Background: The House passed the George Floyd Justice in Policing Act of 2020 (H.R. 7120) on June 25, 2020. Law enforcement was unfairly locked out of the discussion and development of this overhaul of their profession. The result was a bill with which the law enforcement community had significant concerns.
The most significant concerns include amending Section 242 of Title 18 United States Code to lower the standard for men’s rea and the practical elimination of qualified immunity for law enforcement officers. Combined, these two provisions take away any legal protections for officers while making it easier to prosecute them for mistakes on the job, not just criminal acts. With the change to qualified immunity, an officer can go to prison for an unintentional act that unknowingly broke an unknown law. NAPO believes in holding officers accountable for their actions, but the consequence of this would be making criminals out of decent officers enforcing the laws in good faith.
Another provision of serious concern is the change proposed to the current legal standard of “objective reasonableness” for the use of force outlined in the 1989 U.S. Supreme Court decision Graham v. Connor. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene. The use of force must be reasonable given what the officer perceived to be the threat at the time, not with the 20/20 vision of hindsight.
Finally, one of the underlying assumptions that runs throughout the George Floyd Justice in Policing Act is that law enforcement officers should not be given the right to due process, a right we give all citizens, a right all unions work to protect for their members in disciplinary actions. This is incredibly concerning. Law enforcement officers must be given due process during internal investigations, administrative hearings, and evaluation of citizen complaints. Too often law enforcement officers are subjected to the whim of their departments or local politics during internal investigations and administrative hearings.
It is very evident that the George Floyd Justice in Policing Act was written without the consultation of law enforcement practitioners. For any police reform to be truly successful, the views of rank-and-file officers, who work tirelessly to keep our communities safe and have firsthand knowledge of the issues that are being considered, must be engaged. Law enforcement officers have a significant stake in the outcomes of any forthcoming policies and legislation, both as public safety officers who are responsible for carrying out the law, and as citizens of communities that will be impacted by new policies on public safety. It is, quite literally, a matter of life and death for them when considering when and how they may defend themselves. Recent Legislative History: 117th Congress (2021-2023)
- H.R. 677, “JUSTICE Act.” Sponsor: Rep. Pete Stauber (R-MN)
- H.R. 1280, “George Floyd Justice in Policing Act.” Sponsor: Rep. Karen Bass (D-CA) 116th Congress (2019-2021)
- H.R. 7210, “George Floyd Justice in Policing Act of 2020.” Sponsor: Rep. Karen Bass (D-CA)
- S. 3912, “George Floyd Justice in Policing Act of 2020.” Sponsor: Senator Cory Booker (D-NJ)
- S. 3985, “JUSTICE Act.” Sponsor: Senator Tim Scott (R-SC)
- H.R. 7278, “JUSTICE Act.” Sponsor: Rep. Pete Stauber (R-MN)
NAPO Position: As an organization representing rank-and-file officers, NAPO supports improving policing practices. NAPO participates on the National Decertification Index (NDI) Expansion Advisory Group. With its expansion, the NDI will potentially include mechanisms for tracking criminal convictions of law enforcement officers for on-duty conduct and civil judgments against officers for improper use of excessive force where the officer resigns or retires while the investigation into the use of force is ongoing. In all instances, the NDI will limit such entries to cases where the officer has been afforded due process pursuant to the local jurisdiction’s statutes and regulations.
NAPO supports training on de-escalation and communication techniques to help officers to stabilize situations and reduce the immediate threat so that more time, options, and resources can be used to resolve the situation without requiring the use of force. Such training will go much further in achieving the goals of this legislation to reduce the use of lethal force than the lessening of legal protections for officers. NAPO also believes that rank-and-file officers, as practitioners, must play a role in developing national training standards.
Data collection on the use of force can be an important factor in improving the perception of integrity and transparency in policing. It is important that the data collected on the use of force reflects the entirety of the situation: use of force by officers and use of force against officers, and not just force using firearms. The Federal Bureau of Investigation began collecting such data in their Use of Force Database in 2019, which they established in collaboration with state and local law enforcement. NAPO supports the FBI’s Use of Force Database and promoting greater use of it by federal, state, and local law enforcement agencies.
Data collection, training, and certification all cost a significant amount of money, yet the George Floyd Justice in Policing Act does not provide additional funding to help states and localities comply with the many mandates of the bill. In fact, to ensure compliance, it penalizes states and law enforcement agencies by taking away all or part of the Byrne Justice Assistance Grant (Byrne JAG) and the Community Oriented Policing Services (COPS) Grant funding. The consequence of this on all sectors of the criminal justice system will be long lasting. At a time when it is well known that state and local governments are facing serious budget and revenue holes due to the coronavirus pandemic and officers are facing furloughs and layoffs, this legislation assumes that somehow governments will have the funding to comply with the requirements of the bill. To incentivize compliance with any police reform policies, funding must be provided, and it is imperative that all sides have had their voices heard.
NAPO will work to ensure rank-and-file law enforcement have a voice at the table when the Administration and Congress once again takes up police reform.
Further, NAPO will continue to review and stay engaged on legislation that would impact law enforcement, federal sentencing guidelines and the criminal justice system as a whole.