Law Professor Champions Criminal Penalties for ‘Police Bystanderism’

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Image: Sean Murphy/Getty Images.

Many say a racial reckoning occurred in 2020, after the deaths of Breonna Taylor and George Floyd pushed the nation, the world, to rise up against police misconduct. But despite the social unrest that defined the latter half of a tumultuous year, few reforms have gone far enough to stop that from ever happening again.    

The George Floyd Justice in Policing Act, introduced in Congress in 2020, was passed by the House in 2021. It still remains locked up in the Senate. President Joe Biden’s Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety feels symbolic, given its inability to penetrate more than 18,000 local police agencies across the country.

In May, the U.S. Department of Justice updated its use of force policy after 18 years, now requiring that federal officers intervene if colleagues are using excessive force. According to Section III: Affirmative Duty to Intervene, “Officers will be trained in, and must recognize and act upon, the affirmative duty to intervene to prevent or stop, as appropriate, any officer from engaging in excessive force or any other use of force that violates the Constitution, other federal laws, or Department policies on the reasonable use of force.” But though the verbiage is there Zachary D. Kaufman, an associate professor of law and political science and co-director of the Criminal Justice Institute at the University of Houston Law Center, argues that this “necessary, overdue initiative… doesn’t go far enough.”

In a forthcoming George Washington law review article on police bystanderism titled “Police Policing Police,” Kaufman states that the “police killings of George Floyd, and at least 1,930 other Black Americans since 2015, amplified a racial reckoning and intensified demands for meaningful, overdue police reform.” But the directive, handed down by the DOJ, falls short in honoring that movement in a number of ways. One of the glaring issues is that the directive only applies to federal law enforcement, which means employees in state and local police departments across the United States are exempt.

Most of the high-profile cases of police misconduct don’t involve federal officers. And Kaufman found through his research that in more than half of U.S. states, there are no laws that would require an officer to step in if they see a fellow officer exercising excessive force. 

“I propose that Congress and all state legislatures enact criminal laws mandating police peer intervention,” Kaufman writes. “Introducing criminal liability for inaction could prod officers to stop their peers’ serious misconduct and promote accountability for those officers who remain bystanders.”

Kaufman also questions the effectiveness of the DOJ policy given that it’s not a law.  

“We need an external check on police through criminal prosecution and punishment,” Kaufman argues. “Given the scourge of police misuse of force in the United States, a legally enforceable officer duty to intervene should be universal.”

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