Trial Magazine

Time and time again, we’ve seen that the police are deeply challenged when policing themselves. Those of us on the frontlines of police reform and who work closely with people and families harmed by police misconduct will tell you that the need for greater accountability and transparency is real, and that despite the events of the last few years, there remains a clear and present need for reforms to ensure constitutional policing in every community. Even then, it will take years or generations to repair trust between law enforcement and many citizens.

America continues to struggle with the issue of policing and race. I’ve personally seen conflict between communities and police since 1984, when I started my career as a public defender in Cook County, Ill. I saw up close how the system works for some people, how the justice system tolerates false narratives when it comes to Black citizens, and how the “Thin Blue Line” protects officers who misbehave and silences the ones who try to come forward and hold others accountable.

Many years later, I was proud to co-represent the family of George Floyd alongside Ben Crump¹ and other plaintiff attorneys, but what happened to George was not a one-off situation. Rather, it was something we have struggled with for decades.

For example, in 1992, four Los Angeles police officers beat Rodney King after a traffic stop for a suspected DUI after a police chase. The beating was caught on tape by a bystander and broadcast into homes across the country and the world.² What people saw was a shocking use of excessive force for 15 minutes against a Black citizen who was not resisting. A jury acquitted the officers of any crimes, setting off five days of rioting that led to conversations about race and inequalities that had been simmering for years.

The Rodney King case and the George Floyd case had much in common:

• both victims were Black
• the officers were white
• the use of force lasted minutes with no reason to continue
• both police narratives initially blamed the victim
• both events were video recorded
• both events resulted in community violence.

The Tyre Nichols case 30 years later was eerily similar to Rodney King, with a beating of a Black man after a traffic stop by a pack of officers.³ But the Nichols case flipped the discussion in one important way because nearly all of the officers were Black, putting the focus squarely on police conduct regardless of an officer’s race. What experience shows is that the race of the officer is not necessarily a predictor of the officer’s behavior, but the race of the person being stopped certainly is. Data cited in the National Library of Medicine showed that unarmed Black and Hispanic people are three times more likely to be shot by police than unarmed white Americans.⁴

What got us here is continued systemic marginalization of low-income communities—and Black communities especially. This has led to—and continues to create—a devastating deterioration of trust between the community and law enforcement.

Deep Need for Reform

A recent survey showed an overwhelming majority of Americans, 89%, believe some type of police reform is needed—an increase from 75% in 2020.⁵ Nearly half of those surveyed, 47%, indicated major reform is necessary.⁶

And the cost of police misconduct goes beyond the destruction of community trust. Released in March 2022, a comprehensive and groundbreaking Washington Post investigation on the cost of police misconduct revealed how little data is available, but it managed to provide a broad view of the financial toll of misconduct on municipalities.⁷ Of the 25 police departments analyzed, the study estimated that localities paid out more than $3 billion over the last 10 years to citizens wrongly injured or killed by police.⁸ Tragically, more than half of the amount of those payouts involved officers who had repeated complaints or lawsuits due to their misconduct.⁹

Although the U.S. House of Representatives passed the George Floyd Justice in Policing Act in March 2021, the bill failed in the Senate. A federal executive order on police reform, signed by President Biden in May 2022, directed some needed changes; but it applied only to federal officers, leaving the lion’s share of the work at state and local levels unfinished.¹⁰

Further, in June of this year, the U.S. Department of Justice (DOJ) released findings of widespread discrimination and use of excessive force by the Minneapolis police—an indication of how deep and complex the challenges are and a reminder of the desperate need for reform.¹¹

While some reforms have been enacted at the state and local levels since the death of George Floyd,¹² the patchwork of progress illustrates the inconsistencies among the nation’s 18,000 police departments.¹³ The lack of consistency from state to state, let alone city to city, makes it difficult for citizens to know what to expect when encountering law enforcement. We need a federal standard to raise the bar on professional policing by forming a unified set of guidelines for the country.

A Blueprint for Reform

For greater transparency and accountability to create trust between citizens and the officers who are sworn to serve and protect their communities, the focus should be on three key areas for reform.

1. Standardize and professionalize policing. America’s unique problems with policing are the result of centuries of policies and perceptions involving race, societal and economic disparities, and political power constructs. Further, historical police standards—including recruitment, selection, certification, training, procedures, and protocols—have been established at the local level, with wide variations from jurisdiction to jurisdiction.¹⁴ This inconsistency is one that even many police leaders acknowledge is a problem.¹⁵

One way to help ensure officers are held accountable is through national standards for policing, such as:

• national licensing standards to ensure consistency, with a baseline of performance measurements, as well as a process to decertify officers who are no longer fit for duty
• model policies and procedures for use-of-force standards, recurrent training, discipline, and other factors to create a road map for law enforcement leaders
• development of a national police hiring exam that identifies suitable candidates on psychological, emotional, physical, and intellectual levels
• standard and consistent training to prepare and keep officers fit for duty, with regular and interactive training modules to keep job skills sharp
• enhanced mental health services for officers to prepare them for their duties and support them throughout their careers.

2. Enhance accountability and transparency. Law enforcement officers are public servants, and a sacred trust should exist between them and the communities they police. For this trust to be realized, officers must be accountable for their actions. A huge barrier to this is qualified immunity. The concept of qualified immunity was originally intended to protect government officials from legal or civil trouble for performing the known duties of their positions.¹⁶ Modern judicial decisions have expanded qualified immunity for police officers to a point that it shields them from civil lawsuits unless plaintiffs can show that the officer violated a clearly established statutory or constitutional right of which a reasonable person should have known.¹⁷

In practical application, courts have held that unless a plaintiff can show a case in which those rights were violated and a court ruled in favor of the injured party, qualified immunity serves as a get-out-of-jail-free card for offending officers. Qualified immunity has protected officers from facing consequences for actions when the use of force has not been justified and citizens have been injured or killed as a result. In such cases, justice—both civil and criminal—has eluded those who deserve it most.

Police officers who behave outside the bounds of the law should face consequences for their actions, and this requires the elimination of qualified immunity for law enforcement personnel. Further, a clear federal definition of what constitutes a “reasonable” police officer should be instituted to ensure that the same standard is created nationally and applied everywhere to avoid misinterpretation or varied interpretation at the local level.

There is a dangerous lack of clarity with the application of qualified immunity,¹⁸ and while its elimination is critical, it is not enough.¹⁹ To maintain accountability to victims of police violence, municipalities must remain indemnifiable to compensate a victim for actions by a third party (in this case, the officer), or have respondeat superior.²⁰ The combination of removing the blanket officer protection of qualified immunity while retaining recourse to accountability through their employer is critical to achieve justice.

Recommended reforms include:

• creation of a national police accountability oversight task force led by the DOJ to set consistent standards and expectations
• a mandatory, permanent, and public national database of officer misconduct to provide transparency and consistency (similar to what is done with the Citizens Police Data Project in Chicago or the Washington Post’s Police Shooting Database²¹)
• ensuring agencies can generate reliable data and understand trends in policing—for example, by expanding the DOJ’s work to better define and track police use-of-force incidents²²
• uniform use of body-worn cameras and dashboard cameras and policies to provide documentation of citizen encounters with officers
• required retention of body and dash cam footage to ensure that documentation is preserved
• uniform use of body and dash cam analytics to drive and reinforce professionalism and accountability
• making intentionally turning off a body cam a federal obstruction of justice violation with a rebuttable presumption of guilt for officers who do so in cases involving a police shooting
• a standard, independent investigatory process for impartial inquiries of officer misconduct allegations that includes community members, respected leaders, and experts
• removal of qualified immunity for law enforcement to create full accountability and increase community trust while ensuring either municipal indemnity or respondeat superior.

3. Reframe the role of police with the aim of preserving life. U.S. law enforcement has become increasingly militarized in the last 40 years due to the war on drugs and the availability of military equipment, as well as military veterans seeking civilian work.²³

For example, the SCORPION unit of officers that beat and killed Tyre Nichols in Memphis is not unique.²⁴ Many cities across the country, including Atlanta, Chicago, Los Angeles, and others, are well known for this type of police “saturation,” “suppression,” or “oppression” unit, whose mission on paper is to reduce serious crimes such as homicides, major drug rings, or carjacking.²⁵ These units have a troubled history of making pretextual stops of Black and Hispanic people in search of something criminal, as well as using violence, intimidation, and excessive force without cause—all of which are constitutional violations.²⁶

Memphis disbanded this SCORPION unit after Nichols’s death²⁷; all cities operating similar units should do the same. This style of policing only foments intense ill will and distrust in communities, and law enforcement leaders should rethink their engagement in communities with higher rates of crime.

Reform recommendations include:

• demilitarization of policing to emphasize the sanctity and preservation of human life, including banning chokeholds and prone restraints and placing significant limits on no-knock warrants
• elimination of saturation units and a rethinking of ways to engage with communities to reduce serious crimes
• a common curriculum in de-escalation
• continuous training in de-escalation techniques to provide deprogramming of officers and to ensure that officers’ skills and responses are appropriate and up to date
• use of body cam analytics to promote de-escalation
• additional mental health supports and recurrent training for officers to ensure that appropriate resources and a humane approach are used with those in crisis.

Comprehensive reform to America’s policing profession remains a top need in our communities and an urgent issue that Congress needs to address. The pillars of standardizing and professionalizing policing, creating greater accountability and transparency, and reframing the role of police to preserve life are essential to our progress and health as a nation. Change of this magnitude will require time, expertise, monetary investment, and difficult emotional and cultural work to move forward and rebuild trust. Legislators and government officials must respond to public insistence for change while having law enforcement leaders at the table and fully engaged in the transformation of policing.

I implore you to get involved. Be aware of police reform advocacy by AAJ and your state trial lawyers association. Be a part of the conversations with all stakeholders, community leaders, and law enforcement to move forward with legislative reforms that help move our country into a new era of policing.

Antonio M. Romanucci is a founding partner of Romanucci & Blandin in Chicago and can be reached at aromanucci@rblaw.net.

Notes

1. The author thanks Ben Crump for his contributions to this article.
2. Anjuli Sastry Krbechek & Karen Grigsby Bates, When LA Erupted in Anger: A Look Back at the Rodney King Riots, NPR, Apr. 26, 2017, https://tinyurl.com/7yhpk3tc.
3. CBS News, What We Know About Tyre Nichols’ Death and the Memphis Officers Charged With His Murder, Mar. 8, 2023, https://tinyurl.com/2kysz6tf.
4. Elle Lett et al., Racial Inequity in Fatal U.S. Police Shootings, 2015–2020, J. Epidemiology Community Health (Oct. 27, 2020), DOI: 10.1136/jech-2020-215097.
5. Jennifer De Pinto et al., Most Americans Think Changes to Policing Are Necessary—CBS News Poll, CBS News, Feb. 5, 2023, https://www.cbsnews.com/news/policing-opinion-poll-2023-02-05/.
6. Id.
7. Keith L. Alexander, Steven Rich, & Hannah Thacker, The Hidden Billion-Dollar Cost of Repeated Police Misconduct, Wash. Post, Mar. 9, 2022, https://tinyurl.com/knyk56je.
8. Id.
9. Id.
10. Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14074, 87 FR 32945 (May 25, 2022), https://tinyurl.com/sn6myuav.
11. DOJ, Justice Department Finds Civil Rights Violations by the Minneapolis Police Department and the City of Minneapolis, June 16, 2023, https://tinyurl.com/4fve9tjc.
12. For more on what states have done legislatively, see Nat’l Conference of State Legis., Law Enforcement Legislation Significant Trends 2022, https://www.ncsl.org/civil-and-criminal-justice/law-enforcement-legislation-significant-trends-2022.
13. Lauren-Brooke Eisen, What the Federal Government Can Do to Help Fix Policing in America, Brennan Ctr. for Justice, June 16, 2020, https://www.brennancenter.org/our-work/research-reports/what-federal-government-can-do-help-fix-policing-america.
14. Sameer Sood, For More Consistent Policing, We Need Federal Standards, Police1 by Lexipol, Jan. 3, 2023, https://tinyurl.com/4udmp2kv.
15. Id.
16. Jay Schweikert, Qualified Immunity, Am. Bar Ass’n, Dec. 17, 2020, https://tinyurl.com/nhz4yex5.
17. Id. For more on qualified immunity, see Antonio Romanucci, Bhavani Raveendran, & Christopher Burton, Confronting Qualified Immunity and the “Reasonable Officer” Standard, Trial, Sept. 2020, at 24; Matthew J. Kita, 10 Things to Know Before Taking §1983 Excessive Force Cases, Trial, Sept. 2020, at 18.
18. Bhavani Raveendran, A Dangerous Lack of Clarity, Trial, Oct. 2021, at 18.
19. Jamie Ehrlich & Ariane de Vogue, Federal Judge Pens Scathing Opinion on Qualified Immunity: ‘Let Us Waste No Time in Righting This Wrong,’ CNN, Aug. 4, 2020, https://www.cnn.com/2020/08/04/politics/qualified-immunity-federal-judge/index.html.
20. Nat’l Police Accountability Project, Learn About the Impact of Lack of Liability for Police Employers, https://tinyurl.com/4s6mpur4.
21. For more on the collection and publishing of information about police misconduct in Chicago, see Invisible Inst., Citizens Police Data Project, https://beta.cpdp.co/. And The Washington Post has tracked more than 8,000 fatal police shootings since 2015. Wash. Post, Fatal Force, https://www.washingtonpost.com/graphics/investigations/police-shootings-database/.
22. DOJ, Bureau of Justice Statistics, Arrest-Related Deaths Program: Pilot Study of Redesigned Survey Methodology, July 2019, https://bjs.ojp.gov/content/pub/pdf/ardppsrsm.pdf.
23. Nikki Rojas, Why Police Resist Reforms to Militarization, Harvard Gazette, Mar. 3, 2023, https://tinyurl.com/43n6c8t5.
24. Jessica Gertler, What We Know About the Memphis Police SCORPION Unit in Tyre Nichols Case, WREG, Feb. 7, 2023, https://tinyurl.com/cr4cmkhz.
25. Ian T. Adams & Seth W. Stoughton, Tyre Nichols’ Death Underscores the Troubled History of Specialized Police Units, The Conversation, Feb. 1, 2023, https://tinyurl.com/uju9sjx6.
26. Id.
27. Stuart Rucker & Bria Jones, Memphis Scorpion Unit Permanently Disbanded, WREG, Jan. 28, 2023, https://tinyurl.com/tbvz7eha.