North Carolina legislators filed three criminal justice reform bills with bipartisan support this week, as momentum grows for changes to policing.
Groups that advocate for the state’s police chiefs and sheriffs are largely on board with the reforms, too.
House Bill 536 would create a statewide “duty to intervene” for police who witness a fellow officer using excessive force on someone.
“That one’s designed to state in the law what officers should already know,” said Eddie Caldwell, the lobbyist for the N.C. Sheriff’s Association. “That if one officer is using unreasonable force then, if possible, they have to intervene.”
One would target cops who have been caught lying under oath in court but are currently able to sweep it under the rug by getting a new job in a different county. The other would target cops who were banned from law enforcement in another state but then apply for a job here.
Fred Baggett, the lobbyist for the N.C. Association of Chiefs of Police, said they support those as well as the duty to intervene bill.
All three bills were sponsored by Fayetteville Republican Rep. John Szoka, along with Rep. Kristin Baker, a Republican from Cabarrus County outside Charlotte, and Rep. Howard Hunter, a Democrat from Hertford County in the northeast.
The bills came out of a criminal justice reform committee that Szoka asked GOP leaders to create last year, as Black Lives Matter protests were gaining steam across the state and the country. He said it seems that bad cops are very rare, but it’s hard to know exactly. The state keeps little to no data on topics like how often police get reported for abusing people, how often they’re caught lying in court, and more.
These bills would change that — in addition to trying to stop such behavior in the future.
“Data is good, but having data and not taking action doesn’t accomplish anything,” Szoka said.
Duty to intervene and George Floyd
The duty to intervene bill says if a police officer sees a fellow officer using force on someone in a way that “exceeds the amount of force authorized” given the situation, then they must stop their fellow officer. If that’s impossible, the bill says, they must at least report it up the chain of command within 72 hours.
Such policies gained attention last year, when George Floyd died after Minneapolis Police officer Derek Chauvin knelt on him for nearly 10 minutes as fellow officers either helped Chauvin or stood by passively. Chauvin is currently on trial for murder; prosecutors in Minnesota rested their case on Tuesday, the same day the duty to intervene bill was filed here.
Szoka, an Army veteran, said everyone in the military is trained that you can’t kill your prisoners.
“And that seems like a perfect analogy for some of the situations law enforcement officers are running into,” he said. “I mean with George Floyd — I wasn’t there, but someone’s kneeling on someone’s neck in excess of 9 minutes? You’ve got to do something.”
But internal policies only apply to a single department and can always be changed by a new police chief or sheriff. This bill, if passed, would make the rule permanent and statewide. Szoka said nobody knows how many departments do or don’t have such policies.
The bill doesn’t include any punishment for officers who fail to intervene when they should have, or fail to report it later. But Szoka said any government official can already be charged with a misdemeanor for “willfully failing to discharge duties,” which he said would apply here.
Info on bad cops
Currently, if an officer is caught lying under oath in court or falsifying evidence, prosecutors or judges can discreetly ban them from testifying again in the future without taking the additional step of charging them with perjury, contempt of court or some other crime.
They send the officer what’s known as a Giglio letter, after a 1972 Supreme Court case. The letters can also apply to broader issues with their credibility as a witness, like a history of racial bias. But neither the sender of the letter nor the officer is required to report that letter’s existence to the state.
So while it could potentially endanger an officer’s career in one county, there’s nothing stopping him or her from applying for a law enforcement job in a different county and pretending like the letter simply doesn’t exist.
“They are rare,” Caldwell said of the letters. “But when they are necessary, then action needs to be taken.”
But while sheriffs and chiefs like the idea, the state’s two main police unions do not. Both the Police Benevolent Association and the Fraternal Order of Police sent letters to legislators asking them not to let more people know about the Giglio letters. They said there aren’t enough options for officers to fight the accusations against them, so other agencies shouldn’t be able to find out about the letters, unless that changes.
“It would seem that allowing a fair hearing for those officers who want to be heard is certainly not too much to ask,” the PBA wrote.
The other bill deals with a different problem: Officers who lose their badge in one state but then apply for a job in North Carolina. They can fly under the radar if they simply don’t self-report their past history.
Neither of the two state boards that oversee police and sheriffs are required to use the National Decertification Index when backgrounding candidates for law enforcement jobs. There’s nothing in state law banning them from using it, but this bill would tell them to use it.
There’s also a similar bill on expanding the use of disciplinary databases, also with Republican sponsors and even more sweeping requirements of police, moving forward in the Senate.
Caldwell said sheriffs support the use of the national index, but they don’t support a different provision tucked into the bill, which would change who decides whether an officer in North Carolina should lose his or her law enforcement certification.
The bill would take that decision away from the oversight boards, which are largely staffed by people with law enforcement backgrounds. Instead the decision would be up to the Office of Administrative Hearings, where administrative law judges currently make recommendations on such cases, but not the final decision.
Under the Dome
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