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INTERNATIONAL PUBLIC SAFETY ASSOCIATION
Together we are stronger

Police under siege: Concerns with emergency legislation

18 Sep 2020 9:42 AM | International Public Safety Association (Administrator)

By Gregory L. Walterhouse, Associate Teaching Professor, Bowling Green State University, IPSA Member

One of the primary purposes of government is defense of citizens and law and order. As Madison wrote in Federalist No. 54, “Government is instituted no less for protection of the property, than of persons, of individuals.” The physical attacks on law enforcement officers and calls for defunding the police from the criminal element and anarchists is not surprising. However, the lack of support for police by some mayors, legislative bodies and district attorneys, are unconscionable, considering police officers are the thin line between law and order and nihilism.

Traditional versus emergency legislative process

The design of our legislative process is for slow deliberation to counter “the common impulse of passion, or interest” of some citizens that are “adverse to the rights of other citizens or to the permanent and aggregate interests of the community” as Madison wrote in Federalist No. 10.  

However, in response to recent protests, many local and state governments have passed emergency laws limiting the tools available to law enforcement. Several of these emergency laws have been ill-considered reactions to demands by criminal mobs with little regard or input from the citizens who rely on law enforcement for protection, a majority of whom oppose defunding law enforcement. Further, many legislatures passed these laws without input from law enforcement.

Even in D.C., Mayor Muriel E Bowser urged lawmakers to slow down and hold public hearings. The unintended consequence of emergency legislation can result in:

  1. A rise in crime.
  2. Mass retirements.
  3. Resignations of law enforcement officers.
  4. Increased caseload in the courts (because of ambiguous laws requiring judicial interpretation).
  5. Increased difficulty in recruiting and retaining police officers.

In New York City, Mayor de Blasio recently signed a number of laws on police reform that the Mayor admits will make it harder for officers to do their jobs. Among other prohibitions, the laws make it illegal for a law enforcement officer to sit, kneel, and stand, on the chest or back in a way that could obstruct breathing. This law is open to wide interpretation and obviously enacted by persons who have never had to struggle with a suspect resisting arrest.

Already, a number of cities and states are experiencing higher than normal resignations of police officers including Atlanta, Chicago, Milwaukee, New York, San Francisco, Colorado and others.

Law enforcement resignations

Compounding this problem is the resignation on many chiefs of police which not only include white males but female and minority chiefs potentially setting back decades of progress that has been made in promoting females and minorities to law enforcement top level positions.

Though opinions differ as to the cause of the resignations, the result remains that this leaves police departments understaffed as the ability to recruit new officers is on the decline. Police departments have faced recruiting challenges in recent years but recent events including lack of support from state and local leaders, budget cuts, falling morale, loss of respect and increased personal liability from recently passed legislation have exasperated the problem.

Symbolic legislation

Some of the recent legislation is more symbolic than substantive. For example, many cities and states have enacted legislation that prohibits the use of chokeholds. However, many departments already had policies in place prohibiting chokeholds. Nevertheless, the legislation now raises the bar elevating the use of chokeholds to a crime compared to an administrative policy violation.

Other legislation mandates additional training for police officers including training on anti-bias, de-escalation techniques, use of force, officer wellness and positive community interaction among others. Some states are also legislatively requiring all officers to wear body-worn cameras. While additional training and body-worn cameras have merit, these mandates are incongruent with calls to defund the police and require adequate state funding. If enacted as unfunded mandates, these requirements will burden small and financially struggling departments and are destined to fail.

Other legislation mandates a "duty to intervene” requiring officers to act if they witness fellow officers using excessive force and be held criminally liable if they do not. Other legislation however is more onerous.

Assaults against police, firefighters and EMS

In Virginia, the Senate passed a bill along Democratic Party lines that allows judges to reduce the charges for assaulting a police officer from a felony to a misdemeanor. However, it does not stop there; the bill also allows judges to reduce the charges of those who assault firefighters or emergency medical service personnel.

This will almost certainly diminish any deterrent effect the previous law had and increase the probability of physical assault on first responders. It is also peculiar that sentencing guidelines exist to provide uniform and consistent sentences across jurisdictions for those convicted of criminal activity, yet consistency and uniformity do not matter when police officers, firefighters and EMS providers are the victims of assault.

Members of the Michigan legislature have also targeted firefighters along with law enforcement officers, by introducing a bill that if passed would remove limitations on civil actions against these public servants as individuals. Michigan is not alone, Colorado, and Connecticut have recently enacted laws making officers personally liable for damages if their actions are willful, wanton, or malicious or violate an individual's civil rights.

A bill introduced in New York would require police officers to obtain personal insurance to cover civil liability suits against them. Removing the qualified immunity defense will make retaining and recruiting police officers more difficult and begs the questions why police officers who are called upon to make split second life and death decisions are not afforded the same legal defense as all other government employees.

Legislation about less-lethal measures

Others are limiting the tools available for police to control disturbances. Oregon HB 4208 signed into law prohibits the use of tear gas except in situations where police have declared a “riot” and further prohibits the use of sonic weapons known as long-range acoustical devices (LRADS).

Seattle City Council prohibited police from using tear gas, pepper spray, foam-tipped projectiles or other force against protesters. New emergency legislation in the District of Columbia prohibits the use of chemical irritants or rubber bullets and stun grenades on peaceful demonstrators. Defining what constitutes a peaceful demonstration, however, is problematic considering the mayors of Seattle, Chicago, Olympia, and others have called disturbances, peaceful protests, even though scores of police officers were injured and extensive damage and looting of private property occurred.

The coup de grâce to the siege on police are prosecutors and district attorneys in a number of cities refusing to bring charges against protestors including disorderly conduct, interfering with police officers, rioting looting and theft. These include the cities of Portland and Chicago, and a number of other cities including St. Louis, New York, Philadelphia and the District of Columbia. It goes as far as charges for possessing a loaded gun in a public place, resisting arrest and interfering with police dropped by the DA’s office putting back onto the streets a man that allegedly later shot and killed another man at a protest.

Closing remarks

As I write this, a gunman ambushed and shot two Los Angeles County Sheriff Deputies as they sat it their patrol vehicle. At the hospital, where the deputies were being treated, what the mainstream media referred to as protestors screamed, “we hope they die.” Make no mistake; these are not protestors but anarchists, with only the police standing between their attempts to destroy the fabric of American society and law an order.

Emergency legislation enacted based on impulse and passion without the benefit of deliberation and collaboration from all stakeholders is not the answer. Neither is increasing civil and criminal liability for police officers that will make it more difficult to recruit and retain good officers.

For the aggregate interests of the community, maintaining safety and law and order must be the top priority of government through deliberation and collaboration not impulse and passion. The police are not the enemy, and without them, the real enemy to a peaceful society will prevail.  

About the Author

Greg Walterhouse is an Associate Teaching Professor in the Department of Political Science at Bowling Green State University and teaches in the Fire Administration and Master’s in Public Administration programs. Greg holds a Bachelor of Science degree in Management from Oakland University, a Master’s degree in Legal Studies from the University of Illinois, a Master’s degree in Personnel Management from Central Michigan University and a Specialist Degree in Educational Leadership from Bowling Green State University. Prior to coming to BGSU Greg had over 35 years’ experience in public safety holding various positions. The author may be contacted at waltegl@bgsu.edu.

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