Front Page Article
Illinois Police Reform that Undermines Law Enforcement
By Joyce Geiler
On February 22, 2021, Governor Pritzker signed into law HB 3553 Police Reform. News headlines run the gamut from accusations of anti-law enforcement to praise by reform advocates. Most news headlines focus on one or two parts of the new law. It may be a challenge to determine the details contained in the 764 pages of the new law, some of which do not go into effect until 2023. This article reports some of the more commonly headlined aspects of the law and then lists more specific details.
State Senator Kimberly Lightford pointed to the death of George Floyd last summer as a key reason the American culture "awakened" to inequalities in the state's justice system. However, retired Judge Pat O'Brien warns about dangers within the bill and calls the new law “a measure that will expose citizens to criminal behavior and defend the rights of the accused over the rights of victims.” Some of his specific concerns are inserted later in this article. The Illinois Review labels the law “the nations most anti-law enforcement policy.” (1)
The Fraternal Order of Police writes that the law “eliminates all protections from law enforcement officers. It eliminates officer’s ability to pursue their job without civil liability, it eliminates the ability of officers to pursue collective bargaining agreements, it invalidates the constitutionally protected due process of officers and it substantially increases the costs for employers of law enforcement officers.” (2) Executive Director for the Illinois Sheriff's Association Jim Kaitschuk believes the law will have a significant impact on law enforcement and will create a threat to the community. (3)
The website reason.com, a libertarian news site, has a very extensive coverage of the bill. It is worth reviewing the detail to see more of what is actually in the bill. (4) The lengthy bill touches many areas of policing some of which are listed below and contains explanatory comments from other sources will be included in parentheses:
The police reform bill:
1) Creates a process for the state's attorney general to take a law enforcement officer to civil court if that officer has violated a person's civil rights and to seek financial damages, with a cap of $50,000. An earlier version of the bill would have stripped police officers of qualified immunity when they had been found to violate a person's rights, thus allowing individuals to sue officers in civil court; but that was removed from the final version of the bill.
2) Mandates body cameras for all police officers in the state, with compliance deadlines staggered across the next four years. (Note that no funding is provided.)
3) Establishes that after January 2023, monetary bail will be abolished within the state. Instead, people arrested for crimes will be evaluated with a goal of releasing them with only enough pretrial conditions to ensure they make it to subsequent court appearances and don't commit crimes while on release. Full detention will be ordered only "when it is determined that the defendant poses a specific, real and present threat to a person and has a high likelihood of willful flight." The court may use a risk assessment tool to evaluate the defendant, but the score cannot be the only reason why a defendant is denied pretrial release—and the defendant must be provided the information, so that he or she may challenge it. There are many exceptions to the orders for pretrial release, including defendants accused of stalking and domestic violence, many firearm-related crimes, human trafficking crimes, or any forcible felony that comes with a mandatory minimum prison sentence. Even in these cases, however, a court must determine that the defendant is too dangerous to be released. (This is the same as the law in New Jersey which establishes a presumption of release and forces the court to document why somebody is too risky to be released. America has about half a million people stuck in pretrial detention, many of whom are not dangerous to the public but simply cannot afford the cost of bail. People who are unable to earn pretrial freedom typically end up accepting worse plea deals and get harsher sentences than somebody able to address the charges outside of jail.) (5)
4) Establishes a new class 3 felony of law enforcement misconduct, with a possible sentence of two to five years in jail. This will cover officers who misrepresent facts during an investigation, withhold knowledge of misrepresentation by other officers, or fail to comply with state laws or department policies on body-worn cameras.
5) Allows cities with populations greater than 100,000 to require that police live within city limits. Current law only permits this for cities with population greater than 1 million.
6) Allows other first responders besides police to direct people they encounter with substance abuse problems toward treatment programs, without requiring an arrest.
7) Allows funds for police and first responders to carry naloxone and similar supplies that can reverse opioid overdoses.
8) Prohibits law enforcement agencies from requesting or receiving excess military equipment, such as armored vehicles, large-caliber guns, or grenade launchers. (Retired Judge Pat O’Brien feels this prevents departments from taking advantage of cost saving federal surplus programs.)
9) Prohibits retaliation against whistleblowers, a problem that has come up repeatedly when people try to expose misconduct in the Chicago Police Department.
10) Demands that all records connected to complaints against police officers and investigations of police officers be retained permanently. (Retired Judge O’Brien Mandates speaks against those unsubstantiated and unverified complaints being kept, to be used against officers, forever, with no destruction and no limits on how they can be utilized to inflict harm on officers.)
11) Adds crisis intervention and de-escalation training to the curriculum for new police officers and to mandatory training every three years. (Retired Judge O’Brien notes this substantially increases both initial and ongoing education requirements with no money to pay for the increased costs and no assurances that the courses will even be offered.)
12) Requires the state police to participate in and provide data to the FBI's National Use of Force database.
13) Amends the police disciplinary process system so that officers under investigation are not provided the names of those filing the complaint, and so that it is no longer a requirement for people to provide their names in order to file a complaint about police misconduct. The Illinois Law Enforcement Training Standards Board is authorized to perform the preliminary review to see if there is evidence that supports the anonymous complaint. (Retired Judge O’Brien says this allows officers to be punished or fired based on anonymous and unsubstantiated or unverifiable complaints and it allows for unrestricted and ungoverned disciplinary policies of law enforcement officers.)
14) Halts the practice of suspending driver's licenses for failure to pay traffic citations or abandoned vehicle fees.
15) Amends the definition of resisting or obstructing a police officer. People cannot be charged simply with resisting arrest; there must first be an underlying offense for which the person was already subject to arrest.
16) Forbids the use of deadly force against people who are a danger only to themselves, and it forbids the use of deadly force against those suspected of committing only property offenses (except in cases of terrorism). The new rules require that deadly force be used only "when reasonably necessary in defense of human life." It also explains that "merely a fear of future harm" is not enough to reach this threshold. That's an important distinction, because many defenses of police shootings of unarmed suspects revolve around the officers claiming that they feared the suspect was armed.
16) Forbids chokeholds and neck restraints and forbids the use of force as punishment or retaliation. It forbids the use of non-lethal weapons in a manner that targets the head, pelvis, or back, and it forbids firing non-lethal weapons indiscriminately into crowds. It also forbids using irritants like tear gas against crowds unless police have both ordered the crowd to disperse and given it enough time to do so.
17) Establishes a duty to render aid to anybody police encounter who is injured (or anybody they injure) and an affirmative duty to intervene when they witness another police officer using unauthorized force. Retaliation against an officer who intervenes in this fashion is forbidden.
18) Calls for the citation and release rather than the arrest of anybody accused of traffic offenses, petty offenses, or low-level misdemeanors, unless they pose an obvious threat to others or themselves.
19) Establishes that all police officers must be certified to perform as law enforcement by the state's Illinois Law Enforcement Training Standards Board. It gives the board the authority to suspend an officer's certification immediately if the officer has been arrested or indicted on felony charges. A panel will hear the officer's case and can decide whether to maintain or reverse the officer's suspension of certification.
20) Orders the creation of a searchable database of law enforcement officers, available to the public, showing each officer's certification status and any sustained complaints of misconduct.
As the nation has seen, especially since last summer, emotions and opinions are strong regarding these issues creating opportunities for misinformation and disinformation and for fear and mistrust. It remains to be seen how Illinois’ new police reforms are implemented and what the results will be. Although reforms are most certainly needed, it is disconcerting to see restrictions that could hamper law enforcement in an era of lawlessness and lack of self-governance.
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