To Rein In the Police, Look to the States, Not the Court

After the tragic killing of George Floyd, protests against police violence emerged in all 50 states. These conspicuous calls for change contributed to a sense that finally, the country’s leaders would take action to rein in police violence, which disproportionately affects people of color.

It should be the responsibility of the Supreme Court to enforce the Constitution and constrain the police. Several provisions of the Constitution — such as those in the Fourth, Fifth and Sixth Amendments — exist to limit what the police can do. But throughout American history, and especially since the end of the Warren court, the justices have sided overwhelmingly with the police, narrowing the rights of criminal suspects and defendants.

As recently as October, the Supreme Court sided with the police yet again when it threw out two lawsuits against police officers accused of using excessive force, ruling that the officers were protected by qualified immunity. The court’s conservative majority is likely to remain for many years to come, and that fact brings with it another: Meaningful police oversight will need to come from the political process, from Congress and from state and local governments, rather than from the Supreme Court.

Congress certainly could act to improve policing. The proposed George Floyd Justice in Policing Act — by restricting the use of chokeholds by officers, easing the process of convicting police officers of misconduct and changing the rules around qualified immunity, a practice that makes it difficult to sue police — would make important and much needed changes. The Act has passed the House of Representatives, but it seems permanently stalled in the Senate.

This means, at least for now, that protections against the police must come from state and local governments. At the state level, courts can interpret state constitutions to protect more rights than those that the Supreme Court has found under the U.S. Constitution. For example, the Supreme Court concluded that because people have no reasonable expectation of privacy with regard to their discarded trash, the police do not need a warrant to search a person’s garbage. But in interpreting their state constitutions, some state courts have come to the opposite conclusion, requiring a warrant for such police searches. Where the Supreme Court has said that police officers who, in effect, use a traffic violation as a pretext to justify the search of a car are not violating the Fourth Amendment, some state courts have said that such an act violates their constitutions.

The use of eyewitness identifications is another area where the Supreme Court and state courts have disagreed. There are mountains of evidence demonstrating that false eyewitness identifications can lead, and have led, to the conviction of innocent people. Even so, the Supreme Court has held that the eyewitness identifications — produced through a process that can often be quite suggestive, and is open to manipulation by the police — are admissible so long as a court deems them “reliable.” But some state courts have rejected this approach. Massachusetts and New York, for example, require the exclusion of unnecessarily suggestive identification procedures, even if they are reliable and admissible under the Supreme Court’s approach.

Apart from the courts, state legislatures, city councils and police commissions can adopt laws and rules to better control the police. In the last year, at least 17 states adopted laws that prohibit officers from using the chokehold, the practice that killed George Floyd, Eric Garner and many others. At the end of September, Gov. Gavin Newsom of California signed into law several bills concerning policing, including one that requires officers both to intervene when witnessing another officer using excessive force, and to report the incident in real time. Another new California law will decertify law enforcement officers for serious misconduct, preventing them from moving to other departments and continuing their wrongdoing elsewhere.

Between the police commissions, city councils, state legislatures and courts, there are ample state and local avenues through which to change policing for the better. We need not wait for congressional polarization to dissipate or for a more liberal Supreme Court to begin the arduous and necessary process of reining in the police. And we should need not need to wait for the death of another unarmed Black man, like George Floyd or Eric Garner or Michael Brown or Walter Scott, to galvanize the public. There’s a lot that state and local governments can do now to improve policing in the United States.

Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley, and the author of “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.”

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