Molly Davis: Some needed police reforms for Utah

(Francisco Kjolseth | The Salt Lake Tribune) Police arrest Jarod Hartlerode after yelling "drop the pipe," multiple times. It is unclear what type of pipe they were referring to. While lying on his stomach an officer shot him in the back with a bean bag as hundreds of protesters took to the streets of Salt Lake City engaging with the police on Saturday, May 30, 2020. The protest was in response to the death of George Floyd in Minneapolis.

Rioters have been filling the streets in protest of George Floyd’s murder as the National Guard and local police departments work together to try to keep peace. And unfortunately, bad actors have appeared on both sides of the aisle: in protesters and police. Many are wondering, what’s next? What can be done?

Aside from cultural change and social activism, there are tangible policy reforms that police departments, the Legislature and the federal government should be considering to effectively prevent and address police brutality. Ending qualified immunity, requiring liability insurance for police, mandatory body cameras and mandates to report misconduct are just a few of the many policy changes needed.

The police officer who killed Floyd used excessive force, prompting many to wonder how law enforcement are trained to use force. Utah law enforcement officers are taught de-escalation as part of their training, but a 2018 report found that despite the training, police shootings were on the rise.

And although the recent protests in Salt Lake City have been relatively peaceful, a video surfaced of an officer shoving an old man with a cane to the ground. Police announced they would investigate the incident, but statutorily, this ouyutcome never has to be made public, which means we may never know how accountability is upheld. The same could be true of an officer apparently firing a beanbag round at close proximity to a person lying prone on the ground.

The Legislature has a few options to address these issues. First and foremost, neck restraints should be banned, as this method of force is unnecessarily aggressive. They should also codify what amount of force is reasonably appropriate, rather than leaving it to each department’s discretion to decide with a patchwork of policies. When officers restrain a person with handcuffs, for example, they should not be legally allowed to employ additional force unless the person poses an imminent threat to the officer.

When excessive force has been alleged, an investigation is required by state law, but the law doesn’t dictate the report be made public — which is wrong. In order to truly hold individuals accountable, and keep department standards high, the public must have an avenue to evaluate the outcomes of how incidents are handled. Major investigations should also be conducted by an outside entity to ensure complete neutrality.

The importance of video footage in determining facts of a case is indisputable, as displayed in the brutal cases of George Floyd and Ahmaud Arbery. Because of this, Utah police should be required to wear body cameras when force is used by an officer or when a warrant is being served. Because the cameras are often costly to maintain, funding support could come from the state’s forfeiture grant program to help agencies defray the cost.

Not all the reforms are the purview of state government. One of the only ways private citizens can hold government actors accountable for wrongdoing is through civil courts — but due to a legal doctrine called “qualified immunity,” this is nearly impossible. The U.S. Supreme Court created qualified immunity in 1967 in a bit of judicial activism, which shields government employees from lawsuits in most cases, unless there is a precedent court case displaying nearly identical facts and a “clearly established” human right or law violation.

For example, if Floyd’s family wants to sue the four police officers involved in his murder, they would have to find a previous case showing it was unconstitutional to kill a restrained suspect with their knee pressed on the victims neck. This standard is unreasonably high.

The police officer who pressed his knee of Floyd’s neck is being criminally charged with murder, but if the prosecutor didn’t press charges, or if charges are later dropped, the civil courts should be an avenue to allow the family a chance to hold the officer responsible for his actions. Even if he is charged criminally, such a lawsuit may be in order to ensure justice is served.

Reforming qualified immunity is out of the state’s hands, but fortunately, this doctrine may be reconsidered federally. Representative Justin Amash announced he is sponsoring legislation to abolish qualified immunity, and the Supreme Court is reviewing 13 different cases to potentially reconsider the doctrine.

Most police officers do an earnest job of protecting our communities and maintaining peace during trying times — and good officers feel their reputation is harmed when their peers engage in misconduct that the public sees. But recent events have shown that there are systemic problems that the public is rightly demanding be addressed.

The reforms outlined above would be a major step forward in deterring these tragedies in the future, and making sure misconduct is properly punished.

Molly Davis | Libertas Institute

Molly Davis is a criminal justice policy analyst at Libertas Institute.

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