Several bills introduced in the Texas Legislature are identified as necessary reforms of Texas law enforcement. These bills claim to address problems by: (1) dictating specific policy to local agencies, (2) outlawing the use of various tactics and proscribing the use of force in detail, and (3) a new state law cause of action against law enforcement officers which denies them the defense of qualified immunity. I listened to a long day of hearings on the George Floyd Act and heard many emotional pleas to change law enforcement. I feel for those witnesses, our fellow citizens. Their witness must be heard. However, after hearing those pleas, I feel compelled to offer some qualified replies.
Questionable assumptions
During the testimony I heard several assumptions that should be the subject of reasonable debate.
1. History of law enforcement.
One of the themes of the hearing was that law enforcement was created to control slavery. No doubt, some law enforcement in our history enforced immoral slave laws. Yet, the history of civilizations confirms that police forces have existed since early times of human communities. Since that time, the primary purpose of law enforcement have been to keep people from hurting each other and protecting the peace. Such a force is necessary to allow men and women to live together because we are not saints.
2. Is there a flood of unjustified use of force incidents by law enforcement in Texas?
People advocating for these bills and an end to qualified immunity point to a number of high profile tragedies and extrapolate from that there is a flood of unjustified deadly force actions by law enforcement. Below are some of the data for the reader to consider. Now, every death in which law enforcement are involved is a tragedy. We must do everything we can to avoid them, but a fair discussion of policing must include some of this context. This data below shows that there were 624,840 arrests in Texas in 2019. Of those arrests, 153 people being arrested died from all causes. Some may have been natural causes or justified. The numbers do not change that much between 2015 and 2019.
Number of Total Arrests
Source: FBI Uniform Crime Reporting Program
| Nationally | Texas | |
| 2015 | 10,797,088 | 808,119 |
| 2016 | 10,662,252 | 820,979 |
| 2017 | 10,554,985 | 745,719 |
| 2018 | 10,310,960 | 729,902 |
| 2019 | 10,085,207 | 624,840 |
| 2015 | 2016 | 2017 | 2018 | 2019 | |
| White | 73 | 59 | 56 | 58 | 64 |
| Black | 37 | 34 | 30 | 36 | 44 |
| Hispanic | 58 | 29 | 43 | 69 | 41 |
| Other | 4 | 3 | 6 | 3 | 4 |
| Missing data | 2 | -- | -- | -- | -- |
Source: Texas Justice Initiative
In this discussion, policy makers and judges must recognize that reformers emphasize cases where there has been a controversial application of the doctrine of qualified immunity and this or that tactic. Seldom mentioned are the score of cases where judges and juries have determined there was no qualified immunity or a fact question about its application leading to jury trials and or settlements. Consider the George Floyd case itself. The involved officers were indicted, are being prosecuted and were sued for civil damages. In fact, the City of Minneapolis settled the civil rights wrongful death lawsuit against its officers for 27 million dollars.
Law students learn that bad facts make bad laws. In evaluating these proposed changes and the abolition of qualified immunity, there must also be a consideration of cases where the doctrine and or underlying tactics were justified.
PROPOSED NEW STATE LAW CAUSE OF ACTION AGAINST POLICE OFFICERS WOULD REMOVE QUALIFIED IMMUNITY
Qualified immunity requires a person who is suing a public official alleging a violation of a constitutional right, like the 4th amendment -that precludes unreasonable searches and seizure- to show a violation of that right. Then they must prove that every reasonable official would have known the specific conduct complained of violated the constitution. If the party suing cannot establish that, then the defendant cannot be liable for civil damages. The doctrine is not absolute and it has no application in criminal cases. Some of the proposed legislation, like the George Floyd Act would create a new state law cause of action for damages against law enforcement officers akin to a federal 1983 case. It also expressly abolishes the defense of qualified immunity and allows for an award of attorney fees if the plaintiff prevail. No doubt that is supported by the plaintiff’s bar.
An understanding of qualified immunity requires a historical review of the doctrine. After the Civil War, the United States Congress passed civil rights legislation advertised as a cause of action for citizens whose rights were violated by local officials. This litigation is commonly called section 1983 litigation named after the section of the United States Code where the law is found. Qualified Immunity is a defense a public official can raise to such a claim. Many have argued that this immunity was not meant to be available under the act. However, others have persuasively argued it was. Recent scholarship by the former Solicitor General of Texas suggests that a form of immunity was available at common law. Of course, the Supreme Court has applied the doctrine or affirmed its application repeatedly. In fact, Justices Scalia and Ginsburg both found the doctrine applicable to protect use of force by officers in various cases.
The doctrine does not have any application in criminal cases. Rather, officers are immune from civil damages if they did not violate the law, or if when they acted, they had no means of knowing their conduct was unlawful in the circumstances they faced. Not only is it a matter of basic fairness to officers that they know what conduct is prohibited before they are subjected to personal liability for doing society’s most challenging work, but officers will be placed in greater danger and society will suffer if officers are prohibited from, or fearful of taking necessary steps to perform their duties. Research supports the idea that when law enforcement activity declines, violent crime spikes.
Other immunities or policies like immunity have been allowed by legislatures and courts for other tort claims like those that can be alleged under 1983 for public policy reasons. For example, Judges are afforded judicial immunity and prosecutors are also allowed immunity. Members of the legislature have legislative immunity. Some charitable organizations have charitable immunity to promote the public good. Parental immunity protects parents from claims of negligent supervision of their children. There is sovereign immunity, the political question doctrine and Buford abstention that can preclude certain lawsuits. Landowners have protection from certain claims by the recreational use statute. A person who sues an engineer, or architect, must have the affidavit of an expert to challenge either an architect or engineer for their errors in court. There are caps on damages that may allowed in a medical malpractice case and a plaintiff must have an expert offer a written report in order to maintain such a suit. The Prison Liability Reform Act is another piece of legislation that can bar a claim by a prisoner if they have had three other claims dismissed. There is also the shopkeeper’s privilege-which prevents civil damages for a shopkeeper’s wrongful seizure of a customer believed to have shoplifted if the belief was reasonable. To hold a newspaper responsible for damages because of defamatory articles, a plaintiff must prove the writer acted with malice.
A prevailing plaintiff in a 1983 case is entitled to recovery of attorney fees and there is no reduction for comparative fault or contributory negligence by the plaintiff. In contrast, most other civil cases do not allow for an award of attorneys’ fees, but do allow for a reduction in damages for contributory negligence of the plaintiff. Indeed, under the Texas Civil Practices and Remedies Code, if a plaintiff is found 51% or more at fault in a tort case, they are barred from recovery. Any new state law cause of action for damages against law enforcement alleging a civil rights violation should allow for the jury to consider comparative responsibility of the parties in judging the claim. Moreover, Congress should consider that for federal claims as well.
TRAINING AND MANAGEMENT OF TACTICS IN THE FIELD
A number of these bills also suggests denying the use of a specific tactic hoping such reforms will avoid bad outcomes. Sadly, policing is not static and predictable. Rather, it is tense, uncertain and rapidly evolving. Therefore, legislation that dictates steps 1, 2 and 3 must be taken on the beat or you must not do this, make the job of law enforcement more difficult and given the law of unintended consequences, more dangerous. For example, years ago many complained because various law enforcement agencies taught swarm arrests—the use of several officers to overcome resistance of one suspect. Such tactics they argued were dangerous excessive force. What they fail to recognize is that, proportionally, 4 officers grabbling with a resistant suspect use far less force to overcome resistance than a single officer would. Lawmakers must be wary of passing laws that criminalize certain tactics because those actions may have deadly impacts by restricting less lethal force options and reducing the tools officers can use. A miss-use of a tactic by one officer should not be a basis to criminalize what may be a reasonable tactic properly deployed. Nor should misunderstanding of various tactics. For example, the George Floyd case has been referred to as a “choke hold”, when in fact properly understood it was a prone restraint. Any legislation outlawing specific tactics must clearly spell out what is being outlawed.
Officer training is another topic reformers discuss in much of the proposed legislation. Properly understood, Texas law enforcement officers are among the best trained in the country. To be licensed as a peace officer in the state, an applicant must take 696 hours at an academy before they can test to secure a Basic Peace Officer License. Once they have a license they must still go through field training with the agency who hires them. Through the course of their career, the officer must take 40 hours of continuing education in a 24 month cycle in order to maintain their license. The mandated curriculum includes a set course of topics that includes de-escalation training and crisis intervention training for suspects believed to be having a mental crisis.
It is hard to overestimate the difficulty and perils law enforcement, social services and professionals in the field of medicine have to deal with because of mental health, addiction and family fragmentation. Yet these are often the population that causes the situations that officers are called to overcome, situations that the families and those closest could not control. This difficulty is underscored by recent reports from the Texas Department of Health Services” that established how many attacks people in hospitals suffer at the hands of this population, the same population that law enforcement faces in the field. “Worker Safety in Hospitals, caring for our caregivers,” United States Department of Labor, “Workplace Violence Against Nurses in Texas”, December 2016 Report of Department of State Health Services.
When family members can’t handle these situations and must call law enforcement, they will receive a law enforcement response. The answer to all of this may be larger than law enforcement can provide. What we may need is a more comprehensive discussion regarding mental health commitments. Perhaps they are too hard to get when a person is a danger to themselves or others.
PROPOSED REFORMS OF THE CRIMINAL LAW
Proposed changes in criminal law and law enforcement is also discussed in some of the legislation filed with the Texas legislature. For example, one proposed change to article 2.13 of the CCP is a doozy. There, the statute is altered so that rather than a duty to prevent or suppress crime, it is “suggested” that an officer interfere without a warrant to prevent or suppress crime. The change might cause some to ask, but isn’t the whole point of having a police force to arrest people who’ve committed a crime?
In essence, this legislation would also eviscerate the doctrine of apparent danger for officers—and only officers—using force or deadly force. Apparent danger is a longstanding doctrine in Texas self-defense law that says a person has the right to defend himself from apparent danger to the same extent that he would if the danger were real. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). It all stems from the “reasonably believes” language that this statute would strike out. As an example, if a suspect pulls out a toy gun that looks entirely real to the cop and the cop shoots him, then the cop wouldn’t get to claim self-defense because he wasn’t actually in danger. But a civilian would still be able to claim self-defense.
What does that mean, exactly? If an officer tries to arrest someone for public intoxication (which you can apparently still do under this bill) and the suspect resists, the officer can’t use force to subdue him. It also poses a “de-escalation” requirement before the officer can use the force and it imposes on an officer a “duty to retreat” requirement that the state got rid of in the general law of self-defense years ago. In short, it is not an overstatement to say that this legislation would prohibit a law enforcement official from being able to defend himself just because she wears the badge.
BE CAUTIOUS OF “PROGRESS”
During the trial of one of the officers accused of murdering George Floyd began, there was a tragic mass shooting in Boulder Colorado. Eric Talley, an officer with the Boulder Police Department, used his police privilege and ran to the sound of that gunfire. The Oral Roberts alumni was killed while trying to protect his fellow citizens. He leaves behind a wife and seven children. Qualified immunity did not protect Officer Talley. However, we know that violent crime is spiking in many major cities in this country. History teaches that when the police pull back, crime goes up. We do not want to discourage law enforcement to act as Officer Talley did to protect the public in tense, dangerous situations.
I urge the legislature to be careful to not create greater danger to the public with changes designed to decrease them. We all want progress, but please be cautious in pursuing it.
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Mike Thompson Sr. is a retired family law master. Before that he was a prosecutor, in private practice and the legal advisor to the El Paso Police Department.