The Washington PostDemocracy Dies in Darkness

Opinion How allowing civil lawsuits against bystander cops could change police culture

Frank Rudy Cooper is a professor of law and director of the Program on Race, Gender & Policing at the University of Nevada, Las Vegas, William S. Boyd School of Law. He co-edited the book “Masculinities and the Law: A Multidimensional Approach.” Suzette Malveaux is provost professor of civil rights law and director of the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School. Catherine E. Smith is a professor of law and associate dean for institutional diversity and inclusion at the University of Denver Sturm College of Law.

Police departments across the nation are implementing policies that would require officers to intervene when fellow officers use excessive force. Minneapolis has such a policy, yet it was not enough to spur Derek Chauvin’s colleagues to intercede to save George Floyd’s life.

Our years of studying constitutional civil rights have taught us that police policies and even criminal statutes are not enough to overcome the “blue wall of silence” among officers. What’s needed are state laws that create an affirmative duty for bystander cops to intervene to prevent use of excessive force or other civil rights deprivations, and that allow civil suits against cops who don’t.

Victims of police misconduct should not have to rely on inadequate department policies or prosecutorial whims for protection or redress. Criminal charges in cases of police violence are extremely rare. Tellingly, it took a week for Chauvin to be charged with second-degree murder and his fellow officers with accomplice liability as protests against racially motivated police violence erupted around the globe.

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By contrast, empowering individuals to bring civil lawsuits against bystander cops who fail to intervene — with the threat of monetary damages — would force officers to act. This might sound like a novel idea, but U.S. history teaches otherwise.

In the late 1800s, despite the Reconstruction amendments to the U.S. Constitution, the Ku Klux Klan and its sympathizers terrorized formerly enslaved blacks and their white allies. Throughout the South, many police would orchestrate and participate in Klan violence. Others would tacitly agree to stand down. Congress passed the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, in an effort to dismantle racist systems and institutions.

This comprehensive legislation empowered individuals to act as private attorneys general to enforce the Constitution in several ways. Section 1983 enabled individuals to seek damages for constitutional violations, Section 1985 prohibited conspiracies against civil rights, and Section 1986 required police and other state officials to intervene in such conspiracies whenever possible.

Consistent with its early hostility toward the Reconstruction agenda, the Supreme Court severely restricted these sections. After lying dormant for about 100 years, they were resurrected in the late 20th century. Section 1986 is still rarely used, but its underlying principle, the duty to intervene, could help address present-day police violence — even if law enforcement is fundamentally restructured in the future.

Requiring officers to intervene makes sense for several reasons. When violence is perpetrated by law enforcement, bystander police officers are often the only people who can safely intervene. Civilians cannot be expected to stop an officer from assaulting a victim: They would risk arrest for obstructing justice and possibly face bodily harm themselves.

Police officers’ unwillingness to report misconduct by other officers and their tendency to retaliate against those who do are common dynamics of police culture. If officers were required to intercede and supported in doing so, pressure would be reduced on those who currently hesitate to act. Anti-retaliation provisions, such as those in Colorado’s broad new police accountability bill, which also mandates a duty to intervene, would further protect officers who take a stand.

In 1871, Congress knew that law enforcement inaction enabled lynchings, rapes and murders, playing an important role in the continued subjugation of black Americans. Police inaction today perpetuates racial hierarchies by allowing harms ranging from everyday harassment to brutal murders. Police silence results in burdens that are borne largely by the poor, racial minorities and other marginalized communities.

What changes do you hope will come out of protests and debates about police and race? Write to us.

Although the 1871 act targeted the Klan and its sympathizers, reliance on this legislative model does not imply that all police officers are bad actors. Duty-to-intervene laws address the need for systemic change. They would tear down the blue wall of silence, altering police culture.

In medicine, the lowest-ranked members of a surgical team are expected to object if a surgeon is about to operate on the wrong limb or if they see other instances of malpractice.Mandating that police officers intercede would generate greater trust in them, protect civil rights and, ultimately, save lives.

None of Chauvin’s fellow officers stopped him from kneeling on the neck of an unarmed and handcuffed man for nearly nine minutes. None of them acted on Floyd’s repeated pleas for his life, nor after he lost consciousness. Many law enforcement agencies tell the public, “If you see something, say something.” No less should be expected from those who have pledged to protect and serve.

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