For the sake of civilian safety, police must intervene if they see misconduct by colleagues,, according to a forthcoming paper in the George Washington Law Review.
Describing three Minneapolis officers who watched their colleague Derek Chauvin murder George Floyd as a deadly case of “police bystanderism,” University of Houston Law Prof. Zachary D. Kaufman writes that Congress and state legislatures should enact criminal laws mandating a “duty to intervene” in their colleagues’ misuse of force.
The three officers—J. Alexander Kueng, Thomas Lane, and Tou Thao—were “passive policemen,” Kaufman argued in his forthcoming essay, entitled “Police Policing Police.”
Editor’s Note: the trial for Kueng and Thao, charged with “aiding and abetting” the Floyd murder, has been postponed until January 2023.
Kaufman, who is also a Visiting Associate Professor of Law, Washington University in St. Louis School of Law, and serves as co-director of the Criminal Justice Institute at the University of Houston Law Center, noted that current laws fail to adequately criminalize acts of police officers who witness their colleagues’ misuse of force, representing a failure of the “public safety” function of police.
Since a fundamental objective of law enforcement is — and should be — public safety, shouldn’t that include disrupting colleagues who violate civilians’ rights? Kaufman asks.
“In the face of immediate, potentially fatal harm to the victim of violence, the only thing that may be able to stop one officer from misusing force is another officer,” he writes.
Kaufman identifies codifying criminal liability for officer inaction as a facet of police reform akin to bans on chokeholds and overhauls of officer training. When courts have gone so far as to characterize police police as “enablers” — not “bystanders” — of abuse, Congress must codify this characterization by criminalizing officer “enablers.”
Such laws could take several forms.
To Kaufman, officers must be designated “mandatory interveners,” meaning they must be legally compelled to interrupt misconduct. Such legal pronouncements are necessary at the federal and state levels, Kaufman argues, since the principles of federalism have historically impeded Congress from enacting meaningful police reform.
Additionally, Kaufman argues that all law enforcement agencies should adopt internal rules, which impose a “duty” on officers to intervene in their colleagues’ misuse of force against civilians. Compulsory training on this “duty” would augment its effectiveness, Kaufman adds.
Kaufman characterizes this legal duty requiring officer intervention as a “Bad Samaritan Law,” a “statute that imposes a legal duty to assist others in peril through interceding directly.” While unfamiliar to many Americans, such laws have legal precedence in the United States. They were prevalent in the 18th century, particularly for cases involving sexual crimes.
Currently, 29 states have Bad Samaritan laws, with “varying scopes and requirements,” though they remain controversial.
But criminalizing officer nonintervention is badly needed, Kaufman argues, and can be done in a manner that minimizes conflict.
Addressing officer omissions through tort law in addition to criminal law; holding agencies, in addition to officers, accountable for nonintervention; and requiring officers to report, in addition to intervene, cases of peer misconduct are ways of ensuring the robust implementation of the proposed law.
Kaufman admits that a law criminalizing officer misconduct isn’t a panacea to police misconduct. Still, it’s an important — and necessary — step to promoting police accountability.
“The legal obligation would give officers guidance on proper conduct during their colleagues’ brutality, provide prosecutors a tool for holding violators accountable who are not or could not be convicted of perpetrating other crimes, and alleviate dependence on law enforcement agencies to sanction their own employees,” he writes.
“When discharged, the duty would help protect civilians and (re)build trust between the public and police by demonstrating that the latter recognize that they are not above the law.”
The full paper can be accessed here.
Eva Herscowitz is a contributing writer to The Crime Report.