If there are three rules in Washington, D.C., they are: Never get between a politician and a camera. Never let a crisis go to waste. And when in doubt, pass more legislation. The “Justice in Policing Act of 2020” should be called the “George Floyd Federal Power Grab Act of 2020”.
Politicians seem to need to be seen doing something. Then again, it seems every time something bad happens the American people cry out that the politicians “have to do something!” It seems people never stop to think that doing the wrong thing could make things worse rather than better. Case in point, the so called “Justice in Policing Act of 2020”, or as I call it, the “George Floyd Federal Power Grab Act of 2020”.
I understand. After watching the video of the death of George Floyd, I wanted something to be done, too. What I wanted was the officers involved to be investigated, charged, and have their day in court. So far, two out of those three things have happened. The officer who killed Mr. Floyd is in jail facing murder charges and the other officers involved are facing charges of accessory to murder. And while I am willing to wait for evidence to be produced in court for justice to be served, there are a lot of Americans who are not willing to wait. Chief among them are 230 members of the House of Representatives who are using this “crisis” to grab more power for the federal government.
Ruining a Good Idea
If a stopped clock can be right twice a day, I suppose it’s possible to find something legal and good in such an atrocious piece of legislation. Section 102 of this legislation does propose some reforms to 42 USC 1983, specifically the language for what is referred to as “Qualified Immunity”.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
42 USC 1983: Civil action for deprivation of rights (Underline added)
The general idea of 42 USC 1983 is that if a government actor deprives you of any rights, privileges, or immunities protected by the U.S. Constitution under color of law, you can sue them in civil court. (This is different from 18 USC 242 which is a criminal offense for depriving for the same actions.). The problem is the language I’ve highlighted, which protects the officer from damages unless a “declaratory decree” was violated. In other words, a governmental officer cannot be held liable for violating the Constitution unless a court had previously stated that such a violation is actually a violation. This is the so-called “qualified immunity”, and it has been used to protect officials, especially law enforcement officers, from the consequences of some very serious acts, some of which I have written about. Like the case Jessop v City of Fresno where the court basically said that police officers could not be sued to recover property stolen during the execution of a warrant because, “at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.” So what is Congress’ response to such travesties of justice?
Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following: ‘‘It shall not be a defense or immunity in any action brought under this section against a local law enforcement officer (as such term is defined in section 2 of the George Floyd Justice in Policing Act of 2020), or in any action under any source of law against a Federal investigative or law enforcement officer (as such term is defined in section 2680(h) of title 28, United States Code), that—
H.R. 7120 – George Floyd Justice in Policing Act of 2020 Section 102
‘‘(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or
‘‘(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the
defendant, or that at such time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.’’.
So now, if the officer “believed, reasonably or otherwise”, that their conduct was lawful, they get a pass? Does that mean if you believe, “reasonably or otherwise”, that what you are doing is legal, then you cannot be sued? Tell that to the Texas farmer who was fined for constructing stock ponds in accordance with the very same EPA that created the regulations exempting them from review. Or the two citizens in Kansas who believed their governor when he said that he would enforce the Kansas Second Amendment Protection Act. This creates a two-tier justice system where those who work for the government receive special protections. This is one of the grievances our Founding Fathers listed as justification for declaring independence.
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
Declaration of Independence
Federalizing Law Enforcement
Most of the rest of the legislation involves effectively federalizing your state and local law enforcement.
SUBPOENA AUTHORITY.—In carrying out the authority in subsection (b), the Attorney General may require by subpoena the production of all information, documents, reports, answers, records, accounts, papers, and other data in any medium (including electronically stored information), as well as any tangible thing and documentary evidence, and the attendance and testimony of witnesses necessary in the performance of the Attorney General under subsection (b). Such a subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate district court of the United States.
H.R. 7120 – George Floyd Justice in Policing Act of 2020 Section 103
That means if this bill becomes “law”, your local law enforcement will not need to be charged with a federal crime for them to be required to report to the U.S. Attorney General. What’s more, should your state’s Attorney General believe a violation has occurred within their state, they no longer need to seek relief in state court, but they can take it to a federal one:
CIVIL ACTION BY STATE ATTORNEYS GENERAL.—Whenever it shall appear to the attorney general of any State, or such other official as a State may designate, that a violation of subsection (a) has occurred within their State, the State attorney general or official, in the name of the State, may bring a civil action in the appropriate district court of the United States to obtain appropriate equitable and declaratory relief to eliminate the pattern or practice. In carrying out the authority in this subsection, the State attorney general or official shall have the same subpoena authority as is available to the Attorney General under subsection (c).
H.R. 7120 – George Floyd Justice in Policing Act of 2020 Section 103
No longer will your state and local law enforcement be held to conduct established by state law. Effectively, all law enforcement will not only be subject to federal regulation, but abuse and usurpation as well. And as is almost always the case in such federal legislation, there is a nice little bribe to the states, thirty pieces of silver to abdicating their authority to protect their citizens from federal overreach.
GRANTS AUTHORIZED.—The Attorney General may award a grant to a State to assist the State in conducting pattern and practice investigations under section 210401(d) of the Violent Crime Control and Law Enforcement Act of 1994 (34 U.S.C. 12601).
H.R. 7120 – George Floyd Justice in Policing Act of 2020 Section 103
What is this bribery to be used for?
ENFORCEMENT OF PATTERN OR PRACTICE RELIEF.—Beginning in the first fiscal year that begins after the date that is one year after the date of enactment of this Act, a State or unit of local government that receives funds under the Byrne grant program or the COPS grant program during a fiscal year may not make available any amount of such funds to a local law enforcement agency if that local law enforcement agency enters into or renews any contractual arrangement, including a collective bargaining agreement with a labor organization, that—
H.R. 7120 – George Floyd Justice in Policing Act of 2020 Section 103
(1) would prevent the Attorney General from seeking or enforcing equitable or declaratory relief against a law enforcement agency engaging in a pattern or practice of unconstitutional misconduct; or
(2) conflicts with any terms or conditions contained in a consent decree.
That’s right, any state that takes this bribery will have to make sure that any labor contract they sign cannot prevent them from turning over to the federal government the information they want. That’s not all. This legislation also includes bribes to the states to enact policies for the use of federally approved independent investigation agencies or civilian review boards.
Federalization of State and Local Law Enforcement Act
I’ve already mentioned how this law puts your state and local law enforcement under federal control. There is actually an entire subtitle, euphemistically called the “Law Enforcement Trust and Integrity Act”. It is should more accurately called the “Federalization of State and Local Law Enforcement Act”. This act wants to put the Attorney General of the United States in charge of accreditation of each and every law enforcement agency in the nation:
DEVELOPMENT OF UNIFORM STANDARDS.— After completion of the initial review and analysis under paragraph (1), the Attorney General shall—
H.R. 7120 – George Floyd Justice in Policing Act of 2020 Section 113
(A) recommend, in consultation with law enforcement accreditation organizations and community-based organizations, the adoption of additional standards that will result in greater community accountability of law enforcement agencies and an increased focus on policing with a guardian mentality, including standards relating to—
(i) early warning systems and related intervention programs;
(ii) use of force procedures;
(iii) civilian review procedures;
(iv) traffic and pedestrian stop and search procedures;
(v) data collection and transparency; (vi) administrative due process requirements;
(vii) video monitoring technology;
(viii) youth justice and school safety;
(ix) recruitment, hiring, and training;
Is it a good idea for law enforcement to have standards regarding these activities? Yes. But it’s most definitely NOT the role of the federal government to set those standards. It’s a violation of the Constitution, of the rule of law, and of the separation of powers between the states and the central government. Furthermore, when the legislation lists “community-based organizations”, they mean:
COMMUNITY-BASED ORGANIZATION.—The term ‘‘community-based organization’’ means a grassroots organization that monitors the issue of police misconduct and that has a local or national presence and membership, such as the National Association for the Advancement of Colored People (NAACP), the American Civil Liberties Union (ACLU), UnidosUS, the National Urban League, the National Congress of American Indians, or the National Asian Pacific American Legal Consortium (NAPALC).
H.R. 7120 – George Floyd Justice in Policing Act of 2020 Section 113
Does anyone else notice a pattern for these “community-based organizations”? These are all groups that have expressed dissatisfaction with the police. In fact many of them have openly opposed our republican form of government. And they are all national organizations, not “community-based”. These are the people the federal government says should be overseeing your law enforcement. Should they have a seat at the table? Absolutely. But so should organizations like the Fraternal Order of Police, The United Deputy Sheriffs Association, and the National Association of Police Organizations. If we want better law enforcement, those agencies must be willing to listen to both sides of the argument.
That’s not all. You see, this legislation requires not only that law enforcement be monitored, but that the data collected be made available and, at his or her discretion, reviewed by the Attorney General of the United States.
Conclusion
Should law enforcement be held accountable? Should their actions be subject to review by individuals and “community-based” organization? Should law enforcement officers be held both criminally and civilly liable for their actions? The answers are yes, yes, and absolutely yes. However, you cannot fix a problem with law enforcement by breaking the law and making the process more political. History shows that there will always be people who will use the system for political gains at the expense of justice and liberty for the people. If we want law enforcement to be more accountable, the answer is for them to be held accountable locally. If we want a more just police force, then we should hold them to the same standards the rest of the people hold. And if we need to fix some of the laws, the last thing we need is the federal government to come in and take over.
If we want justice for George Floyd, then let those charged with his murder have their day in court. Let them be judged by a jury of their peers and let the facts of the case become public. It is not justice to punish approximately 700,000 law enforcement officers in America because you are mad at how long it takes to grant a few bad actors their due process. Little if anything in this legislation would have had any impact on what happened to Mr. Floyd. So this is one case where doing something not only will not help, but it will make things much, much worse.
