Wednesday, June 17, 2020

Imagining a "George Floyd Act" for Texas

Texas Gov. Greg Abbott has already suggested he'd be open to signing a "George Floyd Act" next legislative session, and legislative offices have begun jockeying over who should carry such a bill and what should be in it.

As a thought experiment, let's explore possible policy proposals such George-Floyd legislation might embrace. The Texas legislative session won't begin until January, so there's plenty of time to add to and refine this list. (As always, gentle readers, please suggest any omissions, tweaks, or criticisms of these ideas in the comments; now is the time for a robust discussion regarding how to confront these subjects.)

There will be a temptation to pass a narrow bill banning chokeholds, claiming victory, then everyone going on their merry way. Many departments are already looking to the #8CantWait proposal, which has been disavowed by leaders of the group that created it as inadequate to the moment. Too many departments are pretending that, by adopting those eight policy measures, they can say they've solved the problem. Advocates must be clear from the get go - both at the state and local level - that that's not good enough.

Many protesters have focused on scaling back the policing footprint, spurring a national debate over what it would look like to "defund the police." But local governments, not the state, decide how much money police departments receive, so Grits suspects state legislation will avoid the whole divestment/reinvestment debate. Other than Texas DPS, whose jurisdiction and governance issues differ significantly from local departments, the legislature has little to do with setting law-enforcement budgets.

So, what more substantive reforms might go into a state-level George Floyd Act in Texas?

Use of Force: New limits, greater transparency
Grits would like to see deadly force standards scaled back in Texas. Ours allows deadly force to be used in too many situations where it's not needed. In 2017, state Rep. Senfronia Thompson filed HB 2044 which included a first stab at that project. That bill would disallow deadly force unless officers faced an "imminent threat" of death or bodily injury to themselves or others. It also would have eliminated language that said deadly force could be used against anyone suspected of a violent felony, whether or not they posed an immediate threat. Finally, the bill would have required departments to implement policies of de-escalation and proportionate response. That legislation didn't pass, but its proposals should be revisited now.

Texas also needs more transparency and data surrounding use of force. As part of the Sandra Bland Act passed in 2017, Texas began to require reporting of use of force at Texas traffic stops. (We learned from that data that Houston residents are more likely to be assaulted by police at traffic stops than any other jurisdiction, using force on about one out of every 188 drivers stopped.) Texas also now has mandatory reporting for all police shooting episodes, whether or not the victim dies. But Texas does not gather comprehensive reporting on lesser use of force examples, and most local departments don't publish that data, if it's kept at all. That should now change. As Grits has said often on these questions, you can't manage what you do not measure. 

Duty to intervene
There are many "duties" of police set out in Texas statutes, including some that need to be scaled back, like the "duty" to arrest people for every violation under statute (an absurd assignment that no officer could possibly fulfill). But Texas law does not impose on officers a "duty to intervene" when another officer is violating law, departmental policy or harming a person unnecessarily in their presence. This is among the most striking images from George Floyd's murder: the other officers just casually standing there while a man died. We saw the same dynamic as protests filled the streets and cell-phone video captured numerous episodes of police brutality and excessive force. Typically, only a few officers engaged in the most abusive behavior, but their comrades-in-arms just stood there and watched.

Disciplinary processes/civil-service reform
Other possible reforms could focus on strengthening police disciplinary processes, especially in cities governed by the state civil service code (Local Government Code Ch. 143). Civil service rules make it exceedingly difficult for police chiefs to hold officers accountable, even when they sincerely want to. Just Liberty has already been asked by a handful of legislative offices what provisions of the civil-service code need revisiting, and came up with this short list:
  • 180 day rule: Currently, the civil-service code forbids disciplining officers after 180 days have passed since the alleged misconduct; this should be repealed.
  • Ending special treatment during investigations: Eliminate provisions letting officers see complaint/video/investigative files against them and giving them 48 hours before supervisors and investigators can question them about serious misconduct.
  • Create a strong, clear, progressive disciplinary matrix. This helps keep disciplinary actions against police from later being overturned in arbitration. The more consistent and standardized discipline becomes, the less likely it will be overturned on appeal. 
  • Transparency about police misconduct: eliminate LGC 143.089(g) making personnel files closed. Same records are already open at Sheriffs offices and non-civil-service cities, and it doesn't create problems for them.
  • Transparency in negotiations: Require that negotiations between city management and the union over police contracts must be public meetings that anyone can attend.
  • Forbid police union contracts from making disciplinary processes more lenient. Should only be able to enhance accountability in contracts, not diminish it.
  • Add a Sunset provision requiring voters to re-authorize civil service every ten years. The Lege has passed many cop-friendly anti-accountability provisions since most departments adopted it in the '40s. Voters never approved of most of the anti-accountability measures mentioned here, they were all added after the fact.
There are almost certainly other tweaks to the disciplinary process needed; this is what we came up with as a starting point on relatively short notice.

Corroboration for police testimony in drug stings
There's another reform element Grits feels like should be in any eponymous George Floyd bill that relates not to his death but his time in Texas. As it turns out, George Floyd was one of at least 160 people whom the Harris County District Attorney has identified as being convicted of a drug offense based solely on the uncorroborated testimony of a corrupt Houston narcotics officer named Gerald Goines.

There appears to be a good chance that George Floyd was set up by a corrupt narcotics cop in that case and may well have been innocent of the charge.

The Legislature has tried and failed to address this issue before. Most folks have forgotten the Tulia drug stings in the late '90s, in which an undercover cop named Tom Coleman lied to secure drug convictions against about 15% of the black population in that small, West Texas town. Coleman was eventually convicted of perjury and Gov. Rick Perry pardoned nearly all of the defendants.*

The following legislative session in 2001, then-Rep.-now-state-Sen. Juan "Chuy" Hinojosa filed a bill to require corroboration for undercover police officers in order to secure a drug conviction. The bill was scaled back during the process to only apply to testimony from non-police informants. That's still a big deal, since cases based on their testimony are more common than police officers personally going undercover. But the failure to require corroboration for cops left a giant loophole that Gerald Goines (and likely others at HPD narcotics, if we're honest about it) abused with impunity.

Grits believes Texas should go back and pick up that spare from the 2001 session. The state has shown it can still make plenty of drug cases using corroborated evidence (it's not like they stopped using informants post-2001, after all), but the requirement adds in a needed check on officers like Goines who would abuse their position just to bulk up arrest stats.

This is a non-comprehensive, first-cut list of suggestions for police-reform proposals that the Texas Legislature could embrace. It's meant to be a starting point for discussion, not the final word on anything. So definitely let me know what you think of these suggestions in the comments, as well as anything I might have missed that legislators should consider.

MORE: The Austin Statesman also offered suggestions for what should be in the Sandra Bland Act. A couple of their ideas - the Sandra-Bland no-arrest-for-Class-Cs and closing the "dead suspect loophole" - are likely to be filed as their own stand-alone bills. And in truth, closing the "dead suspect loophole" is only part of what we need to revive the public's open-records rights on these topics. The access we've lost goes much deeper than that.

*As a coda to that two-decades-old story, the Tulia cases launched an early effort that today might be categorized as part of an "abolish" or "defund" the police campaign. Tom Coleman worked for one of (at the time) 51 multi-county "regional narcotics task forces" which employed more than 700 narcotics officers across Texas. Your correspondent, then at ACLU of Texas, was part of a six-year campaign resulting in the outright abolition and defunding of these task forces in 2006. This is now mostly forgotten history and the effort was never replicated in other states. But it's among Grits' proudest achievements in a quarter-century of activism on these topics. Very few other #cjreform victories in Texas have been as thorough, or as satisfying.


Gadfly said...

1. Full-on decrim, if not outright legalization, of marijuana. Knocks one small prop out from the War on Drugs, and the excuses it invites on police behavior.
2. Statewide rules on hot pursuit. (Local governments would still have the freedom to enact even tighter restrictions, but not looser ones.)
3. Per what Trump said in his executive order, but with more teeth. Any state grants to local police are contingent on certified compliance with whatever standards get adopted.

Shlomo Ramone said...

No idea about the political feasibility of this, but what if the state limited the ability of cities and counties to profit from aggressive law enforcement?

In other words, above a certain level proceeds from tickets and fines go to the state, ideally into a pool earmarked for something useful like education.

Gadfly said...

@Shlomo: State caps what percentage of finances a city can get from tickets. Did this 20 years ago or so to eliminate small town speed traps. Theoretically, something like this could be done, but it wouldn't be easy.

Gadfly said...

Grits, per my comment to Shlomo, getting rid of asset seizure forfeiture. Period. Eighty-six it. I know SCOTUS put some nominal limits on amounts and proportionality last year, but that's toothless. Getting rid of it gets rid of a lot of bad policing incentives.

Burban said...

End Qualified Immunity in Texas. It would likely be overturned at the Federal level, but we should start the process of eliminating it nationwide. The courts are reluctant to take it up again and a Texas ban would force them to look at it. Also make cops personally liable for misconduct; currently the city pays if a cop is convicted of misconduct.

Oil Lease said...

While we spend ungodly amounts of money depriving people of their right to do whatever they like with their body, deaths from "legal" drugs used to take nearly 110,000 lives per year in the US. Add to that the 125,000 lives resulting from incompetent doctoring is staggering and it's more than "illegal" drugs but nothing is said about the former.

Vaccine makers can't be sued by federal law so they're free to farm out the production of vaccines to those same companies worldwide that have appalling statistics of lethal vaccines.

How is it you can run(this happens constantly)from the police and it's fine if they kill you, even if your "crime" isn't a crime or it's a misdemeanor that threatens no one's life? Unarmed, non-violent people get killed every day by cops and often for committing NO crime.

Yes, we need to defund the police and set up sheriff's who can be voted out of office and only hire those cops with clean records. As a trucker I've seen some of the most egregious acts you can imagine committed by LEO's.

After the chimp declared war on the entire middle east simply because the oligarchs needed a war to add to their fortunes, policing has become something akin to killing the enemy and we the people are the enemy. When you only have a hammer, everything looks like a nail.

The war on drugs needs to be stopped, period, all drugs. People who are going to kill themselves with drugs will do so regardless of their being legal or not.

Every year the laws grow and the punishment increases. I don't even recognize this country from what it was before "the war on drugs".

Anonymous said...

If we want to allow more federal oversite of local law enforcement (bad idea), remember that Federal Law makes Marijuana illegal therefore, no Federal Funds to States where law enforcement don't enforce Federal Law. (Could apply to immigration also) If ALL Drugs are legal(meaning you can use what you chose) then NO tax dollars goes to rehab and treatment, as drug/alcohol addiction is a personal choice. Please lets chose one or the other, but it cannot be both ways.
What does illegal/legal drugs have to do with a "George Floyd Act"?
I have no problem with holding Police Officer's accountable for their actions, but shouldn't we all be accountable for our actions.

Joshua Kumler said...

Re: Duty to intervene: In the recent town hall held by the Dallas delegation of the Texas Legislative Black Caucus, newly (specially) elected Rep. Birabil mentioned authoring what she called a "See Something, Say Something" bill that "would create statutory liability for police officers to report fellow officers who engage in misconduct." She'll have to win her runoff first, however. Worth noting her opponent, Jasmine Crockett, is a criminal defense lawyer.

My notes from the event, which was concerned almost exclusively with criminal justice policy:

Gadfly said...

@Oil Lease: Not sure where you get the numbers on "legal drugs," but in one sense they're way too high and in another way too low.

Cigarettes kill 400,000 a year. Alcohol kills more than the 110,000 you mention.

Your medical malpractice death rate is too high. It's more like 25,000, which is still too much but nowhere near your numbers.

And, that's not exactly how the federal vaccine court system and the laws behind it work. And, drug companies would have at least some vaccines made abroad even without the vaccine court system.

Anonymous said...

STOP glorifying criminals

George said...


STOP glorifying your lack of empathy. I don't see anyone glorifying the criminal acts that people commit, instead I see people willing to allow one to move on from mistakes that ALL people make, albeit some much more serious than others.

Grow up and STOP allowing your limited amount of humanity to cloud not only your life but everyone else's that you interact with.

CB said...

As a former manager in a business I am convinced that holding police *managers* accountable for the behavior of their officers would have a huge effect. Leaders have access to carrots and sticks that may be informal but can be very effective.