MARY REICHARD, HOST: It’s Wednesday, the 17th of June, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. First up, revisiting police reform efforts.
Last week, Democrats unveiled their police reform proposals. This week, it’s Republicans’ turn. Sen. Tim Scott of South Carolina is leading the effort.
Here he is talking about his bill, the JUSTICE Act, on CBS’s Face the Nation.
SCOTT: If we do it right, I think we can reduce the number of times that we’re dealing with misconduct on the police departments. If we don’t do it right, then we’ll have the same situation where there is no law. We can do better than that as a nation, and we will.
REICHARD: The Republican reform effort emphasizes funding for police body cameras. It also sets conditions for federal grant eligibility: Local departments must log use-of-force incidents in an FBI database and participate in state-level record sharing. They must also restrict the use of choke holds or risk losing federal funds.
President Trump included some of those proposals in the executive order he signed yesterday. Although the reforms put forward by both parties share some common ground, it’s not clear whether either of the legislative measures has enough bipartisan support to pass.
EICHER: Joining us now to talk about the Republican proposal is John Malcolm.
He’s a former assistant U.S. attorney in Atlanta and a deputy assistant attorney general in the criminal division in the Department of Justice.
Mr. Malcolm is now a senior fellow at the Heritage Foundation. Thanks for joining us today.
JOHN MALCOLM, GUEST: Good to be with you.
EICHER: I’d like to start with the underlying assumptions that are driving these efforts. The more critical you tend to be, whether we’re talking the political left or libertarianism, but the more critical, it seems, the greater the commitment to the idea that reform isn’t enough, that it needs to be a more complete overhaul.
But you noted in a recent commentary that our nation’s criminal justice system is not a single entity. You can’t just pop the hood and go to work on the engine.
To switch the metaphor: Why do you think it’s unhelpful to paint all law enforcement agencies with the same brush?
MALCOLM: Well, some people are trying to paint law enforcement agencies as being systemically racist. That is something that I reject. There are actually more African Americans serving in police forces today than at any time in our nation’s history. And there are more African American chiefs of police of major police organizations than at any time in our nation’s history. There are roughly 375 million police-civilian encounters every year, and according to the Washington Post last year only 14 unarmed African Americans were killed by a police officer of all races. So, that’s 14 too many to be sure, but anybody who believes there are white police officers running around with itchy trigger fingers targeting African Americans is something I wholeheartedly reject.
That doesn’t mean that there aren’t bad cops who should be weeded out or that police need better training. And there might even be some racist cops. I mean, racists do exist in our country. Fortunately in diminishing numbers in all walks of life. So it wouldn’t shock me if there aren’t some racist police officers. So, one of the things that needs to happen—either through legislation or actually the president’s signing an executive order today on this—is to take measures to recruit and retain high quality police officers, high performing police officers who can improve the overall professionalism of police forces. And that will be good for the country and good for the police and it will particularly serve well those communities that the officers have sworn to serve and protect.
EICHER: With the recent protests we’ve seen large numbers of people, especially in minority communities, saying the police are biased against them.
But you say that when communities treat the police as pariahs, it actually puts officers and law-abiding citizens in those communities at risk. I’ve read Jason Riley of the Wall Street Journal making that point.
So how can we bring greater accountability without tearing down institutions we all need?
MALCOLM: Well, the problem is that anytime there’s an incident like this, it’s like ripping a scab off of an old wound and rubbing salt into it. So, the professionalism of police forces has improved dramatically over the years. But, unfortunately, people still remember back in the Jim Crow era when police officers were, in fact, enforcing overtly racist laws and they did sometimes in brutal fashion. But, look, the overwhelming majority in communities of color is black on black crime and the overwhelming majority of police officers are there to help and to serve and protect and anything that breaks down the trust between members of that community and the police force is a bad thing. And, unfortunately, when an incident like this happens, the distrust goes through the roof. And it just takes time and a great deal of effort to win that trust back.
EICHER: I want to circle back to qualified immunity. I brought this up last week and I didn’t do a very good job of presenting the case for it.
Now, just as a reminder, qualified immunity is a legal status that in effect shields police officers from most civil lawsuits over misconduct.
Those who want to get rid of it say it makes police personally accountable for their actions. But Sen. Scott calls getting rid of it a “poison pill” that will kill negotiations over police reform.
Can you explain why the president and conservatives tend to support qualified immunity for the police?
MALCOLM: Sure. It’s a complicated matter, qualified immunity. And I would be the first to admit that the Supreme Court has made it extremely difficult for police officers to be held civilly liable for misconduct. So, qualified immunity basically is supposed to look at objective facts from the perspective of a reasonable police officer in that person’s position and it asks the question whether a reasonable police officer would have known that their conduct clearly was violating somebody’s constitutional rights based on existing case law. The reason to get rid of qualified immunity is that it does at least create the perception that police officers can engage in abusive conduct with impunity.
The reasons to retain qualified immunity are there are going to be an awful lot of people who are interested in joining police forces who will hesitate greatly if they think that they’re going to be in dangerous situations, hindsight being 20-20, and that somebody is going to look at what was a dangerous situation after the fact, decide that the person acted unreasonably, and then is going to sue them civilly and take away their life savings. It will make recruiting professional police officers very, very difficult.
Another potential problem with removing qualified immunity is that it may make police officers very hesitant to act. So, you heard, for example, after the events that happened in Ferguson, Missouri of the Ferguson Effect where police officers were reluctant to go into dangerous situations for fear that they might be videotaped or attacked or what have you. Well, if you remove qualified immunity, it may very well cause officers to hesitate before going into a dangerous situation where their actions may be second guessed. They may choose to wait on the outside until the danger clears away. Unfortunately, at that point, they may be left to go in there and basically pick up the bodies and investigate a crime that has been completed as opposed to acting quickly and perhaps stop a crime before it’s perpetrated.
EICHER: Police unions play a role in all this as well. What room for reform do you see when it comes to unions? And is there any bipartisan consensus there?
MALCOLM: Well, there might very well be agreement between Republicans and Democrats, but I’ll bet you the police unions are going to fight this tooth and nail. So, police unions obviously serve a useful purpose in terms of negotiating salary and benefits and officer wellness programs and things like that. But over the years, the perception is that police unions have gotten very, very involved in officer discipline and posing all kinds of conditions that make it very difficult to investigate whenever there is a use of force incident that needs to be checked out. And also a tilted playing field in terms of forcing people who have been fired for misconduct, forcing those matters into arbitration where often the arbitrators are picked by the police unions and a lot of times police unions have been forced to put back on their forces and pay back pay to bad cops. And that causes a great deal of difficulty because when bad cops act, bad things happen and can often affect morale in a very deleterious way. So, I think there could be a lot of common ground in trying to prune back the power of some of these police unions. But, again, the police unions are pretty powerful and they’re going to fight that like the plague.
EICHER: John Malcolm is a senior fellow at the Heritage Foundation and a former assistant U.S. attorney in Atlanta. Thanks so much for joining us today!
MALCOLM: Great to be with you.