A Lone Star showdown is brewing in Austin, Texas. Last month, the City Council voted to slash one-third of its policing budget — this despite the fact that the city boasts the nation’s largest year-over-year increase in homicides since 2019. The plan will divest $10.7 million from training programs, cancel its most diverse cadet class in history, and shift nearly $22 million to community reinvestment.
In response, Gov. Greg Abbott has threatened to freeze property tax hikes and put the police department under state control. This battle is emblematic of those being waged across the country. A zeitgeist of police reform has gripped the country. Peaceful protests advocating for change are co-opted by violent political extremism. Riots rage. Businesses burn. Governments are struggling to respond coherently.
To be clear: American police have a use-of-force issue. An American citizen is 31 times more likely to be shot by a police officer than a German or British citizen. Policy mechanisms designed to keep police accountable don’t do their job. Some are abject failures, while others have been tampered with to the point of unrecognizability. Aside from slashing police budgets, a drastic and politically unpopular step, what options are on the table to realign the incentive structure of police officers?
Congress should first abolish, or at the very least weaken, the modern doctrine of qualified immunity. Originally passed in 1871, Section 1983 now provides a remedy for citizens when “any rights, privileges, or immunities secured by the Constitution” are deprived by the state. But the Supreme Court’s modern qualified immunity doctrine contravenes the legislative mandate. Not all rights receive protection, only the “clearly established” ones do.
Which rights are clearly established? That’s a question that has stymied the court for decades. While there need not be a case “directly on point,” the violation must also be “particularized to the facts of the case.” Hardly clear guidance. Even worse, these unclear instructions encourage trial courts to skip the constitutional inquiry altogether and grant immunity for lack of prior precedent.
It’s easy to see how such a high hurdle might encourage Constitutional apathy. Why would a recently defunded police department spend its depleted funds on de-escalation training when most civil rights suits will be dismissed? Even so, let’s assess the uncommon case where a Section 1983 plaintiff overcomes the qualified immunity hurdle. Who pays the judgment?
Overwhelmingly, the cost falls to the department — read: the taxpayer. A 2014 study found that 99.98% of dollars are paid by cities, not by officers. Even if a court finds a police officer used excessive force, she doesn’t face any tangible consequence for her actions. To internalize these risks, Clark Neily has proposed that police officers be required to carry personal liability insurance. Consistent abusers will see their premiums increase because insurance companies have strong incentives to avoid costly payouts. Bad apples would soon find themselves priced out of the orchard.
Police reform usually focuses on civil remedies. But some police misconduct is outright criminal and should be prosecuted accordingly. Enter the codependency problem. Most misconduct charges are initiated by local district attorneys, the very same prosecutors who rely on police testimony to win cases. Even well-intentioned prosecutors are caught in a Catch-22 — to do their job well in one case, they must destroy a relationship they rely on to succeed in others. To solve this conflict of interest, Ken Paxton has recently requested greater investigative authority from the Legislature. Putting this authority in the hands of a detached state agency should decrease the influence a department has and encourage a more balanced investigation.
Emotional moments are rarely the proper time for dramatic action. In a nation turned upside down by a pandemic, a presidential election, and a divisive race narrative, policymakers should think long and hard before further destabilizing American cities. Instead of striking a match and burning the system down, policymakers should strike a balance —emphasizing constitutional rights while acknowledging the day-to-day difficulties of policing.
Seth Smitherman is a second year student at the University of Texas School of Law, the president of the Texas Student Chapter of the Federalist Society, and an articles editor for the Texas Review of Law & Politics.
