This op-ed was originally published in the Washington Post on February 8, 2020. Arthur Rizer is vice president of technology, criminal justice and civil liberties at the Lincoln Network and a former Army officer, police officer and federal prosecutor.
The Virginia General Assembly passed a slew of criminal justice reforms last year addressing policing, sentencing and parole. This session, a fight from the 2020 special session is reemerging over proposals to allow victims of police misconduct to sue for civil damages. Police unions and sheriffs are signaling opposition. But as a former police officer who now studies policing and crime, I think that opposition is misguided.
In March, new laws will take effect that put limits on the use of deadly force by police officers in the commonwealth. The laws also bar certain dangerous policing tactics — the neck restraints that killed George Floyd, firing into or out of moving vehicles and using rubber bullets — without a compelling and immediate need to protect an officer or bystander from serious harm. These laws bring Virginia in line with other states that have tried to get more specific about the permissible use of deadly force by police, and many of these provisions passed with bipartisan or even unanimous support.
This year, two bills — SB 1440 in the Senate from Sen. Scott Surovell (D-Mount Vernon), HB 2045 in the House from Del. Jeffrey Bourne (D-Richmond) — would build on these laws to create a civil cause of action that allows people to sue police who cause harm to address constitutional violations by police.
There are some differences in the bills’ approaches. The Senate bill would create a cause of action solely for violation of the new laws against misuse of deadly force, and the House bill would create a cause of action to vindicate a somewhat broader set of civil rights under the Virginia or U.S. constitutions. The House bill would also impose a new duty on law enforcement agencies to train and supervise officers not to violate constitutional rights. But under either bill, victims of excessive force by the police could get their day in court, seeking justice in the form of money damages.
In this sense, these proposals replicate the federal statute, called “Section 1983,” which provides civil remedies under federal law for people whose rights are violated by government officials. So if either HB 2045 of SB 1440 is enacted, Virginia would not be breaking any new ground but simply bringing state law into line with federal law and that of many other states.
Despite the relatively modest impact of these bills, law enforcement officials and police unions are already itching for a fight. They argue the legislation would subject officers and agencies to crippling civil lawsuits and damage awards.
These worries seem overblown. Section 1983 was enacted almost 150 years ago and became commonly used in the past 50 years. There’s little evidence that it has limited law enforcement discretion in any meaningful way or crippled its tactics.
Most observers — including such ideological opposites as Supreme Court Justices Clarence Thomas and Sonia Sotomayor — have argued that the courts have interpreted Section 1983 so narrowly that law enforcement officers are often shielded from meritorious claims of excessive force.
Both as a matter of legal doctrine and in actual practice, law enforcement officers are given substantial leeway to respond to uncertain or emergency situations as they see fit, without courts looking over their shoulders or applying 20/20 hindsight. If either HB 2045 or SB 1440 is signed into law, it is reasonable to believe that Virginia judges would be similarly disinclined to permit a new civil cause of action to become a cash cow for plaintiffs with trifling complaints.
Speaking as a former police officer who helped train other law enforcement personnel, I believe law enforcement should welcome greater accountability to the public.
Good cops have nothing to fear from accountability — and much to gain from measures that help root out the misconduct that makes their jobs harder.
One of the most pressing challenges facing police today is the increasing divide between officers and the communities they are meant to serve. It may be that there is blame to go around on both sides of this divide. But the mere fact that this divide exists (and is growing) is a huge blow to the effectiveness of law enforcement, especially in high-crime areas and among vulnerable communities.
Research suggests, and any experienced cop will confirm, that one of the most effective tools in fighting crime and ensuring public safety is cooperation from neighbors. Police rely on community members to serve as witnesses, call in tips, give beat officers the lay of the land and generally to serve as conduits for cooperation and information. If the community does not trust its police, regardless of the cause, the public won’t play this role. That compromises law enforcement effectiveness and ultimately public safety. Embracing accountability is an important confidence-building measure.
Moreover, few things are as frustrating to the good cop as the bad cop — the cop who abuses his trust by using unnecessary force, provokes unnecessary confrontations and treats members of the public with disrespect. Making it clear to the community that there will be real consequences for police misbehavior is an important step in rebuilding trust. And it also honors the service of officers who fulfill their duties with professionalism and respect.
To me, policing was a calling. I know that’s true of many officers, who put their lives at risk from a sense of public service. But policing is also a profession, and professionals set high standards for themselves and hold each other accountable. Good cops have nothing to fear from accountability — and much to gain from measures that help root out the misconduct that makes their jobs harder.