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Kaufman: Officers should intervene as matter of law, not just policy

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George Floyd video

This image of Minneapolis officer Derek Chauvin kneeling on the neck of George Floyd on May 25, 2020, drove mass protests last year against police racism and brutality. The photo is from video provided by bystander Darnella Frazier, then 17. The board of the Pulitzer Prize, American journalism's highest honor, last week awarded Frazier with a special citation.

(Darnella Frazier via AP)

Late last month, President Joe Biden issued an executive order reforming federal law enforcement policy. One aspect of this new policy — reinforcing the Department of Justice’s new use-of-force policy imposing an affirmative duty on federal officers to intervene in their colleagues’ misuse of force — is a necessary, overdue initiative. But it doesn’t go far enough.

As I argue in a forthcoming law review article, Congress and all state legislatures should enact such a duty into law. Introducing criminal liability for inaction at the state and federal levels would more strongly prod all officers in the country to stop their peers’ serious misconduct and promote accountability for those officers who opt to remain as bystanders.

That this presidential directive came on the second anniversary of Derek Chauvin’s murder of George Floyd reflects the significance and impact of that crime and tragedy. Three other officers — J. Alexander Kueng, Thomas Lane, and Tou Thao — who could have intervened stood by. Floyd might still be alive had any one of them tried to stop Chauvin’s misuse of force. Floyd’s killing is just one of the most recent cases of police bystanderism. Many other such situations have attracted attention over the past several decades without prompting meaningful reform.

Given the life-and-death stakes of police violence, President Joe Biden’s executive order is insufficient to add real teeth to an officer’s duty to intervene. First, because it is issued by the president, the directive applies only to federal officers, not employees of the more than 18,000 police departments across the country. While some states and municipalities have enacted officer duty-to-intervene laws and some police departments do feature such a policy, the responsibility is far from universal or consistent.

Second, Biden’s order doesn’t provide guidance about when or how officers must discharge the duty to intervene or the consequences of noncompliance. The federal law enforcement agencies to which the policy applies could hold contradictory trainings, issue differing instructions on how to operationalize the duty, and vary in whether and to what degree they punish offenders. Such a lack of clarity and consistency could lead to confusion, conflict, and chaos.

Third, laws would be more effective than the mere policy contained in Biden’s order. The police department in Minneapolis, where Chauvin killed Floyd, did have a duty-to-intervene policy at the time that required sworn employees “to protect the public” and “to stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.” Yet Kueng, Lane, and Thao failed to uphold that duty. Given the “blue wall of silence,” police self-policing is unreliable. An external check on police through criminal prosecution and punishment would better ensure that such a duty is enforceable and enforced.

Skeptics of statutes mandating an officer duty to intervene may argue that such laws are unnecessary, as evidenced by indictments and prosecutions stemming from Floyd’s murder. In February, the three passive policemen were found guilty in federal court of willfully failing to provide Floyd medical aid. Kueng and Thao were also found guilty in federal court of depriving Floyd of his right to be free from unreasonable seizure when they willfully failed to intervene. On May 18, Lane pleaded guilty to a state charge of aiding and abetting manslaughter. Kueng and Thao still face similar state charges.

But such prosecutions, let alone convictions or guilty pleas, for bystander police are rare, and existing laws don’t address the full range of officer nonintervention. The federal law under which Kueng and Thao were convicted, and the accomplice liability with which those two ex-officers are charged, both require proving levels of intent that present substantial hurdles to prosecute violations successfully. These recent and potential convictions may thus simply be aberrations attributable to the high-profile nature of the case. Lane was not even charged with, let alone convicted of, failing to intervene under federal law, likely because he merely asked Chauvin if the officers should reposition Floyd. Lane’s meager, ineffective effort to help Floyd sits well below the reasonable intervention that should be required of officers and written into law.

Amid their colleagues’ misuse of force, officers in action must replace officers’ inaction. Widely enacting an officer duty to intervene would provide prosecutors a tool for holding would-be police bystanders accountable and would alleviate dependence on law enforcement agencies to sanction their own employees. When discharged, the duty would help protect civilians and build trust between the public and police by demonstrating that the latter are not above the law. Given the scourge of police misuse of force in the United States, a legally enforceable officer duty to intervene should be universal. Such laws would help prevent the death of and promote justice for future George Floyds.

Zachary D. Kaufman is a visiting associate law professor at Washington University and Co-Director of the Criminal Justice Institute at the University of Houston Law Center. He is writing a book on bystanders and upstanders that will be published by Cambridge University Press.

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