Credit: Darrow Montgomery/File

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The D.C. Council will consider emergency legislation next week that seeks to change the ways the police operate in the District and strengthen the oversight mechanisms in place.

The “Comprehensive Policing and Justice Reform Amendment Act of 2020,” circulated by Ward 6 Councilmember Charles Allen, is in direct response to the police killings of George Floyd in Minneapolis, Breonna Taylor in Louisville, Kentucky, and the protests that have continued in cities throughout the country as a result.

“The deaths of George Floyd and Breonna Taylor—and of so many other Black Americans at the hands of the police—are interwoven with the legacy and evolution of slavery and generations of racial terror in this nation,” Allen writes in a request to agendize the bill. “Enduring systems of institutional racism continue largely unabated in the over-policing, over-charging, and over-incarceration of Americans of color.”

The draft emergency legislation contains 12 sections that touch on officers’ access to body-worn camera footage, use of force, complaints against officers, D.C.’s “anti-mask law, consent for searches, and officer training, among other issues.

Emergency legislation is only in effect for 90 days, but Allen expects to enact at least some of the provisions in the bill on a permanent basis in the future. Due to the coronavirus pandemic, the Council committees have scaled back the amount of committee hearings they hold where bills would typically receive public input. The emergency route allows the Council to vote on the bill during its next legislative meeting, on Tuesday,  June 9.

“The Council has in front of it a real opportunity and obligation to meet the moment,” Allen says. “It’s one step and there will have to be more to follow, but it’s a very significant and meaningful step to build trust within the community and police who serve the city. This bill won’t be the ending of what’s gotta take place.”

In an emailed statement, police spokesperson Dustin Sternbeck writes MPD has a reputation as one of the most “progressive and forward thinking police departments in the country.”

“I hope that in the coming days and the future, MPD and our communities will continue to work together to ensure the District is a city where everyone feels safe, valued, and respected,” the statement says.

The Office of the Deputy Mayor for Public Safety and Justice did not immediately respond to a request for comment on the draft bill, but Allen says his office has spoken with staff in the deputy mayor’s office.

Read the complete draft bill here, which includes the following:

• Prohibition of the use of neck restraints, which is a tactic that former New York Police Department Officer Daniel Pantaleo used in killing Eric Garner. Garner’s final words—”I can’t breathe”—are a rallying cry at police brutality protests across the country. Neck restraints, or chokeholds, are already prohibited according to MPD’s general orders, but D.C. law still allows the move in some instances, according to a summery of the bill released by Allen’s office.

• Prohibiting officers from reviewing their own body camera footage, or footage shared with them, to help in writing their initial reports. In 2015, when the Council approved legislation creating the city’s body camera program, then-Ward 2 Councilmember Jack Evans introduced a last-minute amendment that allowed officers to review the footage before writing a report. It passed 8 to 5. This provision in Allen’s bill will reverse that amendment.

• Requiring the mayor to release body camera footage of a serious instances of force or office-involved death, along with the officers’ names, within 72 hours of the incident. Several people have died at the hands of MPD officers, yet the department has refused to release the names of the officers involved in those incidents.

Allen says he is unclear whether the Council can compel MPD to release the names of officers it continues to withhold.

“I could put that language in [the bill to make the provision retroactive], but it might not be legal,” he says. “So I’ll have to do my homework on that.”

• Requiring MPD to give the Committee on the Judiciary and Public Safety, which Allen chairs, unredacted body camera footage within 24 hours of a request, “regardless of the nature of the incident or subjects depicted.”

• Requiring uniforms and helmets to identify MPD officers when policing protests.

• Repealing D.C.’s “anti-mask law.

• Extending the time frame for MPD to start disciplinary proceedings against officers and civilian employees in cases involving “serious use[s] of force” or a potential crime from 90 days to 180 days. 

In some past cases, MPD has let the 90-day clock expire before imposing discipline, resulting in officers escaping accountability.

• Allowing the director of the Office of Police Complaints to proactively investigate potential misconduct, even if the behavior is not part of an official complaint. Currently, if OPC comes across evidence of misconduct while investigating a complaint, the agency legally cannot investigate it.

• Requiring officers to explain that people have the right to refuse a search if an officer does not have probable cause. The provision essentially takes Miranda rights, which require officers to tell people that they have the right to remain silent, and applies it to searches, as NYC has done.

“This is essentially ending stop and frisk,” Allen says, describing a typical scenario where an officer asks someone to lift up their shirt and show their waistband to check for weapons.

“If an officer sees or has reason to believe someone has a gun in their waistband, the bill doesn’t prevent that,” he says. “But it doesn’t allow them to just walk up and say ‘lift up your shirt.’”

Ward 5 Councilmember Kenyan McDuffie added a provision that would define when an officer is justified in using force and deadly force. The provision is not currently part of the draft bill, but Allen says he will review McDuffie’s contribution and could add it before the next week’s legislative meeting.

District law is silent on when police use of force is justified. Instead, courts use a common law standard as set by U.S. Supreme Court cases from the 1980s: Graham v. Connor  and Tennessee v. Garner. In Graham, the court ruled that an officer’s use of force is justified if their actions were “objectively reasonable,” given the facts and circumstances known to the officer at the time. In Garner, the court ruled that an officer can use force to prevent a suspect from escaping only if the officer believes the person is a threat to officers or others.

McDuffie’s provision would bar D.C. police officers from using force unless “there is probable cause to believe that the person committed a crime” and “the force is used to prevent the commission of a crime.” Officers would not be allowed to use more force than “reasonably necessary to effectuate arrest.”

An officer could not use deadly force unless the officer “reasonably believes that deadly force is immediately necessary to protect” the officer or another person from serious injury or death, according to McDuffie’s provision, which defines an officer’s actions as “reasonable given the totality of the circumstances.”

The provision also directs a judge to consider whether a person refused to follow and officer’s order to drop a weapon, whether the officer tried to de-escalate the encounter before using deadly force, and whether the officer’s behavior increased the risk for deadly force.

“If history is any indication, yes, I expect pushback from people and perhaps MPD,” McDuffie says, recalling Evans’ amendment in 2015 that allowed officers to review body camera footage before writing initial reports. 

McDuffie calls Evans’ amendment “deeply disappointing” and “wrong headed.”

“Thankfully though, the people who supported me are still on the Council,” he says.

Ward 1 Councilmember Brianne Nadeau is planning to introduce a separate bill that would prohibit MPD from using tear gas during a protest.