Among the most damaging of these obstructions is the prevalence of internal investigations. Internal investigations allow law enforcement agencies to determine for themselves whether or not one of their own has committed a crime. They collect the evidence themselves. They are allowed to ignore important information, such as prior charges of officer misconduct. And they are often legally required by police union contracts to engage in an investigation process that varies dramatically from those used to investigate the average citizen. For example, Law Enforcement Officers’ Bill of Rights (LEOBORs) adopted by 13 states and police union contracts often include provisions that block or limit the creation of Community Review Boards, give officers the right to reject participation in investigations for 48 hours, limit the amount of time an officer can be under investigation, and prevent investigators from accessing or publicizing prior records of officers involved in cases of misconduct — among other protective obstructions to justice. Attempts by law enforcement organizations and anti-Civil rights groups to pass a federal LEOBOR have made it to Congress. While a federal LEOBOR has not yet been authorized, continual efforts to block its passage and the passage of similar legislation at the local and state levels are necessary to disrupt the forward momentum of these strategies.
Community organizations, Civil Rights organizations and their allies have engaged in the fight to form third party review process for police misconduct, but continued resistance fueled by law enforcement and anti-Civil Rights groups has all but completely castrated their efforts. The Fraternal Order of Police (FOP), for example, very effectively opposes “Legislation which would create or fund ‘civilian review boards’ of law enforcement at any level of government.” Of the CRB’s that are able to establish themselves, there is undermined by very strict limitations. Measures have been taken to ensure that they are unable to issue subpoenas or enforce disciplinary actions so that ultimately, the Community Review Boards have little to no influence in the political process. Reforming the investigative process is an important step, but victims also encounter a new wave of obstacles if an investigation does result in charges filed.
Generations of struggle have produced policies that allow for police officers and departments to be brought up on federal charges for brutality. They have all collapsed under the weight of their own weaknesses and the efforts put forth by pro-police and anti-Civil Rights organizations.
In 1866, the federal government made its first attempt to curb abuses by law enforcement with the passage of the Civil Rights Act of 1866. Section 18 USC 242 of this act, which is still applied today, was written specifically to confront the use of law enforcement by southern confederates attempting undermine federal authority and prevent free slaves from exercising their new Constitutional rights. In efforts to reassert federal control, the 18 USC 242 authorized the US Attorney General to file charges against law enforcement offices suspected of deprivation of rights under the color of law; however, individuals were not authorized with the right to bring charges. As a result, the policy did very little to protect the black community from police violence. This pathway to justice was not effective then, and it is not effective now. Political murders skyrocketed, and an overwhelming number of these were carried out through lynchings and law enforcement.
Attempting again to assert control over rebelling states, the government passed another series of acts designed to halt southern resistance to federal authority. These Acts, known as the Enforcement Acts, ended with the KKK Act of 1871. This policy specifically recognized the threat posed by law enforcement acting as an extension of state rebellion networks and white supremacy organizations. The KKK Act authorized the president to suspend habeas corpus and use military force to contain state rebellion. It also granted individuals the right to bring charges against a law enforcement officers for the deprivation of rights. Additionally, in a rare admission of jury bias, the federal government appointed all black juries to try KKK Act violations for fear that all white juries would undermine conviction.
These strategies proved to be very effective. So effective, in fact, that the KKK was disbanded in less than a year. It would not be able to reemerge until 1915. After its initial implementation, though, the law fell out of use. It would later be recodified as 42 USC 1983 and revived as a tool against law enforcement; however, this act has yet to bring relief to target communities. Even so, the KKK Act was the only federal protection against police brutality authorized for almost 100 years.
In 1964, new federal legislation was passed in direct relation to public outrage ignited by publicized police brutality. Images of officers using police dogs, batons, hoses and other forms of police violence used against men, women, and children marching for civil rights in Birmingham, Alabama forced the federal government to respond to the pressure to end segregation and discrimination by pushing through the Civil Rights Act of 1964. This Act contained elements designed to alleviate concerns about abuses by law enforcement by superficially outlawing patterns and practice of discrimination, but much like the weaknesses written into the Civil Rights Act of 1866, only the United States Attorney General can file charges. Also like its legislative predecessor, once charges are brought, it has proven to be very difficult to secure a conviction. If a rare conviction does occur extremely weak consequences are issued. In most cases, the Attorney General makes suggestions for shifts in police department policy or oversees the implementation of minimal adjustments. As a result, victims have very little power to trigger federal charges and institute significant reforms to departments that continually strip them and their communities from their rights and their lives under the Civil Rights Act of 1964.
Through the 1980’s the limited protections granted to targeted minorities were stripped down even further. This time, by the US Supreme Court. Rulings in the cases of Harlow vs. Fitzgerald (1982), Tennessee vs. Garner (1985) and Graham vs. Connor (1989) added qualified immunity to the list of protections granted to officers accused of misconduct, cleared the way for police to murder unarmed suspects without legal ramifications, and limited the ability of victims to seek justice by adding the objective reasonableness standard to the prosecution of Fourth Amendment violations under 42 USC 1983.
In the case of Harlow vs. Fitzgerald (1982), the court ruled that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In other words, law enforcement officers were granted the authority to deny an individual of their Constitutional rights so long as they establish that they didn’t know that they were violating those rights at the time.
In Tennessee vs. Garner (1985), the Supreme Court outlined when deadly force can and cannot be used against a civilian. Under this test, the suspect must possess a deadly weapon, pose a probable cause of threat, or be accused of a crime involving injury or death. Initially passed to restrict use of deadly force against unarmed, fleeing suspects, this test in practice has become a way for law enforcement to use excessive and deadly force without consequence. For example, this loophole has been used to allow officers to escape conviction for murdering unarmed civilians by claiming they thought the victim was armed, even when an investigation proves otherwise.
In Graham vs. Connor (1989), the Court added the “objective reasonableness” standard to the prosecution of Fourth Amendment violations. In their ruling, the court found that the “’reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.” This standard allows officers to detain individuals for nothing more than a behavior that an officer might consider unusual. These perceptions may be based on ablest, racist, misogynistic, homophobic, classist or otherwise discriminatory leanings — even if no crime has been accused or committed.
These three rulings from the Supreme Court all but completely dismantled over 100 years of Civil Rights organizing efforts. Law enforcement continued to function to target minorities and the federal government fell silent until once again, until another widely publicized incident of police abuse reignited political concern for police brutality. In 1994, the televised beating of Rodney King by four officers from the Los Angeles Police Department brought the issue of police misconduct once again to the political forefront. The LA District attorney charged the four officers involved in the beating with excessive force. A jury acquitted them and riots broke out in the streets of Los Angeles.
The federal government responded to the public outrage and increased political pressure by passing the 1994 Violent Crime Control and Law Enforcement Act (42 USC 14141). This Act was passed without the input of communities brutalized by the police and without consideration for the weaknesses of prior anti-brutality legislation. The VCCLEA authorizes the attorney general to bring civil action against state and local law enforcement agencies for “pattern and practice” of misconduct, but following the same pattern of prior legislation, the policy only authorizes the Attorney General to file charges and does not give individuals or lower levels of government the power to trigger federal protections. This law also requires that data be collected on excessive force cases; however, this portion of the act was not funded properly, nor has it been protected from formal opposition by law enforcement organizations such as the Fraternal Order of Police. As a result, it fails as a form of federal protection against police brutality.
It does succeed, though, in furthering the rights of law enforcement to unfairly target, incarcerate and brutalize minority communities.
The VCCLEA “provided funding for tens of thousands of community police officers and drug courts, banned certain assault weapons, and mandated life sentences for criminals convicted of a violent felony after two or more prior convictions, including drug crimes. The mandated life sentences were known as the ‘three-strikes’ provision.” It has been lauded as a complete failure by President Clinton himself, who signed the law into effect, and contributed to an explosion of incarceration rates especially among people of color, people with disabilities and people of color with disabilities. Since the passage of the VCCLEA, anti-hate crimes legislation has expanded the list of protected minority communities, but this is where federal protections against police brutality end. There are no other legislative pathways readily presented to victims and their families when pursuing justice for police misconduct, brutality and murder.
And so we will continue to watch more and more videos of police murders on the news, the internet and social media. We will continue to protest and organize and scream for the police to stop shooting. And we will continue to watch as murderer after murderer is released back into our communities to brutalize without consequence again – unless every single obstacle placed on the pathway to justice is confronted and removed. Every step in the process from accreditation to hiring to arming to training needs to be vetted and overhauled. Every obstruction to reporting, investigating, prosecuting and convicting abusive officers and agencies needs to be rooted out and dismantled. Every legislative strategy used to protect law enforcement and degrade the rights of the people needs to be federally countered swiftly and forcefully. All laws must function in action as well as at face value. They must be designed with consideration for the failures of prior legislation and future attacks and include leaders from all target communities in the process. And every organization involved in fighting against the rights of victims, organizations must be identified and confronted offensively and defensively.
It is no mistake that police are murdering minorities and getting away with it. This is happening because organizations and individuals have fought for generations to give the police the right to kill without consequence. If we don’t coordinate a federally organized response to put an end to it, it’s our fault that it is going to continue. Until this systemic work is organized and accomplished, we will watch as more videos of brothers, sisters, sons, daughters, friends, mothers, husbands and community members being lynched are played before our eyes. More shots will be fired. More people will die. More police will return to their jobs as if nothing happened. More names will need to be said.