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Three Specific Ways to Fix Bad Policing

To improve policing, we must end long-running policies that incentivize bad behavior and break down trust between the police and the public:

  • End Abusive Fines & Fees
  • End Civil Forfeiture
  • End Qualified Immunity

Arlington, Va. —As nationwide protests over police abuse have convulsed the nation in the wake of the killing of George Floyd, practical responses are needed to fix fundamental flaws in the way American communities are regulated and policed. To have effective and trusted law enforcement, local, state and federal officials must take concrete actions to change the underlying incentives that work to enable and even encourage police abuse.

“Incentives matter,” said Institute for Justice President and General Counsel Scott Bullock. “Many police operate in a system that unnecessarily sows mistrust and forces the police and the communities they purport to serve into needless confrontations, while doing little to actually protect the public.”

The nonprofit Institute for Justice (IJ) has spent years fighting against three specific policing doctrines that should be abolished by legislatures and courts. These doctrines are some of the key drivers behind the widespread anger and distrust of law enforcement agencies across the nation today.

“Changing these three doctrines will improve policing in America,” Bullock said. “While they will not fix everything wrong with current policing practices, by changing the incentives around law enforcement, we can help ensure that all individuals, including the poor and disenfranchised are respected while the police carry out their work.”

Eliminate Arbitrary & Abusive Fines & Fees

“Arbitrary and abusive fines and fees are a municipal moneymaker through which police ticket people to raise revenue,” said Institute for Justice Senior Attorney Bill Maurer. “People may remember how Ferguson, Missouri relied on fines and fees to pay for its budget. That reliance infected both the municipal court and its law enforcement, leading to violence and death and widened the divide between police and the African-American community. That same infection festers throughout cities nationwide. Making police tax collectors for revenue hungry municipalities creates distrust, increases the number and intensity of interactions with the police, and does nothing for public health and safety.”

The infractions can be remarkably arbitrary and petty. In Pagedale, Missouri, for example, residents could be fined if they had mismatched curtains, walked on the left side of the crosswalk, wore pants below one’s waist or had a barbeque in the front lawn rather than in the back.

Maurer urged, “Look at Chicago, where African-American couple Jerome Davis and Veronica Walker-Davis live. They took their car to an auto shop for repairs, and their mechanic took it out for a drive. But when police pulled him over and discovered his license was revoked, they impounded the Davis’ car.”

Even though the Davises did nothing wrong, Chicago demanded that they pay thousands in fines and fees. But by the time the couple raised the money, the city had “disposed” of the car. This is far too common: research from ProPublica Illinois with WBEZ shows that Chicago’s fines and fees fall heaviest on those least able to pay, especially African Americans.

And fines and fees like this come with predictable results: less trust in and respect for government. One Institute for Justice survey demonstrated that individuals who had run afoul of these sorts of municipal-citation systems in Georgia reported significantly lower levels of trust in government—not just in police, but in elected officials.

“Properly enforcing laws requires the trust of a community,” said Maurer. “But you can’t expect people to trust a system that treats them like walking ATMs. This is going to be an even bigger issue in minority communities once the pandemic ends.”

End Civil Forfeiture

Civil forfeiture gives law enforcement a direct financial incentive to violate constitutional rights. This doctrine lets police seize and permanently keep people’s property, all without ever charging them with a crime let alone finding them guilty.

Worse yet, many states let police and prosecutors keep 100% of what they take in, encouraging police to seize as much as they can from those who are least able to defend themselves. At a vehicle forfeiture conference, New Mexico prosecutors laughed about how the doctrine let them fleece property owners: “What’s theirs is yours,” former Las Cruces City Attorney Pete Connelly told his colleagues. “If in doubt … take it.”

Cities across America have done just that. In Philadelphia, police and prosecutors built a forfeiture machine that took in millions every year, disproportionately from communities of color. In Tenaha, Texas, police systematically pulled over drivers and confiscated their property, even threatening to put one interracial couple’s children into foster care if they didn’t sign away their cash. And in Albuquerque, New Mexico, prosecutors worked hard to seize and forfeit vehicles given that 100% of their salaries relied on that revenue.

“Civil forfeiture turns police into revenue generators,” said Institute for Justice Senior Attorney Darpana Sheth who spearheads IJ’s National Initiative to End Forfeiture Abuse. “Law enforcement agencies have taken in literally billions of dollars through civil forfeiture, the vast majority of which was never tied to any criminal activity.

“It’s little surprise that minority communities view civil forfeiture with widespread suspicion, given that it has empowered law enforcement agencies year after year to prey on the very communities they are supposed to protect,” Sheth said. “Courts and legislatures should end this perverse financial incentive so that police chase criminals, not dollars.”

Abolish Qualified Immunity

“It is essential that we end qualified immunity, a legal doctrine that says no government official can be held liable for violating the Constitution unless they break a ‘clearly established’ rule,” said Institute for Justice Senior Attorney Bob McNamara, who heads up IJ’s new Project on Immunity & Accountability. “In practice, this means that government officials have a free pass to violate your rights as long as they do so in a way that is even a little different from what has been done before. And as a result, courts in recent years have said that officers can steal cash, destroy homes and shoot children—all without any consequence at all.”

Prince McCoy, a Texas inmate, learned about qualified immunity the hard way. A prison guard, frustrated by a different inmate in a different cell, shot McCoy in the face with pepper spray. McCoy sued, but the 5th U.S. Circuit Court of Appeals held that the guard was entitled to qualified immunity even though his assault violated the Constitution. Why? Because although the court had previously condemned punching and tasing defenseless inmates, it had not previously condemned jailers for using pepper spray on defenseless inmates locked in their cells.

Cases like McCoy’s are legion, making the end to qualified immunity long overdue. Because qualified immunity provides for a nearly impenetrable barrier between officers and accountability, even the most egregious violations can go unpunished. Here are some cases where the courts granted immunity in just the past year; three of which are among those now being considered for review before the U.S. Supreme Court:

The U.S. Supreme Court already granted review in another IJ case, Brownback v. King, where IJ represents an innocent college student who was mistaken for a non-violent suspect wanted by police for a petty crime. Two plain-clothed police officers who never identified themselves as police mercilessly beat James King and choked him until he was unconscious. James prevailed at the appeals court, persuading the judges to deny qualified immunity to the officers. But before the case could go back down to the trial court for a determination on the merits, the government convinced the Supreme Court to take the case and consider whether to create yet another exemption from accountability.

And later this month, the Court will consider whether to accept a third case from IJ’s Project on Immunity and Accountability, brought on behalf of a Colorado family whose home was destroyed by police in pursuit of a suspect who had no connection to them.

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said McNamara. “By protecting new and even more outrageous actions by law enforcement, qualified immunity protects bad policing while demoralizing and stigmatizing all the officers out there who are doing good work. If we want to deescalate the abuses we are seeing among law enforcement nationwide, we must abolish qualified immunity.”

“This misuse of government power must end,” Bullock said. “The millions protesting are tired of the abuse and unaccountability. These proposals are concrete ways to effectuate real change. Politicians and the courts must stand up and end abusive fines and fees, end civil forfeiture, and end qualified immunity. Those concrete actions will move us closer to a system of genuine justice for all that helps restore trust, protects the public and save lives.”

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