With congressional Democrats focused on passing Build Back Better and voting legislation, the George Floyd Justice in Policing Act now seems destined for limbo. That would be an excellent outcome. In 2021, states proved nimbler—and less partisan—than Congress in meeting demands for reform. They passed laws on use of force, chokeholds, and neck restraints. They required officers to report misconduct by colleagues. They tightened licensing requirements for police. They improved the tracking of officers with multiple use-of-force complaints and so-called “wandering” officers—individuals who resigned or were fired for misconduct allegations and then got hired elsewhere. The Floyd Act mostly duplicates many of these new state laws, while adding layers of recordkeeping already covered by most states’ police officer standards and training divisions.
But the state laws are unlikely to satisfy the more radical expectations of elected officials in many cities. By mid-2020, according to a Washington Post analysis, almost half of the nation’s 65 largest police departments had banned or strengthened restrictions on neck restraints, including New York City, Los Angeles, Denver, Seattle, Dallas, Nashville, Boston, and Washington, D.C. Smaller cities, including Berkeley, California; Bennington, Vermont; Cambridge, Massachusetts; and Raleigh, North Carolina, passed similar measures. These moves are setting up clashes similar to the state-versus-city fights noted by Steven Malanga in City Journal. Unlike those largely economic fights, the push to restrict police is less about dollars and cents than about elected local officials responding to the leftward drift of their activist voter bases.
While states have yet to preempt cities on policing as they have on economic issues, clashes are brewing. In Texas, for instance, state legislators reacted to Austin’s police budget cuts by enabling the state to reduce funding to cities that cut public-safety funds. Georgia has enacted a law that bars cities from reducing their law enforcement budgets by more than 5 percent in one year or cumulatively across ten years. If municipalities continue to pass laws that require police to undermine or ignore state penal, vehicle, traffic, or other laws and criminal procedures that officers are sworn to enforce, more such state laws could follow.
City legislators seem unaware that states—not cities—are responsible for training and certifying police officers, basing the curriculum on federal and state law and criminal procedure, not on the policies of individual departments. While large departments run in-house state-certified academies, most cops train at area academies with colleagues from other departments. This means that when a city passes ordinances that are more restrictive than state laws, it compromises the ability of its own police to uphold the oaths of office that accompany their state certifications. It hampers the operations of the regional, state, and federal task forces in which many city cops participate. It may also preclude assistance from nearby jurisdictions, which might be unwilling to risk municipal liability or subject their officers to individual civil or criminal actions.
Many of these things have already happened in New York City, where the city council not only voted to eliminate qualified immunity for police officers but also to develop complicated rules pertaining to neck restraints. This resulted in the New York State Police and nearby departments advising their officers not to enter the city if pursuing individuals and to exercise extreme caution if assisting NYPD officers. In addition to forbidding police from applying chokeholds, New York City’s 2020 law also prohibits any actions “restricting air or blood flow by compressing an individual’s windpipe or neck arteries or by putting pressure on a person’s back or chest while making an arrest.” Officers are also barred from putting pressure on a person’s back during an arrest, even if a suspect is physically resisting. Doing so while making an arrest—but not while acting in self-defense—could result in an officer being charged with a misdemeanor.
Last June, State Supreme Court Justice Laurence L. Love struck down the portion of the law barring NYPD officers from restraining people “in a manner that compresses the diaphragm” less than a year after its passage, citing it as “unconstitutionally vague.” Then-mayoral candidate Eric Adams, a retired NYPD captain, supported Love’s ruling and lambasted the city council for not consulting law-enforcement professionals and for producing a law that was “not realistic.”
New York City is not alone. In Minneapolis, council members, acting in response to an incorrect characterization of Office Derek Chauvin’s knee on Floyd’s neck as a chokehold, moved hastily to ban police from using chokeholds and other neck restraints. Soon after, the state legislature enacted similar changes for all police departments. Then, last September, Judge Leonardo Castro postponed implementation of the new regulations after agreeing with four state law-enforcement organizations that the state’s Police Officer Standards and Training (POST) Board had not provided agencies with sufficient information to institute the changes safely. In Washington State, after a number of police departments said that they would instruct officers not to respond to non-criminal calls because they had not been trained on new use-of-force laws, the attorney general’s office had to issue a memo stating that the law did not alter or limit the authority of officers in responding to non-crime-related calls for assistance. To avoid a similar type of misunderstanding, Connecticut’s POST Council, citing a “patchwork of different standards and interpretations,” recently mandated that each of the state’s more than 8,000 officers receive training in a new use-of-force program by the end of 2022 or, with an extension, by April 2023 at the latest.
Cities have spent much of the last 18 months legislating away police discretion. At the same time, states have tightened their authority over training and certifying police officers and have shown little interest in revising criminal codes and procedures to mollify the most radical criminal-justice reformers. With rising crime rates and fewer officers in uniform to respond, time will tell whether cities or states win this tug of war over policing.
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