Report

Police & Communities

Bridging the Divide

Published July 29, 2021
by Star Parker & Marty Dannenfelser

In order for communities to thrive, it is vital that there be a reasonable level of trust and cooperation between residents and the public officials who serve and protect them.

Sadly, that relationship with the police has broken down in many communities, and the results have been tragic. While some residents believe that police too often use excessive force and unnecessarily harass law-abiding people, others want the police to be more engaged in their communities and recognize that the police are charged with enforcing some unpopular policies adopted by elected officials or their department leadership.

Police often believe that they are put in a no-win situation. They are charged with protecting the public and sometimes have to make split-second decisions that can have tragic consequences. Increasingly, they believe that their hands are being tied and that this emboldens bad actors to engage in more crime and to direct abuse at them personally. They acknowledge that there are bad cops who exacerbate tensions in the community, but they resent the fact that all police seem to be demonized for the bad actions of a few.

As public officials and community leaders at the national, state, and local level wrestle with these vexing problems, we explore some options and offer some recommendations on how to address them. We believe issues like qualified immunity and collective bargaining with police unions can be addressed in a manner that enables authorities to hold bad cops accountable without exposing good cops to unwarranted harassment or unjust financial hardship.

We see a need for better data collection, more transparency, improved training, and open communication between police and key people in their communities. Finally, we see a need for honest dialogue and commentary on the part of political leaders, celebrities, and the media. When people rush to judgement based on limited information or false narratives, passions can become inflamed and destructive actions can ensue. Disputes need to be resolved through our legal system, not through street justice or vigilantism.

Qualified Immunity

It is indeed rare, if not unprecedented, to see such a highly diverse group of organizations as the conservative Alliance Defending Freedom, the liberal American Civil Liberties Union, and the libertarian Cato Institute and Reason Foundation on the same page as the NAACP Legal Defense and Education Fund on the topic of qualified immunity.1

These diverse organizations all agree that qualified immunity is a bad policy and should end. Organizations like the Law Enforcement Legal Defense Fund and many police associations understandably have a different point of view.

The nation’s first major civil rights law, the Civil Rights Act of 1871, passed shortly after the Civil War, contains a provision known as Section 1983 that protects citizens from violation of their civil rights by government officials. It says that a government official who violates a citizen’s civil rights is liable and can be sued by the injured party.

The Court added a new standard, qualified immunity, saying that it must be shown that rights were violated per “clearly established law.”2 Seth Stoughton, Professor of Law at the University of South Carolina, and his co-authors concur with University of Chicago legal scholar William Baude’s argument that the Supreme Court has provided multiple justifications for qualified immunity—including that it is the modern evolution of a common-law “good faith” defense, and that it ensures that government officials are not exposed to liability without “fair warning” that their actions are wrong.3 Baude, Stoughton, et al. believe that neither the Court’s historical nor doctrinal justifications can bear the burden of scrutiny. The Court itself has said qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”4

Police leadership and unions argue that qualified immunity is essential for them to do their job. This is a tough and dangerous business, they say, and split-second law enforcement decisions must be made, often under great uncertainty, sometimes with life-and-death implications.

Jason Johnson, President of the Law Enforcement Legal Defense Fund and past Deputy Commissioner of the Baltimore Police Department, argues that proposing to eliminate qualified immunity “is terribly misguided, and will result in honest, well-intentioned cops being successfully sued for conduct that even many judges would consider lawful.”

Johnson further argues that such action “will leave police officers slow to act when the law is unclear. The risk of harm from ‘under-policing’ falls, ironically, on those who live in the most crime-plagued sections of our cities—mostly people of color without the financial resources to move elsewhere.”5 One solution proposed by the Cato Institute would require police officers to carry liability insurance, like other professionals do. This would provide them the coverage they need. And those who are flagrant violators, like Derek Chauvin, would be priced out of the market.

While Cato favors elimination of qualified immunity at the national level, Cato Research Fellow Jay Schweikert has taken note of some state-level civil rights laws that address the topic of qualified immunity.

Shared liability between officers and police departments is better than employer liability only.

“Whereas federal law allows people whose rights are violated under the Federal Constitution to sue in federal court, HB 4 [a New Mexico law enacted in April 2021] allows people whose rights are violated under the state constitution to sue in state court. And even though New Mexico can’t eliminate qualified immunity in federal litigation, it’s free to clarify that qualified immunity won’t apply to these state level claims,” Schweikert explains. However, Schweikert says New Mexico’s HB 4 “provides for complete and automatic indemnification, which means individual defendants can never be personally liable for the injuries they cause.”

Schweikert says HB 4 “is similar to Colorado’s Law Enforcement Integrity and Accountability Act, enacted last June.” While Colorado also provided that police officers sued under their law would be indemnified (meaning any judgement against them would ultimately be paid by their employer), “officers could be required to contribute a small portion of their judgement if they ‘did not act upon a good faith and reasonable belief’ that their actions were lawful,” Schweikert noted. 6

In another Cato Institute policy paper, Schweikert argues that employer liability “does not remedy how qualified immunity has undermined public trust in police officers.” However, he says, “shared liability between officers and police departments is better than employer liability only.” Citing the previously noted Colorado law that makes the police officer personally responsible for a small portion of the judgement (5% or $25,000, whichever is less) if the department determines the officer “did not act upon a good faith and reasonable belief” that their conduct was lawful, Schweikert says that “it gives officers skin in the game, but to a degree they could reasonably be expected to cover.”

Turning back to the federal level, Schweikert notes a bill introduced in the last Congress by Senator Mike Braun (R-IN) that “would have eliminated the ‘clearly established law’ standard but replaced it with good-faith safe harbors for individuals relying on state law or judicial precedent.”7

Supreme Court Justice Clarence Thomas has questioned the status quo on qualified immunity. Thomas is an originalist—he reads the law as written—and is opposed to judicial activism. He has written that qualified immunity constitutes “the sort of ‘freewheeling policy choice(s)’ that we have previously disclaimed the power to make.”

Thomas has urged the court to take on and review this issue. “I continue to have strong doubts about our…qualified immunity doctrine,” he wrote in June 2020.8

Collective Bargaining

Derek Chauvin, the Minneapolis police officer convicted of killing George Floyd, had reportedly been the subject of at least seventeen misconduct complaints. The Wall Street Journal editorial board notes that “Jason Van Dyke, the Chicago police officer convicted of murdering 17-year-old Laquan McDonald in 2014, had been the subject of 20 complaints—ranking in the top 4% of Chicago’s police department—including 10 that alleged excessive use of force.”9

While complaints don’t automatically equate with findings of wrongdoing, many Americans wonder how police officers who abuse their authority remain in their positions for long periods of time. “Part of the answer is the collective bargaining agreement reached between the police department and Chauvin’s union,” says Benjamin Sachs with respect to the Minneapolis Police Department and the officer convicted of murdering George Floyd.10

Sachs, a former assistant general counsel of the Service Employees International Union and currently Kestnbaum Professor of Labor and Industry at Harvard Law School, explains that many police contracts, including the one in Minneapolis, give cops “extraordinary protection from discipline for violent conduct.”

The Minneapolis agreement “mandates a 48-hour waiting period before any officer accused of such conduct can be interviewed, a common delay and a luxury not afforded even the criminal suspects and one that allows officers time to develop a strategy to avoid accountability,” Sachs says.

“Like many police contracts, including those in Baltimore, Chicago and Washington, D.C., the Minneapolis agreement also requires the expungement of police disciplinary records after a certain amount of time,” Sachs continues.

“Even in cases where an officer is fired for misconduct, the agreement requires an appeals process that frequently leads to reinstatement,” Sachs says. “Police collective bargaining agreements, in short, insulate cops from discipline.”

Sachs suggests “amending public sector bargaining laws to strictly curtail the range of subjects over which police unions have the right to bargain. The law, in brief, would permit collective bargaining by police only with respect to matters related to wages and benefits. Collective bargaining over any subject that implicates the use of force, including collective bargaining over disciplinary matters, would be prohibited.”

The Wall Street Journal editorial board notes Minneapolis Mayor Jacob Frey’s acknowledgment that police collective bargaining and arbitration have prevented the city from holding police officers accountable for misconduct. The Minneapolis Office of Police Conduct Review received 2,600 misconduct complaints between 2012 and June 2020; only 12 resulted in discipline, and the most severe punishment was a 40-hour suspension. “Unless we are willing to tackle the elephant in the room—which is the police union—there won’t be a culture shift in the department,” Mayor Frey said.

The WSJ also cites a task force on police reform after the Chicago murder of Laquan McDonald, which found that “collective bargaining agreements create unnecessary barriers to identifying and addressing police misconduct” and “essentially turned the code of silence into official policy.”

“Police have a point that complaints against them are often dubious and they need an advocate to defend them,” the editorial continues. “But collective bargaining agreements go beyond due process and insulate officers from accountability for egregious and serial misconduct.”

The WSJ observes that “some 40 states require or permit collective bargaining for police.” They note a 2017 Duke Law Journal study that analyzed 178 police union contracts and concluded that a “lack of corrective action in cases of systemic officer misconduct is, in part, a consequence of public-employee labor law” that in most states permits unions to bargain collectively on policy matters directly affecting terms and conditions of employment. 11

The Duke study, authored by Stephen Rushin, found that 87 of 178 cities (49 percent) studied “mandate the removal of disciplinary records from personnel files over time.” These cities include Baltimore, Chicago, Minneapolis, Seattle, and Washington, D.C. The City of Cleveland’s contract “requires management to remove all verbal and written reprimands from officers’ personnel files after six months. Further, it requires that supervisors must remove all disciplinary actions and penalties from officers’ personnel files after two years,” the Duke study reports.

By mandating the destruction of disciplinary records, many police union contracts make it nearly impossible for police chiefs to use tools like early intervention system (EIS) databases to identify troubling patterns in officer behavior, the Duke study suggests. “The story of Chicago police officer Jason Van Dyke [Laquan McDonald shooting] demonstrates how historical recordkeeping of civilian complaints, when combined with an effective EIS, could proactively identify dangerous officers before their behavior escalates,” Rushin says.

Rushin concluded that “police union contracts commonly contain provisions that can insulate frontline officers from accountability and oversight.” Rushin says his chart below “offers a detailed breakdown of the prevalence of these common provisions in the 25 largest cities that permit collective bargaining.”

Delays
Interview
Provides Access
to Evidence
Before Interview
Limits Consideration
of Disciplinary History
Limits Length of
Investigation or Establishes
Statute of Limitations
Limits
Anonymous
Complaints
Limits Civilian
Oversight
Provides for
Arbitration
Austin
Boston
Chicago
Columbus
Dallas
Denver
Detroit
El Paso
Fort Worth
Houston
Indianapolis
Jacksonville
Las Vegas
Los Angeles
Memphis
New York
Philadelphia
Phoenix
Portland
San Antonio
San Diego
San Francisco
San Jose
Seattle
Washington, D.C.

Data Collection, Police Training, & Local Policy Initiatives

In their Atlantic policy article, “How to Actually Fix America’s Police,” University of South Carolina law professor Seth Stoughton, former Irvine, CA deputy chief of police Jeffrey Noble, and University of South Carolina criminology professor Geoffey Alpert offer several sound recommendations. They say Congress could “encourage better data collection about what police do and how they do it.”

This might include information about police use of force and why force was used, how many high-speed pursuits have been conducted and why were they initiated, how many people have been injured when taken into custody, how many cases prosecutors have refused to file for lack of evidence, and cases of constitutional violations or police misconduct.

Stoughton, Noble, and Alpert further suggest that the federal government “dedicate significantly more resources to supporting police training, local policy initiatives and administrative reviews.” They see a particular need for upgrades in use-of-force and arrest training, frontline supervision, and internal investigations.

Local Cooperation to Improve Relationships

There are many steps that can be taken at the local level to improve relations between police and the communities they serve. The City of New Orleans has instituted a local initiative called “Ethical Policing Is Courageous (EPIC).” This peer intervention program was developed by the NOPD in collaboration with community partners. EPIC seeks to equip, encourage, and support officers to intervene to prevent misconduct and ensure high-quality policing.

Churches, synagogues, mosques, and schools can be bridges between police and their communities, and in many places this is already happening. Religious leaders can be seen as honest brokers when tension exists between police and the community, seeking to heal rifts and opening up important lines of communication. Chaplains have participated in hundreds of ride-alongs with the Detroit Police Department. United Methodist Conference chaplains in Michigan help build bridges between police officers and their communities. Some do ride-alongs and death notifications, others provide pastoral services to members of the department and their families. 12 University of Michigan Police provide a ride-along program for students to see how officers operate. The Michigan Daily says, “The goal of this program is to break down barriers between officers and the public, as well as to increase transparency.”13

Schools can help young people understand the importance of respecting and cooperating with the police. By inviting police to come to schools to have constructive and mutually respectful conversations with students and faculty, positive relationships can be established at an early age. This can lead to an atmosphere of cooperation and mutual trust as young people grow into adulthood.

Honest Dialogue

When tragic events like police shootings occur, it is vital that community leaders call for calm and allow time to gather the facts before drawing conclusions. In order for the justice system to treat everyone fairly, people must recognize the importance of providing due process and letting the justice system work impartially.

This is especially true for high-profile leaders whose voices resonate in the community. In several highly publicized cases, politicians, celebrities, and community activists have promoted false or misleading narratives that have further inflamed an already volatile situation.

The Ferguson, MO police officer who shot Michael Brown was cleared of any wrongdoing by the Obama-Biden-Holder Justice Department and the Department’s investigative report debunked the “hands up, don’t shoot” narrative that went viral following Michael Brown’s
death.14 Two successive Democratic prosecutors in St. Louis County, MO also investigated Brown’s death and did not file any charges against the police officer.

Despite these findings, prominent politicians still argue that Michael Brown was murdered by the police and that his death was a manifestation of systemic racism. On the fifth anniversary of Brown’s death, then-presidential candidate Kamala Harris tweeted, “Michael Brown’s murder forever changed Ferguson and America.” Elizabeth Warren tweeted, “Michael Brown was murdered by a white police officer.” President Biden has linked Brown’s death to “systemic racism.”15

In 2020, Kamala Harris said, “Breonna Taylor was murdered by police . . . Every officer involved in her murder must be arrested.”16 The grand jury shortly thereafter declined to bring charges and the Kentucky Attorney General explained that Breonna was killed after her boyfriend fired the first shot at police who were serving a warrant.17 The police returned fire, and Breonna was tragically killed as she was standing next to her boyfriend in an apartment hallway.

The false narrative surrounding Michael Brown’s death had a profound effect on Ferguson and America. Violent crime spiked in Ferguson and in many cities across America. Every police officer charged in Freddie Gray’s tragic death while being transported in custody was acquitted, but that case wreaked havoc on Baltimore. The grand jury’s decision in Breonna Taylor’s case was followed by deadly violence in Louisville, KY.

An overwhelming majority of Americans were profoundly disturbed by what they saw leading up to George Floyd’s death. A police officer was convicted of second-degree murder and three others have been charged as accomplices. Rather than calling for calm and urging people to let the justice system work, too many politicians and community activists fanned the flames that led to massive destruction and death in Minneapolis and many other cities across America.

Police actions involving deadly force understandably receive a great deal of attention. However, it is notable that most police officers never fire a weapon throughout their entire careers. 18 Policing is a dangerous profession, but police who abuse their power are dangerous to the community. We need to strike a balance that enables police officers to act appropriately to protect the public and defend themselves, but we also need better processes to identify and remove those who cause harm in their communities and undercut the public’s trust in the entire profession of policing.

Policing should be a local issue, not a national one. But the issue of civil rights is a national issue, so congressional action is appropriate when such rights need protection.

Recommendations

Eliminate collective bargaining over disciplinary issues.

The Wall Street Journal editorial board, the mayor of Minneapolis, and the former assistant general counsel of the Service Employees International Union agree that collective bargaining over disciplinary issues has prevented cities from holding police officers accountable for misconduct. It should be eliminated so that bad actors—especially repeat offenders—can be removed.

Reform qualified immunity.

While Congress deadlocked on this topic, states and local jurisdictions made some reforms. Colorado’s shared liability law makes the police officer personally responsible for a small portion of the judgement (5 percent or $25,000, whichever is less) if the department determines the officer “did not act upon a good faith and reasonable belief” that their conduct was lawful. As Cato Research Fellow Jay Schweikert says, this “gives officers skin in the game, but to a degree they could reasonably be expected to recover.” Given the disparity in police officers’ salaries across the country, it may be more equitable for lawmakers to tie police liability to their salaries (e.g., 5 percent of the judgement or 10 percent of annual salary, whichever is less).

Encourage better data collection, transparency, and training.

Gather information about police use of force, how many people have been injured when taken into custody, how many cases prosecutors have refused to file for lack of evidence, and instances of police misconduct. Upgrade use of force and arrest training, frontline supervision, and internal investigations. Establish a national database for law enforcement agencies to have access to information about prior police misconduct.

Support local initiatives to improve cooperation between police and communities.

Equip, encourage, and support officers to improve relations with key people in their communities (e.g., young people, religious leaders) and to ensure high-quality policing. Personal responsibility must be the hallmark in a free country, whether we’re talking about obeying the law or enforcing it.

About CURE

The Center for Urban Renewal and Education (CURE) is a policy institute that addresses issues of race and poverty from a Christian conservative perspective. Our objective is to build awareness that the conservative principles of traditional values, limited government, and private ownership is of greatest marginal benefit to low income peoples. We explore and promote market-based public policies to fight poverty within the political process to protect one’s purposes and pursuits—not to plunder them. We seek to preserve unborn life, traditional mores, free enterprise, parental rights, and private property.

Star Parker, Founder & President

CURE was founded by Star Parker in 1995. Parker holds a bachelor’s degree in Marketing and International Business from Woodbury University and has received numerous awards and commendations for her work on public policy issues. In 2016, CPAC honored her as the “Ronald Reagan Foot Soldier of the Year.” In 2017, Star was the recipient of the Groundswell Impact award, and in 2018, Bott Radio Network presented Star with its annual Queen Esther award.

Serving on the National Religious Broadcasters Board of Directors and the Board of Directors at the Leadership Institute, Star is active in helping other organizations that impact the culture, particularly for younger generations. To date, Star has spoken on more than 225 college campuses, including Harvard, Berkeley, Emory, Liberty, Franciscan, UCLA, and the University of Virginia.

She is a regular commentator on national television and radio networks including the BBC, EWTN, and FOX News, and the author of four books: Necessary Noise: How Donald Trump Inflames the Culture War and Why This Is Good News for America (2019); Uncle Sam’s Plantation: How Big Government Enslaves America’s Poor and What We Can Do About It (2003/2012); White Ghetto: How Middle-Class America Reflects Inner City Decay (2006); and Pimps, Whores and Welfare Brats: From Welfare Cheat to Conservative Messenger (1997).

Marty Dannenfelser, Director of Governmental Relationals

Marty Dannenfelser is Director of Governmental Relations for CURE. He tracks proposals from the White House, executive branch agencies, Capitol Hill, and the policy community—particularly as they relate to culture, race, and poverty—and shares CURE’s ideas on free markets, religious freedom, personal responsibility, and other policy matters.

Dannenfelser previously served as the presidentially appointed Staff Director of the U.S. Commission on Civil Rights, and as Senior Policy Advisor at the White House Office of Public Liaison. He has served in senior policy, government relations, and external relations positions with the Department of Health and Human Services and the Department of Energy. Dannenfelser has also served as Senior Policy Advisor and Coalitions Director for the House Committee on Energy and Commerce, and as Legislative Director for a Member of Congress.

1“Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner,” Almighty Supreme Born Allah v. Lynn Milling, et al, U.S. No. 17-8654, https://www.supremecourt.gov/DocketPDF/17/17-8654/52935/20180711143053649_7.11.2018_Panideological%20Amicus%20 Brief%20FINAL.pdf
2Supreme Court of the United States, Harlow v. Fitzgerald, June 24, 1982, U.S. Reports: Harlow v. Fitzgerald, 457 U.S. 800 (1982). (loc.gov)
3Seth W. Stoughton, Jeffrey J. Noble, and Geoffrey P. Alpert, “How to Actually Fix America’s Police,” The Atlantic, June 2020, https://www.theatlantic.com/ideas/archive/2020/06/ how-actually-fix-americas-police/612520/.
4Malley v. Briggs, 475 U.S. 335, at 341 (1986), https://scholar.google.com/scholar_case?- case=12074975541007910866&q=Malley+v.+Briggs,+475+US+335,+341+(&hl=en& as_sdt=6,34.
5Jason Johnson, “Eliminating ‘qualified immunity’ is a misguided reform to policing,” The Washington Times, July 22, 2020, https://m.washingtontimes.com/news/2020/jul/22/eliminating-qualified-immunity-is-a-misguided-refo/.
6Jay Schweikert, “New Mexico’s Landmark Qualified Immunity Reform Gets It Mostly Right,” Cato Institute commentary and Las Cruces Sun News article, April 11, 2021, https://www.cato. org/commentary/new-mexicos-landmark-qualified-immunity-reform-gets-it-mostly-right.
7Jay Schweikert, “Employer Liability Is Not an Adequate Solution to Qualified Immunity,” Cato Institute, April 28, 2021, https://www.unlawfulshield.com/2021/04/employer-liability-is-not-an-adequate-solution-to-qualified-immunity/.
8Supreme Court of the United States, Baxter v. Bracey, Petition for Writ of Certiorari, Justice Thomas dissenting, June 15, 2020, https://www.supremecourt.gov/opinions/19pdf/18-1287_09m1.pdf.
9Editorial Board, “The Problem With Police Unions,” The Wall Street Journal, June 10, 2020, https://www.wsj.com/articles/the-problem-with-police-unions-11591830984
10Benjamin Sachs, “Floyd killing shows police unions abuse power. We need radical reform: Former union lawyer,” USA Today, June 8, 2020, https://www.usatoday.com/story/ opinion/2020/06/08/george-floyd-police-union-contracts-increase-racist-killings- column/3168157001/.
11Stephen Rushin, “Police Union Contracts,” Duke Law Journal 66, no. 6 (March 2017): 1191–253, https://dlj.law.duke.edu/article/police-union-contracts-rushin-vol66-iss6/.
12Diane Brown, “They Take Church Outside the Building,” Michigan Conference Communications of the United Methodist Church, August 13, 2019, https://michiganumc.org/chaplains-take-church-outside-the-building.
13David Adler, “University of Michigan Police Department ride-along experience,” The Michigan Daily, February 27, 2019, https://www.michigandaily.com/multimedia/university-michigan-police-department-ride-along-experience.
14“Department of Justice Report Regarding the Criminal Investigation Into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson,” March 4, 2015, https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf.
15Jonathan Turley, “Biden Tweet Rekindles Debate Over Michael Brown Case,” August 11, 2020, https://jonathanturley.org/2020/08/11/biden-tweet-rekindles-controversy-over-michael-brown-case/.
16Vice President Kamala Harris, Twitter account, June 20, 2020, https://twitter.com/VP/status/1274496922083045376.
17“Read what Daniel Cameron said about the grand jury’s findings in the Breonna Taylor case,” Louisville Courier Journal, September 23, 2020, https://www.courier-journal.com/story/ news/local/breonna-taylor/2020/09/23/breonna-taylor-decision-kentucky-ag-daniel-cameron/3507419001/.
18“10 Facts About Law Enforcement,” Law Enforcement Legal Defense Fund, https://www. policedefense.org/10-facts-about-law-enforcement/, accessed May 6, 2021.
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