Sunday, February 19, 2017

Thompson seeks upgrades on police use of force, disciplinary processes

On Friday, long-time Houston state Rep. Senfronia Thompson filed a major piece of police accountability legislation, HB 2044, which expands on the transparency proposal filed in the senate to include new provisions on police discipline, racial profiling data collection, and use of force.

Use of Force Revisions
In the context of high-profile police shootings which have garnered national attention over the last couple of years, perhaps the most important part of the bill would change the statutory authorization to use deadly force when effecting an arrest. Previously, police could shoot someone when effecting an arrest if the suspect's alleged conduct included "the use or attempted use of deadly force," or if there is a "substantial risk" that "the person to be arrested will cause death or serious bodily injury" to someone else.

Under Thompson's revisions, in order for a police officer to be justified using deadly force, a suspect must pose an "imminent threat of death or serious bodily injury" to another at the time they are killed. There's no status of offender - people accused of deadly force offenses - who can be automatically shot, which is how the law reads now. Instead, there must be an "imminent threat" of harm at the time of the shooting, not just a "risk" that harm may be caused in the future. That's a small but significant change.

Upgrading Racial Profiling Data
Another section of the bill improves data collection provisions under Texas' 16-year old racial profiling data collection law to require all agencies to gather information on the rate at which they discover contraband when they search drivers at traffic stops. In many jurisdictions, including both Austin PD and DPS, black folks are searched far more often even though searches of white drivers are more likely to uncover contraband.

Grits has argued that the contraband hit-rate data should be used as part of an "early warning" system to identify officers with problematic enforcement patterns. I had hoped we'd see this improvement to the data collection regimen implemented years ago, but the legislation never materialized.

The bill would also improve racial profiling data by requiring inclusion of stops where divers were let off with a warning, not just where tickets were issued, which will ensure that hit rates are not inflated.

Reforming Police Disciplinary Processes
The section on police disciplinary processes focuses on the civil service code for police and firefighters, which covers seventy-some-odd departments statewide whose voters at some point (usually in the distant past) voted to opt into the provision of Chapter 143 of the Local Government Code.

For starters, the bill would insist that "meet and confer" agreements (basically a right-to-work-state version of "collective bargaining") cannot weaken statutory disciplinary procedures.

Perhaps the most significant change to the disciplinary process would require departments to create a "disciplinary matrix" with a pre-set array of punishments prescribed for various types of misconduct. The purpose of this is to prevent punishments from being overturned by arbitrators when different officers are given different punishments. If the punishment falls within a prescribed array set out by policy, the arbitrator is under much greater pressure to deem it "reasonable."

In an important addition, "failure to appropriately de-escalate" in accordance with training would become a grounds for discipline on the matrix.

A disciplinary matrix also has the benefit of setting expectations among officers. If they know that certain actions may result in more severe consequences, there's less to complain about when somebody is fired or severely punished.

Grits particularly likes the provision in the bill that says departments cannot open a promotional exam to an officer who has had a sustained excessive force complaint in the last six years. In addition, other types of sustained disciplinary actions from the prior six years would result in points deducted from the promotion exam score. That's a serious deterrent to misconduct.

The bill keeps the "180 day rule" for firefighters, but expands the time civil service police departments have to investigate and punish misconduct to one year. That will resolve a lot of problems and end a bunch of excuse making, in this writer's judgment. I can't tell you how many times that rule is used as an excuse for shoddy investigations on one hand and agencies rushing to judgment on the other. These are bureaucratic processes and, especially in serious or complex cases, they can take more time than the statute gives them.

The bill also takes a stab at fixing the problem Sen. Juan Hinojosa aims to address in his SB 783: The Michael Morton Act requires prosecutors to hand over impeachment evidence about witnesses to the defense, but by law neither they nor the public can know about police officer misconduct if it does not result in a suspension or termination. So, for example, misconduct punished through reassignment, retraining, written reprimands, etc., can't be known even if a) prosecutors are obligated to disclose the information by law and b) the same information is a public record at the more than 2,500 other law enforcement agencies statewide.

HB 2044 is perhaps the most significant piece of police accountability legislation proposed in Texas since the turn of the century. Any one portion of it is important. Taken as a whole, the bill represents an enormous step toward restoring public confidence and improving accountability in law enforcement and perhaps even defusing some of the tensions surrounding high-profile critical incidents.

CORRECTION: This post originally misstated what was described as a new reporting requirement to the Texas Commission on Law Enforcement. The writer had misread a reference to local civil service commissions and regrets the error.


drewwilley said...

Texas also needs state civil remedy claims for police misconduct.

Anonymous said...

The imminent threat language looks great until you consider how the courts have defined imminent in terroristic threat cases.