The recent failure of the criminal justice system to hold anyone accountable for the death of Breonna Taylor is a devastating reminder of that system’s failures. As police misconduct attorney and author Andrea Ritchie told the New York Times, “The system that killed Breonna Taylor is not set up to provide justice or reparations for the killing of Breonna Taylor.”[1] I have made similar arguments in the context of military sexual assault. We need civil lawsuits.
Yet we are also painfully aware right now that long-established civil rights legal doctrines may be in danger with a changing Supreme Court. As a civil rights lawyer, that concerns me. Still, I wonder if we can use this moment to rethink some well-intentioned rights that are not working out as we had hoped. One such area may be law enforcement training. Advocates of color and police unions perhaps make oddly similar points here—the standard reforms, including lawsuit-mandated trainings, don’t change outcomes.
“Failure to Train” Enters Civil Rights Jurisprudence
For years, advocates and lawyers have brought ADA lawsuits seeking police training—about racial bias, about disability. The focus on training as a remedy for civil rights violations has roots in hard-fought Supreme Court law. In 1989, the Court affirmed that a municipality could be liable for failure to train its police force in certain situations—a policy of not doing what is needed to stop serious rights violations can be as illegal as a policy of affirmatively violating rights.[2] That important principle has led to many lawsuits about training of police and other law enforcement personnel.
The Crisis Intervention Training Example
A common example is Crisis Intervention Training (CIT). CIT has gained support in recent years among some mental health advocacy groups. It is designed to help police deescalate encounters with people experiencing mental health crises. Yet recent research has found troubling failures: CIT doesn’t seem to change what matters most. There are, to be sure, some positive effects—more diversion to psychiatric programs instead of jails, and more job satisfaction for trained officers.
Still, researchers surveying both experts and published articles reached a conclusion that should give pause to lawyers demanding training: “Studies have not shown consistent reduction in the risk of mortality or death during emergency police interactions” as a result of CIT.
We need more effective accountability—civil rights lawyers need to seek remedies that actually work. I think that involves listening to everyone involved and being willing to change our standard practices to craft reforms—and yes, lawsuits—that make real change.
[1] Alisha Haridasani Gupta, Since 2015: 48 Black Women Killed by the Police. And Only 1 Charge, N.Y. Times (Sep. 24, 2020), at https://www.nytimes.com/2020/09/24/us/breonna-taylor-grand-jury-black-women.html.
[2] City of Canton, Ohio v. Harris, 489 U.S. 378 (1989).
ADA Update 