July 17, 2020

Police Reform and Accountability Work Group Briefing: July 16, 2020

A new work group commissioned by the Maryland House Speaker to address police reform and accountability gave its first briefing on July 16, 2020. The group’s inaugural briefing included a summary of recent policing reform legislation as well as an overview of the Maryland Police Training and Standards Commission (MPTSC).  Find key takeaways below, or view the briefing in its entirety or download the meeting slide deck.

Amber Widgery, Program Principal, Criminal Justice Program
National Conference of State Legislatures

National Conference of State Legislatures

  • Non-profit, bi-partisan organization
  • Members are all 7,383 legislators and 30,000 legislative staff in 50 states, D.C. and U.S. territories.
  • Offices in Denver and D.C.
  • Among our goals – To provide legislatures with information and research about policy issues, both state and federal.
  • NCSL takes state policy developments in all public areas.

Legislation by the Numbers

  • 27 states and Washington D.C. have introduced legislation.
  • 339 bills introduced.
  • 35 enacted bills/adopted resolutions.
  • 7 bills awaiting executive action.
  • 181 measures currently pending.

Enacted Legislation

  • 15 states and Washington D.C. have enacted legislation, topics include:
    • Oversight & Data
    • Use of Force, including Chokeholds
    • Duty to Intervene/Report/Provide Aid
    • Independent Investigation/Prosecution
    • Training
    • Officer Certification/Decertification
    • Body Cameras

Enacted Legislation: Oversight & Data

Creation of new state mechanisms to study or oversee policy:

  • GA SR 1007 – Creates the Senate Law Enforcement Study Reform Committee.
  • LA SCR 7 – Establishes the Police Training, Screening and De-escalation Task Force.
  • OR HB 4201 – Establishes the joint legislative committee on transparent policing and use of force reform.
  • RI SB 2867 – Creates A special legislative study task force to study and provide recommendations on the law enforcement officers’ bill of rights.

Data Collection:

  • CO SB 217 – Requires reporting on use of force, weapon unholstering and other police contact data. Requires public database.
  • NY AB 10609 – Requires reporting on arrested-related deaths with annual reports to the legislature and the governor.

Enacted Legislation: Use of Force

Restrictions and Standards:

  • CO SB 217 – Modernizes the use of force standard to reflect case law, requires use of nonviolent means when possible before using force, limits when physical force may be used, requires that force be consistent with minimalization of injury, and prohibits use of chokeholds. Requires identification and warning prior to use of deadly force and restricts when deadly force may be used. Restricts when and how chemical agents and projectiles may be used in response to protests.
  • IA HB 2647 – Restricts the use of chokeholds to when deadly force would otherwise be authorized.
  • NY AB 6144 – Establishes the crime of strangulation in the first degree specific to officers who disregard procedures banned by their employment related to chokeholds.
  • OR HB 4203 – Provides that officers may not use force that limits the ability to breathe.
  • OR HB 4208 – Prohibits law enforcement agencies from using tear gas or from using long range acoustic devices or sound cannons for the purpose of crowd control, except in circumstances constituting a riot.
  • UT HB 5007 – Prohibits Officers from using chokeholds or restraints that may cause unconsciousness.

Legal Duty and Liability:

  • CO SB 217 – Requires officers to render aid to any injured or affected person as soon as practicable. Creates a duty to intervene to prevent or stop physical force that exceeds permitted force. Requires an officer to report an intervention to their supervisor. Creates protections for intervening officers and criminal penalties and discipline, including termination for failing to intervene. Creates a civil action for deprivation of rights by local law enforcement officers, including personal liability of up to $25,000 or 5% of the judgment. Authorizes the state attorney general to file a civil action alleging pattern or practice of conduct in violation of a person’s rights.
  • NM SB 8 – Specifies that state immunity does not apply for offenses and violations involving officers acting within the scope of their duties.
  • NY SB 6601 – Creates a duty to provide attention to the medical and mental health needs of a person under arrest or otherwise in the custody of an officer. Requires obtaining assistance and treatment that is reasonable and provided in good faith.
  • OR HB 4205 – Requires Department of Public Safety Standards and Training to adopt rules requiring officers to intervene to stop another police officer from engaging in conduct that is unethical or that violates law, rules, or policy, defines misconduct.

Investigation and Prosecution:

  • IA HB 2647 – Authorizes the attorney general to prosecute a criminal offense committed by a law enforcement officer arising from a law enforcement-involved death.
  • NY SB 2574 – Establishes the Office of Special Investigation within the Department of Law to investigate and prosecute any alleged criminal offense or offenses committed by a police officer, or peace officer, concerning the death of any person as a result of any encounter with such police or peace officer.

Enacted Legislation: Training

  • CO SB 217 – Requires that officers be trained on new use of force provisions.
  • IA HB 2647 – Requires Annual training on de-escalation techniques and prevention of bias. Provides guidance on training.
  • OR HB 4205 – Directs the Board of Public Safety Standards and Training to adopt rules prohibiting the training of officers to use physical force that impedes normal breathing or circulation of blood by applying pressure on the throat or neck.
  • UT HB 5007 – Bans training on the use of chokeholds and restraints that may cause unconsciousness.

 Enacted Legislation: Certification

  • CO SB 217 – Require the Police Officer Standards and Training Board to revoke officer certification for inappropriate use of force or failure to intervene. Restricts the POST Board from reinstating certification or granting new certification unless the officer is exonerated by a court. POST Board is required to record decertification in a database.
  • IA HB 2647 – Establishes circumstances under which the Iowa Law Enforcement Academy Council is required to revoke officer certification, may suspend or revoke certification or may deny an application for certification.
  • NJ AB 744 – Requires that law enforcement agencies provide internal affairs and personnel files to other agencies under certain circumstances.
  • NM SB 8 – Requires permanent revocation of certification for a conviction involving unlawful use or threatened use of force or a crime involving failure to intervene.
  • OR HB 4205 – Authorizes suspension or revocation of certification for failure to intervene or report.
  • OR HB 4207 – Requires denial of application, suspension or revocation of certification upon a finding of certain criminal convictions, status as a sex offender, and discharge for cause related to certain circumstances. Requires database of decertification.

Enacted Legislation: Body-Worn Camera

  • CO SB 217 – Requires broad adoption of body-worn cameras and establishes regulation for use of body-worn cameras.
  • NM SB 8 – Requires certain law enforcement officers to use body-worn cameras and requires agency adoption of policies and procedures.
  • NY SB 8493 – Establishes the State Police Body Worn Cameras Program, requires the Division of State Police to provide body-worn cameras to be worn by all officers.

Executive Orders

  • 7 states have signed executive orders.
  • Orders in AR, NH and NY create new task forces.
  • The CT order is substantive and addresses use of force, community engagement, demilitarization and body cameras.
  • The MI order expands the membership of the Commission on Law Enforcement Standards
  • AZ & MN are emergency orders addressing immediate situation.

Legislative Trends 2014 – 2019

  • Expansion of various types of training requirements including training on cultural competency, disabilities, use of force and behavioral health interactions.
  • Regulation and encouragement for the use of technology, specifically body cameras and drones.
  • Data collection, specifically demographic information for motor vehicles stops.
  • Use of force including data collection and reporting, investigations, prosecution, standards, training, and use of specific kinds of force.
  • Regulation of civil asset forfeiture.
  • Due process protections including warrant requirements, cell phone tracking, and interrogation procedures.
  • Community policing initiatives, including appropriations for pilot programs and policing alternatives.
  • Deflection/pre-arrest diversion and other early intervention models.

Policing Policy Statutes by the Numbers

States have taken the following actions:

  • 50 Authorize the use of citation in lieu of arrest.
  • 27 and Washington D.C. require officers to be trained to better respond to individuals with mental health, substance use and behavioral health disorders.
  • 21 require the collection of demographic information for motor vehicle stops.
  • 15 created procedures to improve transparency and integrity of investigations into officer-involved deaths or excessive force.
  • 15 require reporting or data collection on use of force incidents.
  • 13 and Washington D.C. appropriated funds for police departments to support the use of body cameras.
  • 12 require training related to cultural and racial diversity, racial profiling prohibitions, training to raise awareness of bias, or supervisor training to detect and effectively respond to biased behavior.
  • 12 have requirements or guidelines for establishing crisis intervention teams.
  • 11 have laws supporting the duty to intervene.
  • 10 require independent investigation of police-involved incidents by a state agency, the attorney general or other outside source.
  • 9 and Washington D.C. restrict or prohibit neck restraints.
  • 8 require that at least some law enforcement officers utilized body-worn cameras.
Q&A

Delegate Debra Davis: Could you speak generally regarding any jurisdiction that is making direct law or responses to holding people accountable?

Amber Widgery: I think there are a lot of proposed new laws regarding accountability for officers. The accountability measures we have in place were really focused on independent investigation and independent prosecution, general reporting requirements and collection of data. More recently we’ve had state legislation that requires specific kinds of accountability.

Delegate David Moon: Has anyone you’re looking at proposed something that would scale this up in some way that makes it more than just a token? How are they proposing to pay for all of this, for example the body cams?

Amber Widgery: In terms of scaling I haven’t seen anything on a statewide basis yet. I’ve seen state support for some of those localized programs. In terms of fiscal support, most police funding comes either from the federal level or the local level. States are generally responsible for appropriations for state police. There have been grant programs for local law enforcement officers. The state plays a limited role to some extent.

Delegate Kathy Szeliga: In Maryland we also have Use of Force Reporting, but it’s just a number. There is no details, can you tell us do the other states give you details on those reports?

Amber Widgery: There’s definitely more detailed reporting coming. There’s a whole list of factors that have to be reported out. I would be happy to share, we have some 50 state information.


Laurie Robinson, Clarence J. Robinson Professor of Criminology, Law and Society
George Mason University

What are some of the key challenges to further progress?

  1. Policing in this country is very highly decentralized, we know there are 18,000 state and local law enforcement agencies, 9000 of those have 10 or fewer sworn officers.
  2. I think buy in from rank and file officers is a tough sell. It will be critical in addressing culture change.  A key step will be focusing on recruitment and hiring or the next generation.

Q&A

Delegate Darryl Barnes: Can you tell me through data what police departments around the country are implementing any of the measures you have researched? What would be your recommendation when you talk about defunding the police?

Laurie Robinson: At the end of the Obama administration there were 15 police departments that were engaged with the White House and implementing with the key recommendations. That work came to a halt when administrations changed. I would say hundreds if not more police departments around the country have implemented many recommendations from the report. I would not recommend abolishing police environments because serious and violent crime cannot be dealt with by social workers and people who have no training in dealing with violent individuals. I do think the defunding conversation is important. We need to ask, what kind of behaviors do we want to use the power to arrest for? What kind of behaviors do we want to use criminal law for? What kinds of things do we want the police to be used for? These are very important conversations to be having.

Delegate Kathy Szeliga: Do you have any Maryland specific information? Are your comments very general?

Laurie Robinson: I have no capacity to research any state at this point. These are general comments. I am basing my comments on the conversations I have had with a number of states.

Delegate Debra Davis: Could you speak generally regarding any jurisdiction that is making direct law or responses to holding people accountable?

Laurie Robinson: I think there are a number of ways that accountability can occur. Some of it really has to take place at the local level.


Lucy Lang, Director, Institute for Innovation in Prosecution
John Jay College of Criminal Justice

The Prosecutor’s Role in Officer-Involved Fatalities

  • 50 national experts
  • Prosecutors, police chiefs, academics, advocates
  • Families who lost loved ones to police violence:
    • Anthony Baez
    • Sean Bell
    • Philando Castile
    • Amadou Diallo
    • Eric Garner
    • Oscar Grant
    • Delrawn Small

The Toolkit

  • Outlines tangible actions for prosecutors and communities to take before and after a critical incident occurs.
  • Founded on principles of independence, timeliness, and transparency.
  • Designed to be actionable and adaptable.

Data Checklist

Investigative Checklist

State Statute Checklist

Use of Force Policy Guidelines

Q&A

Delegate Wanika Fisher: I think our state will struggle with where prosecutors fit in in looking into cases in their own counties. What would you recommend when it comes to investigating police incidents? Should there be a criminal code that is applied directly to officers when they have use of force?

Lucy Lang: As to the second question, I think they should. It is preferable for a distinct body to be the prosecutor. It has resulted in a greater degree of transparency and has potential over time to increase public trust.

Delegate Vanessa Atterbeary: Some prosecutors would make the argument that they have been elected. do you have a response to that?

Lucy Lang: What I would advocate more than creating an independent and appointed agency is vesting authority in another prosecuting actor. It is certainly worth analyzing.


Samuel Sinyangwe, Policy Analyst and Data Scientist
Human Rights Data Analysis Group
     

Q&A

Delegate Sheree Sample-Hughes: Does the information from Obama’s task force interplay with some of your research as far as the T3 that was discussed as a best practice?

Samuel Sinyangwe: There is still a lot we don’t understand about why rates are going up in rural communities. Apart of this might reflect changes in demographic trends as suburbs become more diverse. This is a new finding. We’re trying to better understand what is driving these trends.

Delegate David Moon: I want to ask for a little bit more concrete steps or places to go for what we should do next. This other part about mental health and shrinking the role to me is very unformed. Could you comment on whether we can get away with dealing with this issue And only doing the accountability piece?

Samuel Sinyangwe: With the alternatives to police conversation, it is something that is less formed because it is an approach that many cities and states have not really engaged in until recently. Many are in pilot stage. It’s going to take questions around how do you logistically engage in these things.

Delegate Gabriel Acevero: My question relates to police settlements and how they are paid out. What are your thoughts on changing the model and how we pay out police settlements?

Samuel Sinyangwe: There is a recent study done about the process by which how cities payout police misconduct settlements. The money should be coming out of police department budgets. The police should be held accountable financially for the damages they cause. The biggest drivers of police budgets are not what is most commonly thought about. It turns out the police department budget is spent on personnel costs.

Delegate Curt Anderson: My question is in regard to police unions and their contracts. If we do pass some bills that change what is already negotiated in a contract, can that be done legally? When that has happened in other states have those laws been found to be constitutional? Or do we have to wait until the contract expires?

Samuel Sinyangwe: There have been two states that have taken this on in a big way. Neither have been challenged in the courts as of yet. It waits until the current contract expires and then takes effect.

Delegate Jason Buckel: Is it your position or suggestion that we should eliminate police unions?

Samuel Sinyangwe: Police unions have quite a bit of power to shape this conversation. Ultimately it’s going to take state legislation to remove these issues from the contract.

View the briefing in its entirety or download the meeting slide deck.

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