In the aftermath of the killing of George Floyd, Professor Buzz Scherr discusses the complex nature of handling police misconduct, including qualified immunity, police unions, and how rules on officers vary from jurisdiction to jurisdiction. Produced and Hosted by A. J. Kierstead
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A. J. Kierstead (Host):
In light of the death of George Floyd, Professor Buzz Scherr breaks down the issues surrounding police misconduct in the United States. This is the Legal Impact presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD graduate programs and online professional certificates. Learn more and apply at law@unh.edu. Opinions discussed are solely the opinion of the [inaudible 00:00:22] host and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire.
A. J. Kierstead (Host):
So Buzz, I'd imagine a lot of these issues around police misconduct will vary depending on what city, county, or state you live in, correct?
Professor Buzz Scherr:
Very much so. There are a variety of laws and structures in place to deal with police misconduct, and the variation comes within a city with a particular police department and it comes at the state level with legislation and the degree to which the law enforcement officer, the attorney general in a state is proactive in this regard. So it depends on money that is what kind of training is in budgets. It depends on the court system and their willingness to entertain police misconduct civil suits. So yeah, there's a tremendous amount. It depends on whether it's rural or urban. Tremendous amount of variation. To simplify it, it's not like it's controlled at the federal level in any clear way.
A. J. Kierstead (Host):
That kind of brings us around to what happened with George Floyd last week which has just spawned protests, riots, calls for action, and especially the officer that was fired for taking this action, he had a history of issues and the mayor of Minneapolis has said that he basically hasn't had any control over how to change anything with the police department.
Professor Buzz Scherr:
Yeah. Again, it varies from municipality to municipality, jurisdiction to jurisdiction, but generally speaking, a mayor doesn't have very immediate control over, within a police department, who is hired and who is fired. That's usually within the purview of the police chief or if a police department is in the first instance governed by a police commission like is the case in Manchester or in Portsmouth, the police commission in Portsmouth for example has the hiring power over the chief and some of the senior leadership, but that's about it. Otherwise, it's within the ... In the first instance, it's within the power of the police chief. So whether a mayor in a municipality or a city council in a municipality has hiring/firing capability varies dramatically.
A. J. Kierstead (Host):
And in Minneapolis specifically, it was brought up, it was on The Daily, the podcast put on by the New York Times on June 3rd that the mayor basically felt like he was hamstrung because of the police unions.
Professor Buzz Scherr:
Another factor in employment issues, a very powerful factor is the collective bargaining agreement, the CBA with in particular the various police unions involved, be it the patrolman's union or the investigator's union, whatever the array of unions. Hiring and firing is very dramatically controlled by that contract, by the CBA. It's not like if somebody, if a police officer has misbehaved, you can very easily, except at the extremes, fire them. There's a process and it has to rise to a certain level. That certainly appears to have happened. Whatever the city of Minneapolis's CBA is with the appropriate police union, that level was arrived at with the death of George Floyd. But lesser versions, but still very important versions of police misconduct short of killing somebody, it's very difficult to simply fire somebody. It's not an employment at will. It is an employment arrangement controlled by a very detailed contract.
A. J. Kierstead (Host):
Can you speak historically as to how it's gotten to this point where certain municipalities have gotten to be so locked down where they can't even control the officers that they're paying for?
Professor Buzz Scherr:
Yeah, I can briefly and not be overwhelmingly helpful. There is ... Police unions over the years have developed gradually to a position of dramatic power, and that's been the case for decades. They're public employees and it's of a piece with, to some extent, public employee unions and it's been a protection that in many ways has been quite valuable from let's call it historically what might have been referred to as rogue police chiefs. So there's been a place for police unions. By the same token, there has been ... It has gotten to a point where it has hamstrung, as we've just talked about, police chiefs and supervisory entities like police commissions or mayors or city councils in managing rogue employees.
A. J. Kierstead (Host):
A big part of what's been in the news cycle this week especially has been the protests obviously. Now, say the citizenry of the United States wants to start pushing towards national reform or changes to how police departments are handled. Is that something even the federal government can get involved with?
Professor Buzz Scherr:
In a limited ... Yes and no. In a few direct ways, in a few indirect ways. One of the classic mechanisms to try and rein in police misconduct is to hold police officers who engage in misconduct liable in the civil sense. That is that they get sued in a federal 1983 action that is for violation of an individual's constitutional rights. Historically certainly since 1982 when the Supreme Court ... In 1982, the Supreme Court decided that generally government officials who are performing discretionary functions like police officers are shielded from liability for civil damages within certain limits. It's a doctrine called qualified immunity. In the first instance as it applies to federal civil rights lawsuits against a police officer, classically a 1983, section 1983 action which provides for civil damages for the violation of one's statutory or constitutional rights, the qualified immunity doctrine has really dramatically limited the number of police officers who are held civilly liable. That is who have to pay damages.
A. J. Kierstead (Host):
In fact, Congressman Justin Amash is actually proposing legislation on that.
Professor Buzz Scherr:
Exactly. So that's one way it could change. Now, understand that I think a study was done several years ago, more than 98% of cases in which that qualified immunity has been pierced and the officer has been found liable, the municipal entity has indemnified the officer. That is the municipality pays; the police officer doesn't pay. So it's indirect. It would make a difference to revise the application of qualified immunity at the federal level, but it's not the be all and end all of solutions. I would strongly advocate in favor of being revised because there's no ... In many ways, one of the most powerful ways to get a municipality to sit up and pay attention is if police officers start costing the municipality money. Sad commentary. It's not enough that they have police officers engaging in police misconduct who are still on a police force like the officer involved in the George Floyd killing. The municipality needs to feel the financial pain of employing that kind of officer. So it's valuable to cut back at the least, maybe even get rid of the qualified immunity doctrine in that way, but it's not going to solve the problem.
Professor Buzz Scherr:
There's a long list of ways that one could try and manage police misconduct that have been tried, again, for decades if not centuries. The sad ... Some of them are ... You can charge an officer like this officer was with ... Officer Chauvin, I believe his name is. You can charge him criminally. He's charged with murder. That's one way to do it, but that's a rare circumstance and prosecutors tend to be very protective of police officers. What you see in the news when criminal charges are being considered against an officer is you see this very, very thorough grand jury investigation that goes on for weeks and maybe months before the grand jury makes a decision whether to charge a police officer, a thoroughness that you never see when the grand jury is considering charging anyone else. That's because prosecutors are in some ways understandably and in other ways not understandably very protective of police officers.
Professor Buzz Scherr:
Another way that's been tried over the years are what are called civilian review boards, that if there's a complaint filed against an officer, it goes in front of a civilian review board that has citizens on it, civilians in the sense that they're non-police officers, members of the community who review it and have a say. That's one mechanism that's been tried. It's not been really ... It allows for a more transparent record to be compiled of particular complaints against a particular officer, but it's not the be all and end all.
A. J. Kierstead (Host):
I'd imagine those would be rough to sort out enforcement. I'd imagine the police unions and the police departments themselves are very wary of saying this outside group of non-police officers can punish a police officer for something.
Professor Buzz Scherr:
Very much so. It feels very disruptive from a police department's perspective and a police officer's perspective. There is at the extreme for unfair complaints, repeated unfair complaints, there's logic to it being disruptive. By the same token as we've seen in New Hampshire, the police, it's very, very difficult to get access to personnel records that establish the extent to which a police officer has had disciplinary action taken against them. The New Hampshire Supreme Court just decided last week to open up in a case-by-case basis the disciplinary records of police officers. That's a big change on the part of the New Hampshire Supreme Court and a law in the state. Previously, those personnel records had been exempt from right-to-know litigation. So that change has been going on around the country.
Professor Buzz Scherr:
There's also dashboard and body cams that bring, that can bring a measure of both accountability for a police officer's conduct or more commonly, it may rein in a police officer from untoward conduct. It also has the value of giving the police a perspective on an incident where somebody has complained about the police officer's conduct and the body cam shows that the police officer's conduct was fine. There's a number of police departments in New Hampshire who now have body cams like Manchester. Portsmouth, on the other hand as we've talked about in an earlier podcast, voted not to have body cams because they don't have any problems. That's their belief anyway. So that's a possibility. That said, it turns out there's a lot of information out there that appears to be the case when police officers are dealing with the kind of protests that have been going on over the past week, seems that their body cams are turned off.
A. J. Kierstead (Host):
It's hard to enforce when they got to press it themselves.
Professor Buzz Scherr:
Yeah, exactly. Sometimes they have manual controls; sometimes they don't. So it's another partial solution and then there's training issues, training on how to deescalate a circumstance rather than training in addition to training on the use of force. A police officers, again understandably in many ways, get lengthy training on the use of force in a particular circumstance. They get far less training on deescalation techniques. That is another avenue to try and deal with the problem, training on implicit racial bias particularly in communities where there's a large population of people of color. It's unclear whether to what degree that makes a longterm difference.
Professor Buzz Scherr:
Let me pause and step back and say this. All these things have been tried, some more recently than others, some for decades, and the problem is we still have circumstances like that of the death, the murder of George Floyd. So this issue of police misconduct particularly in the context of racial justice is closer to feeling intractable at this moment than it is, "Oh, we just need to pay a little more attention and things will be fine." It's really a tough problem that arises out of the deeply embedded racism in our criminal justice system and our deeply embedded attitudes towards people at the margins of society that really unconsciously have an effect on everything that happens in the criminal justice system in the United States.
A. J. Kierstead (Host):
Thanks for listening to the Legal Impact presented by UNH Franklin Pierce School of Law. [inaudible 00:17:05] word about the show, please be sure to subscribe and comment on your favorite podcast platform including Apple Podcasts, Google Play, and Spotify
