‘The doctrine of qualified immunity as currently applied has no place in a nation ruled by law.’
We have recently suffered multiple failures of law enforcement, beginning with the killing of George Floyd. He died because a rogue cop who, despite multiple misconduct complaints, remained on a police force, as did one of his accomplices. This has become an intolerable pattern in big city police forces, and we need to ask how politically powerful police unions and the politicians they maintain in office protect the bullies in the system, that inevitably lead to atrocities like this.
The other failure was the decision to withhold police protection from their citizens by mayors and their appointed police chiefs. That failure killed Pat Underwood, David Dorn, and so many other innocent victims in the ensuing riots. Withdrawing police protection from our streets, abandoning police stations to rioters, turning a blind eye to looting, arson and mayhem, all have an incendiary effect on insurrections. Without law enforcement there is no law, and without law there is no civilization. An accounting of the deaths and destruction caused by these acts of dereliction of duty is yet to be tallied – but it will be staggering.
We meet today to chart a course forward. We can look to no better guide than Sir Robert Peel, the father of modern policing, who set forth principles of law enforcement for a free society nearly two centuries ago. When you read them, you realize how far we have drifted from these moorings.
Central to our discussion is his seventh principle: “To maintain at all times a relationship with the public that gives reality to the historic tradition that the police ARE the public and that the public ARE the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”
How do we get back to these principles? There are many reforms proposed in the House that merit support.
First, the doctrine of qualified immunity as currently applied has no place in a nation ruled by law. For every right there must be a remedy, and qualified immunity prevents a remedy for those whose rights have been violated by officials holding a public trust. This reform should apply as much to the rogue cop who targets people because of their race as it does to IRS or Justice Department officials who target people because of their politics. Reforming qualified immunity simply holds public officials to the same standards as any other citizen exercising the same powers.
Second, police records must be open to the public. It is a well-established principle that public servants work for the public and the public has a right to know what they’re doing with the authority the public has loaned them. And police departments should be able to dismiss bad officers without interference from their unions. By preventing the public from access to these records – and by preventing departments from acting on them – we destroy the very foundations of successful policing in a free society – public trust and accountability.
Third, turning police departments into para-military organizations is antithetical to the 6th principle laid down by Peel, “(to) use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.” Weapons unique to the battlefield need to be limited to the battlefield.
Fourth, no-knock warrants have proven to be lethal to citizens and police officers, for an obvious reason. The invasion of a person’s home is one of the most terrifying powers government possesses. Every person in a free society has the right to take arms against an intruder in their homes, and the authority of the police to make such an intrusion must be announced BEFORE it takes place. To do otherwise places every one of us in mortal peril.
These four reforms are legitimate powers of the federal government to uphold the constitutional rights of its citizens. It is not within our legitimate powers to dictate training and procedures for every community in the country. As Peel counsels us, effective law enforcement is a community endeavor and every community has different needs and different circumstances which require different standards. One-size-fits-all bromides are at best ineffective and at worst dangerous.
Finally, lest we forget, when faithful, dedicated and honest police officers – the overwhelming majority of those who serve — are attacked, degraded, disrespected, demoralized, hamstrung and withdrawn, those most at risk are the poor and defenseless who live and work in our inner cities.
Congressman Tom McClintock delivered these remarks at the House Judiciary Committee Oversight Hearing on Policing Practices and Law Enforcement Accountability. The hearing was held on June 10, 2020 in Washington, D.C.