Police Reform and the 116th Congress: Selected Legal Issues

"Nationwide protests during the spring and summer of 2020 related to police use of force have prompted calls for increased congressional regulation of federal, state, and local law enforcement.There are an array of legal issues related to federal regulation of law enforcement, including the scope of Congress’s constitutional authority to legislate on law enforcement reform, current federalregulation of law enforcement, and various questions raised by reform proposals introduced in the 116th Congress.

 Congress has extensive power to regulate federal law enforcement. However, federalism principles embodied in the Constitution place limits on Congress’s power to regulate state and local police—an issue that the Constitution generally entrusts to the states.Congress, however, possesses some authority to regulate state and local law enforcement.Two primary tools Congress may use to act in this area are statutes designed to enforce the protections of the Fourteenth Amendment and legislation requiring states to take specified action in exchange for federal funds disbursed under the Spending Clause.

Legislating within the scope of its enumerated powers, Congress has enacted multiple statutes that regulate federal, state, and local law enforcement. Key existing legal authorities related to federal regulation of law enforcement include Department of Justice (DOJ) civil enforcement against patterns and practices of unconstitutional policing, laws imposing civil and criminal liability for officer misconduct, and grant conditions designed to spur state and local compliance with federal policies. Federal courts have supplemented these statutory authorities with certain judicially created doctrines defining the contours of liability for police misconduct..."
Police reform 

Policing the Police: Qualified Immunity and Considerations for Congress

"In the wake of unrest arising from George Floyd’s death on May 25, 2020, after a Minneapolis police officer pressed a knee into his neck, broader questions have arisen with regard to how existing law regulates the conduct of local police officers. While these issues are explored more broadly in these separate Sidebars, one particular issue of recent judicial and legislative focus has been the doctrine of qualified immunity. Qualified immunity is a judicially created doctrine shielding public officials who are performing discretionary functions from civil liability. The doctrine plays a particularly prominent role in defense of civil rights lawsuits against federal law enforcement officials under the Bivens doctrine and against state and local police under 42 U.S.C. § 1983 (Section 1983). With regard to its role in civil lawsuits concerning violations of constitutional norms regulating the police, defenders of the doctrine have suggested that qualified immunity plays an important role in affording police officers some level of deference when making split-second decisions about whether to, for example, use force to subdue a fleeing or resisting suspect. Critics of the doctrine have questioned its legal origins and have argued that its practice has provided too much deference to the police at the expense of accountability and the erosion of criminal suspects’ constitutional rights. With increasing focus on whether Congress should legislate to abrogate or otherwise modify the doctrine, this Sidebar explores the legal basis for qualified immunity, how it has operated in practice, and current debate over the efficacy of the doctrine. The Sidebar concludes by discussing considerations for Congress regarding qualified immunity..."
Policing police

Justice Department Releases Report on Civil Rights Division’s Pattern and Practice Police Reform Work

"The Justice Department released a comprehensive report today that provides an overview of the Civil Rights Division’s police reform work under Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994.

The report, “The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994-Present,” is designed to serve as a resource for local law enforcement agencies and communities by making the division’s police reform work more accessible and transparent.  It examines a range of topics, including the history and purpose of Section 14141, initiation and methodology of pattern-or-practice investigations, negotiation of reform agreements, the current reform model and its rationale, conclusion of agreements and the impact of pattern-or-practice enforcement on police reform and community-police trust.  To supplement the report, the division also published an interactive Police Reform Finder, which allows users to search how reform agreements have addressed specific kinds of policing issues..."
Police practices and reform

Police Use of Force: Rules, Remedies, and Reforms

"Several high-profile police shootings and other law enforcement-related deaths in the United States have sparked intense protests throughout the country and a fierce debate in Congress concerning the appropriate level of force police officers should wield in a society that equally values public safety and the lives of each of its citizens under law. These incidents have been the subject of several congressional hearings, have prompted the introduction of various legislative measures, and have catalyzed a new civil rights movement in the United States aimed at reforming the criminal justice system. Reformers claim that police work too closely with local prosecutors resulting in insufficient oversight and have called for greater involvement by the federal government. The law enforcement community and its supporters have countered that these recent deaths are anomalous in otherwise exemplary police conduct, and that placing the federal government in direct regulation of state and local police would present an unwarranted intrusion into state and local affairs.

To provide legal context for this debate, this report will address three overarching questions: (1) what are the constitutional rules governing an officer’s use of force; (2) what role has Congress played in providing a remedy for a violation of these rules; and (3) what are the potential reforms to these rules and remedies?..."
Police

Police Use of Nonfatal Force, 2002–11

"From 2002 to 2011, an annual average of 44 million persons age 16 or older had one or more face-toface contacts with police. Of those who had contact, 1.6% experienced the threat or use of nonfatal force by the police during their most recent contact.1 About 75% of those with force (1.2% of persons with police contact) perceived the force as excessive. A greater percentage of non-Hispanic blacks (2.8%) than non-Hispanic whites (1.0%) and Hispanics (1.4%) experienced excessive nonfatal force by police during their contact (figure 1). 
This report examines the prevalence, circumstance, and characteristics of incidents in which police threatened or used nonfatal force and whether these factors varied across resident race and Hispanic origin..."
Police and nonfatal force

Law Enforcement Officers Killed in 2014

"On May 29, 2014, a 42-year-old trooper with the New York State Police made a traffic stop on an interstate highway north of Binghamton. The veteran trooper parked behind the stopped car and approached the driver’s side window. In that fleeting moment, a truck traveling in the same direction at about 90 miles per hour suddenly swerved, sideswiping the car and striking the trooper, killing him instantly. The truck’s driver, a 60-year-old male with a criminal record, admitted after his capture that he intentionally veered to hit the trooper.

The chilling account of the unprovoked attack is just one of dozens of detailed narratives recounting the felonious deaths of law enforcement officers in the United States in 2014. The accounts are a central component of the latest Law Enforcement Officers Killed and Assaulted (LEOKA) report, issued today, which shows that 96 law enforcement officers were killed in the line of duty last year—51 as a result of felonious acts and 45 in accidents. The annual report, released by the FBI’s Uniform Crime Reporting Program, also shows that 48,315 officers were victims of line-of-duty assaults in 2014..."
Law enforcement officers killed

The President's Task Force on 21st Century Policing

"Trust between law enforcement agencies and the people they protect and serve is essential in a democracy. It is key to the stability of our communities, the integrity of our criminal justice system, and the safe and effective delivery of policing services.

In light of recent events that have exposed rifts in the relationships between local police and the communities they protect and serve, on December 18, 2014, President Barack Obama signed an executive order establishing the Task Force on 21st Century Policing. The President charged the task force with identifying best practices and offering recommendations on how policing practices can promote effective crime reduction while building public trust..."
Task Force on Policing

Local Police Departments, 2013: Equipment and Technology

"The overall percentage of the more than 12,000 local police departments in the United States authorizing the use of conducted energy weapons (CEWs) increased from 7% in 2000 to 81% in 2013 (figure 1). CEWs include Tasers and stun guns. Large increases were observed in all population categories. About 9 in 10 departments also authorized their officers to use pepper spray and batons in 2013..."
Police & tasers

Building Trust Between Communities and Local Police

"Recent events in Ferguson, Missouri and around the country have grabbed the attention of the nation and the world, and have highlighted the importance of strong, collaborative relationships between local police and the communities that they protect.

Today, the Administration announced new steps we’re taking to strengthen the relationships between law enforcement agencies and the communities they are obligated to protect and serve, including:

• Advancing the use of body worn cameras and promoting proven community policing initiatives
• Creating a new task force to promote expansion of the community-oriented policing model, which encourages strong relationships between law enforcement and the communities that they serve as a proven method of fighting crime
• Reforming how the federal government equips state and local law enforcement – particularly with military-style equipment.." 
• Communities and local-police

2010 Statistics on Law Enforcement Officers Killed and Assaulted

"According to information released today by the FBI, 56 law enforcement officers were feloniously killed in the line of duty last year; 72 officers died in accidents while performing their duties; and 53,469 officers were assaulted in the line of duty. The 2010 edition of Law Enforcement Officers Killed and Assaulted released today provides comprehensive tabular data about these incidents and brief narratives describing the fatal attacks..."
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