Virginia lawmakers get mixed reviews on police reform efforts

By: - October 20, 2020 12:03 am

Thousands of people marched through downtown Richmond on June 1, 2020. The peaceful demonstration was one of the largest gatherings in the city since George Floyd’s death in Minneapolis. (Ned Oliver/Virginia Mercury)

A special legislative session largely devoted to police reform in Virginia ended Friday with law enforcement groups sounding more comfortable with the package of bills that passed than activists who had been pushing for sweeping change following the death of George Floyd in Minneapolis.

“At the end of the day, we didn’t make out so bad,” said John Jones, director of the Virginia Sheriffs’ Association, observing that most of the legislation that worried his members and provoked allegations of anti-police motives was either significantly amended or voted down entirely.

A bill that would have banned military equipment was narrowed to a tight list of surplus items like bayonets that police say they don’t use anyway. A prohibition on tear gas was replaced by training rules. And a mandate that police report colleagues who break the law died in a committee hearing.

And measures police groups did support largely sailed through, including an end of session gift from lawmakers to frontline officers: a $500 one-time bonus for some officers — which Democratic leaders framed as an olive branch to police agencies and an explicit rejection of protest calls to “defund police.”

“When the whole thing started, it looked like a disaster,” Dana Schrad, the director of the Virginia Association of Chiefs of Police, said, calling some of the bills introduced at the beginning of the legislative session demoralizing and misguided. “I think we’ve been fortunate to reach a lot of compromises that we’re a lot more comfortable with.”

‘An opportunity to do transformational work’

Advocates on the reform side claimed their own wins, crediting lawmakers for passing bills aimed at limiting police stops for minor infractions, banning no-knock warrants and allowing local governments to establish civilian review boards with investigative authority.

But they expressed disappointment at both the decision to grant bonuses (“I wonder and worry what message this is sending … at a moment when we are calling for greater accountability,” asked Kenneth Gilliam, the policy director at New Virginia Majority) and the overall trajectory of the special session.

“They had an opportunity to do transformational work and chose instead to achieve some positive incremental work,” said ACLU of Virginia Executive Director Claire Guthrie Gastañaga.

For people on both sides of the debate, a bill that had initially flown under the legislative radar is getting the most post-session attention: a measure that will prohibit police from pulling people over and initiating searches for a range of minor traffic infractions.

Proposed by Sen. Louise Lucas, D-Portsmouth, and Del. Patrick Hope, D-Arlington, the bill reduces offenses like a broken taillight and tinted windows to a secondary offense. It also prohibits police from searching people they think smell like marijuana — a practice that has come under scrutiny in recent years amid concerns police overuse the justification to initiate searches that often don’t turn up the drug an officer said they smelled.

VCU Police stand in the foreground as a group of protesters block the street outside the Siegel Center in Richmond, where the Virginia House of Delegates was meeting Tuesday, August 18, 2020. (Pool photo by Bob Brown/ Richmond Times-Dispatch)

‘I smell marijuana’

Supporters of the bill called it one of the most important lawmakers passed because it will prevent officers from using minor offenses to pull people over who they suspect of other crimes, a tactic advocates say enables racial profiling.

“When we talk to young people, the top three reasons they give us for being stopped are you match the description, there have been reports of break-ins in the area and ‘I smell marijuana,’” said Valerie Slater, the director of Rise for Youth during a forum last week. “Those are the top three reasons that walking while Black, walking while Latinx, is criminalized in Virginia, and this bill is going to be phenomenal in rolling that back.”

It’s also one of the bills law enforcement groups are aggressively lobbying Gov. Ralph Northam to veto or amend, noting in its final form it also prohibits police from pulling people over who are driving without their headlights on at night.

“We think that’s going to contribute to increased highway death, injuries and property damage,” said the head of the Virginia State Police Association, Wayne Huggins.

Schrad challenged the assertion that police are using the offenses to target minorities — so called driving while Black offenses. “This sets us back considerably when it comes to highway safety.”

The bill’s patrons said headlights were included by mistake and Hope said he supports an amendment from the governor clarifying that point and Northam, who doesn’t typically comment on pending legislation, told WTVR he is likely to suggest changes, though it wasn’t clear whether he was responding just to the headlight issue or if he has concerns about the broader bill.

Law enforcement groups are also lobbying Northam to amend a bill banning no-knock search warrants and new requirements that a warrant only be executed during the daytime unless specifically approved by a judge, or, if one is not available, a magistrate. They say they already serve most warrants during the daytime and announce themselves before entering, but that they should be allowed to enter unannounced when the circumstances dictate.

The bill was inspired by the death of Breonna Taylor, who Louisville police shot and killed during a botched late-night raid on her apartment. Supporters argued that if police don’t knock and announce themselves, it’s impossible to differentiate officers from home invaders, increasing the likelihood of a dangerous encounter, as in the case of Taylor, who was shot by police after her boyfriend opened fire, hitting an officer. And they say most warrants should be executed during the daytime when it’s more likely that someone inside will be awake to hear them.

Del. Jeff Bourne, D-Richmond, left, and Del. Jay Jones, D-Norfolk, right, speak about police reform legislation outside the Siegel Center in Richmond, 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)

‘We want to get rid of bad cops’

Police and reform groups were not entirely at odds, agreeing on several pieces of legislation aimed at increasing training and screening of officers and expanding the narrow set of circumstances under which officers can lose their licenses to serve on a police force.

“We want to get rid of bad cops and now we can do it easier,” said Jones, with the sheriffs’ association.

Reform groups say they’re cautiously optimistic about the new approach, but noted it will be up to a state board dominated by law enforcement to write a new statewide code of conduct that will be the basis for the expanded decertification program.

Still, Gastañaga said she’s hopeful public participation will ensure the new rules don’t only reflect a law-enforcement perspective and will help “take away the feeling of invulnerability” she says some officers seem to demonstrate.

Activists were split on a bill explicitly authorizing local governments to create civilian review boards with subpoena power and disciplinary authority. House Majority Leader Charniele Herring, D-Alexandria, had advocated for an approach that made the new oversight bodies mandatory, including localities policed by elected sheriffs, who are exempted from the final bill.

Some groups, including the Charlottesville-based Legal Aid Justice Center, said they preferred the optional approach that ultimately passed, expressing concern that oversight bodies without community buy-in could turn into rubber stamps for local departments that actually hinder accountability.

The Virginia Senate begun a special session in August at temporary Senate chambers at the Science Museum of Virginia. (AP Photo/Steve Helber/Pool)

‘Watered down just like all the other bills’

Legislation that sets in motion the creation of a mental health emergency response protocol also divided advocacy groups. The final bill, dubbed the Marcus Alert after Marcus-David Peters, a Richmond man shot and killed by police during a mental health crisis in 2018, doesn’t go as far as initially proposed, but does require localities to establish pilot programs by the end of next year.

But the compromises that got the bill out of the Senate, which often took a more conservative posture on police reform issues than the House, upset Peters’ sister, Princess Blanding, who had sharp words for lawmakers as the session wrapped up.

“It is watered down just like all the other bills the Democratic Party passed,” she said, expressing particular disappointment during a post-session forum that it doesn’t mandate mental health professionals take the lead when responding with officers. “It sounds good, but it still allows the police officers to do exactly what they did.”

Advocates expressed disappointment at other bills that were amended to the point of not accomplishing much, including what were initially posed as bans on military equipment and tear gas but, in their final form continue to allow most of those items.

Likewise, legislation the Senate passed that dictates when police can and can’t use deadly force largely codifies existing case and common law, Gastañaga said. And a ban on chokeholds, initially proposed as a felony, includes exceptions for when officers say they’re necessary to protect themselves or someone else. “Honestly that’s how it’s been used in Virginia anyway,” Schrad, with the police chief’s association, said, saying they had no objections to the change.

‘We were hoping for something a little firmer’

Kofi Annan, a member of the Virginia Coalition for Transforming Police, said he was disappointed with the amendments to the bills for the same reason. “The law’s squishy enough as it is,” he said. “So when you write it into the laws, giving them discretion — we were hoping for something a little firmer.”

Annan and others say one of the biggest disappointments of the session was the failure of a bill aimed at rolling back qualified immunity, which makes it difficult to sue police for misconduct. Likewise, lawmakers in the Senate voted down a bill that would have made police officers who don’t report illegal conduct of their colleagues guilty of a misdemeanor or felony depending on the severity of the offense.

“People want police to be held accountable when they mess up,” he said. “It was very disappointing.”

Advocates also expressed a broader frustration at lawmakers’ blanket refusal to reconsider how the state spends money on law enforcement and whether some of those funds would be better spent on mental health care, drug treatment and other issues that officers are often called to respond address.

Democratic leaders signaled early and often that they had no plans to cut police funding. Law enforcement groups say that was smart, arguing the reforms they want will cost more money, not less.

But advocates say they were disappointed that throughout the legislative session lawmakers often seemed to frame their work as aimed at a small subset of bad actors — a view they said obscured systemic problems within the criminal justice system.

“This moment isn’t just about a few bad actors or recent killings and murders,” said Gilliam, with New Virginia Majority, which advocates on behalf of minority and low-income communities. “It’s about addressing historic inequities that have impacted Black communities and marginalized communities. And I think it’s important that we always keep that in mind so we can undo those past harms.

“And I think the work the General Assembly did in this session is a step in the right direction, but there is more that we need to do.”

Lawmakers have already said they view the special session as the beginning of the conversation, not the end and planned to revisit issues like qualified immunity during the regular legislative session, which begins in January.

Advocates said they welcome the prospect. Police groups, not so much.

“We’re still watching to see, are they really going to bring that back?” Schrad 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.