If the George Floyd and Black Lives Matter protests are to have a lasting impact on police practices in this country, they must be accompanied by legislative action.

At the federal level, partisan gridlock fueled by President Trump and a block of Republican senators has stalled police-reform measures.  The Republicans seem determined to prevent federal intervention aimed at deterring police violence. Police reform, as well as gun-control legislation, seem unlikely to proceed as long as Republicans are in the majority in the Senate.

Thirty states have police reform proposals at some stage in the legislative process, and most remaining states are expected to introduce measures aimed at reducing police violence.  Here in California, a score of measures including a proposed ban on choke holds and a requirement that police officers intercede when a colleague is using excessive force in their presence have been introduced. Conservatives and the powerful Police Officers Association (POA) (a union) have lined up in opposition to any changes in police governance. It is unclear whether any of the bills currently before the California legislature will overcome their opposition by these groups and reach the Governor’s desk.

The prospect of meaningful reform however is taking place at the local level. Cities throughout the country have embraced the “defund the police” agenda. San Francisco, Oakland, and Berkeley are shifting resources away from the police department budget, and transferring the funds to programs designed to target the root causes of social inequity.

I applaud the defunding proposals, redirecting money from departments to pay for programs concerning community mental health, homeless services, and other interventions.  What the defunding strategy does not do is to remove the threat that hostile, racist patrol officers pose to public safety.

How Unions Perpetuate the Problem of Police Violence

Police violence and in particular police violence perpetrated on Black people has been a defining facet of law enforcement since the founding of this nation. In the aftermath of the civil rights movement of the 1960s, half-measures were attempted in some places to make reforms. California is only one of thirteen states to require a pre-deployment training certification for officers, and it has seen piecemeal changes in the Internal Affairs (IA) process.

However, police departments throughout the state have habitually failed to protect Black people and other marginalized groups from police violence. Training and internal scrutiny have done little to alter police culture — a collective state of mind in which a code of silence and unimpeachable authority is understood and broadly observed. As a consequence, a majority of police officers continue to refuse to inform on each other, and police chiefs often default to trusting their rank-and-file at their word. It appears that police officers place a  higher value on their fidelity to each other than on the civil rights of police-abuse victims.

This value system is reinforced by the POA. Police unions have been highly successful in promoting what they see as the self-interests of their members.

"Since the nineteen-sixties, when police unions first became like traditional unions and won the right to bargain collectively, they have had a controversial history," writes Steven Greenhouse in a June piece for the New Yorker. "And recent studies suggest that their political and bargaining power has enabled them to win disciplinary systems so lax that they have helped increase police abuses in the United States."

And unions have played a role in keeping bad cops on the payroll, and keeping their records clean as they move from city to city. A Reuters report in 2017 found that the majority of police-union contracts examined in eighty-two cities had stipulations regarding how officers' disciplinary records should be expunged, in many cases in as little as six months.

Unions have for years blocked reform legislation in California and have successfully promoted bills that afford police officers a right to privacy not granted to any other profession. Within each department, the POA defends police officers accused of misconduct including the use of excessive and deadly force. The POA’s representation of officers accused of abusing their authority has stymied Internal Affairs investigations and discipline. As a result, police officers routinely go unpunished for beating and killing minority “suspects.”

A case in point is the June 2020 death of 22-year-old Sean Monterrosa at the hands of Vallejo police officers. Monterrosa was reportedly on his knees with his hands raised when a Vallejo police officer shot him through the windshield of a patrol car while seated in the back seat. The POA went to court in an unsuccessful effort to shield the officer’s identity from the public, and early in the investigation of the incident a key piece of evidence — the shattered windshield — already went missing. The chief of police has already, likely under pressure, walked back the original narrative about what position Monterrosa was in — now contending he was somehow kneeling in a way that looked like he was preparing to shoot, even though he had no gun and nothing in his hands.

Though Vallejo is a small city of 120,000 residents, its officers have killed 19 people in just the last decade.

Municipal Finances Compound the Problem

City officials universally monitor internal affairs complaints that may result in civil liability. City and police department executives both know the negative financial consequences of affirming such complaints.  When a citizen complaint results in litigation, the accused officer is then represented by the city attorney’s office or outside paid counsel. Litigation frequently involves allegations of negligent training, supervision, and the accusation that the police department knew about the officer’s bad behavior and failed to take any action to correct that behavior.

Cities are aware that multi-million dollar judgments for police misconduct are not infrequent, and all too often at this juncture, protecting the public purse takes priority over protecting the public. The city’s defense will amount to endorsing the officer’s violent conduct, defending the legitimacy of the internal affairs investigation, and disputing previous citizens' complaints of excessive force and abuse of authority. Cities invariably attempt to minimize their exposure to civil liability, no matter the facts, and no matter the harm the officer may have inflicted on a resident.

This unholy alliance illustrates the need for structural change. A common-sense, structural innovation would entail a county-wide transfer of the duties of internal affairs departments in incidents of excessive force and abuse of authority from local law enforcement agencies to the county district attorney’s office. Under the current system in many jurisdictions, law enforcement agencies handle their own internal-affairs investigations, and department chiefs oversee the staffs of their own internal affairs divisions, which can lead to clear conflicts of interest.

Legitimizing the investigative process in officer-involved shootings is fundamental to improving quality and equity in the delivery of police services for all residents. The DA's office is ideally situated to assume the internal affairs function from all law enforcement agencies in the county. The transfer of jurisdiction would include local police departments, sheriff’s department, school, transit, housing authority police, Park Rangers, and all law enforcement agencies.

District attorneys are typically elected officials who must answer to the people, and not to city colleagues — though because of their necessary working relationships with police departments, conflicts can arise here as well. Case in point: The DA of Solano County, Krishna Abrams, has announced she's recusing herself from the investigation of the Sean Monterrosa shooting in Vallejo, citing a conflict of interest. She's pushing for the state attorney general to step in, though so far that has not happened.  

The Alameda County District's Attorney’s Office already monitors the use of deadly force incidents. The removal of citizen complaints to the District Attorney's Office means that excessive force complaints, including reports of illegal conduct towards demonstrators, will be investigated and adjudicated by professionals who are not police officers and are not subject to the biases that so frequently taint past investigations and their findings. This change of internal affairs function does not alter an agency’s internal governance and other areas of employee accountability.

This transfer of power is the type of institutional change that will give the public more confidence in the inherent fairness and impartiality of shooting investigations — especially in cases of small police departments where the internal affairs officers are sometimes only on part-time assignment, and are obviously too close to the rank and file.

Americans have confidence in our judicial system primarily because of the insistence on impartiality. The judge and the jury don’t know the parties and have nothing to lose or gain in rendering a decision. This is not something easily achieved in a police department.

Major restructuring of police governance will have to overcome conservative and POA opposition as well as other political obstacles, and in California would likely require a ballot measure and approval by the voters.

Elected officials, the County Board of Supervisors, police reform advocates and voters should consider the positive impact that this structural change will have in improving the reliability and appropriate disposition of citizen complaints. If enacted we can safely anticipate a reduction in police violence, abuse of authority, and discrimination.

Police misconduct must no longer be an internal affair.