Police accountability laws ensure that any officer who acts unlawfully is appropriately disciplined. If departments are plagued by ‘a few bad apples’, then they can spoil the bunch.
Reckless Civil Rights Violation
U.S. federal law establishes that in order for a federal prosecutor to prosecute law enforcement officers for misconduct, the officer must “willfully” deprive a person of their Constitutional rights. In legal terminology, ‘willful’ indicates that the officer acted voluntarily, intentionally, and with “specific intent to do something the law forbids.” (DOJ Archives) In the George Floyd Justice in Policing Act of 2020, house legislators advocated to change “willfully” to “recklessly”--an officer would have to act knowing that their actions are likely to cause harm (LegalMatch). By lowering the burden of proof at the state level, investigators can work to pursue justice in more cases.
Police prosecution is incredibly difficult when those responsible for prosecuting the police have often partnered with those police in the prosecution of other criminals. Since attorney general’s rely on police officers for testimony in criminal cases, they are unlikely to prosecute an officer for fear that it may impact their working relationship with other law enforcement professionals. On top of that, political optics (and police union pressure) can sway local prosecutors anxious to be reelected in upcoming cycles. When tensions run high and prosecutors have their working relationship and reputation on the line, justice is infrequently served. (UN Human Rights Watch) One way to ameliorate that pressure is to institute an independent prosecutor within the state’s Department of Justice.
Qualified immunity grants police officers considerable discretion in carrying out their job, protecting their actions so long as they do not violate a "clearly established" law. In order to be tried in a civil lawsuit, the officer must have had reasonable knowledge of an existing law and clearly violated a person’s constitutional rights. Since few cases pass the ‘established law’ standard, few cases establish precedents upon which future cases can be made. These protections make it extremely difficult to hold police officers accountable (Lawfare). Technically, qualified immunity is protected by federal law, but individual states may institute laws that end qualified immunity so that police officers can be prosecuted for violating rights guaranteed to citizens by their state constitutions (which include all federal rights and any others added at the state level).
This June, Colorado passed sweeping police reform legislation with bipartisan support in an unprecedented 16 days. The State Senate President and the chair of the State Black Democratic Legislative Caucus found themselves in the Senate building in the first days of protests after the death of George Floyd, and heard shots fired outside the building that sent everyone scrambling. The passion of protestors and the representatives’ own convictions led them to introduce legislation to “Enhance Law Enforcement Integrity”. Provisions in the bill (signed on June 19th) allow Colorado residents to bring claims against police officers that violated their rights (effectively ending qualified immunity at the state level) and give the state attorney general the authority to bad prosecute departments and officers (The Denver Post).
Hopes for the Future
Police that uphold civil rights can work with other like minded individuals to rebuild community trust. Citizens with access to legal recourse can ensure that that trust is earned.