COMMENTARY: Nevada lawmakers need to step up on police reform

The recent killings of George Floyd, Breonna Taylor and Rayshard Brooks have sparked nationwide, multiracial protests and demands for overdue policing reforms. National commentators and policymakers cite entrenched police unions, prosecutors, police chiefs and politicians as impediments to real reform.

Las Vegans already know about a system that fails to hold officers accountable for bad acts. We also know who regularly blocks reforms that advocates have fought for tirelessly. We have had plenty of unnecessary officer-involved homicides where the system made it impossible to hold anyone accountable. But no case has been more revealing in this regard than the May 2017 killing of a young Black man, Tashii Brown.

Tashii’s killing was eerily similar to that of Mr. Floyd, complete with disturbing body camera images of officers restraining an incapacitated a man lying on the ground as he was tased repeatedly and choked.

Both Tashii’s multiple tasings and the chokehold violated Metropolitan Police Department policies and were excessive by any sensible use-of-force standard. Worse yet, police and prosecutors agreed that Tashii had committed no crime when officers stopped him after he tried to avoid being detained.

The reaction to Tashii’s death by prosecutors and the police union was predictable. Initially, the Clark County district attorney’s office announced it would take the rare step of criminally charging the officer. The Police Protective Association (PPA) expressed its dismay and pledged to defend him. Most politicians were notably silent despite public anger, especially in communities of color.

With no good explanation, the DA’s office reversed course, withdrew the charges and moved the matter into a grand jury where evidence would be hidden from the public. The DA’s office then announced it was enlisting the services of Force Science Institute, a private vendor, to advise whether criminal charges should again be pursued.

Force Science’s mission statement claims it seeks to “enhance public safety and improve peace officer performance in critical situations.” But critics of the institute note that several respected scientists who have reviewed its analyses concluded they do not meet professional standards. What Force Science does very well is find excuses to justify any level of police use-of-force.

Unsurprisingly, after hearing from Force Science “experts” and prosecutors who relied on their analysis and conclusions, the grand jury declined to recommend charges against the officer who took Tashii’s life. The officer did retire rather than fight termination by Metro.

To this day, the public hasn’t been provided with the details of Force Science’s report and what its “experts,” other witnesses and prosecutors argued to the grand jurors. Prosecutors rely on police to make their cases and depend on police unions for campaign support. That’s why they prefer grand jury pliancy and secrecy.

Tashii’s family’s best hope for some justice lies in a civil rights and/or wrongful death lawsuit. But these options are challenging because the law makes it difficult for plaintiffs to succeed when they sue police. A particularly daunting obstacle is “qualified immunity” that shields officers from individual liability in all but the rarest of cases.

When facing possible civil or criminal liability or internal discipline, officers are granted hyper due process protections by “Police Officers Bills of Rights” and other laws and collectively bargained contracts that make imposing sanctions difficult. So you’d think that after tragic deaths like Tashii Brown’s, lawmakers would support making it easier to hold bad officers accountable.

Yet during the 2019 legislative session, lawmakers not only failed to pass any of the kinds of reforms now being enacted around the country, they approved a law making it even harder to hold malfeasant police to account — a law that was opposed by Metro’s own leadership because it would impair management’s ability to supervise officers.

Senate Bill 242 was an ill-conceived sop to the PPA that strengthened already heightened due process rights afforded police. It passed unanimously in the Senate and with only three “no” votes in the Assembly, was signed by the governor and elicited no opposition from the state attorney general. These same politicians are now touting their commitment to policing reform.

Before passage of the bill, statements given by officers at the direction of their supervisors were inadmissible in criminal proceedings. SB242 extended that prohibition to civil proceedings, making it more difficult to sue abusive police. It prevents reassigning police who are alleged bad actors until complaints are substantiated, unless the reassignment is necessary for an agency to effectively function, a claim that can be challenged in court.

In this moment when there is widespread support for policing reform, all of Senate Bill 242’s provisions should be repealed during any special session of the Legislature. The bill was an affront to Black, brown and other communities that have suffered abusive policing.

Lawmakers who consider themselves genuine reformers should also use any special session and the 2021 regular session to consider other measures that have gained traction elsewhere, changes that can fix a problem that’s needed serious attention for far too long.

No one argues that officers shouldn’t be treated fairly. The claim that they don’t have strong protections is a myth used to score political points and cow politicians who too often fail to rise to the challenge of bucking powerful opponents of necessary change. If not in this moment of painful national reckoning, then when?

Franny Forsman is the former federal public defender for Nevada. Allen Lichtenstein is a Las Vegas civil rights attorney. Gary Peck is a civil rights advocate and former Nevada community representative on the U.S. Department of Justice Western Community Policing Board.