by Curtis Bunn
Police unions “have been making deals for decades,” Ivey said about the laws protecting police officers. “Now they are acting as if these ‘rights’ cannot be taken away.”
Two states—Maryland and Rhode Island—are considered to have the most police-friendly bill of rights for law enforcement, according to Richard DeShay Elliott, a graduate student at Johns Hopkins University in Baltimore who has researched the impact of these laws across the country. Both were among the first states to enact these protective laws for officers. Rhode Island’s law came in 1976.
“They started in Democratic stronghold states: Maryland, Rhode Island, California,” said Elliott, whose work, “Impact of the Law Enforcement Officers’ Bill of Rights on Policy Transparency and Accountability,” was published on the Social Sciences Research Network website. Several states have some versions of these laws, with Kentucky, Texas, Alabama, and Arizona the most recent states to adopt versions from the mid-1990s through the early 2000s. Unions in at least ten other states have tried but failed to pass versions of the bill of rights. “For so long, the issue of policing has been focused on other aspects, like better hiring and training,” Elliott said. “However, these bills are the main impediment to accountability for police officers.”
The conclusions of Elliott’s study are stunning—and worrisome.
Only seventeen states and the District of Columbia have a version of the law enforcement officers’ bill of rights, about 33 percent of the states. Yet, those seventeen account for a majority or near-majority of several categories of law enforcement shootings, including 54 percent of police shootings of civilians and 51 percent of police shootings of Black people. Those seventeen jurisdictions account for 80 percent of police shootings of Latinos, and 43 percent of officers involved in shootings while on duty.
“There is a clear link between states with Law Enforcement Officers’ Bill of Rights and police shootings,” Elliott said. Those laws clearly are “detriments to police accountability and transparency to the general public, and allow police officers to avoid scrutiny for misconduct up to and including murder of civilians while on duty.”
In 2015, after the death of Freddie Gray, a Black man who died under mysterious circumstances while in the custody of Baltimore police officers, riots erupted for several days. State lawmakers looked at policing in the state, and a working group of legislators focused then on the Law Enforcement Officers’ Bill of Rights.
“The only significant ‘reform’ was reducing the number of days that officers under investigation could delay being questioned from ten days to five,” Julian Ivey said. “This time we’re looking for sweeping reform, especially with the Law Enforcement Officers’ Bill of Rights. When there are no repercussions for officers who do bad acts, if there is no accountability, you have removed an incentive to not commit bad acts. If they know they could lose their jobs, lose their pensions if you wrongfully use excessive force, then we might start getting a handle on the problem.”
He is also seeking to establish statewide use of force standards for officers and improve training and lengthen the time recruits spend in the police academy. “We have to regain the community’s trust by changing the culture of police departments.”
The umbrella organization of the Fraternal Order of Police (FOP) Lodge in Maryland is more than aware that these conversations are taking place. “They are working really hard to stop these reforms,” Ivey said. “The FOP is so powerful, it would take an act of God to completely repeal the Law Enforcement Officers’ Bill of Rights.”
The Alexander Williams–led Maryland Commission to Restore Trust in Policing in early fall 2020 was considering a range of options before making recommendations to the state on actions needed to restore public confidence and trust in law enforcement. The considerations include getting rid of the Law Enforcement Officers’ Bill of Rights. “I can’t imagine there will be any more Law Enforcement Officers’ Bill of Rights,” Williams said. “We have to hold officers more accountable. We also have to use psychological screening for hires and while on the job. And we need to get hurdles out of the way to allow the collection of data about arrests, traffic stops, and other information that gives a clear picture of how departments are policing our communities.”
A lawyer representing one police union spoke at a commission meeting arguing that the Law Enforcement Officers’ Bill of Rights wasn’t the problem. The problem was poor management in the Baltimore Police Department, whose leadership is pushing to significantly change the bill of rights. “The true problem is the mismanagement and incompetency of the [Baltimore Police Department] to follow the law like every other law enforcement agency in the State of Maryland,” Michael Davey said.
Police unions—whether the Fraternal Order of Police (FOP), the Police Benevolent Association (PBA), or some other name—have fought for years to maintain laws that protect their membership and to lobby for policy or budget changes using a similar tactic: fear. After the D.C. Council passed a package of police reform laws in the summer of 2020, the D.C. police union filed a federal lawsuit calling parts of the package unconstitutional. And they released a statement, saying that reform laws would not improve the quality of policing in Washington, D.C. “The legislation will only result in more applicants who have been rejected by other agencies as less qualified,” the statement said, without providing evidence to back up its claims. “The legislation that has targeted D.C. police officers is already resulting in countless officers planning to retire from the department early or opt to resign to work in other jurisdictions.”
The D.C. police union used the same fear tactic in the late 1980s, at the beginning of the crack epidemic, when then-D.C. mayor Marion Barry refused to increase the size of the city’s police force as drug-related homicides and nonfatal shootings were on the rise. The union went to Congress, which had final say over the city’s budget. The union said that more than half of the officers in the department would be eligible to retire in the next two to three years—an impending catastrophe the city could ill afford just as drug-related violence was exploding in the nation’s capital. Congress forced the city to hire about 1,800 officers within two years, and voted to withhold the $430 million federal payment to the city in 1989 and 1990 if the city failed to hire the officers. The city complied, and the result was chaos. Without the infrastructure to properly screen and train applicants—and under a tight deadline—the city hired hundreds of new officers who, once on the force, ended up being charged with crimes ranging from rape to murder and drug dealing.
In the 2020 U.S. presidential cycle, New York City’s largest police union, the PBA, endorsed Donald Trump’s reelection, the first time the union made an endorsement in a presidential race in almost forty years. The head of the PBA told President Trump at an event to make the endorsement announcement that Trump had “earned” it because of his staunch support of law enforcement. In 2017, Trump even encouraged officers to rough up suspects being arrested.
In Chicago, the FOP leadership rejected a new contract in summer 2020 that came with a 10 percent raise because the deal included changes in the way the city would handle allegations of police misconduct. The proposed changes included keeping the names of those who file complaints from being disclosed until the person filing the complaint has been interviewed, allowing complaints filed anonymously to be investigated, and ending the practice of destroying an officer’s disciplinary files.
When Alex Williams first ran for state’s attorney in Prince George’s County, Maryland, he ran on a platform to hold police accountable. He was challenging Arthur “Bud” Marshall Jr., a white man who had held the office since 1960. Police in the county had a notorious history of brutality against Black people. “Well, the FOP didn’t support my campaign,” Williams said. “I was an outsider. I wasn’t a prosecutor.” Most importantly, he pledged during the campaign to present all cases of police use of fatal excessive force to a county grand jury. That had never happened before.
“Once in offic
e, some officers would say, ‘Are you with us or against us?’”
Williams had little success bringing charges against police officers in cases where police had killed people, including the case of Archie Elliott. Generally, those cases are harder than others to get a grand jury to hand up charges, he said, even more so years ago when there wasn’t widespread public videotaping. “Those are the toughest cases,” Williams said. “We investigated [the Elliott case] thoroughly. I remember it. His father was a judge in Virginia, his mother was a teacher in public schools. It was an emotionally trying case. I put my lead investigator on it. I had the head of my homicide unit present the case to the grand jury. Based on the evidence we could present to the grand jury, the jury decided not to indict. His mother has worked hard to keep the case alive.”
Court Changes and Qualified Immunity
Cynthia Lee, a professor at the George Washington University Law School and author of the book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, has had key provisions from her model legislation on police use of deadly force adopted by state and local lawmaking bodies, including in Connecticut, Virginia, and the District of Columbia. She came up with her model after observing that racial stereotypes impacted the outcome of many self-defense cases involving victims of color.
Among those were rare occasions when police officers faced charges related to excessive use of force and used self-defense—aka the justifiable force defense—as justification for their actions. She said that prior to the new laws in these jurisdictions, jurors would need only to find that officers “reasonably believed they needed to use deadly force.” And because the officer-defendant would usually get on the stand and testify that he feared for his life, by and large, jury verdicts would find in favor of the officer.
“Most use of deadly force statutes require only a ‘reasonable belief’ that the use of deadly force was necessary to protect the officer or another from death or serious bodily injury,” Lee said. In those cases that made it to trial where the victim was Black, attorneys for the officer “would focus on the dangerousness of the neighborhood and the victim’s past criminal history or drug use”—a method that plays to stereotypes about Black people in general, and Black men in particular.
The new use of force laws in Connecticut, Virginia, and D.C. require a finding that both the officer’s beliefs and actions were reasonable. They also require that all other options were exhausted, if other options were feasible. The new laws also give juries more guidance. Juries will have to consider three factors when deciding whether an officer’s beliefs and actions were “reasonable”:
Whether the victim had a weapon or appeared to have one and refused to drop it.
Whether the officer engaged in de-escalation tactics prior to using deadly force.
Whether the officer engaged in any conduct before the use of force that increased the risk of a deadly confrontation.
“At least with respect to factors two and three, the aim is to encourage jurors to think about things they wouldn’t necessarily think of on their own,” Lee said. “In requiring that officers not use deadly force unless they have tried less deadly options, the newly adopted legislation hammers home that officers should not use deadly force unless it is really necessary to do so.
“Even if these changes in the law don’t change verdicts in officer-involved shooting cases immediately, they might do so over time,” Lee said. “The real goal here is to change police culture. And changes in the law can change culture. We’ve seen how changes in rape law in the 1970s and 1980s helped change the culture surrounding sex and eventually paved the way to the #metoo movement. Changes in use of force laws can have the same kind of influence on police culture.
“Prior to George Floyd’s death, there wasn’t an appetite to change policing laws,” Lee observed. “Legislators thought their communities wanted law and order. The racial justice protests have helped push through police reform legislation that will do a better job of holding officers accountable than existing laws.”
Back in 2013, Clarence Jamison, a Black man, was headed back to his home in South Carolina after a vacation in Arizona. He was driving a Mercedes-Benz convertible along Interstate 20. At some point, in Pelahatchie, Mississippi, he passed Richland Police Department officer Nick McClendon. The officer is white. Jamison’s recently purchased Benz still had temporary tags, but the officer said the rear tag was “folded over” and he couldn’t read it.
So he pulled Jamison over. The driver provided his driver’s license, proof of insurance, and even a bill of sale for the vehicle, as the officer requested. They all were clean. The officer even ran a criminal history check on Jamison. That, too, was clean. Still, Officer McClendon asked Jamison several times for permission to search his car.
Jamison asked, “For what?”
“To search for illegal narcotics, weapons, large amounts of money, anything illegal,” the officer responded.
The stop and search lasted nearly two hours. No weapons or contraband were found. And Jamison, who works as a welder, was on his way. But he later sued McClendon in federal court, claiming he was falsely stopped, detained, and searched.
At some point in the civil case, McClendon asked for summary judgment and for the case to be dismissed, saying he was protected from claims by the qualified immunity doctrine, which generally says that officers and other public officials should be shielded from civil liability claims when they act in good faith. In summer 2020, U.S. District Court judge Carlton W. Reeves, an African American, issued a seventy-two-page opinion reluctantly granting qualified immunity protection to Officer McClendon—protecting the officer from any liability for stopping Jamison essentially without cause. Reeves began his opinion listing a litany of circumstances under which Black men and women had died in encounters with police:
“Clarence Jamison wasn’t jaywalking.
“He wasn’t outside playing with a toy gun.
“He didn’t look like a suspicious person.
“He wasn’t suspected of selling loose, untaxed cigarettes.
“He wasn’t suspected of passing a counterfeit $20 bill.
“He didn’t look like anyone suspected of a crime.
“He wasn’t mentally ill and in need of help.
“He wasn’t assisting an autistic patient who had wandered away from a group home.
“He wasn’t walking home from an after-school job.
“He wasn’t walking back from a restaurant.
“He wasn’t hanging out on a college campus.
“He wasn’t standing outside of his apartment.
“He wasn’t inside his apartment eating ice cream.
“He wasn’t sleeping in his bed.
“He wasn’t sleeping in his car.
“He didn’t make an improper lane change.
“He didn’t have a broken tail light.
“He wasn’t driving over the speed limit.
“Thankfully,” the judge wrote, “Jamison left the stop with his life. Too many others have not. Tragically, thousands have died at the hands of law enforcement over the years, and the death toll continues to rise. Countless more have suffered from other forms of abuse and misconduct by police. Qualified immunity has served as a shield for these officers, protecting them from accountability.
“Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted. But let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case done to one man, sheds light on the harm done to the nation by this manufactured doctrine. As the Fourth Circuit concluded, ‘This has to stop.’”
The judge, who is assigned to the Southern District of Mississippi, urged the U.S. Supreme Court to take on cases that challenge the qualified immunity doctrine. “Overturning qualified immunity will undoubtedly impact our society,” Judge Reeves wrote. “Yet, the status quo
is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ so too should it eliminate the doctrine of qualified immunity.”
Dorothy Elliott encountered the doctrine of qualified immunity when she and her former husband sued the officers who killed their son Artie and the police departments where the officers worked. Like the officer in the Mississippi case, the Maryland officers sought a summary judgment to have the lawsuit dismissed, as they were protected from personal liability by qualified immunity. A U.S. District Court denied the officers’ request, but that ruling was reversed by the U.S. Court of Appeals Fourth Circuit. “We reverse the judgment of the District Court, finding that the officers’ use of deadly force in response to an obvious, serious and immediate threat to their safety was reasonable,” the Appeals Court opinion said.
Elliott appreciates the changes in laws, the efforts to hold police officers more accountable. She keeps working to keep her son’s memory alive. She has established the Archie Elliott Scholarship Fund to award financial support—already thousands of dollars—in his name to minority students who attend HBCUs. She said she’s learned to live with the pain of losing her older son to a hail of bullets fired by police officers. In those moments when she wonders how we will ever get past this seemingly unending cycle of Blacks dying at the hands of police officers, Dylann Roof comes to mind.
Roof is the white supremacist sentenced to death for slaughtering nine Black churchgoers inside a Charleston, South Carolina, church in 2015. When police in nearby Shelby, North Carolina, arrested Roof, he hadn’t eaten in about two days. So the officers sent out for a hamburger and other food from Burger King to feed the then-accused killer of nine innocent Black people.
