Statement of Lynda Garcia, Policing Campaign Director, at U.S. House Committee on the Judiciary Oversight Hearing on Policing Practices

View this testimony as a PDF here.

STATEMENT OF LYNDA GARCIA
POLICING CAMPAIGN DIRECTOR
THE LEADERSHIP CONFERENCE EDUCATION FUND
THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS

U.S. HOUSE COMMITTEE ON THE JUDICIARY
OVERSIGHT HEARING ON POLICING PRACTICES

SEPTEMBER 19, 2019

Chairman Nadler, Ranking Member Collins, and members of the Committee: I am Lynda Garcia, Director of the Policing Campaign at The Leadership Conference Education Fund (The Education Fund), which was founded in 1969 as the education and research arm of The Leadership Conference on Civil and Human Rights (The Leadership Conference), a coalition of more than 200 national organizations working to build an America as good as its ideals. The Leadership Conference has coordinated national advocacy efforts on behalf of every major civil rights law since 1957. Thank you for the opportunity to submit this written testimony regarding the need for federal support of policing best practices that promote public safety, build community-police trust, and respect the dignity of all people.

All people deserve to feel safe in their homes and their communities. Safety is a civil and human right, without which society cannot thrive and democracy cannot function. And yet in recent years, tragic events have deepened distrust in law enforcement, especially within communities of color. These events have reopened old wounds and cut new ones, making people feel less safe and forcing our nation to reconcile its historically fraught relationship with a profession that swears to serve and protect.

In 2014, the killing of Michael Brown by a police officer in Ferguson, Missouri, set off waves of protest that renewed long-standing questions around the proper role of law enforcement. Brown’s death, and the unrest that followed, prompted reflection in communities, law enforcement, and among our nation’s leaders, including up to the president.

That year, President Barack Obama convened a task force to identify best policing practices to increase trust between police and the communities they protect and serve while effectively addressing crime. Released in 2015, the Final Report of the President’s Task Force on 21^st Century makes recommendations to police departments to ensure fair, safe, and effective policing.[1] As a result, some police departments across America have begun the work of implementing changes to increase trust, fairness, justice, and mutual respect.[2]

Many departments, however, have yet to reach the report’s aspirations. Police officer shootings of unarmed Black men are disproportionately high; and Black and Latinx people are overrepresented in other enforcement activities, including pedestrian and vehicle stops.[3] Recently, we have seen the improper exercise of discretion in police interactions with people of color, from arrests of people sitting in a coffee shop to questioning and frisking teenagers visiting a college campus.[4]

It is time to rethink antiquated approaches to public safety that rely on arrests and incarceration, which disproportionately affect Black and Brown people and fail to address the public health issues that contribute to crime. When police practices harm communities, it sows mistrust and hinders community engagement — which is critical for realizing public safety. Congress must pass legislation that promotes transparency and accountability and use grant funding to incentivize police departments large and small, urban and rural, to move toward a policing model that puts communities first and offers a transformative vision for fair, safe, and effective policing.

The Historical Role of the Federal Government in Addressing Unconstitutional Police Practices

Following the beating of Rodney King by four white officers in Los Angeles in 1991, and the uprising that ensued, Congress held a series of hearings regarding police misconduct across the country. At the time, no federal mechanism existed for holding law enforcement agencies accountable for civil rights violations. Two years later, Congress passed 42 U.S.C. §14141 (re-codified at 34 U.S.C. §12601), authorizing the attorney general to investigate cases of police misconduct and excessive force involving “a pattern or practice by law enforcement officers” that violate people’s constitutional or civil rights.[5]

In the 25 years since, the Civil Rights Division of the Department of Justice has opened 69 formal investigations of police departments across the country.[6] Twenty of those investigations resulted in a court-enforceable consent decree to implement reforms to enhance transparency and accountability in agencies where it found systemic civil rights violations.[7] Consent decrees have been implemented to vindicate the civil rights of communities plagued with excessive force and discriminatory policing, including in New Orleans, Ferguson, and Baltimore.[8]

The current administration has severely curtailed the Department of Justice’s use of consent decrees to address police civil rights abuses.[9] It has also abandoned collaborative reform efforts of the Office of Community Oriented Policing Services, under which police departments voluntarily sought audits and recommendations to improve trust between the public and police from the Department of Justice.[10] This does a disservice both to communities suffering from systemic misconduct and police officers who are left without the tools to police safely. High-profile police shootings of unarmed Black men and other incidents of police misconduct, coupled with heavy enforcement of low-level offenses, have eroded trust in law enforcement in many communities — and especially in communities of color. This lack of trust strains police-community relationships and undermines public safety. Where people perceive the criminal-legal system to be arbitrary, biased, and unfair, they are less likely to cooperate with police, making us all less safe.

During my time in the Department of Justice, I had the opportunity to meet with community members and officers alike. I found a simple but profound common interest in every city I visited: safety. And what most impedes public safety is the severe mistrust between communities and police that grows out of broken systems that allow police misconduct to go unaddressed, eroding the ability of police to effectively address crime.[11] Consent decrees, and the principles of transparency and accountability they embody, promote fair and unbiased policing practices that equip officers with the tools to do their jobs more effectively, reducing the need to use force and increasing community trust.

Congress must ensure that the Department of Justice is fulfilling its duty to investigate systemic police misconduct and that the department has the needed tools — including the use of consent decrees — to correct constitutional violations.

Congress Must Support a New Era of Public Safety that Enhances Accountability and Promotes 21^st Century Best Practices in Policing

In March of 2019, The Education Fund launched the New Era of Public Safety initiative and report to help build trust between communities and police departments, restore confidence, and reimagine a new paradigm of public safety.

The report, New Era of Public Safety: A Guide to Fair, Safe, and Effective Community Policing, provides communities, police departments, and lawmakers with policy recommendations for best practices to enhance accountability, build trust, and improve public and officer safety.[12] The recommendations are adaptable to every department, in every community across the nation. The goals are to advance policing practices that respect and protect human life and ensure safety for all. It is critically important that police departments across the country implement policies and practices that are fair, equitable, procedurally just, and increase transparency and accountability — values that build community trust, improve confidence, and ultimately heal wounds. To do so, they must engage and work with communities to collaboratively develop solutions to the public health problems that for so long have fallen to police to answer.

While much of the reform must happen at the state and local levels, success will require the leadership, support, and commitment of the federal government, including members of Congress. Every year, Congress provides millions of dollars to law enforcement agencies through federal grant programs to support police. This creates a duty for Congress to conduct oversight to ensure that funds are not supporting policing practices that harm public safety and erode community trust. Additionally, this responsibility empowers Congress to incentivize police departments to adopt 21^st century best practices in community policing that reduce the use of force and other misconduct, promote transparency, and ensure accountability. By conditioning grant funding on adopting these best practices, Congress can redirect government dollars away from policing practices rooted in the criminal-legal system and carceral state and toward practices that reflect a vision of public safety that promotes community health and rebuilds trust.

Recommendations

To improve community-police relationships, enhance police accountability, and improve public and officer safety, we must transform the way that police interact with communities and emphasize their role as keepers of the peace. The Leadership Conference offers the following recommendations to the Committee as areas where Congress can support local efforts through federal law, which are described in greater detail below:

Reduce the use of excessive force by passing the Police Exercising Absolute Care with Everyone Act of 2019 (PEACE Act of 2019);

• Prohibit discriminatory policing by passing the End Racial and Religious Profiling Act;
• Mandate robust data collection;
• End the militarization of law enforcement agencies by passing the Stop Militarizing Law Enforcement Act;
• Promote officer health and wellbeing by redirecting grant monies toward officer support programs and services;
• Invest in non-police responses to crises by expanding community-based mental health and substance use services; and,
• Strengthen accountability systems and hold officers accountable for constitutional violations and criminal conduct.

Reduce the Use of Excessive Force

Police officers are vested with the authority and power to use force, including lethal force, within constitutional bounds. Misusing this power undermines police legitimacy. Indeed, the use — and misuse — of police force is, and has long been, the source of distrust and discord between police and communities, especially communities of color. Thus, force should not be used because it is more convenient or expedient, to punish or retaliate, or because it has traditionally been perceived as integral to maintaining public safety. It should only be used when community members or officers are in danger and no reasonable alternatives exist.

The Leadership Conference recommends that Congress require local law enforcement agencies receiving federal grants to adopt use of force policies and trainings that instruct officers to use force only if necessary under the circumstances and proportional to the threat, and after all other reasonable alternatives, including de-escalation tactics, have been exhausted. De-escalation tactics include taking action or communicating verbally or nonverbally during the potential force encounter in an attempt to stabilize the situation and reduce the immediacy of the threat so that more time, options, and resources can be called upon to resolve the situation without the use of force or with a reduction in the force necessary.

Practices in Seattle, Washington, show that such a standard can reduce use of force incidents by police, without compromising safety. After implementing a policy that instructs officers to use force only when necessary, an independent monitor found a 60 percent decrease in the use of moderate- to high-level use of force incidents from 2014 to 2016, with no increase in officer injuries and crime.[13] Congress should also adopt a federal use-of-force standard that emphasizes de-escalation and permits the use of force only when necessary, by passing the PEACE Act of 2019.[14]

Prohibit Discriminatory Policing

The equal treatment of all people, regardless of background, class, or characteristic, protects and preserves public safety and builds trust and confidence in policing. Discriminatory policing, which targets people of color more often than others, has serious consequences not only for individuals and communities but also for law enforcement and society. Indeed, it fosters distrust and a lack of confidence in law enforcement. For example, a Department of Justice investigation of the Baltimore Police Department found that Black residents of the city were stopped at a disproportionate rate to White residents and that these disparities eroded community trust and thus impeded the department’s ability to police effectively.[15]

Police department policies should prohibit profiling based on actual or perceived personal characteristics, including race, ethnicity, national origin, religion, gender, gender identity, sexual orientation, age, disability, proficiency with the English language, immigration status, and housing status. Congress should pass legislation that protects against profiling, including the End Racial and Religious Profiling Act of 2019.  Through training, policy, and practice, departments can prevent discriminatory policing and reduce and mitigate its disparate impact on marginalized communities.

Mandate Robust Data Collection

Data collection and reporting are important steps toward transparency because it allows communities and departments to analyze the effects of policies and practices, and to change them if they are ineffective or disproportionately affect particular communities or groups of people. It is critical that police departments have accurate data to monitor efficacy and disparate impacts — you cannot measure what you do not know.

Congress should pass legislation that mandates data collection and reporting of all enforcement-focused police-community interactions, including data about officer-involved shootings, use of force incidents, stops, searches, and arrests. Departments should ensure that all data collection is disaggregated by race, ethnicity, gender, disability, and other demographic characteristics and made publicly available.

End the Militarization of Our Police Forces

The police response to the protests following the fatal shooting of Michael Brown by a police officer in 2014, showed officers in mine-resistant ambush protected (MRAPs), body armor, and gas masks confronting protesters and of snipers perched on top of tactical vehicles. This type of equipment is designed to withstand explosive ambushes in combat zones. The Department of Justice launched an investigation into the Ferguson Police Department’s response to the protests, and President Obama issued an executive order directing a working group to review programs that supply military equipment to police.[16] In 2015, the working group concluded that the heavily armed, militarized response was disproportionate to the threat posed by the protestors and deployed in a manner that intimidated the community, and recommended prohibiting acquisition of military equipment including tracked armored and weaponized vehicles, bayonets, grenade launchers, and high-caliber firearms and ammunition.[17]

In 2017, the current administration revoked the order and disavowed the recommendations,[18] yet they nonetheless serve as a guide and confirm that the significant risk of misusing or overusing military weapons, which undermines community trust, warrants their prohibition.[19] Congress should end federal programs that provide military equipment such as the U.S. Department of Defense 1033 program and pass the Stop Militarizing Law Enforcement Act.[20]

Promote Officer Health and Wellbeing

Police officers often respond to violent situations and crises, and many work in communities with high levels of gun violence and regularly bear witness to human tragedy. This puts them under great physical and mental stress, which can undermine their health and wellbeing. These effects go beyond officers themselves; they also affect loved ones and family members — and entire communities. Officers who are equipped to handle stress at work and at home are more likely to make better decisions on the job and have positive interactions with community members.

Congress should redirect current funding toward programs that promote officer health, wellbeing, and safety, including employee assistance programs and resources for equipment such as first aid kits, bulletproof vests, and computers. One such example is the Bulletproof Vest Partnership Grant Program.[21]

Invest in Non-Police Responses to Crises

Many factors contribute to crises relating to mental health and developmental disabilities and substance use disorders, such as inadequate social services and supports, high rates of poverty, income inequality, housing insecurity, and an ongoing opioid epidemic. Society should aim for the least “police-involved” responses to crises. By providing adequate prevention, support, and referral services, communities and departments can divert people with mental health and developmental disabilities from the criminal-legal system. Indeed, these crises should be handled by professionals with expertise in mental health, developmental disability, and substance use disorders — not police officers. Officers are not the answer to public health matters.

The federal government should redirect grant money to public health responses to people with disabilities or in crisis and invest in community services that better promote public safety. This includes creating crisis hotlines, walk-in centers, mobile crisis teams, peer crisis support services, and crisis stabilization units. By investing in community-based support systems to prevent crises and developing the services to respond to crises, Congress can reduce police interventions and reduce entry into the criminal-legal system for people with unmet public health needs.

Strengthen Accountability Systems

Accountability is central to fair, safe, and effective policing; it deters misconduct and heals communities if officers violate law or policy. Officers and departments should be held accountable for performing in a way that complies with federal, state, and local laws, departmental policies, and community values. Doing so sends a message to communities that unjust and unconstitutional conduct is not tolerated and will receive swift discipline. It builds public trust and, in turn, strengthens the legitimacy of police departments and the criminal-legal system at large. A lack of accountability, in contrast, weakens the relationship between police and the people they serve, undermining departments’ efforts — and the ability of the entire justice system — to protect and preserve public safety.

Strong accountability systems also strengthen departments from within. Police departments, like all professional organizations, flourish when employees know what is expected of them and understand the consequences if they fail to meet expectations. Officers are also more likely — and more motivated — to consistently make good decisions if they know that leaders and colleagues are also accountable for their actions. In other words, accountability deters misconduct, and encourages good conduct.

When a law enforcement agent engages in misconduct that violates a person’s civil rights, the federal government can prosecute them under 18 U.S.C. Section 242.[22] The statute sets a difficult bar for prosecutors to meet: it requires that an officer have “willfully” deprived the person of their rights. The Department of Justice often will decline to prosecute officers who killed someone because of the high standard.[23] Congress must amend Section 242 to include a lower mens rea to ensure accountability for civil rights violations that result from police misconduct. It should also restrict the qualified immunity defense, which shields police from civil liability under Section 1983.

Conclusion

The current administration has retreated from using the tools it has to enforce civil rights laws — but Congress has the power to bring about transformative policing that benefits communities and officers. It can provide the support and funding for jurisdictions to implement 21^st century policies and practices that are fair, safe, and effective.

To realize a vision for public safety that respects and protects human life and ensures safety for all, communities and police departments must rebuild trust. This new era of public safety will require community-driven solutions. And that starts by welcoming community voices and ensuring police departments have the policies and trainings in place that reduce the use of force, prohibit discrimination, promote accountability, and require data collection. To view the entire report, New Era of Public Safety, please visit: https://policing.civilrights.org/report. I have also appended the executive summary of our report, which outlines additional policy recommendations for achieving this shared goal of public safety.

Public safety needs vary across communities large and small; urban, rural, and suburban; homogenous and diverse. Nevertheless, the principles of fairness, equity, procedural justice, legitimacy, transparency, and accountability apply to every department.

By working together, communities and police departments can articulate a vision for a new era of policing that respects the dignity and humanity of all people — and can ultimately ensure that all people, of all backgrounds, are truly safe in America.

Thank you for your leadership on this critical issue.

[1] President’s Task Force on 21st Century Policing. Final Report of the President’s Task Force on 21^st  Century Policing. Washington, DC: Office of Community Oriented Policing Services. 2015. https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

[2] See COPS Office. The Pillars of 21^st Century Youth-focused Policing. Apr. 2016. https://cops.usdoj.gov/html/dispatch/04-2016/plliars_of_21st_century.asp; The President’s Task Force on 21^st Century Policing Implementation Guidebook: Moving from Recommendations to Action. 2015. https://noblenational.org/wp-content/uploads/2017/02/President-Barack-Obama-Task-Force-on-21st-Century-Policing-Implementation-Guide.pdf.

[3] See, e.g., Jeffrey A. Fagan et al., Street Stops and Broken Windows Revisited: The Demography and Logic of Proactive Policing in a Safe and Changing City, in Race, Ethnicity, and Policing: New and Essential Readings 309-10 (Stephen K. Rice & Michael D. White eds., N.Y. Univ. Press 2010) (describing the origins of the NYPD’s stop-and-frisk program and its disproportionate effects on people of color); U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 63 (2015). (“Despite making up 67% of the population, African Americans accounted for 85% of FPD’s traffic stops, 90% of FPD’s citations, and 93% of FPD’s arrests from 2012 to 2014.”). https://www.courts.mo.gov/file.jsp?id=95274.

[4] See, e.g. Philadelphia Starbucks Arrests, Outrageous to Some, Are Everyday Life for Others. New York Times. Apr. 2018. https://www.nytimes.com/2018/04/17/us/starbucks-arrest-philadelphia.html; Bill Chappel, College Apologizes After Native American Students’ Visit Is Sidelined By Police, NPR. May 2018. https://www.npr.org/sections/thetwo-way/2018/05/04/608533284/college-apologizes-after-native-american-students-visit-is-sidelined-by-police.

[5] 42 U.S.C. §14141 (re-codified at 34 U.S.C. §12601).

[6] Civil Rights Division, The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994-Present, Department of Justice. Jan. 2017. https://www.justice.gov/crt/file/922421/download.

[7] Ibid. Another 20 investigations resulted in settlement agreements, or memoranda of agreement, between the Department of Justice and local jurisdiction.

[8] See Department of Justice. An Interactive Guide to the Civil Rights Division’s Police Reforms. Jan. 2017. https://www.justice.gov/crt/page/file/922456/download.

[9] Department of Justice. Principles and Procedures for Civil Consent Decree Agreements with State and Local Governments. Nov. 2018. https://www.justice.gov/opa/press-release/file/1109681/download.

[10] See Department of Justice. An Interactive Guide to the Civil Rights Division’s Police Reforms. Jan. 2017. https://www.justice.gov/crt/page/file/922456/download.

[11] See e.g., Department of Justice. Investigation of the Chicago Police Department. Jan. 2017. https://www.justice.gov/opa/file/925846/download; Department of Justice, Investigation of the Baltimore City Police Department. Aug. 2016. https://www.justice.gov/crt/file/883296/download.

[12] New Era of Public Safety, A Guide to Fair, Safe, and Effective Community Policing, The Leadership Conference. 2019. https://policing.civilrights.org/report/Policing_Full_Report.pdf.

[13] United States v. City of Seattle, No. 2:12-cv-01282-JLR, Apr.2017 at 6-7. https://www.documentcloud.org/documents/3538083-Assessment-Use-of-Force.html.

[14] 116th Congress (2019-2020), Police Exercising Absolute Care With Everyone Act of 2019.

https://khanna.house.gov/sites/khanna.house.gov/files/Khanna%20Clay%20Police%20Exercising%20Absolute%20Care%20with%20Everyone%20PEACE%20Act.pdfhttps://khanna.house.gov/sites/khanna.house.gov/files/Khanna%20Clay%20Police%20Exercising%20Absolute%20Care%20with%20Everyone%20PEACE%20Act.pdf.

[15] Department of Justice. Investigation of the Baltimore City Police Department. Aug. 2016. https://www.justice.gov/crt/file/883296/download.

[16] Exec. Order No. 13,688, Federal Support for Local Law Enforcement Equipment Acquisition, 80 Fed. Reg. 3451 Jan 16, 2015, https://www.govinfo.gov/content/pkg/FR-2015-01-22/ pdf/2015-01255.pdf.

[17] Department of Justice. COPS Office. After Action Assessment of the Police Response to the August 2014 Demonstrations in Ferguson Missouri. 2015. https://ric-zai-inc.com/Publications/cops-p317-pub.pdf; see also Niraj Chokshi, Militarized Police in Ferguson Unsettles Some, Pentagon Gives Cities Equipment. Washington Post. Aug. 14, 2014. https://www.washingtonpost.com/politics/militarized-police-in-ferguson-unsettles-some-pentagon-gives-cities-equipment/2014/08/14/4651f670-2401-11e4-86ca-6f03cbd15c1a_story.html; Law Enforcement Equipment Working Group. Recommendations Pursuant to Executive Order 13688: Federal Support for Local Law Enforcement Equipment Acquisition. 2015. https://www.bja.gov/publications/LEEWG_Report_Final.pdf.

[18] Exec. Order No. 13809. Restoring State, Tribal, and Local Law Enforcement’s Access to Life-Saving Equipment and Resources. 82 Fed. Reg. 41,499. Aug. 28, 2017. https://www.govinfo.gov/content/pkg/FR-2017-08-31/pdf/2017-18679.pdf.

[19] Law Enforcement Equipment Working Group. Recommendations Pursuant to Executive Order 13688: Federal Support for Local Law Enforcement Equipment Acquisition. 2015. https://www.bja.gov/publications/LEEWG_Report_Final.pdf.

[20] 115^th Congress (2017-2018) H.R.1556 – Stop Militarizing Law Enforcement Act. Mar. 2017.

   https://www.congress.gov/bill/115th-congress/house-bill/1556.

[21] Public Law No: 116-18.

[22] Department of Justice.  Deprivation of Rights Under Color of Law. Updated Aug. 2015. https://www.justice.gov/crt/deprivation-rights-under-color-law.

[23] See e.g., Gurman, Sadie and Ramey, Corrine. Justice Department Won’t Bring Federal Charges Against Police Officer in Eric Garner Case. Wall Street Journal. Jul.2019. https://www.wsj.com/articles/justice-department-wont-bring-federal-charges-against-police-officer-in-eric-garner-case-11563285249.