Strong Whistleblower Protections Must Be Included in the George Floyd Policing Act
This article features Government Accountability Project and was originally published here.
As the country reflects on the one year anniversary of George Floyd’s murder by a Minneapolis police officer, we mourn his loss as we also mourn the lack of real progress on police reform. Politico reported that fatal encounters with police in the first 4 months of 2021 are on par with last year’s daily average of three people killed per day. It is a sad state of affairs when websites like mappingpoliceviolence.org are needed. The site allows users to click on map icons to pull up the victim name and incident report. The website reported that although black people make up 13% of the U.S. population, they were 28% of those killed by police in 2020.
Currently, the George Floyd Justice in Policing Act (H.R. 7120), has passed in the House, but does not appear to have the 60 votes needed in the Senate in its current form. The elimination of qualified immunity for all law enforcement officers is currently the primary point of contention. Qualified immunity protects officers from personal liability in lawsuits over their conduct as a police officer. A compromise has been offered that would allow police departments to be held financially liable in civil suits, but not the individual officers. The reality is that city governments spend millions on police misconduct every year, so does it really matter that the amounts are not paid by the offending police departments or police officers? In 2016, the city of Cleveland agreed to pay $6 million to the family of Tamir Rice, the 12 year old boy shot and killed by a police officer in 2014. In 2015, New York settled with Eric Garner’s family for $5.9 million, and a $6.5 million settlement was agreed between North Charleston, South Carolina and the family of Walter Scott. Freddie Gray’s family was paid $6.4 million by Baltimore, Maryland after he died of a broken neck from a ‘rough’ ride in the back of a police van. As Tamir Rice’s family stated, “there is no such thing as closure or justice,” but there is hope that a settlement “would stimulate a movement for genuine change in our society and our nation’s policing.” So far, their wish has not come to fruition. Removing qualified immunity is not the disease, it’s not even the tumor that will rid our country of police misconduct. Police departments are part and parcel of city budgets, and cities are being held to account for maintaining police departments that do not rid themselves of abusive police officers.
Victims of police violence and misconduct want the abuse to stop. Settlements don’t bring their loved one back to life. Passing legislation requiring police officers to both intervene and to report misconduct of other officers along with whistleblower protections when such intervention and/or reporting takes place is the best way to improve policing across the country.
We will have police reform legislation pass in the majority of our states this year. We are very likely to have some version of the George Floyd Justice in Policing Act pass in the U.S. Congress this year. But will any of this legislation be effective? Stopping abuse, catching abusers and corruption starts with protecting informants and whistleblowers. It is way past time that whistleblowing and informing on criminal behavior is considered too risky to be undertaken. I can confidently state that all the abusive police officers in this country are known today, this minute. By whom? Other police officers. Give them whistleblower protections. Give them a bounty. A few courageous souls will clean up the ranks.
The National Conference of State Legislatures (NCSL) is currently tracking more than 3,000 formal policing bills and executive orders making their way through the legislative bodies of all 50 states and the District of Columbia. 250 of those bills have been signed into state law. The NCSL’s police reform tracking database is very impressive, providing an ability to search by state or topic such as use of force, oversight, training, policing alternatives and more. According to the NCSL database, 24 states and the District of Columbia enacted legislation in 2020, and so far in 2021, 23 states have passed significant police reform legislation. NCSL maintains a “Law Enforcement Statutory Database” to allow users to see the legislation and case law by state on the following topics: Use of Force Standards, Legal Duties and Liabilities, Certification, Use of Force Investigations, Qualified Immunity, Decertification, Training, Use of Force Data, and Traffic Stop Data; with ‘coming soon’ sections for Oversight, Collective Bargaining and Bill of Rights. Unfortunately, the NCLS is not yet tracking whistleblower protections. Perhaps because only one state has provided police officers with such protection.
HB 670, the new police reform act passed this year in the state of Maryland, includes requirements to intervene when a fellow officer is violating use of force standards and provides whistleblower protections when a police officer reports wrongdoing by a fellow officer. Police unions support these type provisions in new legislation. The whistleblowing section from the Maryland act is excerpted here:
(A) A POLICE OFFICER MAY NOT BE DISCHARGED, DISCIPLINED, DEMOTED, OR DENIED PROMOTION, TRANSFER, OR REASSIGNMENT, OR OTHERWISE DISCRIMINATED AGAINST OR THREATENED IN REGARD TO THE POLICE OFFICER’S EMPLOYMENT BECAUSE THE POLICE OFFICER:
(1) DISCLOSED INFORMATION THAT EVIDENCES:
(I) MISMANAGMENT;
(II) A WASTE OF GOVERNMENT RESOURCES;
(III) A DANGER TO PUBLIC HEALTH OR SAFETY; OR
(IV) A VIOLATION OF LAW OR POLICY COMMITTED BY ANOTHER POLICE OFFICER; OR
(2) LAWFULLY EXERCISED CONSTITUTIONAL RIGHTS.
(B) A POLICE OFFICER MAY NOT BE DENIED THE RIGHT TO BRING SUIT ARISING OUT OF THE POLICE OFFICER’S OFFICIAL DUTIES.
Last month, the Government Accountability Project along with the National Whistleblower Center, the ACLU, the Center for Justice and Democracy, the NAACP, the National Association of Black Law Enforcement Officers, and over 160 additional organizations wrote to Congress to urge that whistleblower and anti-retaliation rights be included in police reform legislation. Frank Serpico, along with 29 law enforcement officers also sent a letter to Congress calling for robust whistleblower protections. Their poignant letter, signed by many who have reported police misconduct in the past, says, “it has been a lonely battle against the Blue Wall of Silence. New police reforms will have to reverse a longstanding way of life that has sustained accountability-free abuses of power.” It is clear that any police reform legislation aimed at improving accountability will require evidence and testimony from those who witness abuse, and without anti-retaliation protections, that evidence and testimony will be hard to come by.
My heart breaks when I learn of a courageous whistleblower who lost everything for speaking out against wrongdoing. It has been a career terminating move for police officers to report the wrongdoing of a fellow police officer. It was certainly a career and pension-ending move for Cariol Holloman-Horne, when she intervened in 2009 to stop a fellow Buffalo police officer from choking a man he was trying to arrest. It took 14 years, but just last month, a New York Judge agreed she’d been wrongfully terminated and awarded back pay and reinstatement of her pension. For 14 years, Horne was robbed of her career and the security of her pension because she chose to do the right thing and intervene. She has a satisfactory ending to her story now, but the cost has been great, with her quality of life impacted significantly these past 14 years as well as the toll a legal battle takes on the soul.
There are not clear records available to summarize police terminations as a result of intervening or reporting wrongdoing of a fellow police officer. But recent reporting highlights that swift retaliation is the normal response to police whistleblowing. Police whistleblowers face a range of retaliation, from job reassignments and termination to threats on their lives and physical harm. The code of silence within police forces, referred to by some as the “thin blue line” or “Blue Wall of Silence,” is well-documented, and whistleblower retaliation is a core element of this culture.
Given the cost to cities for settling wrongful deaths, and use of force violations by their police departments, there is real justification for providing a bounty or financial reward for police officers who provide evidence of violations by another police officer. Protection from retaliation and actual monetary rewards for reporting violations are key attributes to improving policing in our country. Congress must include whistleblower protections in the George Floyd Justice in Policing Act.