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Posted 5/17/21

IS THE “CURE” WORSE THAN THE “DISEASE”?

Dem’s push the “George Floyd Justice in Policing Act.”
 Its consequences could be profound.

     For Police Issues by Julius (Jay) Wachtel. On June 8, 2020, a mere twelve days after those punishing “nine minutes and twenty-nine seconds” took George Floyd’s life, the 116th. Congress introduced the “George Floyd Justice in Policing Act of 2020.” Seventeen days later, on June 25, the House approved the measure by a comfortable 236-181 margin. Only three Republicans, though, voted in its favor. And the Senate, then a province of the “Reds,” simply refused to take it up.

     Hoping for a better outcome, the Dem’s reintroduced the legislation in the 117th. Congress. On March 3rd., reflecting their eroded standing, the “George Floyd Justice in Policing Act of 2021” passed the lower chamber on a far less decisive 220-212 vote. It now awaits action by the evenly-divided Senate. Here are some of its key provisions (for the text version click here; for a summary click here.)

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• As Federal law (18 USC 242) presently stands, police officers can only be prosecuted for “willful” civil rights violations, meaning done on purpose and with bad intent. The George Floyd Act would relax this standard to include behavior that was “knowing” – meaning, not by accident – or “reckless.” Should death result, present penalty enhancements would be extended to include situations where officer conduct was a “substantial” contributing factor to the fatality, not only its sole or primary cause.
   
• In Harlow v. Fitzgerald (457 U.S. 800, 1982) the Supreme Court ruled that “qualified immunity” protects government employees from  lawsuits for deprivation of civil rights under 42 USC 1983 “insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.” Under the Floyd Act, that “immunity” would become a historical footnote. Civil rights lawsuits against individual officers would be heard (and could ultimately succeed) no matter whether an officer “was acting in good faith” or believed that their conduct was “lawful.”
   
• An extensive, highly detailed section of the Act regulates how Federal law enforcement officers (but read on) go about their business. No-knock warrants are prohibited. Officers must intervene when colleagues misbehave. Most importantly, the use of force, including deadly force, would be bound by standards that are far less forgiving than the present go-to, the Supreme Court ruling in Graham v. Connor.  Here’s a extract from that landmark decision:
   

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

No more. If at all possible, de-escalation must be attempted. Force also appears restricted to making arrests, and then only when “the officer has probable cause to believe” (correctly so) that the person being taken into custody committed a crime. Moreover, the force used must be “necessary and proportional,” and lethal force is only allowed “as a last resort” once “reasonable alternatives...have been exhausted” and there is “no substantial risk of injury to a third person.” Chokeholds and carotid holds are banned outright.

• To keep getting Federal law enforcement funds, state and local governments would have to follow the same use-of-force standards as the Feds. They must also contribute to a “National Police Misconduct Registry” that will include information about every citizen complaint filed against a state or local law enforcement officer. Instances that allegedly involve racial profiling or excessive force would be indexed by officer name and appear on a public website. To keep those Federal bucks rolling in, agencies would also have to participate in a national effort to combat racial profiling and assure a “more respectful interaction with the public.” They would be required to consistently detect “episodes of discriminatory policing” and sanction officers who engage in such practices.
   
• The Act goes beyond George Floyd. To quell concerns that surplus military gear “could be used inappropriately during policing efforts in which people and taxpayers could be harmed,” the measure prohibits its transfer to local law enforcement agencies except for counterterrorism purposes (no more using it for drugs or border security.) The Act bars the transfer of firearms, impact weapons, drones, and vehicles other than automobiles and utility trucks. There’s a provision for exceptions, but its complexities seem befuddling.

     After reintroducing the measure in the new Congress, its main House sponsor, Rep. Karen Bass (D-Calif., pictured above) evocatively summarized its purpose:

Never again should an unarmed individual be murdered or brutalized by someone who is supposed to serve and protect them. Never again should a family have to watch the murder of their loved one over and over again on the TV. Never again should the world be subject to witnessing what we saw happen to George Floyd in the streets in Minnesota.

Representative Bass’ partner in the effort, House Judiciary Committee Chairman Jerrold Nadler, also expressed intense views. But he did offer an olive branch to the authorities:

We have not forgotten the terrifying words ‘I can’t breathe’ spoken by George Floyd, Eric Garner, and the millions of Americans in the streets who have called out for change in the wake of the murders of George Floyd, Breonna Taylor and so many others...With this legislation, the federal government demonstrates its commitment to fully reexamining law enforcement practices and building better relationships between law enforcement and the communities they are sworn to protect and serve.

     Were it that simple. A continued profusion of lethal encounters (i.e., Breonna Taylor, Ma’Khia Bryant, Adam Toledo, Daunte Wright) has led some “Blues” to criticize the Floyd Act as much too little, far too late. Sponsored by Representative Ayanna Presley (D-Mass.) and Rashida Tlaib (D-Mich.), the  “BREATHE” Act would, among other things, “divest federal resources from incarceration and policing” and “invest in new, non-punitive, non-carceral approaches to community safety that lead states to shrink their criminal-legal systems....”

     As one might expect, such views have horrified the “Reds.” But there are exceptions. Say, Senator Tim Scott (R-S.C.) One of the few Republicans to openly endorse some aspects of the Floyd Act, he seeks “a substantive piece of legislation that is transformative for policing.” But his views on what the final product should look like aren’t what the measure’s sponsors have in mind. For one thing, he’d like a re-do of the qualified immunity provision so that the burdens of litigation and unfavorable outcomes fall on agencies instead of individual cops. He also strongly opposes the notion of making it easier to prosecute officers for Federal civil rights violations:

If you demonize and/or eliminate protections that they (police) have, chances are very low that you're going to have officers responding, so community safety goes down. Case in point: Portland, Cleveland, New York, Atlanta, Chicago. So we have to do something that strikes the right balance.

     Were it that simple. While some tweaks might help get a few of Representative Scott’s colleagues to vote “yea,” influential civil rights groups that back the Floyd Act have steadfastly refused to water it down. Sherrilyn Ifill, President of the NAACP Legal Defense and Educational Fund, demands that the law pass exactly as written:

The George Floyd Justice in Policing Act is a vital public safety measure. The core of the bill are measures that clear away barriers to holding law enforcement officers accountable for brutality and misconduct...We call on the Senate to do its part and immediately take up and pass the George Floyd Justice in Policing Act.

That’s definitely a non-starter for the more stalwart Reds, say, the Heritage Foundation’s Zack Smith. In his view, prohibiting the transfer of military gear and eliminating no-knock warrants would make policing far more dangerous, while tightening the rules on the use of deadly force “could cause officers to hesitate in critical situations.”

     Naturally, police union leaders are deeply invested in what the Act might bring. Patrick Yoes, the FOP’s National President, feels that some of its measures “could have a positive impact.” Yet he (and, assumedly, most of his membership) strongly opposes other aspects, such as abolishing qualified immunity. Mr. Yoes has also complained that despite the need for “genuine dialogue and engagement” the Act was sent “directly to the floor – without Committee consideration or any real debate on meaningful amendments.”

     That lack of consultation has troubled other influential law enforcement leaders. Cynthia Renaud, the retired police chief who leads the International Association of Chiefs of Police, issued a detailed, highly critical “letter” that strongly objects to the Act’s key provisions. She warns, first, that ending qualified immunity “would have a profoundly chilling effect on police officers and would limit their ability and willingness to respond to both critical incidents and routine calls for service without hesitation.” Ms. Renaud also cautions that the Act’s use-of-force rules, which go well beyond Graham, assume “a level of officer influence over circumstances that does not exist and strives to create a level of perfection that cannot possibly be obtained.” In effect, cops would be encouraged to do nothing. Her objections extend to the National Police Misconduct Registry and to the prohibition on the transfer of military equipment, which she deems crucial for officer safety. Really, considering the penetrating power of firearms in the hands of the general public, the availability of armored vehicles does seem a no-brainer.

     So what do we think? (Glad you asked!) We’ve taken a deep look at the proposal and are greatly concerned about its reach. In its enthusiasm to reflect today’s sociopolitical climate, the Act seems to overlook the actual workplace of policing. As this retired law enforcement professional well remembers, it’s an inherently messy space. When Louisville cops executed their infamous search warrant at the residence of Breonna Taylor, they didn’t anticipate that a companion would be there, nor that he would be armed, nor that he would interpret their presence as a criminal assault and open fire. And when an officer fired back after a bullet struck his partner, his round missed its mark and tragically killed Ms. Taylor, who was standing alongside.

     That episode likely spurred the Act’s prohibition of lethal force unless there is “no substantial risk of injury to a third person.” Yet officers often arrive at chaotic scenes knowing preciously little about the circumstances and nothing about its participants. Consider the recent tragic example of Ma’Khia Bryant. Within seconds of a cop’s arrival at the disorderly scene, one angry teen tried to plunge a knife into the torso of another. In this example, the officer’s shots struck their intended target. Had he not fired, as others were nearby, Ms. Bryant would have survived. But her intended victim could have been fatally stabbed.

     It’s for the reason that officers must occasionally make “split-second” decisions that the Supreme Court ruled as it did in Graham. As we mentioned in “Routinely Chaotic”, lethal encounters typically occur in confused situations that teem with conflict and uncertainty. Throw in a lack of information, a shortage of human and material resources, and the inevitable “idiosyncrasies” of both cops and noncompliant citizens, and you have “A Recipe for Disaster.”

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     What gets little play are the many successes (including more than a few miracles) that good cops pull off as a matter of course. As we recommended in our recent Police Chief piece, studying these could prove instructive. Yet the jargon-rich Act doesn’t propose to craft organic solutions, and certainly not with any input from working cops. Instead, the Act’s approach seems wholly regulatory, as though the infinitely complex legislation can accomplish anything beyond guaranteeing long-term employment to legions of Federal and State overseers.

     But reality has intervened. Major cities are experiencing a surge in violence and armed mayhem (click here for Chicago, here for Los Angeles, and here for New York City.) So it seems unlikely that the Act will pass in its current form. Hopefully, though, its sponsors will get the message and craft an approach that’s attuned to the messy social environment that officers face each day. Cops and citizens deserve no less.

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PRESIDENTIAL EXECUTIVE ORDER ON POLICING (May 25, 2022)

Order      White House fact sheet     IACP fact sheet

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“Why do Officers Succeed?”

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The Usual Victims     A Recipe for Disaster     Fair but Firm    Going Ballistic    Routinely Chaotic

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WANT HAPPY ENDINGS? DON’T CHASE

Pursuits can lead to tragedy. Options are often available.

     For Police Issues by Julius (Jay) Wachtel. Here are two extracts from one of our very first essays, “When Cops Kill”:

Police work is done in an uncertain environment. Making it perfectly safe for cops can make it perfectly dangerous for everyone else. Those loath to take personal risks should be encouraged to look for a different line of work.

A minority of officers use a majority of force.  Personality traits such as impulsivity must be proactively sought out and addressed, hopefully before hiring, no later than during field training.

And here’s an outtake from a more recent piece, “Working Scared”:

Some cops may be insufficiently risk-tolerant; others may be too impulsive. Poor tactics can leave little time to make an optimal decision. Less-than-lethal weapons may not be at hand, or officers may be unpracticed in their use. Cops may not know how to deal with the mentally ill, or may lack external supports for doing so. Dispatchers may fail to pass on crucial information, leaving cops guessing. And so on.

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     When it comes to shaping outcomes, officer personalities and skill sets, the availability of human and material resources, and the quantity and quality of information are clearly important. And that’s not all. We’ve often mentioned “confirmation bias,” the all-too-human tendency to interpret things in a way that’s consistent with one’s pre-existing understandings and beliefs. That can affect what both cops and citizens do.

     Got it? Let’s apply these methods to a real-life tragedy. Say, the June 18, 2020 shooting death by Los Angeles County Sheriff’s deputies of Andres Guardado.

     According to the Sheriff’s Department two deputies from the Compton station were in their cruiser patrolling a high-crime area when they observed Andres Guardado, an 18-year old youth with whom they were unacquainted, chatting with the occupants of a vehicle that had parked in front of the driveway of an auto body shop. Mr. Guardado, they noticed, had a handgun. They pulled over and moved to confront him. He noticed and promptly ran off. (This surveillance video depicts the start of the chase. Mr. Guardado is on the right, one of the two deputies is on the left. Neither wore a body cam.)

     What the L.A.S.D. release doesn’t explain is why Deputy Miguel Vega would soon shoot Mr. Guardado dead. That justification was provided to reporters by the deputy’s retained lawyer. He said that Mr. Guardado lay down on his stomach as if to surrender, but that as Deputy Vega approached with handcuffs the youth reached for the handgun he had thrown down during the chase. That account was seconded by the lawyer for Vega’s partner, Deputy Christopher Hernandez, who didn’t shoot. The handgun they reportedly recovered, a .40 caliber pistol, lacked a serial number and had been assembled from parts. In effect, it was an untraceable “ghost gun.” It had apparently not been fired.

      In the video Mr. Guardado doesn’t seem to flaunt a gun. Otherwise what happened is indistinct. Of course, the deputies had a far better view. They also had abundant reason to look closely. Only a week earlier there had been a shooting at the shop (see left). A search of the business turned up items beloved by drug abusers, including copious amounts of nitrous oxide gas and supposedly some meth. (Click here for stills and video related to the raid.) Surveillance camera footage seized from the business depicts a whole lot of foot traffic for an auto body shop. Mr. Guardado was in street clothes. His presence and manner naturally provoked the deputies’ interest. Was this fellow involved? Might he be directing customers to a new source?

     According to the owner of the business everything was legit. Mr. Guardado, he said, was working security:

We had a security guard that was out front, because we had just had certain issues with people tagging and stuff like that. And then the police came up, and they pulled their guns on him and he ran because he was scared, and they shot and killed him. He’s got a clean background and everything. There’s no reason.

     We obtained a copy of the official coroner’s report. It indicates that Mr. Guardado suffered five bullet wounds, all in the back; each was considered fatal. There were also two graze wounds to his forearms (the deputy reportedly fired six or seven times.) Check out the diagram. Mr. Guardado was fully turned away from the officer when he was shot. If he reached for a gun, he didn’t get very far. No drugs or alcohol were detected in Mr. Guardado’s system, and the young man seemed otherwise healthy and fit.

     Now for some really curious stuff. Sheriff Alex Villanueva has long sought to keep outsiders, including County officials, from meddling with things. He strongly objected to the autopsy’s release (he said it would impair his investigation) and accused the Coroner of publicizing the results “to satisfy public curiosity.” He also opposed holding a formal inquest with witnesses and such. And when the event was held – it was the County’s first in thirty years – the only evidence that came in was from the autopsy. Both deputies, along with the two homicide detectives who investigated the shooting, invoked their Fifth Amendment rights and refused to testify.

     And now for even more curious stuff. A few days after the inquest (it was held on November 30) Sheriff Villanueva relieved deputies Vega and Hernandez of duty. No, it supposedly had nothing to do with Mr. Guardado. Instead, the Sheriff’s move supposedly stemmed from a traffic accident last April that injured a prisoner in a patrol car driven by Deputy Vega.

     Why did the Sheriff wait eight months to suspend the deputies? Was Deputy Hernandez involved? As of yet, the circumstances seem impossibly murky. We know little about the deputies. According to the L.A. Times, Deputy Vega, who shot Mr. Guardado, is an eleven-year veteran. His most serious recent faux-pas was a four-day suspension in 2017 for either making false statements or failing to “properly screen a jail inmate.” More recently he was accused of using “unreasonable force” (the complaint was dismissed for lacking merit) and, twice, for alleged discourtesy. Deputy Hernandez’s disciplinary history was unspecified. A troubling allegation, though, has surfaced about the duo. In an unrelated civil rights lawsuit, fellow Compton station deputy Austreberto “Art” Gonzalez testified that Deputies Vega and Hernandez were prospective members of the notorious “Executioners” deputy clique. (They deny it.) Deputy Gonzalez also said that it was common practice for Compton deputies to justify chases by falsely claiming they saw a gun.

     Mr. Guardado’s survivors sued the County in August. They allege that Compton deputies are poorly selected, ill-trained and inadequately supervised. Consequently, they habitually lie, misuse force and participate in “gangs.” But misconduct is mostly ignored. Here’s an extract from the massive civil complaint:

54. Defendants further breached their duty in that defendants Los Angeles County Sheriff's Department and County of Los Angeles deputies who were at the scene of the subject incident, including defendants Deputy Miguel Vega, Deputy Chris Hernandez, and DOES 1 through 50, and each of them, had a history of bad traffic and pedestrian stops, improper uses of force, improperly discharging their firearms, failing to follow proper procedures, and making false statements during investigations. Yet, the deputies were never disciplined, or were not disciplined properly, and were never trained or re-trained properly, and were never removed from service.

     As one might expect, Mr. Guardado’s family and friends had only good things to say about the teen. He graduated from high school, was attending a technical college and held down two jobs, including as a security guard at that body shop. (According to the Sheriff the youth wasn’t licensed as a guard and was too young to be an armed guard.)

     Well, those are some of the “facts.” Now all that’s left to figure out is the “why.”

     Once again, check out the video of the encounter. There really is no other conclusion: Mr. Guardado purposely ran off. But why? After all, he was supposedly a security guard! According to his boss, Mr. Guardado got scared when deputies inexplicably charged at him. Still, we wonder. Look at the photos, video and the news account about the search of the body shop. Was something beyond car repair going on?

     Unlicensed carry is forbidden in California. Ditto, selling handguns to persons under twenty-one. According to the Sheriff, Mr. Guardado’s ghost pistol had a California-illegal extended magazine loaded with thirteen rounds. Did he assemble the gun from parts? Illegally buy it ready-made from someone else? Indeed, just who was Andres Guardado? His employer’s questionable bonafides, the youth’s flight and the gun leave us wondering.

     Our concern extends to the deputies as well. Even if Mr. Guardado did go for a gun, Deputies Vega and Hernandez worked at the troubled Compton station, refused to testify at the inquest, and were ultimately suspended for something else. Still, there is that video. They took off after Mr. Guardado for a reason. Their justification – that the youth was armed – seems legitimate, and they reportedly seized a gun. Unfortunately, there is no body-cam video (according to the Sheriff body-cams won’t be in wide use for another year.) All we have to explain why deputy Vega fired is what he said.

     Bottom line: Mr. Guardado was wrong to flee, and in so doing he inarguably helped set the stage for a disastrous ending. We’ve written about similar episodes, most recently the police killings of Jacob Blake in Kenosha and Rayshard Brooks in Atlanta. In both cases officers had ample reason to intervene and their reasons for chasing seem justified. But here’s what’s so distasteful. Neither Mr. Blake nor Mr. Brooks nor Mr. Guardado were career criminals. They were more or less peaceably going about their business when officers showed up. That cops would soon shoot them dead seems vastly disproportionate. It’s shocking.

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     Most cops and students of policing surely find such outcomes dispiriting. Still, cops are human. Once they’re chasing someone who’s resisting or may be armed, adrenalin rules. One of our earliest posts, “The Chase is On,” reported on the fatal shooting of Darrick Collins by L.A. County deputies. Mr. Collins apparently resembled a suspected robber and fled when officers approached. In the end, the innocent man made a “threatening motion” and was shot dead. Our analysis led to some unpleasant observations. Here’s an extract:

Pumped up on anxiety and adrenaline, with little opportunity to observe or reflect, it’s inevitable that [officers’] split-second decisions will occasionally prove to be tragically wrong.

Unless academies can produce Supercops who are unaffected by stress and fatigue and can see in the dark, prohibiting one-on-one foot pursuits may be the only option.

Short of outright prohibiting chases – after all, some are undoubtedly justified – here’s another “option.” Rushing in isn’t always necessary. Deputies Vega and Hernandez could have driven on, parked their vehicle out of sight and called for backup. A bit of planning and staging could have avoided an adrenaline-charged confrontation and the violence that such encounters can easily bring on.

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RELATED POSTS

Putting Things Off     Tenacity is Great - Until it’s Not     What’s Up With Policing?

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