WASHINGTON — Although congressional negotiators remain optimistic about reaching agreement on a police-reform bill in the coming weeks, many of the same issues that divided Democrats and Republicans last summer when they first tried to pass policing reform after George Floyd’s murder remain as sticking points.
Lawmakers — working mostly behind closed doors — hope the conviction last week of former Minneapolis police Officer Derek Chauvin could provide the tipping point after decades of failed attempts to overhaul policing tactics.
As angry crowds filled the streets last summer to protest Floyd’s killing, Rep. Karen Bass, D-Calif., introduced the George Floyd Justice in Policing Act, which passed the House by a 236-181 vote. It would have banned chokeholds, ended “qualified immunity” for law enforcement officers and created national standards for police training. Republicans argued it went too far to federalize policing decisions normally left to states and local jurisdictions.
A counterproposal by Sen. Tim Scott, R-S.C., would have made falsifying a police report a crime punishable by up to 20 years in prison and created two commissions to study the lives of Black men and boys and to review the criminal justice system. Democrats effectively killed that proposal, saying it didn’t do enough to reform legal doctrines like qualified immunity that make it harder for victims to file civil lawsuits over excessive force.
The two proposals had similarities. Both mandated increased reporting to federal officials on the use of deadly force, created databases of police misconduct records (though they disagreed on whether to make it public), increased the use of body cameras and promoted hiring officers who live in a community or represent its demographics.
But they differed in key areas, specifically whether to make it easier to sue law enforcement.
Congress didn’t revisit the issue until the start of the new session, with the House passing the George Floyd Justice in Policing Act again in early March. That kicked off negotiations between Bass, Scott and Sen. Cory Booker, D-N.J., on a compromise version that could get to President Biden’s desk.
The three negotiators have remained quiet about what is being discussed, saying their party leaders have given them wide latitude to get something done and that negotiations are at a delicate stage.
The main unresolved issue appears to be how to change qualified immunity, which is a legal doctrine that protects state and local officials, including law enforcement, from individual liability unless the official violated a clearly established statutory or constitutional right.
Critics say qualified immunity gives officers impunity to use excessive force without the threat of accountability and prevents victims from getting justice. Supporters say it allows officers to make split-second decisions without having to weigh whether they could be held civilly responsible for the results.
Last summer, Republicans said any changes to qualified immunity were a nonstarter and that they wouldn’t support any bill that dealt with it. But this year, they’ve said they are open to a compromise that allows victims’ families to sue police departments, rather than the officers themselves. Scott suggested to reporters that Bass and Booker may be willing to accept that.
“There is a way to put more of the onus or the burden on the department or on the employer than on the employee,” Scott said.
Democrats still want both officers and departments to be held liable, but Bass has indicated there is room for negotiation.
“We have to figure out a way to prevent these shootings from continuing to happen, and until officers are held accountable, there’s no reason to think they won’t happen,” Bass said.
Another sticking point is whether to lower the criminal intent standard in Section 242 of U.S. Code to make it easier to convict an officer of misconduct. Currently, a jury must agree that the act that caused a person’s death was done willfully. Democrats want to change that standard from “willfully” to “knowingly or with reckless disregard.”
