Unfortunately, as Kansas Citians have been recently reminded, we’re never too far from ideological arguments about the criminal justice system.
It doesn’t need to be this way. Local leaders have a range of small, city-size possible improvements to increase transparency and accountability. When it comes to policing, there are opportunities with qualified immunity, federal task forces, civil asset forfeiture and transparency. The Better Cities Project, where I serve as director of policy, published reports on each.
▪ Qualified immunity: All officers will tell you they can be effective only when the community stands with them. But too often, bad police officers are shielded from the consequences of their actions by qualified immunity. This is a court doctrine that holds that public officials are protected even when they maliciously violate a person’s constitutional rights as long the rights they violated were not clearly established. Courts have subsequently ruled in ways that makes this a very difficult barrier to overcome.
Ending qualified immunity creates incentives for police to be more mindful — as the nation’s largest police union wrote to members after New York City enacted similar reforms: Searches of individual or private property should be conducted only when the officer is “clearly and unequivocally within the bounds of the law.” That’s a stance everyone should cheer.
▪ Federal task forces: As we saw with the U.S. Department of Justice’s 2020’s Operation LeGend in Kansas City, a city struggling amid high crime may welcome federal assistance and increased resources. But federal officers are held to standards different from what local authorities may like. The result? A city focused on rigorous standards of conduct for law enforcement officers could have those efforts undone through participation in a federal task force, should anything go wrong. Courts have ruled local officers are considered federal agents, even when agreements between local and federal authorities state that this isn’t the case. Until the courts recognize such agreements, local authorities will be best served by avoiding them altogether.
▪ Civil asset forfeiture: Although often considered a policing matter rather than a prosecution issue, suing civilly to retain seized items such as cash or vehicles means local authorities avoid having to meet the higher bar of criminal law. Unfortunately, police are often incentivized to participate in these seizures because their budgets may depend on it.
Because these cases are civil and not criminal, defendants are not eligible for public defenders, nor protected against self-incrimination. And the cost to hire an attorney is often higher than the value of the seized property. As a result, property may be forfeited civilly even when the owner is not criminally convicted — or even charged. Research across the United States found civil asset forfeiture is more often practiced against poorer communities. Cities and counties can act on their own to end this practice.
▪ Bargaining transparency: Police unions contract negotiations need to be open and transparent. Public service unions — including police, municipal staff, firefighters and teachers — set the boundaries of professional conduct and disciplinary actions in their contracts long before there is any infraction. Because these negotiations are often secret, the public has little or no awareness of what’s at stake. Worse, elected leaders are often given only the option of voting up or down on such contracts without any ability to negotiate terms. Good local government requires more rigorous, open debate.
These few policies won’t solve all the challenges of crime and public safety. But for communities paralyzed by rancorous debate, they offer a chance to work together on what local governments—and the publics they serve—can do to improve their lot.
Safe and vibrant cities attract residents, employers and investors without having to offer them expensive public subsidies. The work won’t be easy, but it is necessary.
