There’s a joke: What do you call 1000 good cops and ten bad cops? 1010 bad cops, because those ten couldn’t be bad, couldn’t persist, but for the acquiescence of the good cops. There is a well-known phrase, “the blue wall of silence,” referring to the police historically protecting their worst and themselves from outside scrutiny. If you’re a cop, ignore the wall at your peril. Ask Frank Serpico how that works.
But these are cops, not criminals, and rather than characterize what they do, and don’t do, as a pejorative like “snitching,” it should be viewed as a positive duty to maintain the law, their integrity and the virtue within their own ranks.
Cops want to believe they are the good guys. They want to believe they are there to help. They want the respect of the public, and want to believe they deserve it. But “wants” aren’t good enough. Quis custodiet ipsos custodes?
What if there was an affirmative legal duty for cops to intervene when a fellow police officer was engaging in criminal conduct?
Our years of studying constitutional civil rights have taught us that police policies and even criminal statutes are not enough to overcome the “blue wall of silence” among officers. What’s needed are state laws that create an affirmative duty for bystander cops to intervene to prevent use of excessive force or other civil rights deprivations, and that allow civil suits against cops who don’t.
But wait, you say. There are criminal laws against the improper and excessive use of force already. There are departmental regulations that could cost a cop his job and pension. And then there’s both a federal crime of deprivation of civil rights and a federal cause of action if it happens. With all these laws already available, why hasn’t this done the trick?
Victims of police misconduct should not have to rely on inadequate department policies or prosecutorial whims for protection or redress. Criminal charges in cases of police violence are extremely rare. Tellingly, it took a week for Chauvin to be charged with second-degree murder and his fellow officers with accomplice liability as protests against racially motivated police violence erupted around the globe.
All victims of crimes are, to some extent, at the whims of prosecutors, not to mention the competence of cops to catch the criminal. But it obviously is rare, and as every Law & Order fan knows, the cops and prosecutors rely on each other, making the relationship too symbiotic for comfort. As for the week it took for Chauvin to be charged, there was nothing to be done until their was an autopsy report showing cause of death, so that’s a bad example. Even worse, the autopsy report doesn’t quite support the charges, which will be a huge problem when trial comes and popular certainty of his guilt (but we saw it in the video) gets shredded by medical science. Yes, the knee was on George Floyd’s neck. No, that doesn’t mean it was the cause of death, and if it wasn’t, Chauvin’s conduct, despicable though it may be, wasn’t murder.
By contrast, empowering individuals to bring civil lawsuits against bystander cops who fail to intervene — with the threat of monetary damages — would force officers to act. This might sound like a novel idea, but U.S. history teaches otherwise.
Indeed, in a series of laws enacted in 1871, Congress created a private cause of action against state actors who violated a person’s constitutional rights. Notably, they left out federal actors, which was later extended by the Supreme Court in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics. Bear in mind, in 1871, policing crime was almost entirely a state and local matter, with the now-ubiquitous fed alphabet agencies not yet being a twinkle in J. Edgar’s eye.
But then, Section 1983, et seq. didn’t fix the problem either. To some extent, the dreaded qualified immunity that allowed cops to do horrible things without liability impaired the ability of the law to have its intended impact. But to another extent, qualified immunity only resulted in dismissal in 3.9% of cases. So if 96.1% of police misconduct cases against cops proceeded, that should have been sufficient to have its intended impact.
And yet, here we are, cops still using excessive force with relative impunity, and bystander cops neither intervening to affirmatively protect the public from thugs in blue or even telling the truth after the fact. What makes this so important is that a fellow cop can do what you, as a member of the public, can’t do.
Requiring officers to intervene makes sense for several reasons. When violence is perpetrated by law enforcement, bystander police officers are often the only people who can safely intervene. Civilians cannot be expected to stop an officer from assaulting a victim: They would risk arrest for obstructing justice and possibly face bodily harm themselves.
The scenario is one of helplessness and powerlessness, where a cop abuses a person (not a civilian, as cops are just as much civilians as anyone outside the military) and any resistance to protect oneself from the violence gives rise to greater violence, potentially death. If only there were a force that existed to protect people from such violence perpetrated by those whose job it is to protect people from violence.
Police officers’ unwillingness to report misconduct by other officers and their tendency to retaliate against those who do are common dynamics of police culture. If officers were required to intercede and supported in doing so, pressure would be reduced on those who currently hesitate to act. Anti-retaliation provisions, such as those in Colorado’s broad new police accountability bill, which also mandates a duty to intervene, would further protect officers who take a stand.
Unlike § 1983, can a state law creating bystander cop liability fix the problem that the feds, prosecutors and police departments have failed to fix? The facile argument is that it can’t hurt, and will offer another path for redress against cops who let “bad” cops kill. But it always raises the same questions that have stymied these cases all along. How does a bystander cop know where, exactly, the line is between a cop properly using force and a cop violating a person’s constitutional rights? And it won’t make the cop who intervenes popular on the force, which could mean the backup he expects from fellow cops doesn’t materialize when it’s his life on the line.
These are all intransigent problems, largely left to the integrity of police to address by their own internal culture and beliefs. If they want to be clean and good, they can be, and they can rid their ranks of violence, crazy or dishonest, union arbitration notwithstanding. Whether anyone, any law, any system, can make them be what they don’t want to be, however, isn’t so easily answered. A lot of hard thought has gone into this, including from good cops who sincerely want to “protect and serve.” Answers are easy. Correct answers remain hard to find.