Erwin Chemerinsky: States Can “Rein In the Police”

Erwin Chemerinsky, dean of the School of Law at the University of Berkeley, discusses in The New York Times how states can “rein in the police” after both Congress and the Supreme Court failed to act.

“After the tragic killing of George Floyd,” Erwin Chemerinsky writes, “protests against police violence emerged in all 50 states.” With thousands of Americans calling on lawmakers to hold bad cops accountable, there was hope that our leaders “would take action to rein in police violence, which disproportionately affects people of color.”

Unfortunately, that didn’t turn out to be the case.

Although in March the House of Representatives passed the George Floyd Justice in Policing Act (JPA)—which included a provision to abolish qualified immunity (QI)—the Senate blocked the bill, causing the JPA to tank.

Meanwhile, the Supreme Court, which had earlier indicated a willingness to question QI, “threw out two lawsuits [in October] against police officers accused of using excessive force, ruling that the officers were protected by qualified immunity.”  

Despite these setbacks,  Erwin Chemerinsky notes the emergence of promising new paths to police accountability. 

 “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,” he says in The New York Times. “There’s a lot that state and local governments can do now to improve policing in the United States.”

For example, California. The Golden State has recently passed SB 2, a public safety bill that will “decertify law enforcement officers for serious misconduct.” Similarly, lawmakers in New York and Vermont seek to improve their state’s policing through bold measures targeting qualified immunity.

“At the state level,” Erwin Chemerinsky writes, “courts can interpret state constitutions to protect more rights than those that the Supreme Court has found under the U.S. Constitution.” As we can see, states like California, New York, and Vermont (not to mention Colorado and New Mexico, which were the first to repeal qualified immunity), are working hard to protect those rights.

Read the entire Erwin Chemerinsky op-ed here.