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Colorado Police Had No Legal Standing to Stop Elijah McClain: Independent Report

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The Aurora, Colorado, police officers who stopped Elijah McClain as he was was walking home from a convenience store—and then put him in a carotid hold in which he repeatedly said he couldn’t breathe before injecting him with ketamine—did not have any legal basis for the August 2019 altercation, an independent investigation has concluded.

The 157-page report, commissioned by the City of Aurora after McClain’s death drew worldwide condemnation, offered stunning details into the countless missteps involved in the 23-year-old Black massage therapist’s death. Independent investigators concluded in the report released Monday that “the post-event investigation was flawed and failed to meaningfully develop a fulsome record. These facts trouble the panel. However, it was not our charge to assess whether misconduct occurred; rather, our task was simply to report what we could learn from the record and make policy recommendations.”

Investigators found that McClain’s death happened quickly; however, neither the resident who initially called 911 nor the responding officers even identified the 23-year-old as having committed a crime.

Read more at The Daily Beast.

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But it represents meaningful progress, and we intend to continue working with lawmakers to strengthen and build upon it.” Before the bill can be expanded upon, though, it has to pass the Senate — and its success there is uncertain. Republicans favor a more limited police reform proposal from Sen. Tim Scott (R-SC) that Democrats dismissed as too small in scope. Sen. Tim Kaine (D-VA) is proposing an amendment to the George Floyd bill along with Rep. Don Beyer (D-VA) that would track the costs of police misconduct settlements. Now Democrats are in charge of the Senate. Senate Majority Leader Chuck Schumer is “committed” to the bill, Kaine said, and Schumer recently told reporters, “I’m putting bills on the floor. People are going to be forced to vote on them, yes or no.” Bass told reporters that Democrats have been in conversation with Scott, but whether the Democratic caucus can find the 10 Republican votes it needs to get the bill through the Senate remains to be seen. But given the difficulty Democrats have had so far in this Congress winning Republican support for nominees and Covid-19 relief, winning over 10 GOP senators may be a tall order. What’s in the George Floyd Justice in Policing Act of 2021 Broadly, the George Floyd Justice in Policing Act of 2021 tries to do four things at the federal level: make the prosecution of police misconduct easier, expand federal oversight into local police units, limit bias among officers, and change policing tactics. The bill works to encourage state and local governments to adopt its federal reforms through penalties — those that don’t make changes, or that refuse to comply with the bill’s data submission requirements, would lose access to federal policing funding, and in some cases, that funding would be redistributed to those departments that do cooperate. It is unclear whether those penalties would be enough to incentivize compliance. Some reformers critical of the bill say they would not, as most police funding comes from state and local sources: State and local governments spent about $120 billion on policing in 2018, according to the US Census Bureau, to which the federal government contributed about $5 billion. Here’s how the George Floyd Justice in Policing Act of 2021 works: Rewriting misconduct law and ending qualified immunity The bill attempts to make it easier to hold individual law enforcement officers accountable through changes to both existing law and practice. For one, it rewrites the federal law on abuse of power, US Code Title 18, Section 242. Currently, prosecutors who want to convict an officer of misconduct must generally prove they deprived someone “of any rights, privileges, or immunities secured or protected by the Constitution,” and that officer did so “willfully” — “voluntarily and intentionally and with the specific intent to do something the law forbids.” This is very hard to prove. So the Justice in Policing Act changes the word “willfully” in Section 242 to “knowingly or recklessly,” essentially requiring a prosecutor prove misconduct was not done accidentally or without the understanding that it could cause some harm. “Knowingly or recklessly sounds like legal jargon, but it’s frankly a well-established, intense standard and criminal law throughout the country,” Damon Hewitt, the executive vice president of the Lawyers’ Committee for Civil Rights Under Law, said. “It will be game changing.” Hewitt cited the killings of Tamir Rice, Sean Bell, and Amadou Diallo as examples of the effect changing Section 242’s language might have. “In each case, federal prosecutors declined prosecution because they felt they could not satisfy the so called willfulness standard,” Hewitt said. “It’s so rare for federal prosecutors to feel that they have sufficient evidence to satisfy this willfulness standard, beyond a reasonable doubt, that on average, only about 40 or so defendants every year are prosecuted in the United States.” However, Philip Matthew Stinson — a criminal justice professor at Bowling Green State University and former police office — cautioned that changing the standard won’t necessarily change legal outcomes, pointing to how often officers are cleared in jury trials: “As soon as the officer testifies in their own defense, it’s game over for the prosecution, and you just can’t get a conviction, even in these cases where we’ve got video that just is damning.” The other major change the bill makes is barring officers from being eligible for qualified immunity — a concept established by the courts that shields public officials from being sued. As Vox’s Ian Millhiser explains, qualified immunity “only protects government employees whose conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” This “test set up by the courts for its application has proven to be entirely unworkable,” Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, said. “Its application has been so distorted by courts that it’s operated to virtually ensure that police officers are held civilly responsible for even the most monstrous acts of misconduct.” Collecting data on police misconduct The federal government doesn’t have a much data on police misconduct; most databases — like Mapping Police Violence or Stinson’s Henry A. Wallace Police Crime Database — have been compiled by private groups. There’s bipartisan agreement that this should change; the 2020 GOP policing bill called for data collection on use of force incidents. The Justice in Policing Act hopes to expand access to policing data by establishing publicly accessible databases run by the Department of Justice on police use of force and misconduct allegations. The use of force database would have details on whether the victim was armed; what the officer was trying to accomplish; and what efforts the officer took to deescalate the situation before using violence, while the misconduct registry would include active and dismissed allegations as well as ones that were sustained. Beyer and Kaine’s amendment would add to these databases one that tracks the cost of police settlements. Grants would be made available to smaller departments struggling needing infrastructure assistance to meet these requirements, and any department failing to submit this data would lose access to federal funding. The success of this part of the bill hinges on departments complying with these new mandates — and reformers have been mixed on whether they will. Henderson suggested state and local governments will give the federal government this data: “States should not rely on federal prodding, trying to withhold funding as the basis of their decision on whether to provide data. We think moral suasion, pressure, encouraging them to offer data, which we know they have at their disposal, is the better way to encourage them to take action.” Stinson disagreed, pointing to the limited response the FBI has had in its efforts to collect use of force data, as well as the difficulty the federal has had in getting state and local departments to fill out a census of agencies. He also questioned the purity of any data that is collected, saying, “Lying is a normal part of policing in many places across the country. Police officers lie in in their reports. They write narratives up to justify the actions that they wanted to take or did take.” Strengthening oversight Beyond collecting data, the Justice in Policing Act works to strengthen federal oversight over state and local law departments. For instance, it gives new subpoena powers to the US attorney general to investigate law enforcement groups that have been accused of having engaged in a “pattern or practice” of unconstitutional conduct. It also bestows those same subpoena abilities on state attorneys general, and empowers them to fix pattern or practice constitutional violations at the state and local level. The DOJ would also be required to begin publicly reporting how many of these investigations have been launched, are active, or closed. The bill would also charge the US attorney general with: Developing and recommending a set of uniform standards for all state and local departments Reviewing departments’ accreditation standards Ensuring only departments that meet accreditation standards receive grant money Giving Congress reports on laws that impede investigations into police misconduct and racial bias in policing Creating a task force that would uncover allegations of misconduct, and refer them to the proper authorities Also, the bill would create pilot programs to study how the implementation of new standards and adoption of new techniques (like deescalation practices, for instance) improve policing. And new grants would be established to help fund community organizations that work on policing; to study and promote hiring, training, and oversight; and to assist departments in developing new policing techniques and public safety protocols. Making racial profiling illegal The bill would make racial profiling in law enforcement illegal, would mandate that federal law enforcement officers undergo racial bias training, and tasks the DOJ with creating a racial profiling and racial bias training program. Ideally, mandating racial bias training would change the disproportionate number of people of color killed by police, but as Vox’s Julia Belluz whether they work is a subject of great debate. For instance, a 2020 report on the New York Police Department’s implicit bias program found it had little effect on police interactions with people of color; in fact, stops and frisks of Black residents went up slightly following the sessions — 1 percentage point for stops, and 2 percentage points for frisks. It’s a result that underscores the fears some researchers have about these trainings. “Training can bring bias to the surface,” Harvard sociologist Frank Dobbin told Belluz. “It can activate stereotypes.” Limiting the violence police are allowed to use No-knock warrants, which allow police to enter private property without announcing themselves, would be banned at the federal level in drug cases under the bill; the warrants would still be allowed in other types of cases. These warrants became the subject of national attention following the death of Breonna Taylor, who police killed in her own bed after they forced their way into her apartment unannounced, looking for someone who did not live there. Arguably, this would also make police officers safer; unsure who was breaking into the apartment, Taylor’s partner — who was a licensed gun owner — fired a warning shot that police say injured an officer on the scene. The act also attempts to directly address the cause of George Floyd’s death — officer Derek Chauvin placed his knee on Floyd’s neck for eight minutes and 46 seconds — by banning chokeholds and carotid holds (that pinch the carotid artery responsible for feeding blood to the brain) at the federal level, and classify the use of either technique by law enforcement at all levels of government as a civil rights violation. To curb other types of police violence, the bill prohibits federal officers from using deadly force unless all “reasonable” alternatives have been exhausted, including deescalation techniques, nonlethal force, and at least one verbal warning. Officers would also have to ensure there’s no risk of bystanders being injured, and be positive deadly force is the only way to avoid “serious bodily injury or death,” either of the officer or someone else on the scene before using deadly force. Federal officers would similarly be barred from using nonlethal force unless it was deemed completely necessary to apprehend a suspect, and all other avenues had been exhausted. The bill asks that state and local governments pass laws requiring their officers to meet these same standards. As is the case with other provisions, those governments that fail to do so would lose access to federal funding. Limiting military equipment The George Floyd Act would limit — but not end — transfers of military goods, like drones and body armor, to state and local police departments and require any request not made by a federal agency be made public. It would prohibit the transfer of a number of weapons and vehicles, including bayonets, grenades, and drones, although it would be possible to grant waivers for banned vehicles. The transfers would have to be used for counterterrorism or general law enforcement work — they could no longer be used for anti-drug or border security activities. Any item once allowed, but banned by the bill would need to be given back to the federal government, as would any equipment given to a department found to have committed a civil rights violation. Mandating body cameras All federal officers would be required to wear body cameras, and the bill spells out how they are to be worn, as well as when they are to be used — making clear that they must be on for virtually all interactions with the public, unless an official is on private property without a warrant, is speaking to the victim of a crime, or to an anonymous source and is asked to switch the camera off. Officers who do not comply will be subject to disciplinary action that their superiors believe is “appropriate.” The bill also requires agencies to maintain video files from the cameras for at least six months, and at least three years in certain cases, including when a recording features use of force or an interaction that a complaint is filed about. And the bill would create paths by which a member of the public featured in a given video — as well as members of their family and their legal representation — could access the footage. Cameras will also be required in cars; and the act would ban the use of facial recognition technology in either the cameras or on the footage. Any state and local departments willing to comply with the federal rules would be eligible for grants to expand their camera programs. Research on whether body cameras improve outcomes is mixed, and the Justice in Policing Act hopes to make its body camera program a platform for further study of the issue: The Office of Audit, Assessment, and Management would be responsible for undertaking research on the technology’s effectiveness, and would be required to submit its findings to Congress. Criminalizing sexual misconduct The Justice in Policing Act works to decrease sexual assaults by making any sexual contact between a federal officer and someone they are detaining illegal, and punishable by a fine, as well as up to 15 years imprisonment. It asks state and local governments to ban the practice as well, and prohibits any government that fails to do so — and that does not submit reports on the number of officers who do have sexual contact with those in their custody — from receiving money from the COPS program. The attorney general would be required to collect the information state and local governments submit, and turn it over to the Government Accountability Office, which would analyze it and submit a report to Congress. The full scope of police sexual misconduct is unknown — many police sexual assaults aren’t reported — but a 2015 Associated Press study found 990 officers lost their licenses due to sexual violence allegations between 2009 and 2014. Reformers are divided on whether the Justice in Policing Act goes far enough A number of activists, including those with the NAACP, National Urban League, and the National Action Network support the Justice in Policing Act; other reformers, however, argue that it does not go far enough. “It’s not a few rotten apples,” Stinson said. “To some extent, I think policing is rotten to the core. And I don’t see how these bills, in some respects, are anything more than political crime control rhetoric.” And activists like Monica Simpson, executive director of SisterSong, believe the Justice in Policing Act is far too narrow in scope to achieve needed change. “What if we made big moves?” Simpson said. “I’m not saying it’s bad legislation: Everything that’s in there makes sense for the most part, it’s things that people want. But is it the biggest, boldest move that we can make?” Simpson cited the Movement for Black Lives’ BREATHE Act, as a proposal better suited to the the policing problem. That plan would defund many federal law enforcement groups, and use the savings to fund community programs, public safety initiatives, as well as policies attacking the root causes of inequity and over policing, as a better alternative. The BREATHE Act also uses a more complex strategy to push state and local reforms at the federal level that relies more on grants and incentives than on restricting access to federal funding. Other reformers, like a coalition of 38 groups backing proposals by the Center for Disability Rights, have called for the framework of the Justice in Policing Act to be kept, but for its policies to be taken further — that, for instance, qualified immunity be abolished for all government officials rather than only officers, or that quick-knock raids be barred alongside no-knock warrants. Many of the activists who support the Justice in Policing Act do see it as a bold step; Henderson this bill “transformative police accountability legislation.” “I will tell you this, the George Floyd Justice in Policing Act is certainly no worse than current law,” Hewitt said. “It’s far better.”
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