Congress Has Constitutional Power to Set National Police Conduct Standards

If anything is clear from the recent coast-to-coast protests against the horrific killing of George Floyd by Minneapolis police, it is that excessive police force is not a local problem, but a national one of the highest order.

With its disproportionate impact on Black people, police brutality threatens any sense of justice as well as the peace, prosperity, security, and our very fabric as a free nation under law. Its poison spreads across all of America. While conventional thought suggests that the solution lies primarily at the local level, we believe this moment requires a national solution. Fortunately, our Constitution provides one.

The 14th Amendment, passed after the Civil War against the backdrop of slavery, segregationist Black Codes, and lynching, drastically changed the structure of government under our Constitution. For the first time, it imposed limits on how state governments could treat their own people.

Importantly, Section 5 of the amendment explicitly gave Congress the power to enforce its provisions. Congress, for example, used its enforcement power in the 1860s to enact a civil rights act that targeted Ku Klux Klan violence, vigilantism and intimidation. As racist violence has changed shape, the 14th Amendment continues to authorize what justice requires: contemporary legislation for a contemporary context.

This means it is up to Congress to ensure that the promise of “due process of law” and the “equal protection of the laws” without regard to race — so elusive throughout our history — finally materializes in the conduct of local law enforcement.

A Strong National Solution is Congruent and Proportional

The U.S. Supreme Court has told us that, for Congress to impose obligations on states through this power, the proposed law must be “congruent and proportional” to the constitutional violations that Congress seeks to address. There can be no doubt that a factual record establishing a history and pattern of excessive force against people of color rising to the level of violations of due process and equal protection is readily available for Congress to build.

A strong national solution to a virulent national problem is, to say the least, congruent and proportional. It is equally clear that local and state governments require the support of our national government to achieve these long-awaited reforms, so politically difficult yet so desperately needed.

Existing federal law is inadequate to the task. For example, many civil rights lawsuits brought against police abuse rely on Section 1983 of the Civil Rights Act of 1871. Yes, our current system for protecting civil rights relies on a law passed 149 years ago.

Courts dismiss many of these lawsuits under a Supreme Court-created doctrine called “qualified immunity.” QI, criticized by those on the left and the right as historically unsupported, shields police officers from lawsuits unless the act of abuse in question has specifically been held to be unconstitutional in a prior case. As excessive-force cases invariably involve unique facts, the Supreme Court’s approach has increasingly created a high barrier to any victim claiming abuse.

Similarly, criminal prosecution by the federal government is very rare because of a requirement that the prosecution prove specific intent to deprive a victim of his or her constitutional right, which is rarely satisfied.

There are glimmerings of potential avenues for change. The Supreme Court has been asked repeatedly to revisit the qualified immunity question. Libertarian Rep. Justin Amash (Mich.) plans to introduce federal legislation to end qualified immunity, a step in the right direction.

Federal Oversight Needed, Congress Must Act

But Congress can and must do more. Prophylactic measures are needed to give voice to our collective outrage and to provide national systemic accountability.

A new national law should create federal oversight of local police action, such as by requiring the establishment of citizen-staffed police commissions, appointing inspectors general in every city, imposing uniform standards of conduct like de-escalation norms, providing for mandated recording and public release of camera footage, and easing the often disabling evidentiary burdens and liability hurdles involved in victims’ actions for monetary compensation.

“The tools belong to the man [or woman] who can use them.” Supreme Court Justice Robert H. Jackson famously unearthed that quote (originally attributed to Napoleon) to prod Congress to act in another emergency, decades ago, in a landmark Supreme Court case. Jackson was critical of congressional silence in the face of presidential overreach that had consequences for private property rights.

Here, even more compellingly, silence of Congress is tantamount to abandoning the constitutional rights to life and liberty. The call to action is the same: Congress must use its Constitution-given tools to vindicate the Constitution’s own promise.

Omar H. Noureldin is an attorney at Munger, Tolles & Olson LLP and lecturer in law at the USC Gould School of Law, where he teaches constitutional theory and judicial opinion writing. He is on Twitter @OmarHNoureldin.

Rebecca L. Brown holds the Rader Family Trustee Chair in Law and teaches constitutional law at the USC Gould School of Law.

Affiliations are provided for identification only; the views expressed are solely those of the authors and do not reflect endorsement by their employers.

Originally published at https://news.bloomberglaw.com.