Restore public confidence in law enforcement

End police use of force when suspects pose no ‘imminent threat’!

One would have to have been living under a rock not to be aware of controversies surrounding shootings and use of force by law enforcement over the last several years. Too often, these debates devolve into recrimination and name calling without focusing on substantive changes that could make policing safer and improve public perceptions of the police.

Current law authorizes deadly force based on the conduct for which a suspect is being arrested. However, best practices dictate that deadly force should be used only when there is an imminent threat of harm to the officer or another.

HB 2044 by Rep. Senfronia Thompson would change the standard for use of deadly force by police to require that the suspect pose an “imminent threat” before shooting them is justified.

The bill would also enact important reforms to the police disciplinary process, closing loopholes that prevent officer discipline and keep records about misconduct secret. The bill would also give affected members of the public a voice in the process. Finally, the bill updates the state’s racial profiling law to require departments to gather data on whether contraband is discovered when they conduct searches at traffic stops.

New data improve understanding of police use of force

In Texas, new reporting on shootings by law enforcement was required by the Texas Legislature last session. These data give lawmakers a fuller understanding into the use of deadly force by law enforcement.

  • In the first full year of reporting, officers shot 169 people. 20% of them were unarmed.
  • People killed by police are disproportionately black or Hispanic.
  • Deaths in police custody increased 84% between 2005 and 2015.
  • Every officer death is a tragedy. But despite the murders of five officers in Dallas last year, overall deaths of officers at the hands of civilians are near post-World War I lows.
  • Discipline for officers involved in a shooting or in custody death is rare.

Once the data were gathered, it turned out Texas law enforcement officers shot more people every year than anyone had previously understood. We still don’t understand why deaths by police shooting have grown at such an alarming clip. But we do know that, even in highly questionable incidents, officers typically aren’t disciplined.

Bi-partisan coalition for reform

The following organizations support this proposal: NAACP, Texas Criminal Justice Coalition, Faith in Texas, Texans for Accountable Government (TAG), ACLU of Texas, the Austin Justice Coalition, and Just Liberty. (Go here to add your group to the list.)

Improve police disciplinary processes

HB 2044 amends the disciplinary processes in the civil service code for police and firefighters, which covers seventy-some-odd departments statewide whose voters, usually in the distant past, voted to opt into the provision of Chapter 143 of the Local Government Code.

For starters, the bill would insist that “meet and confer” agreements (basically a right-to-work-state version of “collective bargaining”) cannot weaken statutory disciplinary procedures.

Perhaps the most significant change to the disciplinary process would require departments to create a “disciplinary matrix” with a pre-set array of punishments prescribed for various types of misconduct. The purpose of this is to prevent punishments from being overturned by arbitrators when different officers are given different punishments. If the punishment falls within a prescribed array set out by policy, the arbitrator is under much greater pressure to deem it “reasonable.”

In an important addition, “failure to appropriately de-escalate” in accordance with training would become a grounds for discipline on the matrix.

A disciplinary matrix also has the benefit of setting expectations among officers. If they know that certain actions may result in more severe consequences, there’s less to complain about when somebody is fired or severely punished.

New incentives to deter misconduct

Another important provision in the bill that says departments cannot open a promotional exam to an officer who has had a sustained excessive force complaint in the last six years. In addition, other types of sustained disciplinary actions from the prior six years would result in points deducted from the promotion exam score. That’s a serious deterrent to misconduct.

The bill also resolves a conflict between statutes created when the Legislature passed the Michael Morton Act in 2013. That law requires prosecutors to hand over exculpatory, mitigating, and impeachment evidence about witnesses to the defense. But by law neither they nor the public can know about police officer misconduct if it does not result in a suspension or termination. So, for example, misconduct punished through reassignment, retraining, written reprimands, etc., can’t be known even if a) prosecutors are obligated to disclose the information by law and b) the same information is a public record at the more than 2,500 other law enforcement agencies statewide. By making these files public, the bill would protect prosecutors from being accused of misconduct when police departments conceal information about misconduct from them.

HB 2044 is the most significant piece of police accountability legislation proposed in Texas since the turn of the century. Any one portion of it is important. Taken as a whole, the bill represents an enormous step toward restoring public confidence and improving accountability in law enforcement and perhaps even defusing some of the tensions surrounding high-profile critical incidents.

Include contraband ‘hits’ in racial profiling data

Another section of HB 2044 improves data collection provisions under Texas’ 16-year old racial profiling data collection law to require all agencies to gather information on the rate at which they discover contraband when they search drivers at traffic stops. In many jurisdictions, including both Austin PD and DPS, black people are searched far more often even though searches of white drivers are more likely to uncover contraband. Some cities use contraband hit-rate data as part of an “early warning” system to identify officers with problematic enforcement patterns.

The bill would also improve racial profiling data by requiring inclusion of stops where divers were let off with a warning, not just where tickets were issued, which will ensure that hit rates are not inflated.

These changes will ensure that Texas has full information about roadside searches under the Fourth Amendment. This information not only documents racial disparities but also provides the most detailed information we have about what exactly goes on at Texas traffic stops. This change in the law would help avoid false accusations of racism, giving a much clearer picture of exactly when disparities in searches are justified based on crime-fighting instead of discrimination. On the other hand, when discriminatory outcomes cannot be justified, that would become easier to demonstrate, too.

Now is the time for action

The Legislature shouldn’t wait for more controversial deaths, protests, and turmoil before acting to address obvious problems with the deadly force statute, police disciplinary processes, and the racial profiling law. HB 2044 represents a reasoned, centrist approach to a hot-button topic, focusing on flaws in the law which have created injustice instead of indulging in accusations of individual racism. Let’s take this opportunity to raise up the terms of debate and show the rest of the country that these issues can be confronted in a well-reasoned, bipartisan fashion. Tell your lawmakers to support HB 2044 today.