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Katz: We Must Look to States for Scalable Change in Policing

Policing is a high-risk profession but is not regulated like one, AV's Vice President of Criminal Justice Walter Katz tells NCSL’s 2021 Legislative Summit panel on the "Evolution of Policing."

Police in Louisville, Kentucky work at Black Lives Matter rally in front of Kentucky Attorney General Daniel Cameron's home on Oct. 24, 2020 after it was announced a second grand juror broke their silence in the Breonna Taylor case. Breonna Taylor was killed in her home by Louisville Metro Police during the execution of a no-knock raid on March 13, 2020. (Jon Cherry/Getty Images)

Walter Katz, Arnold Ventures' vice president of criminal justice, delivered this speech during the “Evolution of Policing” session at NCSL’s 2021 Legislative Summit. It was an appropriate audience given Arnold Ventures’ focus on state legislatures as a critical avenue for implementing policies that will make law enforcement more transparent and accountable.

Because about half of the 18,000 law enforcement agencies in the United States have fewer than 10 officers, “the answer to scalable change lies in the fact that there are only 50 state legislatures,” Katz said.

During the session, he was joined on a panel by state Rep. John Spiros of Wisconsin, a Republican, and state Rep. Roger Goodman of Washington, a Democrat, both of whom are dedicated to passing statewide reforms that will replace a patchwork of regulations with best practices and high standards. The panel was moderated by Kentucky state Sen. Whitney Westerfield, a Republican.

Watch the full speech and read the text of the speech below.

Video

The 'Evolution of Policing'

Walter Katz, Arnold Ventures' vice president of criminal justice, delivers a speech during at the NCSL’s 2021 Legislative Summit.

The murder of George Floyd on May 25, 2020, and subsequent national protests drew a historic level of attention on criminal justice reform and racial justice. This acceleration carried over into the 2021 legislative sessions, creating a unique window to advance our criminal justice policy priorities. Along with the demand for change came the unique challenges brought about by the COVID-19 pandemic. Sweeping changes passed at a scope and breadth we have not seen before — across all criminal justice policy areas, including police accountability, community supervision, and fines and fees.

Even before — and, of course, after — Floyd’s murder, we were asking this question: How, with 18,000 police departments in America, do we advance police reforms that strengthen accountability and increase transparency? We already knew that an unarmed Black man is 3½ times more likely to be shot by a police officer than an unarmed white man. And when misconduct is proven, a recent study showed that nearly half of police union contracts mandate the removal of discipline records over time. In other states, like California, law enforcement officer bills of rights offer that protection statutorily.

According to an analysis by the Urban Institute, only 30% of residents surveyed in high-crime low-income neighborhoods believe that police respect people’s rights. Yet people living in such communities consistently say that they want a police presence to respond to crime.

With about half of those 18,000 agencies having fewer than 10 officers, the answer to scalable change lies in the fact that there are only 50 state legislatures. You. The position we took is that policing is a high-risk profession but that it is not regulated like one. The shock of Minneapolis and the nationwide focus on law enforcement policy that followed, kicked off an unprecedented state legislative response. Over the next year, more than 3,000 bills were considered across all 50 states and the District of Columbia.

As many of you here already are aware, most policy that guides policing practices has generally been drafted by law enforcement agencies themselves — or private for-profit vendors — with some oversight from the cities and counties that fund them. That leaves a patchwork of policies, directives, standard operating procedures, and general orders with little transparency into whether they are in line with best practices or went through a rule-making process that one would see in other high-risk activities and professions.

Following the death of Michael Brown in Ferguson, Missouri in August, 2014, President Obama signed an executive order creating the President’s Task Force on 21st Century Policing. Just five months later the task force issued its final report with recommendations in May of 2015.

The report and later high profile police shootings put policing policy on legislative agendas in many states. Between 2014 and 2017 trends included body worn camera policy and grant funding, independent investigations into use-of-force, limitations on certain types of force, data collection and reporting on use-of-force incidents and traffic stops, and crisis intervention training and intervention programs.

So, when an officer killed a Black man in Minneapolis in broad daylight while on camera seemingly with impunity, a lot of people asked why, after all these claimed reforms, was this able to happen?

Since that day at the intersection of 38th Street and Chicago Avenue, the public has learned that he was known as “an unusually rough officer” who had used similar force on other people before, but without consequences. In fact, this May, the Department of Justice filed a federal indictment alleging that in 2017, that same officer violated the civil rights of a fourteen-year-old boy who the officer held by the throat and struck multiple times in the head with a flashlight and then, according to the indictment, “held his knee on the neck and the upper back of the teenager even after the teenager was lying prone, handcuffed, and unresisting, also resulting in bodily injury.” According to local prosecutors, body camera footage showed the officer kneeling on the boy’s back for 17 minutes despite his pleas that he couldn’t breathe.

The Minneapolis Police Department never held the officer accountable for this alleged assault and less than three years later, George Floyd was dead.

In isolation, it is perhaps easy to label him as a rogue officer or “bad apple.” Unchecked police misconduct undermines trust and the legitimacy of policing and, thus, its ability to prevent and investigate crime.

But discipline following complaints by the public was a rarity in Minneapolis. According to data maintained by the city, of more than 2,600 complaints alleging misconduct from the second quarter of 2014 to the first quarter of 2021, only 85 completed cases resulted in some form of discipline (demotion (1 case); letter of reprimand (45 cases); suspension (31 cases), or termination (8 cases)). According to The New York Times, the officer who murdered George Floyd was the subject of 17 misconduct complaints during his nearly 19-year career but was never disciplined other than receiving two reprimands.

How is it after all the talk about police reform — here was a city with a chief with a reputation as being a progressive chief, all officers had body worn cameras, they did de-escalation training, they went through a deep trust building exercise just a couple years earlier. How is it that this was allowed to happen? This is what animated the calls for racial justice and shrinking police departments.

However, as activists were emboldened, a backlash emerged, particularly among those who support law enforcement, along with an active resistance to bold efforts to reconsider the role of racism in American history. Add on a sudden, record-setting increase in homicides and aggravated assaults and it has led to a turbulent policy and political environment.

Entering into 2022, we will see whether movement advocates continue to prioritize more ambitious agendas in the face of caution from moderate voters and elected officials. New York City will have a new mayor who ran on safety AND reform. Voters this week rejected replacing the Minneapolis Police Department, but elsewhere voted against a measure that would have required Austin to hire 500 more officers and passed a robust oversight measure in Cleveland. Some candidates and elected leaders, seeing a political window, are pushing a clear contrast message on public safety.

However, unlike in past similar cycles, we are witnessing a greater willingness to follow the evidence, a recognition that trust and legitimacy do matter, and an embracement of the idea that community should have a role in the co-production of public safety.

The national political trends see ever-increasing polarization, especially along racial identity; yet, the support for criminal justice reform policies remains strong among voters. Our approach at Arnold Ventures is not to pit public safety against reform, but to promote a “both and” strategy. Voters want evidence-based solutions to public safety concerns and they want a more equitable and accountable criminal justice system. Centering that dual message is a guiding principle of our work.

In supporting state policy we have four goals in mind: less use of force, decreased racial disparities, greater transparency and strengthened accountability systems. Our solutions in pursuit of those goals are three-fold:

  1. Build the evidence base for accountable policing. Sustainable reforms must begin with assessing the current state of research, identifying gaps in knowledge, and developing a set of research priorities. For example, a recent Arnold Ventures-supported study published by the PPIC using stop data from the 15 largest agencies in California found that while Black motorists are more than twice as likely to be searched than white civilians, officers are less likely to find contraband on the Black civilian. Those disparities remain for who is stopped, who is arrested and when force is used.

    In addition, late last year, we asked economists Aaron Chalfin, Dylan Fitzpatrick and Jens Ludwig to explore the intersection between state policies and police personnel decisions. They wrote that reducing police misconduct is, in large part, about finding predictable risk and reducing it, through a combination of human resource policies and human capital development, as well as having well-functioning accountability and disciplinary systems. In their paper, they discuss ways in which state policymakers can help encourage and support local police departments in these efforts — including through robust decertification.

  2. Advance policy regulating key aspects of policing. The development and advancement of model legislation in use of force, officer de-certification, and data collection and transparency, along with input from a range of stakeholders, can provide effective solutions and much-needed standardization of policies. Our grant to NYU Law’s Policing Project provides support for the team lead by law professor Maria Ponomarenko to develop the model legislation that is in your supplied materials.

  3. We also aim to connect lawmakers and advocates with information about the path to sustainable police reforms. Publishing current statutory information and analyses will facilitate a better understanding of how state laws impact policing practices and accountability. Tracking current legislation will help measure progress. Bringing legislative champions for reform together will allow them to share best practices, model legislation, and legislative trends. We are extraordinarily grateful to our friends at NCSL who have organized this work so skillfully. Alison Lawrence, Amber Widgery and Suzanne Hultin were tireless in getting the statutory database and the legislation tracking tool off the ground.

Over the last year at least 19 states enacted legislation to limit the use of neck restraints. At least 15 states enacted state level use of force standards. (States including Colorado, Connecticut, Illinois, Maryland, Massachusetts, Oregon, Virginia, Vermont and Washington created comprehensive statewide approaches to use of force.)

(Utah took a different approach requiring that a more comprehensive state standard be adopted by their Peace Officer Standards and Training Council and requiring subsequent review of that new standard annually.)

New policy developments also emerged over the last year. States created affirmative statutory duties for officers to intervene in and report on instances of excessive force or other misconduct. At least 15 states created a statutory duty to intervene and at least 14 states created a duty to report or document incidents. Kentucky added failure to intervene to the state’s definition of professional nonfeasance and Nebraska required each law enforcement agency in the state to adopt policies requiring officers to intervene.

Some of these new duties come with protections against retaliation or discipline for intervening and require discipline, termination or decertification for failing to act.

At least seven states (Colorado, Illinois, Maryland, New York, Nevada, Virginia, Washington — and the District of Columbia) also crafted new legal duties requiring officers to provide medical assistance or aid to individuals injured as a result of a use of force.

In the last year, states expanded or created more independent and transparent investigation mechanisms. Colorado, Illinois, Massachusetts, Nevada and Virginia empowered their attorneys general to investigate and pursue civil pattern and practice suits. Usually, such lawsuits are pursued by the U.S. Department of Justice, but these new authorizations have the similar goals of investigating systemic police misconduct.

On particular note, at least 11 states (California, Connecticut, Colorado, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New York, Utah and Washington) authorized or required state officials or agencies to investigate, audit or prosecute incidents of serious use of force or specific misconduct. I am glad that Representative Goodman is with us today, because Washington took a unique approach in what was enacted, but the involvement of the governor’s office and community stakeholders, such as the Washington Coalition for Police Accountability, in the design phase was key, in my view, to what was eventually passed.

The Policing Project at NYU School of Law partners with communities, lawmakers, and the police to enhance safety, accountability, and transparency in policing. We started working with the Policing Project a little over a year ago on a project to draft model legislation on data collection and transparency, use of force, pretextual stops, officer discipline and decertification. All of their statutory models are vetted by an advisory committee of past and current law enforcement leaders, leadership from policing organizations, civil rights groups and academics. Their team of attorneys, advocates, and community organizers is ready to help you draft legislation that protects safety and addresses community concerns about policing.

They offer educational materials and example statutory language that is linked in your materials. Feedback on proposed bills. Brainstorming phone calls. Provide expert testimony. And can provide support to local advocacy efforts.

No national governing body enforces nationwide education and certification standards for peace officers. Instead, in nearly every state, police officers are licensed (“certified”) by the state’s Peace Officer Standards and Training Board (“POST board”) or similar agencies. And in most states, the POST is also authorized to revoke or suspend an officer’s license.

The certificate is issued by the state government as a requirement to legally work as a police officer, trooper or deputy in that state. Officers who are decertified are no longer legally allowed to work in the jurisdiction that certified them unless their certification is reinstated.

However, in many states, the statutory grounds for suspending certification — or “decertifying” the officer — are exceptionally narrow (e.g., the officer has to have been convicted of a felony). This makes it difficult for the POST board to hold officers accountable for misconduct. In other states, POSTs never learn about misconduct in the first place, making it impossible for them to do their jobs.

Additionally, statutes rarely address the “wandering officer” problem: Officers resign from an agency or are terminated for misconduct, but they can simply pick up and move to a neighboring jurisdiction, where the misconduct too often continues. In fact, a 2019 study by Ben Grunwald and John Rappaport — from the U of Chicago Law School — found that an officer who is fired for misconduct in one department often shows up again at a smaller department — often with weaker accountability systems — and is MORE likely to engage again in serious misconduct than his peers without such a history.

Finally, there is a lack of systematic sharing of decertification information between states. Congress has not acted and the current national decertification index is voluntary and states with high officer privacy hurdles do not contribute to the index.

In the 2021 legislative sessions, 105 bills were introduced in 36 states that touched on certification and decertification requirements and at least 12 states enacted bills that either created or strengthened decertification, or increased the transparency of decertification actions.

(California (SB2), Colorado, Indiana, Kentucky (S 80), Louisiana, Maine, Maryland (H 670), Montana, North Carolina, Oregon, Utah, Washington (S 5051))

If you are thinking about strengthening your state’s decertification law, the Policing Project’s model Officer Discipline and Decertification model statute is a good place to start. The statute requires law enforcement agencies to conduct background investigations before hiring new officers and holds officers accountable for misconduct through POST boards — from comprehensive background checks during hiring, to information sharing and tracking patterns of complaints, to suspending and decertifying officers, and prohibiting employment in adjacent careers. This is similar to how a new lawyer has to first go through a character investigation before being admitted to the bar and then is subject to bar discipline — including disbarment — for proven misconduct.

Information sharing: When agencies don’t share information about misconduct with the state POST, it is difficult to hold officers accountable. The statute sets forth a robust information sharing process and requires agencies to inform the POST of: (1) officer separation from the agency and the basis for leaving, (2) any disciplinary action taken against an officer, (3) use of force resulting in serious injury or death, and (4) any other information that provides a basis for POST discipline of an officer. It also allows members of the public to submit complaints directly to the POST.

Grounds for decertification and lesser sanctions: Many states only require decertification when officers are convicted of a felony or specified misdemeanor — a high bar that is rarely achieved. The model statute expands the grounds for decertification to include other serious misconduct—such as planting evidence, or using excessive force that results in death, regardless of whether the officer is criminally prosecuted. And it then gives the POST the flexibility to choose among a variety of disciplinary options (e.g. decertification, suspension, or additional training) for a still broader range of misconduct, including sexual harassment, racial profiling, and failure to intervene when another officer uses excessive force.

Employment in adjacent professions: Too often police officers whose certification is suspended or revoked for misconduct get rehired in adjacent criminal justice professions such as school resource officer, correctional officer, etc. They are given the power to use force once again, and misconduct and abuse continues. The statute ensures that if the officer is prevented from being a law enforcement officer, the POST board also suspends/revokes certification to serve in adjacent professions.

Transparency: The public is often kept in the dark about officer discipline. The model statute requires that the status, underlying nature, and results of disciplinary hearings be published, and for the public to be made aware of reports of alleged misconduct received by the POST.

Note that this is a model, and legislators should work with stakeholders, including law enforcement and community members to find the solution that works best but should keep a certain minimum floor in mind.

Decertification is one area where state legislatures can make a real difference. Having a system where the state certifies that someone is qualified to serve as a police officer but does not have a robust ability to say he or she is no longer qualified simply makes no sense. Lawyers, doctors, even hairdressers, can lose their licensing for misconduct. So should the one profession that has the power to take away life and liberty.


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