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Legal Remedies for Police Misconduct
Rachel A. Harmon *
Federal courts have limited the legal remedies for constitutional violations in policing to the point that they do not discourage police misconduct to the satisfaction of many communities. States and police departments impose additional penalties on police officers who violate the law, but only inconsistently, leading communities to distrust these solutions as well. Yet, because there are so many mechanisms for scrutinizing police conduct, officers often feel overregulated. Policymakers and legislators cannot change all of the obstacles to using litigation to improve policing. But by making it easier and less expensive for departments to adopt helpful reforms, by encouraging community input into police policymaking, and by supporting research, data collection, and transparency in policing, they can promote policing practices that protect rights and build community trust. In these ways, policymakers and legislators can improve police accountability, even as courts make it harder for private citizens and public officials to use legal remedies to do so.
INTRODUCTION
Police play a critical, but complicated, role in any free society. Officers promote public safety by stopping and deterring crime and disorder and by bringing criminals to justice. But the same powers we give police to achieve these goals—the powers to command, search, arrest, and use force against members of the public—can also enable officers to undermine freedom. In the name of public order and crime control, police sometimes cause individuals and communities substantial harm: they break down front doors and enter homes; they take personal property; they injure, and they kill. The law permits these harms under limited circumstances, and individuals are required to bear them. When police interfere with liberty in ways that go beyond the bounds of the law, however, they not only harm people without legal justification, but they also threaten the trust between the government and its citizens that is fundamental to a democratic society.^1
- See generally Barry Friedman & Maria Ponomarenko, “Democratic Accountability and Policing,” in the present Volume.
- F.D.G. Ribble Professor of Law, University of Virginia School of Law.
Ideally, policing would promote public safety, maintain the trust and cooperation of the community, and simultaneously minimize any harm officers do to members of the public, even those suspected of crime, and even beyond the standards the law sets. But even if policing does not reach these goals, there is one touchstone on which everyone can agree: American policing must live up to the dictates of the law, and most especially, the basic law of the land, the U.S. Constitution. The Constitution is not a gold standard for policing; policing that satisfies its commands may still do too much harm overall and distribute that harm unfairly.^2 But the Constitution does provide minimum requirements that help ensure that the government does not focus unjustly on individuals and that there are limits to what the government may do in the name of law enforcement. Satisfying those minimum requirements is essential to the legitimacy of policing. A variety of legal remedies for constitutional violations by police officers, including the exclusionary rule, civil suits for damages or reform, and criminal prosecution, exist to ensure that officers follow the law and to provide redress when they do not. In recent years, commentators have increasingly complained that police officers violate the law with impunity because these legal means for controlling their behavior are too weak. Over several decades, federal courts have left legal remedies for constitutional violations in place, but cut away at them so that, although they are frequently invoked, they are often not effective at remedying or deterring constitutional violations. The consequence is that policing has a lot of law and little remedy. Police officers are surrounded by potential legal review for every act, even legitimate ones, making them feel constantly scrutinized and overregulated. And yet, the law only infrequently holds officers and departments accountable for constitutional violations, leaving victims of police misconduct and their communities deeply dissatisfied. Both police and citizens feel wronged by the present system. The problems with federal remedies are not easy to fix. Without changing long-standing federal statutes, little can be done by policymakers to reverse the limits to federal remedies imposed by courts, at least in the short run. Still, policymakers can promote lawful policing that builds community trust. First, they can encourage maximal use of existing remedies by federal officials, including legal remedies that have as yet been underutilized to deter misconduct, such as withholding federal funds from departments that discriminate on the basis of race or religion. Second, they can encourage local departments to adopt internal reforms by providing grants and technical assistance for improving departmental training, supervision, and internal accountability. Third,
- See Rachel A. Harmon, The Problem of Policing , 110 MICH. L. REV. 761, 763, 776-81 (2012).
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their federal counterparts. All states authorize evidentiary exclusion, civil suits for damages, and criminal prosecutions, though state remedies sometimes apply in circumstances in which federal law would not. In addition, almost all states use a mechanism for which there is no federal counterpart, known as delicensing or decertifying officers. When an officer is decertified or delicensed, he no longer has the state’s permission to act as an officer. This remedy, which is called decertification here, is also discussed below. Though recent public debate about policing has often emphasized the importance of holding individual police officers accountable for instances of lawbreaking, preventing constitutional violations critically demands involving police departments in reform. Officers will violate the law if they are insufficiently trained or equipped to follow it, a condition that is determined largely by departments and municipalities rather than officers themselves. Moreover, departments create both incentives to violate the law, for example, by instructing officers to engage in frequent stops and arrests without regard to their legality, and incentives not to do so, for example, by imposing discipline for breaking legal rules. In order to discourage future constitutional violations, legal remedies must therefore target not only the officers who commit the violations but the departments that train and guide them.
I. THE EXCLUSIONARY RULE In 1961, in Mapp v. Ohio , the U.S. Supreme Court forbade state courts from allowing evidence obtained in violation of the Fourth Amendment to be admitted in criminal cases.^5 In the decades since, the possibility of evidentiary exclusion has encouraged criminal defendants to challenge police behavior, making evidence suppression the most common Fourth Amendment remedy, and the litigation over motions to suppress the primary context in which Fourth Amendment rights have been refined by courts. The threat of evidentiary exclusion also gave departments good reason to train officers in constitutional law and to encourage officers to follow it, and over time, the exclusionary rule has helped the Fourth Amendment become central to how police officers and executives view good policing. Almost undoubtedly, the exclusionary rule has transformed American law enforcement for the better. In recent years, however, limits on the exclusionary rule have reduced its significance. From the beginning, the exclusionary rule has been a subject of considerable controversy. In order to deter constitutional violations, the government is forbidden under the rule from using otherwise relevant and trustworthy criminal evidence, which oftentimes means, as then-Judge Cardozo noted,
- 367 U.S. 643 (1961).
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“The criminal is to go free because the constable has blundered.”^6 Unlike in the case of civil damages for a constitutional violation, the extent of the benefit to the criminal defendant is not correlated with the extent of the constitutional violation. Instead, the guiltier a defendant is and the more serious his criminal conduct, the more he may be helped by excluding illegally-obtained evidence. Thus, the rule appears to provide too much benefit to many criminal defendants. At the same time, the exclusionary rule provides too little benefit for the innocent, since if a person is not charged or the government forgoes the evidence, the exclusionary rule provides no remedy. The exclusionary rule also does not deter unconstitutional policing that is unlikely to produce evidence— such as the use of excessive force or police activity designed to harass or to punish rather than to promote criminal adjudication.^7 These are considerable limitations for a constitutional remedy in policing. To these traditional complaints about the rule, the Supreme Court has added another in recent years: The concern that excluding evidence unfairly impugns and injures police officers who have stepped across complicated constitutional boundaries only by accident.^8
In light of these concerns, perhaps it is little surprise that academics have long debated the exclusionary rule on legal, policy, and empirical grounds. They have criticized Supreme Court decisions on the rule; contested its legal status and policy justifications; argued about whether it deters misconduct; disagreed about its effects on criminal prosecutions and crime rates; and proposed many alternative schemes. Although the arguments have evolved over time, it is fair to say that in this vast academic literature, lively disagreement exists—and has existed for decades—about every aspect of the rule.^9
Whatever the ongoing scholarly debate, since the 1970s, the Supreme Court has moved in a largely singular direction with respect to the rule. It has expanded an array of exceptions that permit the government to use illegally- obtained evidence, at least some of the time. These exceptions fall into two
- People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).
- See Terry v. Ohio, 392 U.S. 1, 14-15 (1968).
- See, e.g ., Davis , 564 U.S. at 239 (“‘[I]solated,’ ‘nonrecurring’ police negligence … lacks the culpability required to justify the harsh sanction of exclusion.” (quoting and citing Herring , 555 U.S. at 137, 144)); Utah v. Strieff, 136 S. Ct. 2056, 2064 (2016) (refusing to apply the exclusionary rule in large part because “[n]either the officer’s alleged purpose nor the flagrancy of the violation rise to a level of misconduct to warrant suppression”).
- The debate has been so extensive for so long that Randy Barnett could credibly write in 1983, “The ongoing discussion of the merits of the exclusionary rule is as old as the rule itself. It would be impossible to review it here.” Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice , 32 EMORY L.J. 937, 938 (1983). The discussion has stayed voluminous and ferocious in the more than 30 years since.
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negligently believes an arrest warrant exists, the evidence he discovers in any search incident to that arrest is admissible under the good-faith exception to the exclusionary rule. But some states do not recognize a good-faith exception to their own exclusionary rule, and therefore exclude the same evidence from any state criminal case. 13 If a state excludes evidence that was obtained in violation of federal law in enforcing its own constitutional standards, it can incidentally deter future federal constitutional violations. States could go further, for example, by extending evidentiary exclusion beyond constitutional violations to violations of statutes, such as state restrictions on the power to arrest, or by supplementing evidentiary exclusion with administrative punishments against officers or payments to those against whom evidence is illegally obtained. Thus, state lawmakers have several avenues for reducing police misconduct that are not subject to the limits imposed on federal remedies by federal courts.
II. CIVIL SUITS FOR DAMAGES The Civil Rights Act of 1871—codified at 42 U.S.C. § 1983 and often known simply as Section 1983—provides a statutory basis for civil suits against police conduct that violates the U.S. Constitution or federal law as a means to deter unconstitutional conduct, vindicate constitutional rights, and provide compensation for victims of constitutional violations.^14 This long-standing statute gained new traction in the late 1970s after the Supreme Court clarified the circumstances in which the suits were available to plaintiffs and Congress passed 42 U.S.C. § 1988, which permitted prevailing parties in Section 1983 cases to recover reasonable attorney’s fees.^15
Although Section 1983 suits are far less common than motions to suppress evidence under the exclusionary rule, Section 1983 authorizes a remedy in circumstances in which the exclusionary rule does not. Unlike the exclusionary rule, which is tied to the Fourth Amendment, Section 1983 permits plaintiffs to seek redress for violations of other constitutional rights, such as those protected by the Equal Protection Clause and the First Amendment. Civil damages actions also permit a remedy for kinds of Fourth Amendment violations the exclusionary rule does not address, such as constitutionally excessive force— which produces no evidence—and Fourth Amendment violations against those who are never charged with a crime.
- See, e.g. , Gary v. State, 422 S.E.2d 426 (Ga. 1992) (holding that no good faith exception to the exclusionary rule exists under state law); State v. Marsala, 579 A.2d 58 (Conn. 1990) (same).
- 42 U.S.C. § 1983.
- 42 U.S.C. § 1988.
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Despite the potential scope of Section 1983, plaintiffs face many practical barriers to bringing lawsuits. There may not be independent witnesses to an event, making misconduct difficult to prove. Victims of police misconduct often have criminal records or other qualities that may make them unappealing to juries, who are, in any case, reluctant to second-guess police decision-making, given the risks officers face on the street. In addition, because of uncertain outcomes and legal obstacles to recovery, potential plaintiffs cannot always find willing, effective, and experienced attorneys to represent them. Beyond these practical hurdles, there are often overwhelming legal obstacles to Section 1983 actions. Most importantly, according to the Supreme Court’s interpretation of the statute, individual officers are entitled to “qualified immunity” from civil damages for violating a person’s constitutional rights unless the right at issue was “clearly established” at the time of the alleged conduct.^16 In recent years, the Supreme Court has required increasingly specific and robust precedent to establish a constitutional right clearly, noting that “existing precedent must have placed the statutory or constitutional question beyond debate,” with the result that qualified immunity protects all but the “plainly incompetent” officer. 17 At the same time, the Court has allowed lower courts additional discretion to avoid issuing decisions that constitute the precedents plaintiffs need in order to satisfy qualified immunity doctrine. In 2001, the Supreme Court required lower courts confronted with motions for summary judgment to address whether a constitutional right would have been violated before determining whether the right was clearly established.^18 This decision ensured that even if a plaintiff lost because of qualified immunity, officers would know in the future whether the challenged conduct is illegal, and plaintiffs could recover for future violations. In 2009, in Pearson v. Callahan , the Court reversed course, permitting lower courts discretion to decide these two questions in either order. 19 This discretion has the advantage of allowing courts to avoid deciding complex questions of constitutional law unnecessarily. However, it also permits courts to repeatedly avoid assessing the constitutionality of police conduct on the ground that in each case, as in the case before, the question has not yet been clearly established by prior law, and therefore there is no liability even if there
- See Harlow v. Fitzgerald, 457 U.S. 800, 815-18 (1982) (establishing qualified immunity under § 1983 for government officials with discretionary functions).
- Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 743 (2011)).
- Saucier v. Katz, 533 U.S. 194 (2001).
- 555 U.S. 223 (2009).
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of the parties or an injunction—a court order requiring or prohibiting certain actions. Equitable relief can be simple and prohibitory or can involve complex mandates for changing government behavior, and private plaintiffs sometimes sue municipalities seeking an order requiring government agencies to engage in substantial departmental reforms. These reforms do not act—like damages or the exclusionary rule—to deter constitutional violations indirectly. Instead, they are intended to cure the systemic conditions that cause constitutional violations. Lawsuits for complex reforms, often known as structural reform litigation, developed in the 1950s and expanded through the mid-1970s. This litigation was not then and is not now limited to police departments. In fact, structural reform litigation has been more often and more famously used for other purposes, such as to desegregate schools, to improve prison conditions, and to fight housing discrimination by local and state agencies. Nevertheless, both simple and complex forms of equitable relief are often sought in suits against police departments. Scholars and commentators have long been divided over the value and legitimacy of suits for equitable relief. By the mid-1970s, the U.S. Supreme Court sided with skeptics and imposed some significant limits on private efforts to obtain declaratory relief and injunctions. For plaintiffs challenging policing practices, the most important of these limits is the Court’s application of constitutional standing requirements. In City of Los Angeles v. Lyons , the Court held that the plaintiff, Lyons, who had been choked to unconsciousness by police officers during a traffic stop, had not demonstrated a “real and immediate” threat of future injury sufficient to establish Article III standing for injunctive relief. 26 Even if the Los Angeles Police Department used illegal chokeholds, as Lyons alleged, the Court held that “it is no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.”^27 Therefore, he could not sue for injunctive relief. Although Lyons applies to all private suits for injunctions, the rule of Lyons has proven to be an especially high bar for plaintiffs challenging police practices, and in particular, challenges to the use of force, because of the seemingly unpredictable nature of individual police/citizen interactions. Thus, private suits for equitable relief have not played nearly as substantial a role in reforming police departments’ civil rights practices as they have played in changing other public enterprises.
- 461 U.S. 95, 105 (1983).
- Id. at 108.
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While Lyons limited suits for equitable relief, it did not eliminate them entirely. Instead, Lyons shapes the litigation that does occur, permitting some kinds of cases against police departments and not others. In particular, courts are more likely to find standing and allow equitable challenges under Lyons when a policy targets relatively innocent or common conduct, when the department engages in the challenged conduct frequently, when some plaintiffs have suffered harm more than once, and when the department directs the challenged conduct against a visible subpopulation of which the plaintiff is part.^28 Each of these conditions raises the probability that a particular plaintiff will experience future constitutional injury. Some police practices are far more likely than others to meet these conditions. For example, plaintiffs challenging racial profiling, or the illegal, widespread use of enforcement strategies such as stops, frisks, and arrests against minor conduct, will more easily satisfy the requirements of Lyons than plaintiffs attempting to change strip-search practices at jails or uses of excessive force.^29 In this way, and others, court-imposed limits on suits for equitable relief have made such suits a powerful but infrequent tool for challenging and changing unconstitutional conduct by law enforcement.
IV. CIVIL SUITS FOR EQUITABLE RELIEF BY PUBLIC ACTORS While Section 1983 has long provided a vehicle for private plaintiffs to seek injunctions or structural reform of police departments to prevent constitutional violations, until more recently there was no similar authority available to public actors. In 1994, Congress gave the Department of Justice the power to bring suits for equitable relief against police departments in the Violent Crime Control and Law Enforcement Act.^30 Using this authority, the Department of Justice has developed a program of investigating and suing police departments engaged in a “pattern or practice” of constitutional violations and negotiating settlements that impose significant changes on those departments. As of the beginning of 2017, the Department of Justice had engaged in substantial investigations of 69 departments and had entered into 40 reform agreements.^31
- See, e.g. , Chang v. United States, 738 F. Supp. 2d 83, 92 (D.D.C. 2010); National Congress for Puerto Rican Rights v. City of New York, 75 F. Supp. 2d 154, 160-62 (S.D.N.Y. 1999).
- For discussions of some of these police practices, see Jeffrey Fagan, “Race and the New Policing,” in the present Volume; Henry F. Fradella & Michael D. White, “Stop-and-Frisk,” in the present Volume; Devon W. Carbado, “Race and the Fourth Amendment,” in the present Volume; David A. Harris, “Racial Profiling,” in the present Volume; and L. Song Richardson, “Police Use of Force,” in the present Volume.
- 42 U.S.C. § 14141.
- CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, THE CIVIL RIGHTS DIVISION’S PATTERN AND PRACTICE POLICE REFORM WORK: 1994-PRESENT 3 (2017), https://www.justice.gov/crt/ file/922421/download.
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they also tended to alienate line officers. 37 Finally, reforms imposed by consent decree may not be self-sustaining once ongoing monitoring by the Department of Justice and the federal court ends.^38
In recent years, the Department of Justice has sought to refine its pattern-and-practice program to address some of these concerns. It has also supplemented this program with an alternative: voluntary technical assistance for departments struggling to prevent constitutional violations through the COPS Collaborative Reform program. Additional research could permit the Department of Justice to use both programs where they are most needed and to encourage effective and cost-efficient types of reform. However, in light of Attorney General Jeff Sessions’ skepticism about institutional causes for police misconduct and about the costs and benefits of suing departments, it is unlikely that pattern-and-practice litigation will play as significant a role in promoting reform over the next several years as it has in the recent past.^39
When suing police departments for a pattern or practice of constitutional violations, the Department of Justice often also invokes Title VI of the Civil Rights Act of 1964 40 (Title VI) and the Omnibus Crime Control and Safe
- See , e.g. , CHRISTOPHER STONE ET AL., HARVARD KENNEDY SCH. PROGRAM IN CRIMINAL JUSTICE POLICY AND MGMT., POLICING LOS ANGELES UNDER A CONSENT DECREE: THE DYNAMICS OF CHANGE AT THE LAPD (2009), https://www.hks.harvard.edu/content/ download/67474/1242706/version/1/file/Harvard_LAPD_Report.pdf; ROBERT C. DAVIS ET AL., VERA INST. OF JUSTICE, CAN FEDERAL INTERVENTION BRING LASTING IMPROVEMENT IN LOCAL POLICING? THE PITTSBURGH CONSENT DECREE (2005), https://storage.googleapis.com/ vera-web-assets/downloads/Publications/can-federal-intervention-bring-lasting-improvement- in-local-policing-the-pittsburgh-consent-decree/legacy_downloads/277_530.pdf. But see THE BROMWICH GROUP LLC, OFFICE OF THE D.C. AUDITOR, THE DURABILITY OF POLICE REFORM: THE METROPOLITAN POLICE DEPARTMENT AND USE OF FORCE: 2008-2015 xvii-xix (2016), http:// www.dcauditor.org/sites/default/files/Full%20Report_2.pdf. Research on the consequences of these suits has been hampered by methodological challenges and is limited in both quantity and scope. See Rachel A. Harmon , Evaluating and Improving Structural Reform in Police Departments , 19 CRIMINOLOGY & PUB. POL’Y 617 (2017).
- See Joshua M. Chanin, Examining the Sustainability of Pattern or Practice Police Misconduct Reform , 18 POLICE Q. 163 (2015); DAVIS ET AL., supra note 37.
- See Jeff Sessions, Att’y Gen., U.S. Dep’t of Just., Attorney General Jeff Sessions Delivers Remarks at National Association of Attorneys General Annual Winter Meeting (Feb. 28, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-national- association-attorneys-general.
- 42 U.S.C. §§ 2000d-2000d-7.
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Streets Act of 1968^41 (Safe Streets Act).^42 Both laws prohibit police departments that receive federal funds, training, or technical assistance from discriminating in their programs. These statutes could discourage unconstitutional and other illegal discrimination by threatening to deny federal funds to departments that engage in it. This threat might motivate reform in some departments, especially those that receive substantial federal aid or that can easily reduce discrimination, but the Department of Justice has rarely invoked these statutes outside of the pattern-and-practice suits, and private rights of action are limited. As a result, these statutes do not seem to play a significant role in motivating reform. Presumably, federal agencies could enforce Title VI and the Safe Streets Act more often to discourage discrimination. 43 But given the practical, policy, and political obstacles to denying departments federal funding, along with the limited scope of the existing statutes—which do not address misconduct other than discrimination—it seems unlikely that these statutes will soon have significant influence on policing.
V. CRIMINAL PROSECUTION Police officers may be prosecuted for constitutional violations under both federal and state law. Under federal law, 18 U.S.C. § 242 makes it a crime to willfully deprive any person of his or her constitutional rights. This statute provides the most common tool used by federal prosecutors to charge police officers for constitutional violations. Though it is often used to punish excessive force in violation of the Fourth Amendment, this statute can also be used to punish a variety of other constitutional violations, including false arrest, sexual assault during arrest or detention, illegal seizures of property, and the use of unconstitutional restraints or conditions of confinement. Criminally prosecuting police officers is harder than suing them civilly. As in all criminal cases, prosecutors are required to prove elements of a crime beyond a reasonable doubt, and Section 242 has elements that can be especially difficult to prove. A federal prosecutor must establish not only that the officer violated the Constitution, but also that the officer did so “willfully,” that is, that
- 42 U.S.C. § 3789d.
- See, e.g. , Complaint, United States v. City of Baltimore Police Dep’t, No. 17-cv-00099, 2017 WL 1301500 (D. Md. joint motion for entry of consent decree granted Apr. 7, 2017); Complaint para. 2, United States v. City of Ferguson, No. 16-cv-00180 (E.D. Mo. joint motion for entry of consent decree granted Apr. 19, 2016); Complaint para. 1, United States v. City of New Orleans, 35 F. Supp. 3d 788 (E.D. La. 2013) (No. 12-cv-01924).
- Rachel Harmon, Limited Leverage: Federal Remedies and Policing Reform , 32 ST. LOUIS U. PUB. L. REV. 33, 53 (2012).
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Garner in New York City. Although data is too limited to know how many police officers are prosecuted for misconduct in the states, the available evidence suggests that successful criminal cases are not common. In the last several years, many states have considered statutory reform proposals to strengthen criminal prosecutions of police officers. For example, in 2014, Wisconsin passed a law requiring an independent agency rather than local prosecutors to investigate and make decisions about prosecuting police officers who use deadly force. 49 California passed a statute in 2015 prohibiting the use of grand juries to decide whether to charge police officers for the use of force, though the statute was later found to violate the state Constitution. 50 Other states have passed or are considering similar legislation. 51 Members of Congress have also introduced bills to make it easier to prosecute officers. 52 Though independent prosecutors may increase public confidence in decisions about charges against officers, some legislative efforts to increase prosecutions may not have their intended effect. Criminal charges against police officers are stymied by a complex set of factors, some of which are not easily changed. Under federal law, for example, criminal prosecutions depend on the clarity of the constitutional standards that govern police action, as well as proof of willfulness, and the standards that govern the use of force are especially indefinite. Moreover, although eliminating investigative grand juries in police
- WIS. STAT. § 175.47(3)(a).
- CAL. PENAL CODE §§ 917(b), 919(c). However, the California Court of Appeal has held that § 917(b) violates the state’s Constitution. See People v. Sup. Ct., 212 Cal. Rptr. 3d 636 (Cal. Ct. App. 2017).
- See, e.g. , 50 ILL. C OMP. STAT. 727/1-10(b) (requiring that “[n]o investigator involved in the investigation may be employed by the law enforcement agency that employs the officer involved in the officer-involved death, unless the investigator is employed by the Department of State Police and is not assigned to the same division or unit as the officer involved in the death”); UTAH CODE ANN. § 76-2-408; WASHINGTON STATE JOINT LEGISLATIVE TASK FORCE ON THE USE OF DEADLY FORCE IN COMMUNITY POLICING, FINAL REPORT TO THE LEGISLATURE AND GOVERNOR 13 (2016), http://leg.wa.gov/JointCommittees/DFTF/Documents/DFTF-FinalReport.pdf (recommending removing malice from WASH. REV. CODE § 9A.16.040, and other changes to the law); S.B. 5073, 65th Leg., Reg. Sess. (Wash. 2017) (proposing removing malice from WASH. R EV. CODE § 9A.16.040).
- See, e.g. , Mike Allen, Holder’s Parting Shot: It’s Too Hard to Bring Civil Rights Cases , POLITICO (Feb. 27, 2015), http://www.politico.com/story/2015/02/eric-holder-civil-rights- interview-mike-allen-115575; Police Accountability Act of 2015, H.R. 1102, 114th Cong. (2015) (bill introduced by Georgia Congressman Hank Johnson to make murder and manslaughter committed by police officers federal crimes); Press Release, Rep. Johnson Reintroduces Police Accountability Act (Feb. 26, 2015), https://hankjohnson.house.gov/media-center/press-releases/ rep-johnson-reintroduces-police-accountability-act.
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cases may put more political pressure on prosecutors to bring cases, 53 it also threatens an effective tool for securing evidence against officers: compelling and locking in testimony from reluctant law enforcement witnesses. Finally, independent prosecutors, like those from the same jurisdiction as the officer, can only bring charges against officers who have violated criminal statutes.
Criminal prosecutions against police officers are likely to be inevitably too rare to deter much misconduct. Nevertheless, they remain of substantial symbolic and normative importance. No other form of remedy so clearly expresses the government’s condemnation of specific police violations of law, and none shows as much respect for the victims of police misconduct, especially with respect to police violence. Prosecutions also build public confidence in the government’s commitment to lawful policing and fair application of criminal justice. Legislative efforts to pass straightforward criminal statutes governing the use of excessive force that do not turn on constitutional standards might help this effort. At the same time, no other form of remedy so clearly blames the officer rather than systemic factors for misconduct. Though policymakers should continue to seek ways to strengthen efforts to prosecute officers when they violate criminal law, criminal prosecutions should not replace other efforts to deter departmental causes of police misconduct. Moreover, criminal prosecutions must continue to be carried out with a strong commitment to fairness to police officers when they are defendants, even as prosecutors seek to vindicate the interests of victims and society as a whole.
VI. STATE DECERTIFICATION State and local police officers possess coercive power beyond that of civilians only by permission of the state in which they work. Accordingly, every state licenses or certifies officers. In most states, the commissions that provide for the training and certification of officers, or other state boards, also have the power to deprive an officer of his license or certification to punish serious misconduct.^54 While the threat of decertification may discourage bad acts, decertification also has a more direct effect: It prevents future violations of the public trust by stopping officers who have committed serious misconduct from continuing to serve as sworn officers in the state. Decertifying officers can also help reassure the public about the state’s commitment to law-abiding law
- For a discussion of grand jury practice, see Roger A. Fairfax, Jr., “Grand Jury,” in Volume 3 of the present Report.
- See Loren T. Atherley & Matthew J. Hickman, Officer Decertification and the National Decertification Index , 16 POLICE Q. 420 (2013); RAYMOND A. FRANKLIN ET AL., INT’L ASS’N DIRS. OF LAW ENF’T STANDARDS AND TRAINING, 2009 SURVEY OF POST AGENCIES REGARDING CERTIFICATION PRACTICES (2009).
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VII. DEPARTMENTAL AND MUNICIPAL REMEDIES
Some of the most effective means of preventing police misconduct are within the control of police departments and municipalities. There is wide agreement that hiring well-qualified officers, providing them with extensive and ongoing training, setting forth specific and realistic policies to guide their work, and supervising them well are all critical to ensuring that officers comply with the law. In addition to these management practices, however, departments and municipalities also respond to specific incidents of misconduct in ways that can affect future officer behavior. Most importantly, departments and cities receive citizen complaints about officer conduct, and they investigate and impose discipline for violations of law and departmental policies. This process is important both for deterring misconduct and for communicating a commitment to lawful policing. Since disciplinary mechanisms can be used for misconduct that violates departmental policies as well as law, these mechanisms have far greater potential impact on policing than legal remedies that merely enforce constitutional law.
In most cities, citizen complaints about officer misconduct are investigated and resolved by units of the police department itself, often know as internal affairs units, and discipline, if appropriate, is imposed by command staff. Like legal remedies, internal affairs units often impose scrutiny and burdens that officers resent, and yet rarely vindicate the interests of individuals who feel mistreated by the police. Scholars and other commentators widely criticize internal complaint, investigation, and disciplinary systems in police departments for their ineffectiveness, bias, and lack of transparency. The Department of Justice has leveled similar criticisms in its pattern-and-practice investigations. In many cities, communities distrust the police in part because they believe that internal disciplinary mechanisms do not work.
Departments can undermine disciplinary systems in subtle ways. Some departments make it difficult for citizens to file complaints by requiring them to file in person or by refusing to accept third-party or anonymous complaints. Even when departmental policies formally permit complaints easily, individual officers often resist complaint intake, discouraging citizens from revealing misconduct to the department. Once someone does complain, departments may fail to conduct thorough and fair investigations. They sometimes fail to interview complainants and witnesses or collect relevant documents. Or they favor officers in the process such that misconduct can almost never be proven to the requisite standard.
Legal Remedies for Police Misconduct 45
Because of these kinds of problems, and the underlying difficulties of proving misconduct, departments sustain misconduct complaints infrequently, even against officers who face repeated, similar, independent complaints. They rarely impose substantial disciplinary penalties when they sustain violations. And when departments do impose discipline, their findings and penalties are sometimes overturned by administrative review boards and arbitrators, who often are biased in favor of officers. Finally, in many cities, the entire process of complaint intake, investigation, and discipline is subject to delays and secrecy, leaving the public in the dark and officers in limbo. As a consequence, internal disciplinary systems frequently lack credibility and fail to promote policing that adheres to law and departmental policy. In a minority of municipalities, complaints and investigations are conducted or reviewed outside the police department by an independent agency, often in some form of what is known as civilian review. These agencies vary enormously, but few seem to be especially effective in addressing misconduct. First, many are limited in structure, powers, and purpose. They may have no subpoena power or investigative resources. Some do not take complaints directly, receiving them only through the police department. They are often staffed either by former officers, who are viewed as biased in favor of the police, or by volunteers, who are perceived to lack appropriate skills and knowledge. And independent agencies frequently consider only individual instances of misconduct rather than deficiencies in policies or other systemic failures that might lead to patterns of misconduct. Even beyond these structural limits, instances of alleged misconduct investigated by independent agencies face the same challenges of proof and the same lack of independent witnesses as other efforts to assess misconduct. Although independent review is popular and may provide a forum for public input into policing, civilian review agencies do not seem to meaningfully prevent or remedy officer misconduct.
VIII. LOOKING BEYOND CONSTITUTIONAL REMEDIES As the above discussion suggests, legal remedies generate a loose patchwork of methods for remedying and preventing police misconduct. Criminal defendants challenge illegal searches and seizures with the exclusionary rule when they can. Victims of unconstitutional police violence sue for damages when qualified immunity does not bar them. Private plaintiffs challenge discriminatory policing through litigation for equitable litigation, when Lyons permits it. The federal government sues local police departments to target patterns of misconduct, at least when the administration favors doing so, and occasionally states and the federal government prosecute individual
46 Reforming Criminal Justice
