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Time and time again police departments across the country have been exposed for failing to police themselves, yet little about their conduct has changed. This failure persists despite public outcry and federal intervention, exacerbating racial disparities and other inequities in our criminal justice system. The Special Inspector General for Law Enforcement Act (SIGLEA), recently proposed by Rep. Gerry Connolly (D-VA), would begin to address these challenges.
The Obama administration sought to confront many law enforcement agencies’ failures to police themselves by entering into a record 15 consent decrees wherein local police departments agreed to be subject to federal oversight while reforming unconstitutional practices and policies. These consent decrees came after several Department of Justice initiated “pattern and practice” investigations revealed staggering racial disparities in law enforcement. But beginning in 2017, the effectiveness of this approach was quickly undone by the Trump Justice Department, which either failed to hold police departments to task or pulled out of consent decrees entirely.
This is precisely why consent decrees, which can wane in power or popularity based on the administration in power, are not a long term solution to the problem of police misconduct. SIGLEA is a great start. The Act would create a Special Inspector General to investigate local, state or federal law enforcement illegality or misconduct and offer whistleblower and confidentiality protections for law enforcement officers and others who witness or are the victim of police misconduct. And it would break down the ubiquitous code of silence by protecting reporting officers from workplace harassment, and removing the inherent conflict associated with internal police misconduct investigations.
The Act would also remove some of the barriers to accountability that exist in the current system. Officers accused of misconduct are often shielded from liability in civil lawsuits due to the qualified immunity doctrine. Under the doctrine, if a police officer’s alleged misconduct has not been clearly established as unconstitutional by a federal court, then a plaintiff’s lawsuit cannot proceed. However, because two situations are rarely factually identical, the doctrine is often impossible to overcome. Clearly unconstitutional misconduct may go unpunished simply because no previous case is similar enough. Because qualified immunity is a creation of the judicial branch it is not codified in federal statute. Congress has the power to enact legislation to abolish the doctrine, however, recent progress has been stalled.
The longstanding code of silence by police officers when their colleagues are accused of misconduct is another substantial barrier to accountability. The testimony by three members of the Minneapolis Police Department in Derek Chauvin’s murder trial for the death of George Floyd is the most notable recent departure from this well documented phenomenon. This highly unethical practice has often been exacerbated by well–funded and extremely vocal police unions. These organizations wield a great deal of local political power and often loudly defend officer misconduct and police-run internal review investigations to prevent punitive action against offending officers. As historians and academics have noted, the “blue wall of silence” dates back to the post-Reconstruction Era, when police officers that moonlighted as Ku Klux Klan members, used their powerful positions to both intimidate and torment Blacks and then cover up their misdeeds. In many cases, officers in these jurisdictions who were not among the Klan’s rank and file, did not stand in the way of their fellow officers’ misconduct.
This content was originally published here.