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Arguments about legal limitations related to policing

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See also: Arguments related to policing and police collective bargaining agreements (CBAs)

This page tracks arguments about legal limitations related to policing. Information about this topic areas in relation to police CBAs in the 50 states and 100 largest U.S. cities by population can be found on Ballotpedia's Police CBA Dashboard.

This page tracks the following arguments about legal limitations related to policing:

Arguments supporting legal limitations on policing

Argument: The federal government should intervene to improve policing at the local level

This argument states that improvements to local police departments will be best achieved through interventions by the federal government. The federal government can implement reforms and hold local police departments accountable in an effort to improve policing.

Claim: The U.S. Attorney General has the power to create meaningful police reform

This claim states that the U.S. Attorney General is granted the power under 42 U.S.C. § 14141 to initiate reforms among police departments that are engaged in unconstitutional misconduct, such as excessive use of force.

  • Law professor Stephen Rushin argued, “Congress passed the Death in Custody Reporting Act in 2014, which created a national database on civilian deaths caused by law enforcement. The Federal Bureau of Investigations and the Bureau of Justice Statistics have subsequently also announced new efforts to collect data on the frequency of deadly encounters between law enforcement and civilians. This Article explores how the federal government could use these newly amassed datasets to reduce police violence. This Article makes two contributions. The first Part of the Article argues that data alone will be insufficient to bring about widespread reform in local police departments. By making these datasets publicly available, the federal government could incentivize some police departments to prioritize reductions in police violence. But even when faced with troubling statistical trends, there is no guarantee that some of the nation’s most problematic law enforcement agencies will voluntarily make expensive policy and procedural reforms. Thus, the second Part of the Article considers some ways that the U.S. Attorney General could harness these new datasets to improve the use of federal civil rights litigation against local police departments. Under 42 U.S.C. § 14141, the Attorney General has the power to seek equitable relief against police departments engaged in a pattern or practice of unconstitutional misconduct, including excessive uses of force. By using this data, the Attorney General can incrementally improve the enforcement of § 14141 in a way that incentives local police departments to implement reforms aimed at reducing officer violence.”[1]

Claim: Misconduct among officers will most likely be repeated without a mechanism at the state or national level to decertify law enforcement officers

This claim states that without a state or national protocol to decertify law enforcement officers following misconduct, the officer will most likely engage in misconduct in the future.

  • Professors ​​Roger Goldman and Steven Puro argued, “Without a mechanism at the state or national level to remove the certificate of law enforcement officials who engage in such misconduct, it is likely that there will be more such instances of repeated misconduct. Traditional remedies do not address the problem.”[2]
  • The Council on Criminal Justice argued, “A federal decertification database can enhance police accountability and ensure that officers who engage in misconduct do not perpetuate harm in other agencies and communities. The database should be coupled with state requirements that agencies comply with officer severance reporting rules and consult the database when making hiring decisions.”[3]
  • Law professor Nino Monea argued, "Decertification also counters the perverse incentives of the labor market for police. Local police departments who hire brand new officers often need to pay for that recruit’s training and salary while they attend the academy to obtain their certification. So hiring an officer who was previously fired locally but never revoked by the state POST may be cheaper: that kind of disgraced officer will still have their certification and thus require less training. Additionally, bad officers who are fired by their original department may be able to find work in a different jurisdiction."[4]

Argument: Police departments can be held accountable through legislation and legal means

This argument posits that federal legislation would be a useful tactic for implementing police reform and improving police accountability.

  • J.D. Candidate Alisa Tiwari argued that “we can begin changing this state of affairs—holding police departments accountable for their disparate racial impacts—through the use of an often-overlooked statute: the Omnibus Crime Control and Safe Streets Act of 1968 (Safe Streets Act or SSA). The SSA is the ‘national government’s first major piece of crime control legislation.’ Through the SSA, Congress provided block grants to state and local law-enforcement agencies ‘to assist [them] in strengthening and improving law enforcement,’ which restored a ‘critical degree of funding power to the states in the aftermath of Jim Crow.’ Five years later, through the Crime Control Act of 1973, Congress amended the SSA to prohibit state and local governments that receive funds from discriminating in programs or activities funded in whole or in part by the federal government. Indeed, the SSA’s antidiscrimination provision provides that no person ‘shall on the ground of race, color, religion, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under or denied employment in connection with any [funded] programs.’ The remedies for noncompliance include suspension, termination, and repayment of funds. This is meaningful given that most major police forces, from Baltimore to Chicago, receive copious funding.”[5]

Argument: Law Enforcement Officer Bill of Rights should be rejected

This argument posits that Law Enforcement Officer Bill of Rights (LEOBORs) inappropriately shield police officers against accountability for misconduct.

  • Everytown, a nationwide organization aimed at preventing gun violence in U.S. communities, conducts independent research in an effort to establish evidence-based policies for public use. Everytown wrote about states that have rejected LEOBORs in a 2024 article on gun laws: "Most states have rejected the Law Enforcement Officers Bill of Rights, a dangerous legislative shield against police accountability. This policy frustrates prompt investigation and resolution of police misconduct allegations, often delaying officer interrogation or raising the standard for complaints. The policy often includes provisions that prevent police departments from disciplining or firing problematic officers and prohibit the disclosure of personnel records."[6]

Arguments opposing legal limitations on policing

Argument: Courts cannot regulate policing practices

This argument states that systemic changes to policing cannot be achieved through the courts because courts are inefficient at regulating police practices and implementing reforms and therefore require the intervention of institutions to create changes.

  • Law professor Rachel A. Harmon argued, “[C]ourts alone cannot effectively interpret or enforce constitutional rights and that constitutional rights are inadequate to ensure that police practices are worth their individual and social costs. As a result, I maintain that the problem of policing requires moving beyond the conventional paradigm to recognize the significance of other institutions and sources of law in regulating the police.”[7]
  • Harmon continued, “Courts lack the institutional capacity to regulate the police without substantial assistance from institutions designed to amass context-specific expertise and undertake complex, ongoing empirical analysis. But even if courts could overcome these barriers, a major objective of police regulation would still remain beyond their reach. If courts regulate the police, then the legal problem of policing is limited to constitutional violations. Constitutional rights are, however, structurally ill suited to balance societal interests in law enforcement and individual freedom.”[7]
  • Professors Samuel Walker and Morgan Macdonald argued, “[T]he implementation of reforms mandated by consent decrees and memoranda of agreement (‘MOAs’) in some agencies has encountered organizational obstacles and delays. Serious questions remain about whether reforms effected through litigation will be sustained once the consent decree or MOA is terminated.”[8]

Argument: LEOBORs are necessary to protect police officers

This argument states that LEOBORs are necessary to establish standards to protect police officers accused of misconduct.

  • Patrick Yoes, the national president of the Fraternal Order of Police, wrote a letter in 2023 to express support for a bill introduced by Congressman Anthony D’Esposito (R-N.Y.) aiming to establish uniform federal standards for law enforcement officer bills of rights: "Law enforcement officers have one of the toughest and most dangerous jobs in the nation. They are charged with keeping our streets and neighborhoods safe from crime. Because of this enormous responsibility, law enforcement officers are held to a much higher standard of personal and professional conduct than most other professions – as they should be. As a result, while law enforcement officers are often subjected to false accusations of misconduct, they are not always afforded due process rights during these investigations. The resolution lays out several rights law enforcement officers should be afforded, including the right to counsel and a union representative, the right to a hearing, and the right to be informed of the nature of any investigation."[9]

Arguments about legal limitations on policing

Argument: Law 42 U.S.C. § 14141 fails to create the meaningful change it intended

This argument involves 42 U.S.C. § 14141, which was passed to allow the U.S. Department of Justice to sue police departments to address institutional misconduct. Proponents of the claim argue that, despite the intention of the law, it is not an effective method for reducing misconduct.

  • Law professor Rachel A. Harmon argued, “Reducing police misconduct requires substantial institutional reform in our nation’s police departments. Yet traditional legal means for deterring misconduct, such as civil suits under § 1983 and the exclusionary rule, have proved inadequate to force departmental change. 42 U.S.C. § 14141 was passed in 1994 to allow the Justice Department to sue police departments to force institutional reform. Scholars initially hailed § 14141 as a powerful tool for reducing unconstitutional police abuse. The Justice Department, however, has sued few police departments. This Article contends that § 14141’s greatest potential has been overlooked. Limited resources will always mean that § 14141 can be used to force reform on only a limited number of police departments. But § 14141 could also be used to induce reform in many more. This goal requires a § 14141 litigation strategy designed to motivate proactive reform in more departments than the Justice Department can sue. The key components of this strategy are a ‘worst-first’ litigation policy that prioritizes suits against police departments with the worst indicia of misconduct, and a policy that grants a ‘safe harbor’ from suit for police departments that voluntarily adopt best practice reforms. This Article also explains why this proactive § 14141 enforcement strategy would be more efficient at reducing police misconduct than current enforcement policies, proposals to reform § 14141 by adding private plaintiffs, and alternative mechanisms by which the federal government could regulate police department reform.”[10]

Argument: Qualified immunity is a flawed idea

This argument states that the qualified immunity doctrine is ineffective and frequently used to protect law enforcement officers from being held accountable for misconduct.

  • Policy analyst Jay Schweikert argued, “In short, qualified immunity has failed utterly as a matter of law, doctrine, and public policy. As a legal matter, it has no basis in either the text of Section 1983 or the common-law background against which the statute was enacted. The modern doctrine - especially the ‘clearly established law’ standard - is incapable of consistent, predictable application, and continues to confuse and divide lower courts tasked with applying it. And most importantly, the doctrine regularly permits egregious unconstitutional misconduct to go unaddressed, exacerbating an ongoing crisis of accountability in law enforcement more generally.”[11]
  • Schweikert continued, “Especially in the context of law enforcement officers, qualified immunity most visibly and obviously redounds to the detriment of the victims of police misconduct. But qualified immunity also hurts police officers themselves - most notably by depriving officers of the public trust and confidence that is necessary for them to do their jobs safely and effectively.”[11]
  • Law professor Joanna Schwartz argued, “[M]y data suggest that qualified immunity is often fundamentally ill suited to dismiss filed cases, regardless of their underlying merits.”[12]
  • Schwartz continued, “Yet available evidence suggests that qualified immunity is not achieving its policy objectives; the doctrine is unnecessary to protect government officials from financial liability and ill suited to shield government officials from discovery and trial in most field cases. Qualified immunity may, in fact, increase the costs and delays associated with constitutional litigation.”[12]
  • Schwartz continued, “First, I revisit empirical claims implicit in the Supreme Court’s qualified immunity decisions in light of my findings. Next, I consider why qualified immunity disposes of so few cases before trial. Armed with this more realistic appraisal of qualified immunity’s role, I argue that the Court has struck the wrong balance between fairness and accountability for law enforcement officers.”[12]
  • Law professor Katherine Mims Crocker argued, “Qualified immunity did not grow up in a vacuum and does not operate in one now. The doctrine's rise and role are intertwined with the Court's commitment to yet another immunity principle: sovereign immunity, which shields state and federal entities from damages actions for constitutional claims. Other areas of constitutional enforcement - like rigid limitations on suits against federal officers and onerous standards for holding municipalities liable - bear close connections to sovereign immunity too. And employer indemnification of monetary costs supposedly carried by individual officers, while underappreciated in constitutional-tort law, plays an overwhelming part in constitutional-tort practice...all this and more suggest that in important ways, qualified immunity is just part of a much larger set of challenges surrounding American constitutional accountability.”[13]

Claim: The ‘clearly established’ standard of the qualified immunity doctrine is flawed

The qualified immunity doctrine includes a requirement that officers must demonstrate that they have not violated clearly established law. This claim states that this ‘clearly established’ standard is flawed and does not account for the way police officers are educated about previous court decisions.

  • Law professor Joanna Schwartz argued, “[A]nother reason that the ‘clearly established’ standard is fundamentally flawed - it misunderstands the ways in which officers are educated about the scope of their constitutional authority.”[14]
  • Schwartz continued, “[T]he Supreme Court’s qualified immunity doctrine does not accurately reflect how officers are educated about court opinions or the role these opinions play in officers’ decisionmaking… I find that police departments regularly inform their officers about watershed decisions like Graham and Garner. But officers are not regularly or reliably informed about court decisions interpreting those decisions in different factual scenarios - the very types of decisions that are necessary to clearly establish the law about the constitutionality of uses of force.”[14]

Claim: Eliminating qualified immunity will not solve the issues critics have identified

This claim states that eliminating qualified immunity is not a solution to all of the problems critics have identified with the doctrine. For example, eliminating qualified immunity would not address issues with indemnification.

  • Policy analyst Jay R. Schweikert argued, “Regardless of whether qualified immunity is mostly or wholly abolished, it is important to clarify that eliminating the doctrine would not remove the potential for indemnifying defendants under certain circumstances. Indeed, even today, when police officers actually are held liable in civil rights cases, they are nearly always fully indemnified by their municipal employers. Thus, the immediate effect of eliminating qualified immunity would not be to subject individual officers to potentially ruinous judgments, but simply to ensure that victims of official misconduct get the remedy they deserve.”[11]

See also

Footnotes

  1. ↑ Boston College Law Review, "Using Data to Reduce Police Violence," 2016
  2. ↑ Saint Louis University Law Journal, "Revocation of Police Officer Certification: A Viable Remedy for Police Misconduct?" 2001
  3. ↑ Council on Criminal Justice, "The Path to Progress Five Priorities for Police Reform," 2021
  4. ↑ SSRN, "A Tale of Two Committees: Comparing Police Officer Standard and Training (POST) Bodies," 2023
  5. ↑ Yale Law Journal, "Disparate-Impact Liability for Policing," 2019
  6. ↑ Everytown, "Which states have rejected Law Enforcement Officers Bill of Rights laws?" 2024
  7. ↑ 7.0 7.1 Michigan Law Review, "The Problem of Policing," 2012
  8. ↑ George Mason University Civil Rights Law Journal, "An Alternative Remedy for Police Misconduct: A Model State 'Pattern or Practice' Statute," 2008
  9. ↑ Fraternal Order of Police, "Letters," April 14, 2023
  10. ↑ Stanford Law Review, "Promoting Civil Rights through Proactive Policing Reform," 2009
  11. ↑ 11.0 11.1 11.2 CATO Institute, "Qualified Immunity A Legal, Practical, and Moral Failure," 2020
  12. ↑ 12.0 12.1 12.2 Yale Law Journal, "How Qualified Immunity Fails," 2017
  13. ↑ Duke Law Journal Online, "The Supreme Court's Reticent Qualified Immunity Retreat," 2021
  14. ↑ 14.0 14.1 University of Chicago Law Review, "Qualified Immunity’s Boldest Lie," 2021
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