Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the
D.C. Council Committee on the Judiciary and Public Safety & Committee of the Whole Public Hearing on
Bill 24-94 – “Bias in Threat Assessments Evaluation Amendment Act of 2021”
and Bill 24-213 – “Law Enforcement Vehicular Pursuit Reform Act of 2021”
Ahoefa Ananouko, Policy Associate
May 20, 2021

Hello Councilmember Allen, Chairman Mendelson, and members of the Council. My name is Ahoefa Ananouko, and I am a Policy Associate at the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present this testimony on behalf of our more than 15,000 members and supporters across the District.

The ACLU-DC is a non-partisan, nonprofit organization committed to working not only to reverse the tide of criminalization and overincarceration, but to dismantling the systems and notions on which they were founded and continue to be undergirded. We advocate for sensible, evidence-based public safety and criminal justice policies and solutions that safeguard fundamental civil liberties and rights of District residents. This testimony will focus on Bill 24-213 – “Law Enforcement Vehicular Pursuit Reform Act of 2021” and Bill 24-94 – “Bias in Threat Assessments Evaluation Amendment Act of 2021.”

For nearly a year now, we have all become familiar with the names of Breonna Taylor, George Floyd, and countless other lives taken at the hands of police officers across the nation. Although it was their tragic murders that launched our society into a historic moment of unrest and increased our communities’ demands for justice, we should not forget that there are families right here in the District who continue to mourn and seek accountability for the tragic loss of their loved ones at the hands of the Metropolitan Police Department (MPD). We need to say their names— Marqueese Alston, Karon Hylton-Brown, Jeffrey Price, Terrence Sterling, and D’Quan Young.

Bill 24-213 – “Law Enforcement Vehicular Pursuit Reform Act of 2021”

Across the country and here in the District, laws exist that penalize members of the public for speeding. Because at a fundamental level, our society recognizes the inherent dangers speeding cars pose to anyone in their vicinity. Police chases pose the same threat. As stated by the Police Reform Commission (PRC) in its April 1 report:

“[Vehicular] pursuits are inherently dangerous and can be fatal… Because of the serious danger that [vehicular] pursuits pose, police departments across the country now strictly limit them to situations involving fleeing suspects who pose an immediate risk of killing or injuring another person. Police departments also strictly forbid intentionally using police cars to obstruct or stop fleeing vehicles.”

In recent years, there have been at least three incidents of police chases that ended up in deaths of District residents—Terrence Sterling in 2016, Jeffrey Price in 2018 and Karon Hylton-Brown in 2020. It has been reported that MPD policies may have been violated in all three cases.

Bill 24-213 would prohibit D.C. law enforcement officers from engaging in vehicular pursuits of an individual operating a motor vehicle—outlining requisite factors that would justify a chase—and would also prohibit the use of certain vehicular pursuit practices. The ACLU-DC strongly supports this bill and we offer a few recommendations to improve enforceability of the legislation.

Generally, the bill clearly outlines factors that must be taken into consideration before commencing a vehicular pursuit—"the officer reasonably believes that the fleeing suspect has committed or has attempted to commit a crime of violence and that the pursuit is necessary to prevent an imminent death or serious bodily injury and is not likely to put others in danger of death or serious bodily injury.” The last two factors are particularly significant, especially when considering the fact that a police chase itself poses the risk of imminent death and the danger of serious injury. The second two outlined circumstances also align with the PRC’s recommendations aimed at increasing public safety and harm prevention.

One thing the bill fails to do is outline penalties for officers who do violate the law by unlawfully engaging in a vehicular pursuit, or remedies for those who are harmed as a result. The most significant action taken against any of the officers involved in the three cases mentioned in this testimony was the firing of Officer Brian Trainer in the Sterling case. Without the possibility of consequences to deter misconduct, officers will continue to defy the law and MPD policies with impunity. To that end, we also strongly recommend that the Council include a provision providing private right of action for individuals who are harmed by an officer’s violation of the provisions of this legislation.

Furthermore, it would be helpful for the Council to clarify what is meant by “unlawful” in part (d) under Section 3 of the legislation, which reads: “It is unlawful for a law enforcement officer to knowingly violate this section.” This is the only instance the word is used, and nowhere in the legislation is there a clear definition of the term. The lack of a clear definition of what constitutes an “unlawful” pursuit, coupled with the lack of any provision outlining disciplinary actions, make this bill largely unenforceable.

Bill 24-94 – “Bias in Threat Assessments Evaluation Amendment Act of 2021

On April 6 of this year, the Council unanimously approved PR24-107 – “Sense of the Council Regarding the Disparate Treatment of Protesters by Law Enforcement Resolution of 2021.” In passing this resolution, the Council recognized the double standards in how MPD and other local law enforcement entities responded to Black Lives Matter protesters during the summer 2020 protests, versus the response to white supremacist insurrectionists at the Capitol on January 6th.

B24-94 is intended to address this issue of disparate treatment and would require the Attorney General to “conduct a study to determine whether the Metropolitan Police Department engaged in biased policing when they conducted threat assessments of assemblies within the District.” The bill would also grant the Attorney General subpoena power as needed to carry out the study.

We support a deep analysis into MPD’s actions during assemblies, as it aligns with recommendations outlined in our Swann St. Report, which investigated MPD’s excessive use of force against protesters on June 1, 2020. However, the scope of the study mandated by B24-94 is limited in the legislative text, and we offer the following recommendations to clarify and improve the scope of the study.

Although it is important to know the number of officers deployed, the types of weapons they used, and how many people were arrested, these details alone do not give the full picture of how MPD conducts threat assessments. Equally, if not more, important are the decision points and procedures that lead to those actions. In addition to analyzing police actions at assemblies, the study should also scrutinize specific aspects of MPD’s threat assessment policies and practices. For example, who is/was responsible for assessing threats and what checks are in place? How do/did they determine the number officers that were/are deployed, etc.?

There are also other aspects of officers’ actions that the Council should consider adding to the scope of the study—namely, whether individuals arrested were treated fairly. For example, did those arrested receive basic necessities (i.e., medical attention, access to restrooms, food, water)? What types of restraints were used and were they used properly and according to District laws and regulations (e.g., ensuring that zip ties were not causing injury)?

We also recommend making definitional improvements to the bill. First, the legislation should explicitly define “biased policing”. This would ensure that the study captures different levels/types of bias that may influence how MPD assesses threat for different groups of people. And second, the legislation should also define “threat assessment.”

It is important to note that the D.C. Council should not wait for the results of this study before taking action to address the significant problems with MPD’s response to First Amendment demonstrations. While we support the goals of this legislation, we urge the Council to take immediate steps to address MPD’s use of force, including chemical and other non-lethal weapons, aggressive crowd control tactics, lengthy detentions, and execution of arrests that have characterized the Department’s response to many First Amendment rallies over the past several years.

We hope you take these recommendations into consideration as you go through mark up of these bills and welcome any questions you may have.

Thank you for this opportunity to testify.