New Laws Are Turning Police Into ‘Supercitizens’
This story was produced in partnership with The Garrison Project, an independent, nonpartisan organization addressing the crisis of mass incarceration and policing.
Florida Gov. Ron DeSantis recently signed two bills gutting the informal and formal oversight of the police. Senate Bill 184, the “Impeding, Threatening, or Harassing First Responders” Act, makes it a misdemeanor to stand within 25 feet of the police or other first responders if told to move, if the purpose is to interfere with, threaten with physical harm, or otherwise “harass” them. Harassment is defined to include “substantial emotional distress,” and what counts as distress or who makes that determination is not defined.
House Bill 601, simply titled “Law Enforcement and Correctional Officers,” takes aim at civilian oversight boards, local committees set up by cities to provide outside supervision of police departments. Under the new law, the existing boards would be re-established and any new ones created under new rules. Each committee can have three to seven members, but one member must be a retired law enforcement officer. Importantly, all members must be appointed by the local sheriff or police chief.
Both of these bills are designed to make the police more impervious to any meaningful oversight. The anti-oversight intent of the House bill, which requires the police to appoint the civilians who oversee the police, is transparent on its face. It follows moves by Arizona, which in 2021 adopted two laws requiring that police and police-trained civilians make up 67 to 100 percent of civilian oversight boards, and Tennessee, which gutted local police oversight boards in 2023. The Senate bill’s impact may be a little less obvious, but it’s still there. Twenty-five feet may not seem like a significant distance, but in a city it means anyone videotaping the police will likely have to stand across the street (and thus behind rows of parked cars and traffic) or so far down the block that officers can form a wall, blocking view. And even if someone can get a good shot of the police at work, the open-ended harassment language leaves them with plenty of room to argue that the person filming them is doing so to make them feel distress. One Florida House Democrat submitted a sarcastic amendment to rename SB 184 “The I Don’t Want the World to See the Police Kill an Unarmed Innocent Man Like George Floyd Again, So I Want To Protect Bad Cops and Violate Free Speech Act.”
Particularly in the years since George Floyd’s murder in 2020, Republican state governments have targeted criminal legal reform in their more liberal cities.
Florida joins other states in imposing a distance ban on videotaping the police. Arizona passed an eight-foot ban in 2022 (although a federal judge struck it down in 2023), and Indiana adopted a 25-foot ban in 2023, which was recently upheld by a Trump-appointed federal judge. At least one person has already been arrested under it. Another 25-foot law just passed the Louisiana House and is awaiting approval from the Senate. Getting Gov. Jeff Landry’s signature on the bill is a sure thing: Since being sworn in in January, he’s been reversing the state’s criminal justice reforms, which, as Axios just noted, “are credited with Louisiana shedding its title as the No. 1 most incarcerated state in the world.” Louisiana is also on the cusp of passing SB 482, which would gut the state’s public records laws that have yielded numerous stories about police violence, including the 2019 death of Ronald Greene at the hands of the Louisiana State Police.
These laws reflect what criminal justice reporter and author Jessica Pishko has dubbed the “Law Enforcement Baronial Class”; or, to use a term from academics Brittany Arsiniega and Matthew Guariglia, “police as supercitizens.” Even before the current wave of laws targeting oversight, police were often shielded from meaningful supervision. The “Law Enforcement Officer Bills of Rights” made it hard for the public to access disciplinary records, protecting potential abusive officers from accountability. And the notorious doctrine of “qualified immunity” has meant that while the police are called on to enforce the law, they are often above it as well. Even the liberal-leaning Ninth Circuit Court of Appeals held that officers could not be sued for allegedly stealing $225,000 while executing a search warrant. Police are also regularly granted perks, like housing and tuition benefits, that other government employees do not receive.
These laws are also part of a widespread effort by Republican-dominated state legislatures to use their powerful “preemption” powers to thwart local efforts at reform. State preemption gives state governments the power to reverse local legislation that the state officials dislike. Many states give some of their cities and counties a degree of “home rule” protection, but these protections tend to be fairly thin.
Particularly in the years since George Floyd’s murder in 2020, Republican state governments have targeted criminal legal reform in their more liberal cities. Many of these reforms have sought to rein in reforms targeting police, and the ability of cities to cut police budgets. Recently, Republican-dominated state legislatures have also sought to clip the wings of reform-minded prosecutors, who often face intense opposition from punitive-minded police departments and police officer unions. The Georgia legislature recently revived a prosecutorial oversight commission that had been struck down by the state supreme court and was seen by some as designed to target reform prosecutors. Florida is also looking into changing the electoral maps for electing prosecutors, clearly with an eye to gerrymandering reformers out of their jobs. And in June of 2023, Texas Gov. Greg Abbott signed HB 17, which makes it easier for people to seek the removal of local DAs in state court. A Texas judge just ordered José Garza, the reform-minded DA of Travis County (Austin), to appear in court to formally answer claims he’s refusing to prosecute abortion cases. The May 16 court date is thought to be the first of its kind under HB 17.
The state laws cracking down on reform in cities and the elevation of the police to the baronial class pose serious risks to any effort to make our criminal legal system more racially just, especially given that white supremacist organizations have been aggressively seeking to infiltrate police departments. But there’s a much bigger, existential threat. States are handing police above-the-law powers in the shadow of Gaza protests that face violent crackdowns, and in the run-up to a 2024 election where one candidate who has extraordinary police and first-responder support is unlikely to accept the election results.
John Pfaff is a professor of law at Fordham University and author of ‘Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.’
Used with the permission © The American Prospect, Prospect.org, 2024. All rights reserved.
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