The key to creating a safe and accountable police force is making certain that every law enforcement agency in the United States has clear and transparent rules that are adhered to and followed from the top down, says DeRay McKesson, a civil rights activist and leading voice in the Black Lives Matter movement.
It’s the first step to changing police culture, saving lives, and transitioning away from the punitive, carceral and regularly violent state of our current policing system, Mckesson told an online forum organized by the Council on Criminal Justice Task Force on Policing Wednesday.
“Part of the work is not only to get the amount of people killed down to zero, but also make sure people aren’t harmed in general,” said Mckesson, co-founder of Campaign Zero, a nonprofit project that encourages policymakers to focus on solutions with the strongest evidence of effectiveness at reducing police violence,.
The forum brought together members of the task force, created in November 2020 to identify the policies and practices most likely to reduce violent encounters between officers and the public and improve the fairness and effectiveness of American policing, to discuss the release of the first set of policy assessments.
The task force advised lawmakers to ban chokeholds, prohibit or severely restrict the use of no-knock warrants, and require officers to intervene when they see peers and supervisors use excessive force or engage in misconduct.
Combining the most recent research efforts with the expertise of Task Force members including police chiefs, criminal justice professionals, advocates, academics, and community representatives, these policy assessments target issues that have long been a problem in policing but have come under heavier scrutiny in the wake of the 2020 public upheaval over the killings of individuals like George Floyd and Breonna Taylor.
“As we think about a transition away from the carceral state, how do we make sure that in the moment there are clear rules and accountability?” said Mckesson.
“That’s the stuff that changes culture.”
Other speakers at the forum included: Nancy La Vine, Executive Director of the Council on Criminal Justice Task Force on Policing; Rosie Rivera, Sheriff of Salt Lake County, Utah, and CEO of the Unified Police Department of Greater Salt Lake; and Tashante McCoy-Ham, Regional Manager of Crime Survivors for Safety and Justice, a national network of crime survivors joining together to create healing communities and shape public safety policy.
All agreed that until departments abolish common practices like no-knock warrants and chokeholds, embrace a culture of required officer intervention, and uphold stringent accountability measures to deter and punish those who fail to adhere to the rules, then police departments and their officers will continue to produce and engage in misconduct that endangers the lives of the communities they police as well as those of the officers themselves.
“Officers will have to be held accountable if they don’t comply with their ban,” said Sheriff Rivera.
“As well as police agencies that don’t change their policies.”
The use of chokeholds is one such policy.
According to a report by Campaign Zero, police departments with policies that place clear restrictions on when and how officers use of force had significantly fewer police killings than those that did not have these restrictions in place. Specifically, there was a significant and influential relationship between the number of restrictive use of force policies that police departments implemented and the number of people these departments killed. In banning chokeholds and strangleholds, overall department killings were reduced by 22 percent.
Implementing policies that yield these kinds of results depends strongly on leadership.
“Chokeholds and any type of neck restraints are dangerous,” said Sheriff Rivera.
“We have to be able to recognize when there is a problem and be involved in the change. Once you do that, it starts to change the message across the board and it does change the culture of an organization, but it starts from the top down.”
The top down strategy is exemplified by Rivera’s home state of Utah, where in June 2020, in response to the killing of George Floyd, state lawmakers passed a bill banning knee-to-neck chokeholds and barring law enforcement agencies from teaching officers how to use other chokeholds and carotid restraints. However, the bill does not outright ban these other forms of chokehold, and some argue that they can be a legitimate form of nonlethal restraint.
Research included in the Council on Criminal Justice Task Force’s assessment found that asphyxiation was the cause of death for less than 1% of people who have died when law enforcement were involved in any way whatsoever in 2019. That number stays similar from year to year.
For Tashante McCoy-Ham, these arguments represent a stubborn refusal to accept a reform that should simply be common sense.
“Why do we have to debate about whether or not it’s OK to choke a human being?” said McCoy-Ham.
“There is no safe way to choke a person. It’s inhumane. And there is no data to show the lasting effect of being choked out or how it affects folks in that community.”
Giving officers the right to choke people effectively erodes any trust in law enforcement that may still exist in the most policed communities of our country and contributes to two accepted and unproductive narratives: that police are the enemy and that a chokehold is a necessary tool under the umbrella of an officers legal right to use any means necessary to protect themselves and others.
“There’s very few cases where an officer is fighting for their life and uses a chokehold,” said Rivera.
“It needs to be clear that they are banned across the board.”
However, while banning any kind of chokehold may be a step in the right direction, very few departments that institute one follow through with the needed support. A 2020 review by NPR of bans on neck restraints in some of the nation’s largest police departments found them largely ineffective and subject to lax enforcement.
And when chokeholds specifically were banned, a variation on the neck restraint was often permitted instead.
The review also found that some of the biggest police departments in the country have already instituted bans on chokeholds. The Los Angeles Police Department banned what’s called the “bar-arm chokehold” in 1982.
The New York Police Department banned chokeholds in November 1993 — except when an officer’s life is in danger. And the Chicago Police Department did the same in May 2012. Philadelphia and Houston have similar policies.
“Removing chokeholds is low-hanging fruit; it’s easy,” said Mckeeson.
“But we didn’t do it, it didn’t happen, we talked about it a lot, people have entertained it a lot, but we actually haven’t done it.”
Members of the task force agree that this lack of follow-through on behalf of departments is commonplace when leadership fails to require its officers to intervene when they see a fellow or superior officer about to commit or committing an act of misconduct.
The result is a culture of silence instead of one of ethics. This type of ethical erosion creates a lower standard for police behavior in a department where officers become numb to any of the varying degrees of misconduct they witness.
“Looking at the holocaust, what is it that prevented people from stepping up and doing the right thing even though they knew that something was egregiously wrong?” Asked Nancy La Vine.
“What we learned is that people who “other” themselves from the victims have an easier time not intervening. They justify it.”
To counter this problem, the task force recommends that agencies should adopt policies that require officers to intervene upon witnessing excessive force committed by peers and supervisors and that hold accountable those who engage in such misconduct.
Mandatory reporting of other forms of officer misconduct and prescribed behaviors, including those that might compromise officer wellness, is an important complement to duty-to-intervene policies.
The most prominent example of this is Active Bystandership for Law Enforcement (ABLE), a police peer intervention curriculum developed by Georgetown University Law Center. ABLE is based on a program called Ethical Policing is Courageous (EPIC), which was implemented by the New Orleans Police Department as part of compliance with its consent decree and teaches officers how to more effectively intervene in another officer’s conduct to prevent mistakes, misconduct, and promote health and wellness.
Since its creation, aspects of EPIC have been developed and incorporated into training by departments in North Carolina and Clemson University. Law enforcement agencies in Dallas, Burlington, Vt., Ithaca, N.Y., and Baltimore, Md. have since followed suit.
“Duty to intervene makes sense because then you’re able to acknowledge personal issues that lead to corroded or corrupted behavior,” said McCoy-Ham.
“If you have a narrative in the culture that you don’t speak up or say anything there’s a direct correlation between not being held accountable and the adverse experiences that take place in the community.”
Therefore, in addition to duty-to-intervene standards like EPIC, and use of force restrictions like the banning of chokeholds, the counsel also advises a prohibition of “no-knock” warrants, the subject of which exists at an intersection between the issues of accountability, intervention, and the adverse effects suffered by communities that experience neither.
A no-knock warrant is a search warrant authorizing police officers to enter certain premises without first knocking and announcing their presence or purpose prior to entering the premises. Such warrants are issued where an entry pursuant to the knock-and-announce rule (ie. an announcement prior to entry) would lead to the destruction of the objects for which the police are searching or would compromise the safety of the police or another individual.
Last year, Breonna Taylor was shot and killed by police executing a no-knock drug search warrant at her apartment. A public records review by the American Civil Liberties Union (ACLU) of 818 SWAT deployments conducted by 20 local law enforcement agencies across 11 states between 2010 and 2013 found that 62 percent were for drug searches; of those, forced entry was employed in 60 percent of the deployments.
According to a story by PBS, the very nature of surprise entering someone’s home — often late at night or early in the morning — heightens the risk of violence. And Data and surveys collected by the Pew Research Center found that the prevalence of gun ownership in U.S. homes can further raise the risk. When police entered Taylor’s house late at night and unannounced her boyfriend fired his gun because he did not know who they were.
“There was a New York Times study that looked at the number of injuries and deaths to residents and officers following SWAT type searches,” said La Vine.
“The ones that involved unannounced forceable entry had more deaths of officers, almost twice as many, as those that did not. Even in ones where they did knock there were still deaths.”
And while the task forces policy assessment on no-knock warrants has found that, as of January 2021, state bills and local ordinances banning or restricting no-knock warrants were introduced in 22 states, and 20 cities and, on the local level, 15 cities, including Orlando (FL), Louisville (KY), Santa Fe (NM), and Indianapolis (IN) have passed no-knock warrant bans or severe restrictions, they warn that these efforts may in fact be trying to solve the wrong problem.
“Most people think that banning no knock warrants is the thing,” said Mckeeson.
“But what we know is that police don’t need a no-knock warrant to do a no-knock raid. They can do a no-knock raid with a host of tools. A no-knock warrant is more straightforward, but not the easiest or even the only option.”
Instead, Mckeeson and the task force advise that reform should start with lesser known “quick-knock warrants,” which legally justify that an officer only has to wait 15-20 seconds to enter after knocking, if real progress is to be made. In addition, any and all search warrants need to be informed by very thorough threat assessments and agencies should routinely publish data on warrant request services and outcomes. In the case of Breonna Taylor, it was the lack of this kind of due diligence that resulted in officers entering the wrong home in search of the wrong suspect.
“We have to make sure we are evaluating all the info because our first role is to keep everyone safe,” said Rivera.
“And if information is lacking from the time that a detective writes the warrant, to the time the judge signs the warrant, to the time a supervisor reviews the warrant, it’s not safe.”
That insistence on safety and accountability, for both officers and the communities they serve, is at the core of the Council on Criminal Justice Task Force on Policing’s initiatives and assessments. And while the banning of chokeholds, the prohibition of no-knock and quick-knock warrants, the implementation of DtI’s, and the impact of good and accountable leadership in departments around the country are all steps in the right direction, they stress that none are a silver bullet for the issues facing American policing today.
In combining the actions recommended by the task force with future initiatives for reform and continuing constructive relations between diverse groups like those represented in its membership, the evolution of policing may continue to move forward.
Over the next few months, the Council on Criminal Justice Task Force on Policing will continue to release a series of analyses evaluating more than two dozen commonly proposed police reforms focused on preventing police use of excessive force, reducing racial biases, increasing police accountability, and improving the relationship between law enforcement agencies and communities.
“The culture of policing can be changed,” said Rivera.
“And we have some good police leaders out there who are making the changes.”
“When we think about abolition, or a move away from police as the key to public safety, I’m mindful that there’s a path to do that and that we won’t just wake up tomorrow and it’s happened,” said Mckeeson.
“No one strategy gets us to zero. In the same way that the end of solitary confinement is not the end of incarceration.”
Isidoro Rodriguez is editor of TCR’s Justice Digest.