U.S. police reform advocates question ‘duty to intervene’ policies following killing of Tyre Nicholas | CBC News

When the images of the brutal attack on Rodney King by members of the LAPD were broadcast around the world back in 1991, they became a catalyst for police forces across the U.S. to adopt so-called “duty to intervene” strategies — protocols to ensure police would step in when a fellow officer misused force on a suspect.

But with recent high-profile police brutality cases, including the deaths of George Floyd in Minneapolis, Minn., and Tyre Nichols in Memphis, Tenn., the effectiveness of those strategies is being called into question.

Indeed the Memphis and Minneapolis police departments are among many U.S. law enforcement agencies with “duty to intervene” policies. The Memphis protocol is clear: “Any member who directly observes another member engaged in dangerous or criminal conduct or abuse of a subject shall take reasonable action to intervene.”

While the idea behind “duty to intervene” is valid, a new approach is needed, say some experts, including one who is advocating for new federal and state laws that would prosecute police for standing by while a colleague abuses a suspect.

Prosecutors need to ‘hold them accountable’

“This needs to be legislation because it is obviously clear that we cannot rely on police to self-police. That has failed,” said Zachary D. Kaufman, the Kleh visiting professor in international law at Boston University School of Law.

“We need others, namely prosecutors, to hold them accountable.”

Kaufman, who has studied the issue of duty to intervene and whose article Police Policing Police has been accepted for publication in the George Washington Law Review, said 24 jurisdictions in the U.S. already have some sort of duty to intervene policies in place. But many of them are broad, weak and inadequate, he said. 

Some policies, for example, don’t explain what situations merit intervention or require any particular method of intervention, he said. The policies also vary in terms of what, if any, penalties are imposed for officers who fail to intervene, he said.

According to his research, most training on officer peer intervention is voluntary. U.S. law enforcement agencies themselves choose whether, when, and how to instruct their officers on such intervention.

Police are hesitant to intervene for various reasons, depending on the situation and depending on the officer. But Kaufman believes a significant factor is what’s known as the Blue Wall of Silence — the informal code within law enforcement that inhibits accountability for police misconduct by prohibiting officers from disclosing their colleagues’ misconduct.

“Because of the Blue Wall of Silence, which is widespread throughout law enforcement, officers feel peer pressure not to intervene and fear professional and even physical retaliation by their colleagues if they do so,” he said.

That, in part, is why Kaufman is proposing new laws that would require every police officer to “reasonably attempt to prevent or stop an inflicting officer’s misuse of force immediately or as soon as possible.”

He is also advocating for a special prosecutor to be appointed to deal with such cases.

‘Not enough to make it work’

But Chuck Wexler, executive director of the Police Executive Research Forum, a Washington-based think tank, said he doesn’t believe such legislation would solve the problem.

He said some of the officers involved in the Nichols case have either been charged or fired for not intervening, and adding a new law won’t necessarily spur officers into action.

Wexler agreed that it’s not enough to just have a policy that says officers have a duty to intervene. 

“Simply having it on paper is not enough to make it work,” he said, advocating for more practical training instead. 

“You have enormous peer pressure. You have officers who work with each other all the time. And if you have a policy and you don’t have reality-based scenario situations, if you don’t train together, it’s just checking a box,” he said. “The answer is providing the kind of reality-based scenarios and training to prevent this from happening.”

New training initiatives 

Those reality-based scenarios are part of an initiative spearheaded by the Georgetown Law Center for Innovations in Community Safety. The centre has created the Active Bystandership for Law Enforcement (ABLE) program, with the goal of getting officers to intervene in situations of suspect abuse.

Lisa Kurtz, director of the project, said since it was created in 2020, more than 300 police agencies in the U.S. and Canada have adopted the strategy. 

What’s different about their project, compared to other duty to intervene workshops, is that previous training hasn’t focused on how to intervene and how to accept intervention, she said.

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The death of Tyre Nichols, who died after being beaten by police in Memphis, has prompted renewed calls for police reform in the United States.

“We’ve all heard, I’m sure, the cases where officers have stepped in to stop wrongdoing and they’ve been retaliated against or they’ve been ostracized, they’ve been punished in some way,” she said. 

She acknowledged that there are all sorts of barriers that could prevent someone from intervening, including rank, experience and age. 

“So it’s crucial to have departments where the expectation is that intervening to stop someone from committing harm is important. It’s right and it’s an act of loyalty to your fellow officers as well as the community.”

Kurtz said part of the training involves giving officers information to understand the importance of intervening, how it has been successful in other professions, and what types of approaches work.

The training also involves practical work, discussing skills and tactics, and talking through particular scenarios.

“And then we have officers practice them in these role play scenarios that have been written with the input of officers from agencies across the country,” she said. “We know that these scenarios are ones that officers are likely to encounter in their daily life.”