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
The problem is that the Court has taken an inappropriately narrow view of what it means for a constitutional violation to be “clearly established.” Essentially, a constitutional violation is clear only if a court in the relevant jurisdiction has previously concluded that very similar police conduct occurring under very similar circumstances was unconstitutional. The Supreme Court has, for example, applied qualified immunity in a case where an officer standing on an interstate overpass shot at a fleeing vehicle, something that not only contravenes best practices, but that the officer was not trained to do, a supervisor had explicitly instructed him not to do, and was unnecessary because officers under the overpass had set up stop strips and then taken appropriate cover. Nevertheless, because no court had previously reviewed such conduct and found it to be unconstitutional, the Court held that any violation was not clearly established and, thus, that the officer could not be sued for his actions. In another case, the Court held that qualified immunity protected officers who, contrary to their training, their agency’s policies, and long-standing police procedure, rushed into the room of a mentally ill woman who they knew had a knife and had threatened officers—but was no threat to herself—without bothering to wait for the backup officers they had already called. When the woman predictably threatened officers with the knife, something she would not have been able to do had they done what they were trained and expected to do, they shot her. Again, the Court found that because no court had yet explicitly held such conduct unlawful, a “reasonable officer could have believed that [such] conduct was justified.” This ridiculous standard means that qualified immunity does not protect all but the “plainly incompetent”; it protects even the plainly incompetent. And these are just two of many egregious examples.