We didn’t win — we just didn’t lose. This was the sentiment in our Philadelphia home when the verdict was read in the Derek Chauvin trial for the murder of George Floyd. Although the nation (and the world) watched as Chauvin kept his knee on George Floyd’s neck for nearly 9 minutes, killing him in the process, we were on pins and needles when the verdict was read. We were skeptical that a police officer actually would be held accountable for an egregious abuse of power — even when the world witnessed that abuse.
Chauvin is one of few officers to be convicted for conduct that occurred while he was on duty. The police who beat Rodney King in 1991 were found not guilty. The officers who shot Amadou Diallo in 1999 as he stood in his vestibule of his home were acquitted. And there are too many more to name here. But Derek Chauvin was found guilty on all three charges.
This verdict may be an anomaly, but it shows that criminal accountability for police misconduct is possible. Recent state police reform measures indicate that increased liability for police misconduct may be forthcoming. As Pennsylvania considers its own police reform legislation, it should carefully consider the measures Maryland recently passed.
First, Maryland created a statewide use of force policy — more extensive than Pennsylvania’s — that applies to police departments and police officials throughout the state. Typically, police departments operate as independent local units, deciding their own policies and procedures. A thorough statewide policy addresses the problems that come from the lack of uniformity in police practices across the state. Having one uniform use of force policy for all officers provides transparency and informs all citizens of the state of the standards in place.
Second, Maryland’s new policy offers clearer standards regarding what force is appropriate. The policy states that force can be used only to prevent an imminent threat of physical injury to a person, or to achieve a legitimate law enforcement objective. The policy then goes on to replace the traditional “reasonableness” standard that state and federal courts use to assess whether or not the force used was excessive by requiring that force to be necessary and proportional. This “necessary and proportional” test is a slightly tougher standard and places a stronger emphasis on what is actually occurring when the force is used, rather than focusing on the assumptions a reasonable officer could draw from the situation.
One of the most significant provisions of the statewide use of force policy is that it makes it a crime for officers to violate the policy. Any officer who violates the policy and causes serious injury or death is subject to up to 10 years in prison.
Most states prosecute police officers using the same criminal statutes they use to prosecute civilians. Maryland’s new law won’t prevent prosecutors from bringing already established charges like murder or manslaughter against officers. However, it is important to have a law that explicitly criminalizes police misconduct. The criminal laws currently in place do not account for the inherent faith and trust we place in police officers. We have given them the discretionary power to take another person’s life and freedom. When a government official abuses his or her position, they commit a breach of public trust and faith and the offense warrants a special designation and a specific punishment — one that should not be capped at 10 years when an officer causes serious injury or death.
The Maryland reform package does not stop there. The reform bills also place restrictions on no-knock warrants, make body cameras mandatory, and prohibit police officers from preventing civilians from recording their activities. Again, Pennsylvania would be wise to duplicate these efforts.
Police misconduct is not a new issue. But George Floyd’s death gave the question of reform a new sense of urgency. It is clear that misconduct will not be solved by convicting one police officer or adopting one policy. However, implementing reforms around use of force policy and creating criminal laws that reflect the gravity of police abuse of power are significant steps towards something that feels like justice.
Riley Ross is a partner with the law firm Mincey Fitzpatrick Ross, LLC, where he practices civil rights law and criminal defense. Teri Ravenell is the Associate Dean for Faculty Research and Development and Law Professor at Villanova University Charles Widger School of Law. The couple live in Philadelphia with their children.