Is there a problem with excessive use of force by Texas law enforcement officers?

Has that provided legitimate reasons for protests in the last year? Derek Cohen, director of Right on Crime at the Texas Public Policy Foundation, said it’s a complex issue with no easy answer.

“I wouldn’t say there’s a problem with excessive use of force in Texas. I will say unequivocally that there have been instances of excessive use of force,” Cohen told Lone Star Standard. “I think that’s an inarguable point. It is to the level that animates these protests? No, I don’t think that is the case.”

Have acts of civil disobedience, protests, even riots, brought to light a major problem with policing in the state and nation?

“I think they had very limited good in so far as they illustrate a consternation with a segment of the way of enforcement discharging their duties,” Cohen said. “And again, that's kind of spiraled out of control and that calls for the fighting the police and things like that. That ... absolutely lost the track. And now we're seeing the kind counter-reaction to that, where folks who kind of ran on defund the police platforms in marginal districts are losing elections.”

Texas state law has a broad definition of lethal force, permitting it if a person is “suspected” of a violent felony even if no immediate lethal threat is apparent. One issue receiving further scrutiny is training for the men and women equipped with badges and guns. Are they ready to deal with the complex challenges they encounter?

State Rep. James White, (R-Hillister) who represents District 19, is chair of the House Committee on Corrections. White asked the Texas Attorney General’s Office of a peace officer has a duty to intervene to prevent another peace officer from violating the rights of a citizen.

Attorney General Ken Paxton, in a Dec. 7 response, said no.

“We cannot conclude that there is an absolute duty for an officer to intervene under the circumstances you describe,” Paxton wrote.

In addition, state law says while officers have a “duty” to arrest anyone violating the law, they do not have such an obligation to intervene, even in a life-threatening situation, if another officer is harming someone.

Cohen said most law enforcement officers are trained to follow the letter and spirit of the law.

“Obviously, they're against excessive force from the ... I would say morally and, justice-oriented, high-mindedness of the profession,” he said. “But I think they're also against the use of force because it doesn't make their jobs any easier in many respects. If officer Smith has a reputation within the community ... for cracking skulls, there is not a single person that is going to cooperate with officer Smith on a case and that basically renders him ineffective as any sort of police officer or investigator.

“And we basically relegate the officer in that case to a completely reactive role,” Cohen said. “He is not a member of that community seeking to enforce the laws of the community.”

The vast majority of Texans favor police reform.

A survey conducted by the University of Houston Hobby School of Public Affairs found 72% supported the George Floyd Act, 91% believe there should be a requirement for officers to intervene if they observe another using excessive force and 84% favor not using lethal force if other options are available.

More than two-thirds of people who responded, 77%, oppose the use of chokeholds or strangleholds and more than 90% see a need for training on conflict de-escalation and the proper use of force.

“I think there's also a misunderstanding of what's going on here and what actually is the best way of fixing it,” Cohen said. “If you look at some of the approaches to the use of the use of force question, a lot of folks see the George Floyd incident and they want to ban strangleholds. You can you watch the George Floyd tape, as many of us have, and it takes you three seconds to realize that is not a stranglehold. That is somebody being asphyxiated with a knee on their back or on their neck.

“And the problem with taking the stranglehold out of the toolbox, if you will, is you have a less-lethal technique that it basically acts as intercessory point as an officer progresses up the continuum of force between wrestling with the guy, applying a lateral neck restraint on the guy,” he said. “After that, the options are either Tasing, but oftentimes that has already been tried in these cases, or shooting the guy. Once you take one of those exit ramps off the highway, you drastically limit options for lethal intervention in that case."

The best solution almost seems counterintuitive, but it would be more effective, he said.

“We need to be training more on uses of force, to be encouraging them, but to be encouraging the proper application of that,” Cohen said. “An officer needs to be more comfortable in applying a stranglehold, because if you look at how the courts look at use of force, that is essentially it is an objectiveness standard as to whether that officer basically fears for their life or limb and could then apply that force.

“All that to say is increasing the training. And again, that also means de-escalation training and also, you know, foregoing the lethal use of force training,” he said. “You know, working on alternatives before that gun comes out is very important. But you need to have those individuals well-trained in those subordinate levels of use of the force before you can do that. And taking those out of the toolbox would just be detrimental.”

Is qualified immunity, which protects officer from lawsuits, part of the problem? Qualified immunity is a judicial doctrine that shields public officials, like police officers, from liability when they break the law. The doctrine was devised by the U.S. Supreme Court in the 1960s. Critics said the high court acted without basis statutory text, legislative intent or sound public policy.

It has been used to shield law enforcement officers from punishment or legal liability when innocent people’s rights are violated and they are harmed or even killed.

“One of the things that we've suggested is that qualified immunity should not actually target the officer at all, not because they should be completely absolved for whatever they do while in uniform, should be completely beyond scrutiny. No, that's not what we're saying,” Cohen said. “But what we're saying, if you look at the primary bearer of liability, if you look at the primary area of responsibility, the municipality in and of itself, or I guess, technically, the county if we're talking about a sheriff’s agency, should be the actual liability there, because either they put this officer on the street, untrained or unscreened or what have you."

“But if you have enough to actually raise it to a level of a criminal complaint, these are things that, you know, that somebody needs to answer for,” he said. “And as of right now, in our current doctrine of legal liability, the state, the cities and the counties just go, ‘Eh, you can try to sue the officer if you want. But this has nothing to do with us.’ When, in fact, they're the ones responsible for not providing proper training or not providing proper training or not providing proper screening is a counterpart of that as well.”

U.S. Sen. Mike Braun (R-Ind.) introduced a bill in June 2020 to reform qualified immunity for law enforcement. Cohen applauded The Reforming Qualified Immunity Act.

“Long-lasting, meaningful reform starts with fixing qualified immunity to protect the rights of citizens secured by the Constitution while protecting good police officers,” he said. “Sen. Braun’s bill is an essential step in ensuring it is incumbent upon states and municipalities to properly train and equip their police.”

Cohen said it’s often difficult to track an applicant’s work record. It would be useful information for the department and the community.

“But there's very few mechanisms by which that previous employment information, especially in our collective bargaining age, that previous employment information can make its way to the new employer,” he said. “States like Texas we have to call the Texas Commission on Law Enforcement. There's obviously improvements that can be made, but there it does a decent job. And in kind of stewarding the actual credential of peace. 

“The problem, of course, being like if you have somebody in Texarkana, Texas, and they are fired from the department for some gross misconduct or what have you, they can drive 5 minutes to Texarkana, Arkansas, and get a job there because again, there's no guarantee that that law enforcement record, that employment record will transfer over jurisdictions, especially state lines, even to this day and age, with so many access to records, that stuff still doesn't transfer from state to state sometimes,” Cohen said. “Well, especially considering that, under civil service law, disciplinary records might as well just be thrown in a black hole sometimes.”

The recent arrest of Dallas police officer Bryan Riser on two murder charges is illustrative of the problems with some out-of-control lawmen. What made that even more stunning was the news that the Dallas Police Department knew he was under investigation for the two killings, and still allowed him to remain on duty.

“The facts of the case are galling. Now, I can also understand that they might not want to take an officer off the street if they were just mere allegations,” Cohen said. “But from what I'm understanding, as more of these stories are coming out, there was a bunch more than just mere allegations, like there was some meat on these bones early on.”

Cohen has taught classes in statistics, research methods, criminal procedure and corrections. He has authored several works on criminology and public policy that have been published in Criminology and Public Policy, Victims and Offenders, the Oxford Handbook on Police and Policing, and many other academic outlets.

Right on Crime (ROC) is a project of the Texas Public Policy Foundation, in partnership with the American Conservative Union Foundation and the Prison Fellowship, that aims to reform the criminal justice system.