As I write this, my phone continues to go off with alerts from Columbus area governments and police about ongoing events in major cities in Ohio, as it has all day, every day, for the past several days. That’s far more days and worrisome alerts than I’d like to be getting, especially after an entire week of increasing nationwide protests over the death of George Floyd and the racial and social issues it has catapulted to the top of everyone’s awareness. Of course, Mr. Floyd’s death was not an isolated event, it was just the latest and most reprehensible example of many such events our country has seen come to pass. It should go without saying that someone’s chance of dying at the hands of the police shouldn’t be overwhelmingly predictable by race, but a number of studies show that it is. To not acknowledge that as a problem would be deeply troubling and detached from the reality of the situation. Surely folks will have myriad opinions over the specific importance of each of the many underlying forces at play, but the effect remains the same.
At the same time, our police forces have become increasingly militarized despite no discernible benefit to either the police or the communities they serve. Nothing has much countered that trend despite years of reports making recommendations and cautioning police over how damaging to the public’s perception this can be. Unsurprisingly, these issues have gone head-to-head with each other in recent protests, and the results have been nothing short of horrifying all across the country. Add to that a President who seems to be openly advocating disregard for, if not all-out trampling of, the Posse Comitatus Act (18 USC §1385), and of course tensions are at a fever pitch. Protests are being seen across the county on a scale younger generations have never witnessed, and others haven’t seen since at least the Vietnam War and the Civil Rights protests of the 1960s and 70s.
To start chipping away at systematic structures of racism, the best answer is to take away the systems that insulate individuals from personal responsibility. It is easy for racism to hide in places where the perpetrators are protected from being held to account for putting it into action. Conversely, it is hard for a system that is built on personal responsibility to protect an individual from the consequences of their actions. The knock-on effects of reform for police organizations that puts the accountability on the individual rather than the agency for their actions will be immense and overwhelmingly positive for society as a whole. Each officer will be naturally incentivized to be more concerned with doing something right than simply doing something. Agencies will have real tools to deal with bad actors and actually implement some form of actual quality control for their force. Making progress on the problems is paramount; by respecting individuals and apply sound principles, there’s a lot of that can be done in the near future that will start us in the right direction and brighten the future once again.
Federally: End Qualified Immunity
Federally speaking, the main issue is the body of common law established in Federal courts surrounding 42 USC § 1983. This doctrine is generally referred to as “Qualified Immunity,” despite those words never specifically appearing in the statute. Title 42 of the United States Code is the United States Code dealing with public health, social welfare, and civil rights. Section 1983 comes to us courtesy of some very well-intentioned legislation that stretches all the way back to 1871, the Third Enforcement Act, incidentally aimed in large part at fighting voter suppression and other violence being perpetrated by the KKK at the time. We’ll spare a discussion on the merits of some of the finer points of the powers involved therein, but what eventually became 42 USC § 1938 has become one of the most specifically ruled-upon areas of civil rights law in the courts. This really ramped up beginning in the 1960s, and the last 50+ years have seen a very complicated set of opinions, tests, and judicial standards for claims, each putting a slightly different bend in the maze to relief as courts attempted to narrowly define and reconfigure applicable context to the claims, often brought against police and other law enforcement officials.
Take Action!
Call, write, and email your US House Representative, and impress upon them the importance of working with Rep. Amash on the Ending Qualified Immunity Act and seeing it through to a “yes” vote.
Hopefully recent events will shine a harsh spotlight on the amount of real relief that citizens can and should have against violations of their civil rights by those acting under the color of law, especially at the hands of the Police. There is already progress on this front, and Libertarians are leading the way. First and foremost is the effort by US House Representative Justin Amash (MI-3, L), the first member of the Libertarian Party to serve in either house of Congress, to end Qualified Immunity by new legislation, to be introduced this week. Find your representative, call, write, and email them, and impress upon them the importance of working with Rep. Amash on this critical legislation and seeing it through to a “yes” vote.
States: Reform Outdated and Unjust Policies
It is most frequently state laws that create the situations that even put people in contact with police in the first place. De-scheduling cannabis and taking policy steps to end the drug war would radically impact some of the most racially disparate enforcement actions police undertake. Not only does existing data clearly show that this policy step decreases arrests and has no major discernible impacts on public health, this is the right thing to do. We have to look at the data and admit that it’s insane to go on as a society believing that it is either effective or just to treat anyone’s possession or consumption of certain substances as a criminal matter. Beyond changing the law now, we should also go back and expunge records and vacate sentences for those convicted for cannabis offenses. There are proposals already before the legislature of Ohio to do just that – HB634 which would allow adults 21 and over to legally possess up to 100 grams of marijuana and grow up to 12 plants for personal use and HB642 which would repeal criminal penalties for the possession and trafficking of marijuana, vacate the sentences of those serving time for a marijuana offense, and allow those previously convicted of a possession offense to get their records expunged.
Take Action!
Contact your Ohio House Representative and encourage them to support the advancement of HB634 and HB642 to the floor and to vote “yes” on both!
States can also limit civil asset forfeiture, which disproportionately affects minorities, is frequently abused by law enforcement, and often is used by agencies as a revenue stream rather than a true crime-fighting tool. Setting limits to the value of what can be seized, at least without a warrant, is a sensible and simple. It’s the right thing to do according to the fourth, fifth, and eighth amendments in the Bill of Rights, and it should be the responsibility of the state to make their case in court against property as much as people.
Take Action!
Call, write, and email your Ohio House Representative, and encourage them to introduce and support legislation to limit civil asset forfeiture and require professional liability insurance of all police officers.
Additionally, it is typically state governments that set the laws and rules which govern police forces, and here there’s another opportunity to hold individual officers to account for their own actions the way the rest of industry tends to – with insurance. Just like doctors carry professional insurance, so should police officers. If officers carried professional insurance policies, there would be a personal incentive for each officer, as evaluated by an outside party (the insurer), to be reasonable and act with due regard in the discharge of their duties. Just as most people would tend to drive a lot more carefully when they see the impact to their insurance payments after causing an accident, officers could be put on notice through their insurance if they’re heading down the wrong path and have the opportunity to find their way back into favor once they demonstrate better results. Combined with a federal repeal of qualified immunity, this will help to free everyone in our communities – the taxpayers and the police organizations – from being responsible for a bad cop, directly reward good cops, and to do so without gutting the capability to provide for public safety overnight.
Locally: Communicate and Clean House
In local communities all over the country, it is critical, especially now, that local officials, police command staff, and citizens all be on the same page. This does not mean that everyone just agrees to “get along” or do whatever the title- or badge-having few command without question. This means that the government and its citizens need to openly and publicly clarify their priorities and then back it up with action. In this conversation though, the rights of the people are a non-negotiable concern, and necessarily take center stage. Police have to prioritize protection of liberty, especially for those protesting, as seriously as they have to prioritize protection of their lives. This means responding with an appropriate response, no matter how much cool riot gear you might have on or equipment you might be carrying, in accordance with each individual person’s actions. Local officials must reinforce this attitude, and both sides must commit to communicating this information broadly, clearly, and simply to everyone involved.
If individuals actually see evidence that they can cooperatively work with police to identify and remove people committing violence, especially in or around a peaceful protest, without themselves getting abused and arrested for being nearby, police might stand a chance of achieving that stated goal. However, much as that will be hard for individuals, it is equally important and hard for police organizations to size upon the opportunity to act when the current situation allows those “bad apples” to abuse innocent bystanders and peaceful demonstrators. This should be a very busy year for internal affairs units across the country, and agencies throughout the country should be jumping at the chance to clean house of officers emerging from these protests with documented examples of their abuse of the public. This is one of the simplest and most immediately available signs of good faith that can be undertaken by the government.
Local officials cannot stand by and endorse violations of rights and outright violence against the people by failing to act against the perpetrators. Police unions make it decidedly difficult to effectively remove these individuals from the force with finality. This has to change too. Local lawmakers can and should act to severely limit reinstatement clauses in contracts in the future and look for every possible opportunity to reduce or eliminate the presence of union contracts for policing in the long term. Police organizations should support this as well. There can and will always be a place for social organizations to help with insurance and fraternity among officers, but when it comes to whether you are one or not, if the problem is genuinely a few “bad apples” then we must all move toward structures that can deal decisively and effectively with those bad actors for the sake of both the ones who aren’t as well as their communities.
Forward; Only Forward
When we love, we always strive to become better than we are. When we strive to become better than we are, everything around us becomes better too.
Paulo Coelho, The Alchemist
The deeply-set issues besetting our society that are on display right now are not going to go away until something changes. There are many places to start, but for the government, this is one of the fastest paths to action that creates meaningful change that starts to affect the actual systems that are creating the problems, rather than just throwing another band-aid on and taking another pill for the symptoms. There is more that individuals can and should do themselves, within their own lives, jobs, homes, and neighborhoods to help. The internet is replete with strategies for individuals and small groups, but we also have to chart a course for our large groups, our cities, states, and country. These steps alone will be hard to undertake, of course, but that doesn’t mean that the work isn’t worth doing. If it was simple and easy to fix these complicated institutions, we would have done it already; if things were fixed, mass protests across the country wouldn’t be necessary to make the gravity of these issues clear. Here we are though, and the only way out is through. Let’s make sure that this time we put liberty and individuals at the center of the discussion, where they belong, so that we can all find the courage and respect necessary to admit wrongs and start making right.
Most of the important things in the world have been accomplished by people who have kept on trying when there seemed to be no hope at all.
Dale Carnegie
Image credit: “George Floyd protest 2020-05-28 Columbus, Ohio 48” – Becker1999 / CC BY
Thank you for this article. I used to live in Ohio but now run a small sliding door business in Palm Desert CA. It’s times like this I’m so glad to be a Libertarian. I’m so proud of the Libertarian rep in Congress Justin Amash for introducing a bill to end Qualified Immunity. It’s more important now more than ever to be an adamant defender of individual liberty. The intensity of this moment in history is palpable. It can be overwhelming to be inundated with news story after horrifying news story, without knowing what steps to take to help make the problem better. Thank you for including instructions on contacting Congress reps especially. We need to hold their feet to the fire.