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Seven states, including Colorado, Massachusetts and Connecticut, have enacted changes to qualified immunity, a controversial federal doctrine established by case law that can shield officers and other government employees from civil liability. A total of 24 states have restricted or banned the use of chokeholds and other neck restraints between May 2020 and May 2021, and 11 states have made changes to no-knock warrants in that time period, including Virginia, Illinois and Massachusetts, according to the NCSL.
“The negative consequence of what we’re seeing now is the tendency for people to paint all police officers with the same brush,” said Ramsey. “We’ve allowed the few to define the many and that’s a consequence, but in the long run, it’s going to benefit the profession because we have to rid our ranks of individuals who just don’t belong there.”
Use of no-knock warrants fraught with risk
Several key issues have been the target of police reform efforts, including the heightened attention to the duty of officers to intervene when they see fellow officers engaged in misconduct or excessive force, more officers being equipped with body worn cameras, restrictions on no-knock warrants, and departments moving to ban neck restraints.
The DOJ’s policy change this week, which applies to federal agents, and local and state officers serving on task forces, bans both chokeholds and “carotid restraints” except in cases where officers are authorized to use deadly force. The department acknowledged that “the use of certain physical restraint techniques — namely chokeholds and carotid restraints — by some law enforcement agencies to incapacitate a resisting suspect has too often led to tragedy.”
Qualified immunity, which can only be abolished nationally by the Supreme Court or Congress, effectively protects state and local officials, including police officers, from personal liability unless they are determined to have violated what the court defines as an individual’s “clearly established statutory or constitutional rights.” The doctrine can be used only in civil cases, not criminal, and allows victims to sue officials for damages only under those circumstances.
That could mean using surveillance teams to make sure a house is empty during service and arresting someone during a traffic stop or when they’re otherwise away from their home, he said.
But a blanket ban on no-knock warrants isn’t helpful either, he said, because there are times when it’s appropriate.
“There are a lot of considerations that go into warrant service, to mitigating risks,” he added. “To just have an outright prohibition on one tool doesn’t necessarily make things safer.”
Between May 2020 and May 2021, 11 states have made changes to no-knock warrants, including Massachusetts, Illinois, Kentucky, Maryland, and Virginia.
Like much of law and policy governing the way police do their jobs, there is no single national standard for training, education, and approach to warrant service. Eell’s association has a standard, but it’s not binding and each of the thousands of police departments across the country are free to develop and follow their own rules based on what’s allowed by state law.
Generally, though, best practices would dictate officers finding some way to avoid serving no-knock warrants, even if a judge approves an application asking to be served that way. Officers are also taught to prioritize, in order: hostages, non-involved citizens, other law enforcement, and then the suspect. Drugs, property or other evidence is the last priority in warrant service, he said. The goal is to minimize the risk of any violence.
Eells said that so much went wrong the night of the Taylor raid that he described reviewing that as a “where do you start” situation. But a blanket ban on no-knock warrants — whether by department policy, change in state law, or by district attorneys not approving those requests before they get to judges — does not make communities any safer.
Police unions seen as an obstacle
“Legislation pending or proposed in Congress would restrict contracts that the bill sponsors feel somehow interfere with civil rights investigations,” Johnson said. “From our point of view, contracts do no such thing. In fact, cannot do such a thing, legally.”
Johnson said he is not surprised about the increase in officer pay in Louisville, adding that the “constant attacks on police officers, physical, political, societal, verbal, and the consequent loss of officers through attrition and resignation/retirement has led to this.”
The tentative contract also requires mandatory critical incident drug and alcohol testing for officers and refusal to comply could result in termination, according to the document. As part of the process for collective bargaining, members of the union will vote on the agreements and, once approved, they will be reviewed by the City Council and sent to the public for feedback.
The contract negotiations have been underway since Taylor was killed. Taylor’s death has prompted cities across the country to move to ban or rein in no-knock, forcible-entry raids frequently used to serve narcotics search warrants.
Levinson said the contract’s favorable changes include no longer allowing officers to review body camera footage before being interviewed by investigators, eliminating the provision that allows non-criminal complaints pending investigation to be destroyed after 90 days, and allowing for officers to be surveilled if they are under investigation for misconduct.
But several problematic provisions were not substantially changed, Levinson said, including a prohibition on layoffs and requiring egregious behavior for an officer to be suspended without pay.
“It’s great that we got three changes, but if we get three changes every two or five years, it’s going to take a decade to make significant change,” Levinson said. “The people in the communities are having to deal with this police misconduct and it’s not acceptable. It shouldn’t take a decade of incremental change to fix it.”
Passage of Colorado bills ‘monumental’
Mari Newman, a lawyer for McClain’s family, told CNN that the indictment against the officers would not have happened without the national attention that was brought by the death of Floyd.
“These indictments here in Colorado serve not just as a reminder to the law enforcement officers here but across the entire country that they are not above the law,” Newman said.
On August 24, 2019, Aurora officers responded to a call about a person wearing a ski mask and confronted McClain, who was walking home from a convenience store, according to an independent investigative report. The officers tried to physically restrain him, which caused a struggle. McClain was placed in a carotid control hold twice and briefly lost consciousness, the indictment states.
The two Aurora Fire paramedics later arrived at the scene and diagnosed McClain with “excited delirium” without checking his vital signs, talking to him or touching him, the indictment says. The paramedics injected McClain with a dose of ketamine based on an estimate that he was 200 pounds, when he weighed 143 pounds, the documents say.
Herod told CNN that district attorneys have filed seven charges against five officers since Senate Bill 217 was passed due to the various accountability-driven provisions such as failure to intervene and report use of force incidents.
Attorney General Weiser’s investigation into the Aurora Police Department found “statistically significant racial disparities — especially with respect to Black individuals — in nearly every important type of police contact with the community, from interactions to arrests to uses of force,” according to the report.
“These disparities persisted across income, gender and geographic boundaries. Together with the other information we reviewed, we find that Aurora Police engages in racially biased policing, treating people of color (and Black people in particular) differently from their white counterparts,” the report says.
CNN has reached out to the Aurora Police Department but did not immediately hear back.
Rep. Herod told CNN that there is “still work to be done because law enforcement has been able to be shielded by law enforcement for so long for generations, but it’s in the fabric of our criminal code. It’s in the fabric of our statutes.”
CNN’s Peter Nickeas and Jenn Selva contributed to this story.
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