President Biden is unlikely to establish the U.S. police oversight commission that he promised on the campaign trail. And that’s probably a good thing. Commissions can have value; they can elaborate principles and provide expert guidance. But too often we consider the creation of a commission as an acknowledgment of delay and inaction. The country faces a crisis of legitimacy and trust in policing: problems so enormous that some have called for police abolition or fundamental redefinition.
And Biden can only do so much. In our highly decentralized system of policing, an American President has limited powers of intervention. In no real sense is President Biden in charge of the more than 18,000 police departments around the country. Like schools and fire departments, policing is largely a local institution. Even so, we see some early signs that President Biden feels the gravity of the moment. His nominations of civil rights lawyers to assume top leadership positions at the Justice Department reflect that seriousness. So too does Attorney General Garland’s announcement that the Department will investigate the policies and procedures of the Minneapolis Police Department after Derek Chauvin’s conviction for killing George Floyd.
But it is still early in the President’s term. What are some key challenges that lay ahead, subjects worthy of policy focus for this new administration? There are two urgent issues, seemingly unrelated, that have closer connections than might be obvious at first glance.
Police accountability, particularly to communities of color, must be a top priority. The George Floyd Justice in Policing Bill of 2021 focuses on some reform measures that are long overdue, including restricting the doctrine of qualified immunity, which shields police officers from being sued for civil rights violations; increasing transparency through required data collection about police misconduct at a national level; mandating improved police training; and limiting violent police tactics like no-knock warrants and chokeholds.
Whatever the fate of this particular bill, these issues call out for national attention. The federal constitution provides us with no guarantee of minimum security or safety, only restraints against overly intrusive government interference. Even if such a guaranty were to exist, the realities can’t be ignored: policing is different depending on who you are and where you live. The long list of names we now associate with specific instances of police violence—Eric Garner and chokeholds, Freddie Gray and the police van “nickel ride,” Breonna Taylor and no-knock warrants, George Floyd and “prone restraints” —show us the crisis of policing in black and brown neighborhoods. The guilty verdict in Chauvin’s case sends a powerful message that this kind of police violence will not enjoy impunity. But individual verdicts are not policy.
A second national policing priority is the growing fear that we have lost any sense of digital privacy and control. Our lives are all out there–our online posts, our location data, our license plates, even our faces. But the price of having instant access and convenience has been control: our data is collected, aggregated, analyzed, bought, and sold in ways we often don’t realize by advertisers–and by the government. (To further complicate matters, police departments are customers in a private surveillance technology marketplace that receives hardly any attention.) Some states, like California, have taken steps to address digital privacy. But questions including how much information can be collected about us, what can be done about it, and under what circumstances the government can access it and for what purposes are all matters warranting national solutions.
These two policing challenges–race and technology–are more closely connected than some realize. Any federal funding made available to reform policing should take both points into consideration.
First, let’s not forget the lesson on race and technology from the 2014 fatal police shooting of Michael Brown in Ferguson, Missouri. In a pattern that is now familiar, we witnessed protests around the country and calls for action after Brown’s death. And while the events of Ferguson prompted many communities to call for different kinds of reforms, one that achieved wide consensus was police body camera adoption. Police chiefs, communities, and lawmakers alike were swift to embrace it. Local police departments around the country took advantage of millions in federal grant funding to purchase cameras.
But seven years later, it’s clear that technology was never going to be a solution, of any kind. To be sure, there were benefits. Body camera adoption by the police created records that had previously only been captured from bystanders and by happenstance. But experience soon proved that without clear rules that balanced civil liberties and policing needs, the technology expanded investigative and surveillance capacities. And unwarranted incidents of police violence continued. Body cams aren’t an answer, all by themselves. Neither are Tasers. No technology is.
Second, if we take seriously the calls to limit the police role in society, let’s avoid the conclusion that increased technological surveillance should substitute for police officers. Some communities and police reformers have called for transferring city responses for non-violent incidents to those trained in mental health and crisis intervention. Another solution is automation. The premise is that a reliance on machines will avoid some of the deadly violence that occurs when police officers have face-to-face contact with citizens. Imagine a world where traffic stops were automated. Or where more cameras meant fewer officers.
Resist these easy solutions. Forget how technologies like facial recognition, license plate readers, and gunshot detectors work in theory. We know that in practice that they exhibit some serious flaws. Whatever its accuracy at some future date, facial recognition today does disproportionately impact people of color. These technologies might even be considered deceptively marketed products. We already live in a world where networked cameras feel increasingly ubiquitous. The ramping up of surveillance should not be the answer to the problem of police violence in traffic stops, mental health incidents, and ordinary arrests. Nor should the Biden administration throw unqualified support behind it.
a. Professor of Law, U.C. Davis School of Law.
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