Time and time again police departments across the country have been exposed for failing to police themselves, yet little about their conduct has changed. This failure persists despite public outcry and federal intervention, exacerbating racial disparities and other inequities in our criminal justice system. The Special Inspector General for Law Enforcement Act (SIGLEA), recently proposed by Rep. Gerry Connolly (D-VA), would begin to address these challenges.
The Obama administration sought to confront many law enforcement agencies’ failures to police themselves by entering into a record 15 consent decrees wherein local police departments agreed to be subject to federal oversight while reforming unconstitutional practices and policies. These consent decrees came after several Department of Justice initiated “pattern and practice” investigations revealed staggering racial disparities in law enforcement. But beginning in 2017, the effectiveness of this approach was quickly undone by the Trump Justice Department, which either failed to hold police departments to task or pulled out of consent decrees entirely.
This is precisely why consent decrees, which can wane in power or popularity based on the administration in power, are not a long term solution to the problem of police misconduct. SIGLEA is a great start. The Act would create a Special Inspector General to investigate local, state or federal law enforcement illegality or misconduct and offer whistleblower and confidentiality protections for law enforcement officers and others who witness or are the victim of police misconduct. And it would break down the ubiquitous code of silence by protecting reporting officers from workplace harassment, and removing the inherent conflict associated with internal police misconduct investigations.
The Act would also remove some of the barriers to accountability that exist in the current system. Officers accused of misconduct are often shielded from liability in civil lawsuits due to the qualified immunity doctrine. Under the doctrine, if a police officer’s alleged misconduct has not been clearly established as unconstitutional by a federal court, then a plaintiff’s lawsuit cannot proceed. However, because two situations are rarely factually identical, the doctrine is often impossible to overcome. Clearly unconstitutional misconduct may go unpunished simply because no previous case is similar enough. Because qualified immunity is a creation of the judicial branch it is not codified in federal statute. Congress has the power to enact legislation to abolish the doctrine, however, recent progress has been stalled.
The longstanding code of silence by police officers when their colleagues are accused of misconduct is another substantial barrier to accountability. The testimony by three members of the Minneapolis Police Department in Derek Chauvin’s murder trial for the death of George Floyd is the most notable recent departure from this well documented phenomenon. This highly unethical practice has often been exacerbated by well–funded and extremely vocal police unions. These organizations wield a great deal of local political power and often loudly defend officer misconduct and police-run internal review investigations to prevent punitive action against offending officers. As historians and academics have noted, the “blue wall of silence” dates back to the post-Reconstruction Era, when police officers that moonlighted as Ku Klux Klan members, used their powerful positions to both intimidate and torment Blacks and then cover up their misdeeds. In many cases, officers in these jurisdictions who were not among the Klan’s rank and file, did not stand in the way of their fellow officers’ misconduct.
Even today and despite these origins, the “blue wall of silence” persists in too many jurisdictions where police officers are discouraged from questioning or reporting the potentially unlawful actions of their peers. This is a practice that limits accountability and oversight, undermines democratic values and exacerbates systemic racism.
Without protections against whistleblower retribution and an independent investigative body as proposed by SIGLEA, justice will continue to be denied for countless Americans, especially in Black and brown communities across the country. For instance, Chicago Police Department officers were reluctant to testify against a fellow officer accused of murdering Laquan McDonald, a Black 17 year-old, even refusing to point and identify their colleague at a 2018 trial. Despite being confronted with video depicting their partner shooting McDonald once in the back and then unloading an additional 15 rounds into the teen as he laid on the ground, the officers maintained their debunked story that McDonald had swung a knife in their direction. In another troubling 2021 incident, police officers in Windsor, Virginia filed nearly identical incident reports in an attempt to cover up an illegal use of force against a Black Army second lieutenant despite body-worn camera footage contradicting the officers’ accounts. Had SIGLEA been in place at the time of these incidents and countless others, police officers could be reassured that they would not be subject to retaliation by their colleagues and supervisors, labeled “rats”, face demotion, or in extreme cases termination, thrusting them and their families into financial hardship due to the loss of their pensions and other benefits.
In addition to preventing accountability for officer misconduct, the so-called “blue line” erodes trust between police departments and the communities that they are tasked with serving, contributing to an increase in false arrests and convictions of Blacks and Latinos, predominantly. SIGLEA would address these injustices head on by empowering officers to place their sworn duty to the law and justice above their loyalty to their peers.
Congress should act swiftly to pass SIGLEA and similar reforms, including an end to qualified immunity. As a Black former New York City prosecutor and later counsel assigned to defend the New York City Police Department in federal civil rights actions, I have personally witnessed how the wall of silence can negatively impact criminal investigations and hinder the pursuit of justice both in and out of the courtroom. Help put pressure on Congress to act by sending an email to your members of Congress by using our tool below. Americans are demanding action on law enforcement accountability, and speaking out now will get us one step closer: