Felonies for chokeholds? Civilian review everywhere? Virginia Democrats divided on details of police reform

By: - September 25, 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)

Lawmakers in the Virginia General Assembly are on track to give citizen boards brand new authority to investigate and discipline local police officers accused of misconduct.

But while Democratic majorities in the House and Senate agree the panels should have teeth, the two chambers are still at odds over key details, including whether to make them mandatory in every locality or leave it up to local governments to decide whether to establish the bodies.

“It was the thought of the House that we don’t want to leave any jurisdictions out of this process,” House Majority Leader Charniele Herring, D-Alexandria, told Senate lawmakers last week, urging them to adopt the across-the-state approach passed by the House rather than the Senate’s version, which allows but does not require local governments to set up civilian panels.

Versions of the House-Senate debate have played out throughout the special legislative session, which convened a month ago and has seen the two chambers largely agree on big-picture police reforms but differ when it comes to questions of breadth and scope.

The House has often, though not always, advanced bills that go further than their Senate counterparts, banning more kinds of military equipment, issuing more statewide mandates and creating harsher penalties for police who violate new rules. The Senate, meanwhile, amended its sweeping police omnibus early in the session in response to concerns voiced by police groups.

Del. Jeff Bourne, D-Richmond, left, and Del. Jay Jones, D-Norfolk, right, speak about police reform legislation outside the Siegel Center in Richmond, VA Where the Virginia House of Delegates was meeting on Tuesday, August 18, 2020. Behind them, a group from the Boogaloo organization stands. (Pool photo by Bob Brown/ Richmond Times-Dispatch)

The dynamic has not gone unnoticed by advocates, who worry promised reforms are getting watered down, and law enforcement groups, who at a recent news conference offered praise for Senate Democrats and sharp criticism for House lawmakers.

“The Virginia Senate has reached out to us and has listened to our thoughts and suggestions and has, in fact, included many of our ideas in the legislation that has been before them,” said Wayne Huggins, a former state police superintendent who now leads a group representing the agency’s employees. “On the other hand, the House of Delegates has largely ignored our thoughts and consideration, and they have passed several pieces of legislation that in reality will only hurt and impede law enforcement.”

House lawmakers called the characterization unfair, saying law enforcement representatives were invited to testify at hearings the chamber held before the session and have continued to offer comment during committee meetings as the session progressed. “They’ve had ample opportunity,” said Del. Patrick Hope, D-Arlington, who chairs the chamber’s public safety committee. “I don’t know if what they were saying was out of frustration but obviously it’s not going to damage our relationship going forward.”

Review boards and the Marcus Alert

The different approaches are particularly pronounced in the debate over civilian review boards and legislation creating new emergency mental health response teams, proposals both chambers have named the Marcus-David Peters Act after a high school biology teacher shot and killed by Richmond police during a mental health crisis in 2018.

As with review boards, Senate lawmakers favor giving more discretion to local governments when it comes to establishing emergency mental health response teams and determining how they will interact with law enforcement. The House has passed legislation that mandates the eventual creation of emergency mental health teams around the state, beginning next year with five localities. And unlike the Senate version, it dictates that law-enforcement would serve as backup and only intervene in cases that pose immediate safety risks.

“The idea is to allow the mental health professionals to do the work they’re trained to do without the tragic outcome we saw with Marcus-David Peters,” said Del. Jeff Bourne, D-Richmond, who is carrying the House’s version of the bill.

Advocates, including Peters’ sister, Princess Blanding, have endorsed the House approach, arguing it would bring more immediate and transformational change to the way police approach encounters with people experiencing a mental health crisis. “The time is now,” she said. “Not after more lives have been lost.”

Hundreds of protesters marched to Richmond Police headquarters, calling for justice and police reform after a police officer shot and killed Marcus Peters in 2018. (NBC 12)

Roanoke County Police Chief Howard Hall called the prospect of mental health professionals taking the lead in such encounters unrealistic. “Most of the calls that our law enforcement officers receive related to mental health involve some level of danger,” he said. “The idea that social workers or some other mental health professionals are going to respond without police is simply foolish.”

Law enforcement groups have also pushed back against the creation of civilian review boards, though they made clear that they prefer the Senate’s approach of leaving it up to individual local governments to create the body.

The Senate’s version of the bill also exempts sheriffs, who provide primary law enforcement services in much of the state and argue that because they are elected officials who are already accountable to voters every four years they shouldn’t be subject to the additional layer of scrutiny.

House lawmakers say it would be a mistake to exempt sheriffs and irresponsible to give local governments the option not to create the boards — both scenarios they say would leave many residents without meaningful recourse in the event of police misconduct.

But at least when it comes to making the boards mandatory, some advocacy groups are siding with the Senate, arguing that for review boards to provide meaningful oversight, localities and residents need to be invested in making them work. Kim Rolla, who directs the Legal Aid Justice Center’s civil rights and racial justice program, warned that without that commitment, the boards risk “providing just a veneer of accountability that acts as a rubber stamp on law enforcement behavior. We actually think that would be detrimental.”

On other police reform proposals, including the creation of a statewide code of conduct for officers and an expanded decertification program aimed at barring police officers who break rules from the profession, the divides between the two chambers are smaller.

In other cases, the chambers have already reconciled their differences. The Senate adopted the House’s approach to limiting police stops for minor traffic offenses like broken tail lights and tinted windows by making them secondary offenses. The Senate’s version would have allowed police to continue making stops but prohibited them from issuing tickets unless they observed motorists commit a more serious infraction, such as speeding. Likewise, they eliminated a provision allowing no-knock search warrants in cases where they’re specifically approved by a magistrate or judge to match the blanket prohibition proposed by the House.

The chambers remain split on the details of other proposals. The House proposed a ban on choke-holds and neck restraints by officers and creates a new felony charge for officers who violate the law. The Senate has advanced language which grants an exception to the ban in cases where officers believes it’s necessary to protect themselves or someone else — an approach police groups say is in line with existing internal standards. A violation would trigger administrative disciplinary action rather than felony criminal charges, which Senate lawmakers argue would be easier and more efficient to pursue than a court case.

The House has also backed more stringent bans on the use of military equipment by police, though they scaled back their initial legislation, which initially would have prohibited police from using teargas and rubber bullets but now allows use of the weapons on crowds as long as police have issued dispersal orders. Their legislation would still ban mine-resistant armored vehicles and camouflage uniforms — two categories of equipment allowed in legislation before the Senate and that law enforcement groups say they should have access to when necessary.

Senate Majority Leader Dick Saslaw, D-Fairfax, right, confers with Democratic colleagues during the Senate floor session in the temporary Virginia Senate chamber inside the Science Museum of Virginia in Richmond, VA Thursday, Sept. 10, 2020. (AP Pool Photo/Richmond Times-Dispatch, Bob Brown).

Retaliatory killings?

Then there are bills that have emerged in each chamber with no counterpart and limited support in the other.

Sen. Scott Surovell, D-Fairfax, made headlines when he proposed a bill that initially would have eliminated felony charges for assault and battery of a police officer. He later amended the proposal to strike only the mandatory minimum sentence of six months, with an option for a judge or jury to downgrade the charge to a misdemeanor on a case-by-case basis.

Surovell argued the penalty was inappropriate given that officers weren’t actually injured in 70 percent of the cases in which they levied the charge last year. He shared an array of anecdotes, ranging from a woman who charged with a felony after an officer was hit by an onion ring and a case in which a man was convicted for pointing his finger at an officer as if it were a gun.

The House killed the measure in committee this week when Bourne recommended it be sent to the Crime Commission for study, arguing the debate “lends itself to a more lengthy discussion so we get the words right.”

His remarks echoed what lawmakers in the Senate told him when they voted down a closely watched bill of his own aimed at making it easier to sue police officers for misconduct by side-stepping the federal judicial doctrine of qualified immunity.

Senate lawmakers, including Surovell, told Bourne they agreed his bill had merit but worried it was not drafted carefully enough to avoid unintended consequences and required further study.

While the debate during the special session at times suggested a propensity for cross-chamber retaliation, Democrats in both the House and the Senate say at the end of the day the differences between their approaches are small and can be swiftly resolved when the measures are sent to conference — a process in which small groups of lawmakers from each chamber are assigned to work out the differences between their bills.

“These bills will go into conference and we will come out with a very consistent, very progressive package of police reforms that I think will have both wide approval in the House and the Senate,” said Del. Mike Mullin, D-Newport News. “It’s just part of the process of making bills into laws.”

In the Senate, Surovell agreed. “I think big picture, we just need to sit down and have a conversation and bang this out,” he said.

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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.