Virginia Democrats Gearing Up for Police Reforms

By Dick Hall-Sizemore

The upcoming special session of the General Assembly will be about budget cuts and police reform.   Speaker Eileen Filler-Corn announced last week that actions on police reform would be allowed to be taken up at the special session to be held on a to-be-announced date.

Whenever it is held, it apparently will not be soon enough for the Democrats. “There is an urgency to provide relief from what many have seen as a racist criminal justice system and its application,“ said Charniele Herring, the majority leader.

None of the proposals being talked about are radical and none will constitute an immediate fix. Some of the proposals will cost money. Furthermore, one limitation that seems to have been overlooked is that most policing is under the jurisdiction of localities, which means that there is just so much that the state can do. Finally, the General Assembly has grappled with some of these issues in the past and has not resolved some of their complexities, making it improbable that it will be able to do in a short special session.

Following is a list of proposals that are being floated, compiled from the article in yesterday’s RTD, along with my comments:

Banning chokeholds—Good idea. Of course, banning their use by police will not mean that police will not use them in certain circumstances. Still, the use of such tactics could be eliminated from training curricula.

Training—The general proposal is for more training for law enforcement officers in de-escalation and use of force. Except for the State Police, law enforcement training is the responsibility of localities and sheriffs. The state Department of Criminal Justice Services is responsible for establishing minimum training standards for law enforcement. The actual training is provided by local or regional training academies. The state partially funds the regional training academies. The General Assembly could direct DCJS to amend its training standards to include more emphasis on de-escalation and the use of force. Such an amendment would have to go through the drafting and regulatory process and then be implemented by the training academies. Depending on the extent of the changes and how the academies are now training officers, there could be an increase in cost that would have to be borne by the localities

Citizen review boards—There seems to be broad support for the mandating of the use of citizen review boards at the local level to review the use of force by police. Herring specifically said that she planned to introduce such legislation.  Generally, this would be a good reform. The tricky part will be defining the composition of such boards, the scope of their jurisdiction, and the scope of their ultimate power.

Funding—No one has proposed “defunding” the police. The Governor has proposed reprioritizing current funding to areas such as body cameras for police and community outreach. Herring wants to use funding to stop incarcerating people with substance abuse problems and mental illness.

These general ideas concerning funding sound good on the surface. Dig a little bit deeper, however, and problems become apparent. First of all, funding for local law enforcement in Virginia is fractured. Town and city police departments, as well as the police departments in the urban counties, are funded by the localities. There is a pot of about $200 million in “599 money” that the state distributes to these jurisdictions. As for the rural counties in which law enforcement is provided by sheriffs, the state provides a large percentage of the cost of that service. To “reprioritize” for police, the state would be limited to these pots of money. Technically, it could be done with the 599 money, but making sure that the money was spent in accordance with any new requirements or priorities would require beefing up state oversight. As for the funding for sheriffs, those locally-elected officers would strenuously fight any requirements to divert their funding to any uses other than deputies.

The proposal for body-worn cameras has a lot of possibilities to enhance police accountability, as demonstrated by a recent incident in Fairfax County. However, the use of body cameras is fraught with problems, from both policy and fiscal perspectives. Some of the policy questions: Who should have access to the body camera footage? How long should police retain body camera footage? When must officers turn the cameras on—all the time, when they are on break, when they are riding in the car? Should there be statewide, mandated policies or should localities be allowed to develop their own policies and procedures?

Then there are the financial considerations. The cost of using cameras is not limited to the expense of the equipment  Indeed, that is probably the least expense. There is the expense of storing thousands of hours of video footage. A large, possibly unanticipated cost, has been the additional burden put on prosecutors to screen all this video for evidence.

The need for additional prosecutors was addressed in a 2018 report issued by the Compensation Board. The report recommends that localities be required to hire one additional assistant Commonwealth’s Attorney for every 75 body worn cameras used by the police. The 2019 General Assembly included this requirement, with some flexibility, in language in the Appropriation Act, but did not include additional funding to support the requirement.

In other action, the General Assembly prohibited the State Police from distributing the body cameras it had already purchased and set up a work group to study the issue. Among the recommendations of the work group were a continuation until July 1, 2021, of the moratorium on deployment of body worn cameras by state agencies and a continuation of the work group.  The budget bill and Appropriation Act for the 2020-2022 biennium included the required ratio of assistant prosecutors for body cameras and continued the work group, but did not include additional funding nor continue the moratorium on the deployment of body cameras by the State Police. Presumably, on July 1, the State Police can begin deploying the approximately 350 body cameras that have been sitting on the shelf for several years.

As for diverting substance abusers and the mentally ill from incarceration, drug courts have long been in use in the Commonwealth and, recently, mental health courts have been adopted in some localities. (These are not actually separate courts, but, rather specialized dockets presided over by current judges.) These special dockets have been supported by the judiciary and have widely been seen as effective.  However, their effectiveness depends on the existence of support and treatment staff, which requires additional funding.

Another proposed use for the diversion of funding, and related to the concept of de-escalation, is for mental health professionals for responding, instead of police, to situations in which a person in is experiencing a mental health crisis. This is another good idea that is now new. As was described in an earlier post, Fairfax County, as well as other localities, have established crisis intervention teams (CITs). The concept that these mental health professionals should be the only ones responding to such situations may be misguided, however. In many cases, the individual in crisis may be violent and the police may be needed to protect the mental health respondents. Instead of diverting money from the police to establish CITs, communities may prefer to provide additional funding.

If the state is not willing to provide the additional appropriations needed to support the use of body cameras and diversion of substance abusers and the mentally ill, the localities will have to choose between providing additional funding or diverting existing funding from law enforcement, schools, and other services. It is easy for the Governor and the legislators to talk about reprioritizing funding when it is somebody else that will have to do the reprioritizing with their money.

Bad cops—The Republican GOP caucus will seek to amend the state’s new collective bargaining law to “diminish a union’s power to protect officers ‘who don’t meet our high standards.’” Herring and House Democrats are planning to introduce legislation that will make it easier to decertify law enforcement officers who have “been found to lack integrity”, especially those who have repeatedly falsified, or failed to disclose, evidence.

Del. Jeff Bourne and Del. Jay Jones are considering legislation to reform sovereign immunity, which makes the state and localities legally immune from liability. This is a real can of worms, which I am not qualified to comment on. I will note that Steve Haner has several times noted on this post that any lifting of sovereign immunity will expose taxpayers to large costs.

An effort to pierce sovereign immunity is not new. The General Assembly did enact a limited waiver of the state’s liability protection in 1981. (See Sec. 8.01-195.1 et seq. of the Code of Virginia). This issue is related to the effort on the federal level to address the issue of qualified immunity, which protects a public official, such as a police officer, from personal liability in the performance of his official duties. The Supreme Court was considering several petitions on this issue, but announced today that it would not take them up.

School resource officers—Sen Ghzala Hashmi would like to stop contracting for police to be stationed in schools. I have expressed my concern before in this blog on the use of police in schools, not to protect the students against violence from the outside, but to administer discipline on the behalf of school officials, thereby criminalizing many teenage behaviors that should be dealt with administratively. This use of school resource officers has been documented elsewhere. As the RTD points out, however, eliminating funding for school resource officers would be a complete turnabout from the recent policy of the General Assembly. In its 2019 session, the legislature increased state funding for this program by 176%, from $1.7 million to $4.7 million annually.

Protection of police—The Senate GOP caucus will promote legislation to protect police officers who are assaulted during a state of emergency. It is not clear what such legislation would entail; Virginia law already provides for an enhanced penalty for assault of a law enforcement officer, as well as other public safety personnel. Perhaps the Senate Republicans are responding to the Democrats’ virtue signaling with some of their own.

None of these ideas are new; most are worthy. They are important and complex enough to deserve a special session in which the General Assembly can concentrate on them. But, most of them are complex enough that groundwork needs to be done, legislators educated, and alternatives and compromises considered before the entire General Assembly takes them up. Just throwing a bunch of bills at a special session that will meet for a few days is not the answer.

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47 responses to “Virginia Democrats Gearing Up for Police Reforms

  1. An objective look at the issue and options.

    In terms of options.

    1. – for ANY kind of police-involved violence – it ought to be automatically referred to a special prosecutor – not a local one but a team whose only job is these kinds of incidents and a judge would pick one at random.

    2. – any incident where someone was physically harmed or killed should automatically be presented to a grand jury.

    3. – every cop should have a body cam and if it is ever turned off, it will result in disciplinary action or suspension – no exceptions.

    All footage will be randomly checked – so that no one knows which footage will be viewed.

    All footage that is associated with a violent incident should be reviewed and kept forever.

    Police work is very demanding and does involve risk of being hurt or disabled or even killed and we cannot put them in a position where they can be harmed as a result of policies that put them at risk.

    On the other hand, it’s clear that even when all hell is breaking loose on police actions, others in the middle of this maelstrom .. turn around and do similar things that has caused the uproar. Clearly, either they do not see what all of this is about or they think they are still immune from punishment.

    The most important thing not recognized is that by not holding the police accountable – we allow bad actors to set the standards in police departments. If bad actors are not held to account, it sends a message to everyone else. Better keep quiet, don’t call out the behavior especially in the bad actors are veterans and supervisors.. Cops who want to do right risk their own jobs when bad actors set the standards.

  2. I would not agree to any one being on a citizen review board until they’ve completed the/a citizens police academy. You learn a lot. A lot.

  3. Oh I’d have police on such a board. Ones who had 20-30 years on the force with exemplary records – no major complaints – internal or citizen and awards for good police work.

    In other words the GOOD ACTORS – on a board – with citizens establishing a model and a standard for good police work.

  4. Dick, Thanks for an excellent summary of the options on the table.

    I’ve expressed support for a citizens review board. But as you say, there are many questions about how the boards would be set up. It’s not difficult to imagine such boards becoming highly contentious and politicized. But the only thing worse than full transparency is no transparency.

  5. Thanks Dick. Very informative.

    I will ask again if anyone wants to be a cop or wants their kids or grandkids to be cops. That is a question that each member of the General Assembly and the Governor should ask themselves in consideration of any new legislation.

    That doesn’t mean no reform. It means that reform must be tailored to improve policing. It must not insult police officers but rather empower them to do their jobs with pride and safely. And perhaps thank them for their service.

    I certainly do.

    • Here’s a better question. Does anyone want their kid to try to become a policeman in a police force where bad actors are in charge?

      We keep saying a few “bad apples” but if the they set the standards in a police force then what happens?

      In the Minneapolis case, it was a veteran member of the force who was basically “training” less experienced subordinates how police work was REALLY done. And the fact that he had a dozen complaints against him and was still the supervisor in charge tells us reams.

      I think it’s a false charge to say we either get what we have now or we risk having no police.

      One has to ask oneself right now – what do you think of the protestors in the streets? It might say as much about us as individuals than the protestors.

      Clearly too many of us were willing to dismiss the complaints against the police – for decades – and CLEARLY others now totally reject what we did about it – basically nothing.

      If we stand by and do nothing – then it blows up – who is responsible?

      • If you don’t like the question, change the question and answer the question you prefer.

        I wrote: “That doesn’t mean no reform. It means that reform must be tailored to improve policing. It must not insult police officers but rather empower them to do their jobs with pride and safely.”

        You wrote:
        “Does anyone want their kid to try to become a policeman in a police force where bad actors are in charge?”
        “I think it’s a false charge to say we either get what we have now or we risk having no police.”
        “If we stand by and do nothing”

        Pathetic straw men even considering the source.

        By the way, I think peaceful protest to seek redress of grievances is as American as it gets. Don’t you?

        • Pathetic stawman?

          Nope. What I got out of your question was that the police were being unfairly set upon and few would want to join their ranks under such condition.

          And I do not agree and suggested that some may not want to join if they consider the police to be doing wrong right now.

          It’s a real point. What kind of people do the police attract?

          Are they attracting the kind of people who would NOT be getting into trouble in hurting others in their interactions?

          “Peaceful Protest to seek redress”? Well.. it’s not so peaceful when the police charge into your ranks with batons and tear gas, now is it?

          • What I wrote was “I will ask again if anyone wants to be a cop or wants their kids or grandkids to be cops.” … “That doesn’t mean no reform. It means that reform must be tailored to improve policing. It must not insult police officers but rather empower them to do their jobs with pride and safely.”

            What you wrote was “What I got out of your question was that the police were being unfairly set upon and few would want to join their ranks under such conditions.”

            Read both. Tell me what you see.

          • re: ” What I wrote was “I will ask again if anyone wants to be a cop or wants their kids or grandkids to be cops.”

            DID you have a timeframe in mind? Or were you asking that in the current context of upheaval?

            Was it a sarcastic question?

    • Here’s another question, “Do we want people who want to be cops to be cops?”

      Sometimes, even the simple things are too hard for them: https://www.oyez.org/issues/232

      • Thanks for that helpful question. We’ll institute a national draft for police.

        • Works for me. Maybe we need a collective conscience.

          • “Collective” is taught at a major university near you.
            Conscience is taught at a church, synagogue or mosque near you and at home if we are lucky.
            Try to imagine the fate of a professor that taught conscience – “the sense or consciousness of the moral goodness or blameworthiness of one’s own conduct, intentions, or character together with a feeling of obligation to do right or be good” as a positive value.

          • Nancy_Naive

            Is that 101?

  6. Dick. Haven’t seen this depth of detail
    Elsewhere. Congrats!

  7. We can no longer assume a special session limited to just adjusting the budget in light of the COVID recession and, now, police and law enforcement reform. The door will be open for a major effort on a number of fronts.

  8. Seriously, how many authors and commenters on this website have raised concerns or laid out criticisms and conspiracy theories of the ATF, FBI, and Janet Reno over Waco, but still hold that there is no corruption, or racism, nor chance of it, within their virtually unsupervised local PDs?

    • Not me. Far too many police in far too many departments over the past few weeks have added evidence of misbehavior, some of it deeply wrong. I will say that sometimes they’ve been under pressure, often under attack. I actually think the cop driving that SUV at Lee Circle in Richmond the other night was making an honest effort to get through that crowd safely without getting out of his car to face a beating. The crowd wasn’t going to let that happen.

      But that idiot in Atlanta shooting a runaway drunk driver in the back deserves firing and a criminal charge. At this point, what officer anywhere is not aware that he or she WILL be recorded if a weapon is pulled? From the get go, years ago, I’ve had concerns over tasers.

      The fair point is that often these are in cities with Democratic leadership, often black leadership, and the first to rush to the bad cops’ defense are their unions. The bosses in general know who the problems are, and often have for a long time, but cannot get rid of them. Let’s see if they fix any of that.

      As I type, Jeff Katz is on WRVA telling ALL Richmond PD members to go ahead and put in their papers, get the hell out, and that’s not an outcome we want, trust me. Be careful what you ask for….

      • Steve, maybe I’m behind the curve of what’s going on in Atlanta since the shooting, but it seemed to me over the weekend that the critical points were whether the officer knew the victim had a taser and not a gun, and if he knew it was a taser, whether it now lacked a cartridge enabling firing at a distance. The video I saw showed the victim turning around and firing something. If the officer knew that the taser was ineffective at the distance when he turned around, then he should be charged, but not otherwise in my estimation. The problem will be in the proof.

        • An issue for the jury, definitely.

        • “I saw showed the victim turning around, (while running) and firing something.”

          That might explain why he was shot in back. Also I understand local regulations define taser as deadly weapon, so after he fired it at cop, the cop might be justified under regulations to return fire if only to stop his escape with deadly weapon, imperiling public safety of others.

          A complicated case, in any event.

        • He was searched. Both officers at that point knew he possessed no lethal weapons. With no assumptions as to which officer fired his weapon, we can surmise;

          1) the officer, whose taser was taken, knew it was his taser and not his service weapon, so he should have known that the victim posed no threat requiring deadly force. I believe he did not use his weapon, but if he had, he certainly would have known at that moment the weapon taken was his taser, unless he carried a drop-gun.

          2) the other officer, may not have known it was the taser. He may have thought his partner’s service weapon was taken. (Bet this is where his defense goes too); A) the taser is bright yellow, and clearly seen in the video. B) a taser does discharge with a report, but doesn’t sound anything like a 9mm.

          Given the time between the taking of the taser and the fatal shots, many seconds, and the visibility of the weapon, this will be difficult, but not impossible to argue.

          But, as said, there is also the report. Hopefully, the prosecutor takes the jury outside for a live firing of both types of weapon. This will end any defense that the second officer can claim he thought it was a service weapon.

          This leaves the taser as a deadly weapon argument. How many times can a taser fire? If only once, well….

    • Another ceremonial burning of a straw man Nancy – no match required. You and Larry are going to cause a straw shortage.

      Who exactly are the folks that “still hold that there is no corruption, or racism, nor chance of it, within their virtually unsupervised local PDs?” A neighbor of yours? A family member” A KKK wizard? Or anybody who disagrees with you about specific remedies as opposed to denying that problems exist?

      Who has authority over police departments that leaves them “virtually unsupervised”? Would that be any progressive mayors of major cities – Atlanta, NYC, Minneapolis, Seattle – whose names we may recognize?

      What is your analysis of how to cure what we might call the progressive mayor incompetence syndrome (PMIS)? A backbone transplant?

      • Soaked in Ronsonol just for you. 18,000 law enforcement agencies, strike on any surface.

        • Any comment on PMIS?

          • Nancy_Naive

            By backbone transplant, do you mean… https://m.youtube.com/watch?v=ppjyB2MpxBU

          • sherlock

            Of course there won’t be any comment on PMIS from Nancy. Just ignore her. When there’s a comment that hits home, such as yours, she will engage in the various fallacies of straw man, diversion, or changing the subject. She has yet to show herself as anything other than a snarky troll. Listen to what Dick and some of the others have to say for a thoughtful portrayal of the liberal side of the equation. Nancy just can’t control herself long enough to post anything really meaningful.

    • If the local PD of a particular local government is corrupt, you can be sure that it extends beyond the PD and involves other parts of the local gov’t as well.

    • What are you talking about? There is plenty of corruption and racism in too many local police departments. Thats’s why we elect mayors and city councils … to clean up corrupt police departments (among other things). But they never seem to be able to do that. Not for decades and decades.

      And if the local PDs are virtually unsupervised – whose fault is that? The liberal mayors and city councils who have run those cities for the last 50 years?

      • It’s the same problem no matter the leadership. Police Departments don’t have that thin blue line for nothing.

        Remember, they are supposed to have “IA” to stop corruption and bad Cops.. they don’t need no stinking outside interference.

        It’s like someone suggesting that Civilians need to reform the military – no can do.

        • “Its the same problem no matter the leadership” – is that really your position – leadership does not matter?

          • With institutional racism – it occurs no matter the leadership – and it is not solved by any particular leadership – it gets addressed by new laws, court decisions, (like the current SCOTUS ruling on LGBT) and finally by citizens who protest then vote.

            Both GOP and DEM leadership have presided for decades over discrimination and systemic racism in our society.

            Neither one was able to change it as a result of their own party promises and leadership.

          • I think we’re conflating the term leadership with which party is in control. Leadership matters. Party control doesn’t on this matter.

  9. Great piece, Dick.
    There’s one more item related to body cameras: It’s the cost to the state of defending habeas petitions filed by disappointed criminal defendants when their overworked and grossly underpaid court appointed counsel don’t examine every second of the hours of body camera video for something exculpatory. Remember that court appointed counsel get paid 90/hr with a cap of five hours for the ordinary felony, 14 hr for a truly serious felony like rape or armed robbery. There’s a socially unjust structure for you. How many of you lawyers out there could prepare and try a rape or murder case in 14 hours. You can’t. Oh yes, you can apply for a waiver of the cap. Good luck with that.
    Either t he state runs out of money in its cap waiver fund or some half wit judge decides you spent too much time on the case. Therefore you eat the time and money and get on to the next case, having learned not to spend so much time on these cases if you want to survive financially. Except that you can’t do that. Some of course do.

    • Great points. The issue of payment of court appointed counsel is a serious one. As is the question of whether the state should just go to a statewide system of public defenders. In many jurisdictions with court appointed counsel, there is often push back about establishing a public defender program. Either (1) the payment rates for court appointed counsel is adequate or (2) the prosecutors like having low payment rates for the court appointed lawyers because that means they usually get inexperienced lawyers to go up against.

  10. “Virginia Democrats Gearing Up for Police Reform” – just ahead of collective bargaining by police in Virginia in May of 2021.
    “The scope of collective bargaining between (the state or) a local government and an exclusive bargaining representative of local employees shall include wages, hours, and other terms and conditions of employment.”
    Going to be fun to watch progressive-led cities and counties deal with whether to create an exception for the police in recognizing the newly empowered public unions. Going to be more fun to watch when the police unions sue to stop them.

    • don’t we already have some unions?

      “The Virginia Professional Fire Fighters (VPFF) is an association of local unions representing over 8,000 International Association of Fire Fighters (IAFF) members across the Commonwealth of Virginia.

      VPFF members provide fire protection and emergency medical services to 70% of Virginia’s population. As well, VPFF members provide these and other specialized services at all of Virginia’s major airports and several military installations. VPFF members are fire fighters, fire officers, fire inspectors, fire investigators, hazardous materials specialists, emergency medical technicians, paramedics, training instructors, water rescue specialists, and 911 dispatchers.”

    • Interjecting reality into a virtue signaler’s world just doesn’t seem fair. It just doesn’t seem possible to elevate the political power of public sector unions and tamp down members of one of those unions (police officers) at the same time. But both the Democrats and their subservient media pals will ignore local responsibility. I’m waiting for someone to blame all of Virginia’s problems on the Readjusters.

  11. Two or three years ago I noticed a bill board recruiting police officers for a locality in the Richmond area. The funny thing was that the billboard was located 6 hours away from Richmond in Wise County. How far will they have to go now to recruit new officers?

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