Freedom from Law Enforcement Overreach

Two states receive an A (in rank order): New Mexico and Connecticut. They both largely maintain stronger protections against civil forfeiture by law enforcement, and neither has recorded Immigration and Customs Enforcement (ICE) cooperation agreements. New Mexico has among the best laws in the nation regarding police accountability. Unfortunately, neither has strong legal protections for so-called free-range parents under either civil neglect or criminal endangerment laws.

Four states receive an F (in rank order): Arkansas, Alabama, Wyoming, and Tennessee. All these states are characterized by weak forfeiture protections, limited legal remedies against law enforcement actions, almost no safeguards against government surveillance, and a lack of protections for parents seeking appropriate levels of independence for their own children. Each also scores poorly regarding allowing local police departments to be deputized to carry out federal immigration enforcement—in fact, two of them (Arkansas and Tennessee) require it.

Four governors receive an A, all of whom are Democrats (in rank order): New Mexico’s Michelle Lujan Grisham (D), Colorado’s Jared Polis (D), Connecticut’s Ned Lamont (D) and Maine’s Janet Mills (D). Lujan Grisham is strongest in her action on expanding her state’s civil penalties for harms inflicted by law enforcement, prohibitions on traffic cameras, and restrictions on local cooperation with ICE through formal agreements. Polis and Lamont earn grades higher than their respective states. For Polis, it’s because of his strong actions in favor of police accountability: He signed a law allowing civil rights claims against peace officers, for which qualified immunity is not an allowed defense. Lamont extended protections in that area, too, and imposed limits on law enforcement property seizures, traffic cameras, surveillance through automated license plate readers, and local police agreements to carry out federal immigration enforcement. Mills receives positive adjustments for forfeiture and restricting state law enforcement collaboration with ICE.

Nine governors receive an F, seven of them Republicans. In rank order, they are Arizona’s Katie Hobbs (D), Indiana’s Mike Braun (R), South Carolina’s Harry McMaster (R), Pennsylvania’s Josh Shapiro (D), West Virginia’s Patrick Morrisey (R), Tennessee’s Bill Lee (R), Alabama’s Kay Ivey (R), Wyoming’s Mark Gordon (R), and Arkansas’s Sarah Huckabee Sanders (R). Those who score worse than their state in this category typically do so because of either their encouragement or maintenance of formal agreements with ICE, their expansion of law enforcement use of cameras, or both.

This category consists of 12 scored variables organized into six groups:

• Civil forfeiture (one variable)
• Police immunity and civil remedies (one variable)
• Traffic cameras (two variables)
• Automated license plate readers (five variables)
• Parent protections for allowing childhood independence (two variables)
• State and local law enforcement assistance to federal immigration enforcement (one variable)

Data in this category come from the Institute for Justice’s work on civil forfeiture and qualified immunity, the Insurance Institute for Highway Safety, analysis of automated license plate reader statutes from the Policing Project at New York University, child endangerment and neglect law analysis from Let Grow (a nonprofit dedicated to encouraging and increasing understanding of free-range parenting), data on 287(g) agreements from the Department of Homeland Security, and our own analysis of state statutes.

Civil forfeiture laws allow law enforcement to take your property by alleging that it might be connected to a crime but without obtaining a criminal conviction first—and sometimes even without the target of the seizure being charged with the crime in the first place. Many state laws even allow the agency or police force that seized the property to keep it and spend the proceeds, thus creating an often irresistible financial incentive for state and local police departments.

This group’s score is based on the strength of the legal protections for property owners, as measured by the Institute for Justice. It includes the government’s standard of proof, due process protections, and the degree to which law enforcement is incentivized to seize assets, including its participation in federal “equitable sharing” programs that allow police to sidestep state laws enacted to put limits on that behavior. The letter grades of A through F are assigned numeric scores: A receives 10, B receives 7.5, C receives 5, D receives 2.5, and F receives 0.

Qualified immunity shields an individual police officer from being held liable for a civil rights violation. States can provide avenues for relief by making it easier to bring civil rights claims under state law, including eliminating the immunity defense altogether for state-level lawsuits.

This group is based on the grades awarded by the Institute for Justice (2022), which awards points based on greater access to civil remedies against government abuse. We use the same conversion as for forfeiture: A earns 10 points, B earns 7.5, C earns 5, D earns 2.5, and F earns 0. If a state has ended state qualified immunity as a defense for police officers since the publication of the Institute for Justice grades, its score is automatically upgraded to a 10 here.

Automated enforcement can extend the reach of policing to large numbers of people with little direct contact between officers and the public. The automated nature of the ticket issuance can also raise due process concerns and encourage abuse by revenue-hungry municipalities, which has been well documented.

This group uses data on traffic camera laws compiled by the Insurance Institute for Highway Safety and scores what state laws allow regarding speed and red-light cameras, not the number of cameras on the road. A statewide prohibition earns 10 points; no state law allowing or prohibiting them earns 5; and a law explicitly permitting such cameras earns 0. The two scores are then averaged.

Cameras that are popularly called automated license plate readers automatically capture images of cars and license plates, but we’re learning they do more than that: They are technically capable of photographing even the drivers and contents inside cars. This creates a whole host of problems different from those arising from conventional traffic cameras, such as the red-light and speed cameras already discussed. These cameras usually fall outside the purview of the laws on traffic enforcement and allow police to task them for various purposes, for which there are often few protections for the public. Police departments in many states have begun to create databases recording where vehicles have traveled even if the drivers or owners are not suspected of any offense. Recent controversies involve camera systems installed by Flock Safety and their misuse by individual police officers to surveil people who were not the subject of any investigation. Other potential misuses involve lack of oversight of camera operations and the unauthorized sharing of data with other law enforcement agencies, including federal ones.

This group measures five protections classified by the Policing Project at New York University:

• warrant and data deletion rules pertaining to whether a state requires a warrant for access to certain data and/​or a retention limit of no more than 30 days;
• independent verification of a plate match before allowing a traffic stop by the police;
• a formal process for lawful and documented data sharing;
• whether police departments that administer the cameras are subject to regular compliance audits; and
• due process remedies for violations, such as exclusion of evidence at a trial or court-enforced financial penalties and compensation judgments against the police department.

States are scored based on the percentage of the total number of standards met. A state lacking any governing statute for automated license plate readers receives 0 for every item, and a state whose statute lacks a specified protection receives 0 for that item. Because the cameras have spread widely through local police departments contracting directly with companies like Flock, the absence of a state law enforcing accountability for departments using these cameras effectively amounts to the absence of accountability.

Parents should be able to decide when their children are ready for ordinary activities such as walking to school, playing outside, or spending a short time at home without an adult. Vague neglect and endangerment laws can turn those decisions into grounds for investigation or prosecution, even when a child faces no serious danger. The punitive versions of these laws can sometimes be used to separate the child from the household and can result in criminal penalties for the parent. Using the survey of child protection laws published by Let Grow, this group measures the ability of parents to give their children the degree of independence they feel their children are ready for. All the protections scored here are aimed at encouraging reasonable, age-appropriate independence and protecting parents who want to engage in free-range parenting. They do not excuse abuse or conduct that exposes a child to serious danger or harm.

The first variable measures the noncriminal neglect laws that govern what child protective services or a juvenile court should consider suspected neglect and what that standard should include. States with strong protections for reasonable childhood independence, particularly when the law specifically states the activities that are protected—like walking to school or the corner store along a quiet residential street—earn 10 points. States with a framework that uses an overly broad definition of neglect (including, for instance, a lack of “general supervision”), deemed “punitive” by Let Grow, receive a score of 0. States with laws leaving substantial discretion to law enforcement and the judiciary generally receive 2.5 points.

The second variable applies the same scoring approach to criminal laws enforced by police and criminal courts. It is scored separately because protection from a neglect finding does not necessarily protect a parent from criminal prosecution. These laws can lead to severe legal penalties, including jail time, for the parents. States that have clarified boundaries for these laws and apply them only to gross and willful neglect—and, for good measure, extend to the criminal law the protections that might exist in the neglect laws—receive the top scores. States that have no such protections and rely on the discretion of police officers or judges receive 2.5 points. States with laws deemed “punitive” by Let Grow score 0.

The federal 287(g) program delegates to participating state and local officers the power to perform specified immigration enforcement functions under agreements with Immigration and Customs Enforcement. In the absence of these agreements, local law enforcement can still assist federal immigration enforcement efforts by notifying federal authorities that a person of interest is already in custody, facilitating the transfer of prisoners, and performing various other notification functions. These agreements are unique, however, in that they functionally transform a local law enforcement official into a federal immigration officer with the power to detain someone simply because the officer thinks that person is removable.

The agreements raise several legal questions—particularly Fourth Amendment and due process concerns—because immigration status is often legally complex and may depend on citizenship proof, visas, pending applications, prior proceedings, or other facts that are not readily apparent to a police or prison officer. Expanding local law enforcement authority into this realm therefore increases the risk that people will be detained before they have a meaningful opportunity to establish their legal status before a neutral judge or decisionmaker. These concerns are greatest when 287(g) authority extends beyond jail screening and into routine policing, where immigration enforcement becomes part of ordinary encounters between residents and local police.

For this variable, we interpret broader participation by local jurisdictions as representing a greater probability that police and other law enforcement personnel could perform rights-violating actions. States are scored on whether county law enforcement participates in the 287(g) program. Those states that have banned such participation outright receive a score of 10. The scores of the states that do allow it are based on the aggregate population of all participating counties in a state as a percentage of total state population. The measure gives higher scores to states with less coverage. States that require participation of local police in the 287(g) program—like Arkansas, Florida, Tennessee, and Texas—automatically receive a 0.

Although we measured the population living within participating county jurisdictions, we did not measure the percentage of residents who have been questioned, detained, or placed in deportation proceedings. Our measurement also does not capture municipal or statewide agency agreements, informal cooperation, or federal enforcement conducted without local participation.

As already noted, states with few or no participating counties may still undertake other forms of cooperation. They may also still collaborate with other federal agencies on nonimmigration enforcement matters. Some of those matters, however, are included in the prior group of civil forfeiture. For instance, the aforementioned equitable sharing agreements already scored in that group typically involve local law enforcement cooperation with the federal Drug Enforcement Administration, the Federal Bureau of Investigation, and Customs and Border Protection, just to name a few.