Sweeping police reform legislation advances in Virginia, with law enforcement groups now largely on board

By: - August 24, 2020 12:01 am

Virginia Lt. Gov. Justin Fairfax bangs the gavel at the start of the Virginia Special Session in the temporary Senate chambers at the Science Museum of Virginia Tuesday Aug. 18, 2020, in Richmond, Va. (AP Photo/Steve Helber/Pool)

As Virginia Democrats advanced sweeping police reforms during a special legislative session that began last week, GOP lawmakers assailed the proposals as an attack on law enforcement.

But with a handful of exceptions, police groups are now backing many of the reforms contained in an omnibus bill moving through the Senate that would ban most no-knock warrants, create a statewide code of conduct for police and give the state authority to decertify officers who violate it.

“Most of our concerns were addressed,” said the executive director of the Virginia Sheriff’s Association, John Jones, who added that he himself would vote in favor of the legislation in its current form. “And there was a lot of stuff in there that we liked.”

Wayne Huggins, a former Virginia State Police superintendent and now the director of the Virginia State Police Association, was similarly complimentary. “I think things are going fairly well,” he said. “Many of these things we want to do. Many of these things we’re already doing.”

‘No one I know of has a bayonet’

The support comes after Senate Democrats agreed to changes that have in some cases disappointed advocates pushing for reforms.

“Overall, we really think that the Senate has moved in the right direction with this bill, but we’re not too thrilled with these recent changes because it does water down the effectiveness,” said Kofi Annan, a member of the Virginia Coalition for Transforming Police who testified during hearings last week.

For instance, a section of the bill banning police agencies from participating in a federal grant program that distributes military surplus equipment to local law enforcement agencies now only prohibits departments from obtaining a narrow range of items, including grenade launchers, bayonets and weaponized aircraft, boats or vehicles.

The law would still allow military-style rifles (as long as they’re not .50 caliber or higher — a large, rarely used round) and armored carriers, which have become a frequent sight at protests in Richmond.

Law enforcement groups argued armored vehicles are useful when officers have to respond to armed standoffs or rescue people in disaster situations and the federal surplus program makes it affordable for departments that otherwise couldn’t afford it. “That stuff comes from the military and we can get it almost free,” Jones said, adding that he’s not aware of any departments that use the items the Senate now proposes banning, meaning it won’t really change the way departments do business.

“No one I know of has a bayonet,” Jones said. “That was used in the Civil War.”

For the same reason, advocates say the original blanket ban should stand. “We would strongly prefer an absolute prohibition,” said ACLU of Virginia executive director Claire Guthrie Gastañaga, arguing local departments should have to get public buy-in if they want to use military equipment.

‘This basically guts the requirement’

Advocates also expressed frustration at amendments that soften a ban on no-knock and nighttime search warrants. Under the original proposal put forward by the Senate, police would need a judge’s approval to search a property at night or without first announcing that they are law enforcement officers.

Police groups worried that finding a judge to sign off on such a warrant could be difficult in rural areas, prompting lawmakers to agree to compromise language that allows departments to continue to use magistrates to approve the searches if they can show that they tried and failed to first go before a judge.

“That basically guts the requirement,” Gastañaga said.

Law enforcement agencies also sought and won amendments to language and the bill that would ban officers from using chokeholds, create a warn-first requirement before firing a weapon in most cases and require officers to make attempts at de-escalation before using force. The revised language allows chokeholds, for example, in cases where it “is immediately necessary to protect the law-enforcement officer or another person.” In other use-of-force cases, an amendment considers how much time officers had to make a decision in determining whether their actions are reasonable.

Huggins said the original proposals would have put officers in harms way by causing hesitation in split-second, life-or-death situations. “If you have to stop and think through a whole series of conditions before you use your weapon, you could end up hurt or dead,” he said.  The revised language, he said, bring the legislation in line with current state police protocol.

But advocates worry the amended language preserves the status quo. “If they aren’t supposed to do these things unless they feel like they have to — that’s very subjective,” Annan said. “There’s now basically a back door for them to do the same things, and in the past, officers have been known to use those outs to be able to do whatever they wish.”

Former Richmond Police Chief Will Smith, flanked by Richmond Mayor Levar Stoney, left, spoke briefly to a large, passionate crowd outside of City Hall in Richmond, Va., June 2, 2020. Stoney later asked for Smith’s resignation. (Parker Michels-Boyce/ For the Virginia Mercury)

Broad support for statewide standards

The bill continues to contain proposals on which police and reform advocates broadly agree. One of the major provisions of the bill is language that tasks the state’s Criminal Justice Services Board with developing a statewide code of conduct. Officers who violate those standards could face decertification — a process that is currently limited and rarely used in Virginia.

Police groups say the new language will stop officers who face misconduct investigations from resigning and finding jobs at other departments, which police chiefs have described as a frustrating and common practice.

The bill also requires increased vetting before department hire officers, including a psychological exam and review of personnel records from past departments.

And it requires departments to become accredited by either the state or an outside agency, a process that involves a detailed review of department policies and practices.

Despite amendments addressing concerns raised by police departments, Senate Republicans continued to oppose the legislation when it went before the senate’s Judiciary Committee last week, passing on a party-line vote.

GOP calls reform proposals ‘wrong’

The next day, GOP leaders gave a series of speeches broadly condemning the legislative proposals put forward by Democrats.

“We’re telling police officers across the commonwealth of Virginia we do not trust you,” said Sen. Mark Obenshain, R-Rockingham. “We are here to defund the police, to put restrictions upon you. We are here to tell law enforcement that because cops in other states have done horrible unjustifiable things for which they deserve to go to prison that we are going to defund police here in Virginia. We are going to reward the rioters and punish the cops. And it is wrong. It is wrong.”

Democrats said the proposals the GOP is condemning are not included in their actual legislation. “There is nothing in any of the legislation that we have presented that says absolutely anything about defunding the police,” said Sen. Maime Locke, D-Hampton, who is the lead patron of the police reform omnibus. “You have not heard that from anybody on this side, in any of our legislation, about defunding the police.” Republicans were also ignoring the fact that law enforcement support or have requested many of the changes they’re pursuing, Democrats said

Despite reaching broad-strokes agreement with law enforcement on their marquee reform bill, police groups say there is legislation they continue to oppose or want to see amended.

Debate continues on review boards, assaulting officers

But even in the case of one of the most hotly discussed bills — legislation that as initially proposed would have reduced the penalty for assault on a police officer from a felony to a misdemeanor — law enforcement opposition has softened.

Sen. Scott Surovell, D-Fairfax, amended the legislation to maintain a felony penalty but allow a judge or jury to reduce it to a misdemeanor in cases where an officer is not hurt, a category that accounted for 70 percent of the cases brought under the statute last year, according to the Virginia State Police. The bill also allows misdemeanor charges in cases involving developmentally disabled people and requires an officer other than the one alleging they were assaulted to investigate and file the charge.

“I’m good with that,” Jones, with the sheriffs’ association, said, calling it a good compromise. But he and other groups said they continue to oppose the elimination of a mandatory six-month sentence for felony convictions. “If I had to vote on that one, I’d vote against it. But the bill is improved from where it was.”

Surovell said he’s not willing to bend on eliminating the mandatory minimum, saying that the legislature wants to phase such penalties out and restore sentencing discretion to judges and juries. “Mandatory minimums are on their way out,” he said.

One bill the Virginia Association of Chiefs of Police remains flatly opposed to is legislation that will enable localities to create civilian review boards with the authority to investigate citizen complaints and discipline officers. “We don’t think they’re effective and they really interfere with a chief’s ability to discipline and investigate officers,” said Dana Schrad, the group’s executive director.

There are also reform bills that have drawn little attention and comment from law enforcement. Among them is legislation authored by Sen. Louise Lucas, D-Portsmouth, that aims to stop police from pulling people over for minor offenses like improperly illuminated license plates, tinted windows and objects dangling from rear view mirrors — offenses lawmakers say officers generally use to stop drivers they suspect of other crimes, a practice that can lead to racial profiling. The bill makes the violations secondary offenses, meaning a citation can only be issued if the person was already pulled over for another reason.

The bill also bars police officers from justifying police searches based on the smell of marijuana, a common practice that’s faced growing scrutiny.

Huggins, of the state police association, said the organization has taken no position on the bill one way or the other. “But I would say this,” he said. “If the General Assembly passes laws, we think it’s unfair to criticize law enforcement for enforcing those laws. … If you don’t want us pulling people over for dangling objects on a rearview mirror or whatever else, then don’t make it a law.”

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.