What the George Floyd Protesters Should Demand: Five Top Reforms

Unfortunately, we have seen this before: police beat, shoot, or kill an unarmed person, people gather in the streets to demonstrate peacefully, but eventually rioting and looting follows. Anger erupts, blood is spilled, property destroyed, neighborhoods are ruined, but, in the end, local policing is largely unaffected.

Typically, the governmental response involves creating a task force to investigate the police department at the local, state, or federal level; reports are published; news conferences held; training is modified, but the institutional structure of local policing remains intact. Another unjustified police killing occurs soon thereafter.

Demonstrators are partly to blame for the lack of reform because they often fail to advance a specific set of demands that would create long-term benefits. Slogans and symbolism are not a substitute for a concrete agenda for institutional change.

Here are five specific reforms that the George Floyd protesters should demand:

1. Allow every local neighborhood in America, if they choose, to hire a private policing agency to serve their neighborhood.

Today, it is impossible to replace your local government monopoly police force when it fails to deliver quality service. Police departments do not fear being replaced. This must change. The absence of competition and market discipline produces perverse incentives that operate against quality customer service, fiscal responsibility, and, most importantly, public safety. I have more choices for garbage collection in my neighborhood than I do for policing services.

If serious problems arise with private contractors, they can be audited, prosecuted, and replaced. Such flexibility and accountability are absent when the government effectively controls every police department. Competition helps to impose discipline and efficiency. A private policing agency subject to potential replacement will provide better service with greater care than a monopoly government police department. And, over time, the public will trust and respect it more, offering greater cooperation to solve serious crimes.

George Floyd was killed in the Powderhorn Park neighborhood of Minneapolis (about a mile from my childhood home, the Standish neighborhood). Powderhorn Park, and all neighborhoods, should have the option of hiring its own private policing agency. Many universities have their own private police including Boston University, the University of Chicago, the University of Pennsylvania, and the University of Southern California. These private police forces patrol both the campus and the nearby community. All neighborhoods should have the option to hire private law enforcement as an alternative to the government police.

The authority to hire also includes the authority to fire when the private policing agency provides poor service. Ironically, the Minneapolis Public Schools and the University of Minnesota exercised this authority and ended their security contracts with the Minneapolis Police Department days after George Floyd’s murder. The Powderhorn Park neighborhood should have the same ability to replace the Minneapolis Police Department with another agency. Every neighborhood in America should have the option to hire and fire its policing agency. A supermajority of the Minneapolis City Council has voiced support for dismantling the Minneapolis Police Department for a yet-unstated alternative. Minneapolis should lead the way by adopting a decentralized model of private law enforcement throughout the city.

2. Every neighborhood district should have the authority to reassign individual officers for substandard performance, whether the officer works for a government police department or for a private policing agency.

Today, it is nearly impossible to fire an abusive cop because of special union protections and other legal privileges. And often bad cops who are fired are later reinstated through arbitration. Police officers do not fear losing their job for poor performance or misconduct. This must change.

Neighborhoods should be able to reassign individual officers who patrol their community, so that residents feel safe and comfortable. The customer should be king. A private policing agency would risk losing its contract if it did not reassign or terminate troublesome officers. Government police departments today have no such fear, so at the very least, neighborhoods should have authority to reassign officers for substandard performance. An officer who knows he or she can be replaced will provide better, more respectful, service.

3. Governments must stop indemnifying police officers for nearly all civil damages arising from their conduct while on the job. And qualified immunity should be abolished in order to hold abusive officers accountable.

Throughout the United States, a public entity must typically defend an employee in a civil case over actions taken within the scope of his or her employment. This is why, almost without exception, taxpayers are on the hook for the bad behavior of police officers. This must change.

Taxpayers ought not be required to pay civil damages for police officers who commit torts while engaging in behavior clearly outside the bounds of their job descriptions. These claims, if proven true or agreed to, should be paid by the misbehaving officer from personal funds or insurance policies. Misconduct will continue as long as wrongdoers can walk away with no accountability and no personal financial cost. An efficient private insurance market has the potential to price bad cops out of a job.

If a police officer’s vehicle hits a parked car along the road while pursuing a murder suspect’s car, a city should indemnify the officer since property was damaged while the officer was properly conducting his job. But nowhere does an officer’s job description say he can sexually assault a person in police custody, yet this allegation is common, and cities routinely pay large settlements for officers accused of, or proven to have, sexually assaulted someone while on duty (see, for example, here, here, here, and here).

Every police officer should be held financially responsible for all torts arising out of conduct that is outside of their job description, inconsistent with the field manual for proper conduct, or outside clearly established moral standards. Under these conditions, civil tort proceedings should determine monetary settlements or judgments, if any, and these should be paid by offending officers, not taxpayers. Police would exercise better judgment if they knew they would be held financially responsible for their misconduct.

For this to happen, qualified immunity must be abolished. Qualified immunity is an unjust legal doctrine created by the U.S. Supreme Court in 1967, which, with few exceptions, shields police officers, and other government agents, from personal financial responsibility for violating a person’s constitutional rights, for example, due to the use of excessive force or civil rights violations. Over time, qualified immunity protections have expanded to the point that it is “the cornerstone of our near zero accountability policy for law enforcement,” according to Clark Neily, vice president for criminal justice at the Cato Institute in Washington, D.C. It has become “a get out of accountability free card,” Neily says.

Qualified immunity must be abolished to hold abusive cops accountable in court for violating individuals constitutional rights (see here for a highly influential law review article arguing against qualified immunity by University of Chicago law professor William Baude).

Due process also requires, however, that accusers be subject to defamation liability if their claims are proven untrue. Fairness requires equal treatment: false accusations against officers should be discouraged and victims of such false accusations properly compensated.

4. All allegations of serious police misconduct should be investigated by an outside independent prosecutor who decides if criminal charges are filed.

Local prosecutors and local grand juries, with a few exceptions, typically have poor records of filing criminal charges and achieving convictions for serious police misconduct.

One solution to this problem, which is gaining acceptance, especially among law professors and activists, is to adopt a system whereby independent prosecutors investigate allegations of serious police officer misconduct. The primary benefits of this approach are that independent prosecutors have no relationship with the local law enforcement community and they are not elected by local citizens. The special prosecutor decides whether to file criminal charges. If no charges are filed, the special prosecutor’s investigative file can be reviewed by any future special prosecutor, especially if new evidence becomes available, or publicly discussed by future special prosecutors, which provides added incentive for the initial prosecutor to be thorough and unbiased.

The independent prosecutor, not the local prosecutor, also should be the trial prosecutor. An independent prosecutor would oversee investigations of serious misconduct, whether by government police or private police, and prosecute, if warranted.

5. Eliminate unnecessary laws that increase police violence.

Any interaction between the police and a citizen has the potential to escalate into violence and even death. It is important, therefore, to minimize the number of interactions by eliminating laws and regulations that needlessly create potentially aggressive points of contact between the police and citizens.

For example, Eric Garner was killed by police in New York City when the police, responding to political pressure, cracked down on the underground “black” market for cigarettes. Garner was participating in the sale of black-market cigarettes. Underground markets emerge, however, as a response to excessive government regulation and taxation. Eliminating unnecessary regulations, taxes, and other laws would free police to focus on serious crimes that threaten life and private property.

Excessive regulation and taxation of “recreational marijuana” in California has produced a thriving black market. Now there is a proposal to create a new police agency in California to crack down on this black market. The California Bureau of Cannabis Control wants to build its own 87-member police force. Unquestionably, a new police agency will lead to more violent interactions between police and citizens.

Unnecessary economic interventions by the government leads to escalating police involvement in the lives of ordinary citizens and, in turn, escalating violence in society. Protesters should work to abolish unnecessary government laws that invite police violence.

These five demands, if adopted, would go a long way toward preventing future tragedies similar to the death of George Floyd.

With a few exceptions, such as abolishing qualified immunity, America’s neighborhoods do not need more federal intervention in local policing nor more politicization of police operations, as proposed by House Speaker Nancy Pelosi, D−Calif., and other top Democrats in the House and the Senate. Police unions, in fact, welcome this approach because they know it is a game they can win, ultimately molding rules to their favor through lobbying and campaign contributions. Police unions and police departments do not fear Nancy Pelosi. They fear community control, competition, and accountability.

Government police forces are fundamentally state-protected monopolies, staffed by government employees defended by powerful unions, managed by government employees, typically overseen by boards overwhelmingly comprised of government officials, allegations against officers are investigated by government employees, and ultimately prosecuted by government officials. What could possibly go wrong with this organizational structure? George Floyd is Exhibit A.

It is past time to establish true community policing whereby residents determine who patrols their neighborhoods, and private policing agencies and their personnel are responsible for their conduct and held accountable by customers and the law. Monopoly government policing is a flawed model, perpetuated over time through increased government coercion, that produces unwarranted death and destruction.

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Many of the themes mentioned above are discussed in more detail in my commentaries on policing:

• “Lessons from Eric Garner’s Death and Cigarette Taxes,” by Lawrence J. McQuillan (Washington Times)
• “Taking the Law Into Their Own Hands, In A Good Way,” by Lawrence J. McQuillan and Nathaniel J. Bennett (Washington Times)
• “Bureaucrats Or Citizens: Who Should Control the Police?” by Lawrence J. McQuillan and Kelly R. Lester (The Daily Caller)
• “Rise of Private Security is Citizen Response to Declining Police Service,” by Lawrence J. McQuillan and Adriana N. Vazquez (East Bay Times, Oakland, CA)
  

Additional resources on private law enforcement by Independent Institute scholars:

• To Serve and Protect: Privatization and Community in Criminal Justice, by Bruce L. Benson
• The Voluntary City: Choice, Community, and Civil Society, edited by David T. Beito, Peter Gordon, and Alexander T. Tabarrok
• Privatization in Criminal Justice, by Bruce L. Benson
• Private Policing in San Francisco, by Edward P. Stringham
• Crime Control Through Private Enterprise, by Bruce L. Benson (The Independent Review)
• The Benefits of Privatized Crime Control, by Bruce L. Benson
• The Countervailing Trend to FBI Failure: A Return to Privatized Police Services, by Bruce L. Benson
• Why Crime Declines, by Bruce L. Benson
• Police Services: The Private Challenge, by Erwin Blackstone and Simon Hakim

Other material on the militarization of the police:

• The Militarization of U.S. Domestic Policing, by Christopher J. Coyne, Abigail R. Hall (The Independent Review)
• Rise of the Warrior Cop: The Militarization of America’s Police Forces, by Radley Balko, Book Review by Anthony Gregory (The Independent Review)
• Why the Disadvantaged Bear the Cost of Police Militarization, by Abigail R. Hall
• Trading Places: Swapping the Roles of Police and Military Is Bad for the Republic, by Ivan Eland
• SWAT Team Raids: Overkill Fit Only for a Police State, by Robert Higgs
• From Welfare State to Police State, by Stephen Baskerville (The Independent Review)
• Police Misconduct and Public Accountability, by Wendy McElroy