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Democrats’ sweeping new police reform bill, explained

Among other measures, Democrats want to end qualified immunity and chokeholds.

Sen. Cory Booker, Senate Minority Leader Chuck Schumer, Sen. Kamala Harris, Speaker of the House Nancy Pelosi, Rep. Karen Bass, House Majority Leader Steny Hoyer, and other congressional Democrats kneel in silence for eight minutes and 46 seconds in the US Capitol Visitor Center to honor George Floyd.
Chip Somodevilla/Getty Images

House and Senate Democrats unveiled a new policing reform bill on Monday in the wake of George Floyd’s killing at the hands of a now-former Minneapolis police officer and the weeks of protests against police brutality that followed.

The Justice in Policing Act of 2020 contains a number of measures that make it easier to prosecute police misconduct and demilitarize police departments around the country.

The bill’s biggest provision seeks to end qualified immunity, a thorny legal issue that gives police officers and other public officials broad immunity from civil lawsuits. The US Supreme Court, which has upheld the qualified-immunity doctrine in past rulings, is currently deciding whether to hear arguments next term in a case challenging qualified immunity.

The legislation also incorporates a proposal from Sen. Cory Booker that would create a new national registry to track misconduct as a way to prevent repeat offenders from being rehired at other police departments.

In addition, the bill seeks to ban the use of chokeholds and certain no-knock warrants at the federal level, as well as to incentivize state and local governments to do the same. Both tactics have been factors in police killings of unarmed black people: A no-knock warrant used by police in Kentucky in March ended in the death of Breonna Taylor, a 26-year-old EMT who died after officers broke down her door without warning and fatally shot her.

“We cannot settle for anything less than transformative structural change,” House Speaker Nancy Pelosi (D-CA) said Monday. “The martyrdom of George Floyd gave the American experience a moment of national anguish. … True justice can only be achieved with full comprehensive action. That’s what we are doing today.”

Pelosi and Senate Minority Leader Chuck Schumer (D-NY) unveiled the bill alongside leaders and members of the Congressional Black Caucus, led by Rep. Karen Bass (D-CA). The Congressional Black Caucus — members of which include prominent African American senators like Booker and Kamala Harris (D-CA) — was instrumental in writing the bill.

“Empathy and sympathy and words of caring for those who have died and suffered is necessary, but it’s not enough,” Booker said Monday. “We must change laws and systems of accountability. We must pass legislation that makes our common values and our common ideals real in the law of our land.”

While it’s unlikely the Republican-led Senate will support the bill in its current form, or that President Donald Trump would sign it into law, the legislation still signals where Democrats want to take criminal justice reform should they win back the White House and Senate in November. Pelosi also noted that the bill is a “first step” and said there is “more to come” from Democrats on the subject of policing reform.

Multiple lawmakers on Monday called the bill “transformative.” While the expansive bill doesn’t contain any new money for police, it is clearly an attempt to establish federal guidelines for reform rather than defund police departments altogether. That falls short of what some activists are calling for — and what the Minneapolis City Council is attempting to do.

“We want to work with our police departments,” Pelosi said. “There are many things we call upon our police departments to deal with — mental health issues, policing in schools and the rest — that we could rebalance some of our funding to address some of those issues more directly. But this isn’t about that.”

By and large, the bill would give federal agencies like the Justice Department the ability to hold state and city entities more accountable for police misconduct. Because so many policies are determined at the local level, though, the legislation faces limitations. In several points, the bill conditions federal funding on state and local governments adopting the reforms it proposes.

Pressure for reforms in state and local governments is crucial: “Almost all policing is done at the local and state, not federal, level; out of the nearly 18,000 law enforcement agencies in the US, a dozen or so are federal. It’s at the local and state level, then, where reforms can and should happen,” Vox’s German Lopez previously reported.

With over 200 co-sponsors in the House and Senate, the bill is likely to pass the House. House Majority Leader Steny Hoyer said he will call the full House back to vote “as soon as this legislation is ready to hit the floor,” and Democrats are eyeing passage by the end of the month.

But it probably won’t get much further, especially after Trump tweeted his opposition to Democrats’ proposed reforms. Senate Majority Leader Mitch McConnell has shown very little appetite for taking up bills that don’t have Trump’s support, and he’s called for Republicans to develop their own response, led by Sen. Tim Scott (R-SC), the only African American in the GOP conference. (Already, Sen. Mitt Romney (R-UT) has been working with Scott and a small group of Republican lawmakers to draft his own bill to create police “supervisory boards” and increase racial bias trainings.)

The Senate Judiciary Committee, chaired by Sen. Lindsey Graham (R-SC), will also hold a hearing on police violence next week that is likely to provide more insight into what lawmakers are interested in doing.

Democrats on Monday condemned the inertia they’ve seen thus far in the Senate.

“Just last week, we couldn’t even pass an anti-lynching bill in the US Senate,” Harris noted, mentioning a bill that was held up due to the objections of Sen. Rand Paul (R-KY).

What’s in the police reform bill

The Justice in Policing Act is a wide-ranging bill that attempts to get at the problem of police brutality toward black communities through a number of different means.

One of the most significant parts of the bill is a provision changing the law to make it easier to prosecute police officers who harm or kill someone, as well as those who are charged with other forms of misconduct. But the bill contains a number of other measures, including a requirement for the US attorney general to create new standards for law enforcement accreditation, the establishment of a national registry to track police misconduct, and mandatory racial bias training at the federal level.

Here are some of the key parts of the bill:

Revising federal law on criminal police misconduct and qualified immunity reform: The new bill would change one very significant word in federal law when it comes to prosecuting police: “willful.” That word means prosecutors charging police have to demonstrate there was willful intent on the part of the police officer to kill or harm someone — which can be extremely difficult to prove and successfully prosecute. The bill would change the word “willful” to the phrase “knowingly or with reckless disregard.” It would also define a “death resulting” as any act that was a “substantial factor contributing to the death” of an individual.

In addition, the bill changes something called qualified immunity, which courts have interpreted to give police officers and other public officials broad immunity from being sued if they have violated the constitutional rights of an individual. The bill would make it easier for plaintiffs to recover damages against police officers if the officer is sued and found guilty.

“Qualified immunity is something that has evolved over time. It’s not written into any law,” Booker told NPR’s Weekend Edition on Sunday. “But our highest courts in the land have decided that police officers are immune from civil cases unless there’s been specifically in the past a case of generally the exact circumstances that has led towards a successful action. It creates this bar towards civil action against a police officer for violating your civil rights.”

Ban no-knock warrants in drug cases at the federal level: The use of a no-knock search warrant in Louisville on March 13 had fatal consequences. Police shot and killed 26-year-old Breonna Taylor after using a battering ram to break down her door and exchanging fire with Taylor’s boyfriend. The police were executing a search warrant for a drug case, pursuing two other men, but broke down Taylor’s door because they believed the men were receiving packages at her apartment. The Democratic bill would ban these kinds of no-knock warrants in federal drug cases, but also condition federal funding for state and local law enforcement agencies on prohibiting their use as well.

Ban chokeholds at the federal level: In 2014, Eric Garner was killed by New York police, who used a chokehold to restrain him during an arrest. And in May, Floyd died after a police officer placed his knee on Floyd’s neck for more than eight minutes.

The legislation would put a federal ban in place on the use of police chokeholds, which is defined by the bill as an act putting pressure on an individual’s throat or windpipe that impedes their ability to breathe. Such bans have already been supported by localities across the country including, most recently, Minneapolis.

A federal chokehold ban would further condemn the use of this tactic by police and give the Justice Department more power to levy charges against law enforcement officers that use this maneuver. Activists have raised questions about the efficacy of such bans: Despite the New York Police Department banning chokeholds in 1993, police using the method killed Eric Garner in 2014.

Establish a national registry of misconduct by law enforcement officers: There’s currently very little data available about police misconduct, making it difficult to pin down past offenders and ensure that they don’t receive jobs in new places. According to a USA Today report, punishment for misconduct also varies at the state level, with some requiring police to decertify while others are far less punitive. Creating a national registry about misconduct would enable lawmakers to better understand its frequency and craft targeted responses to combat it.

Require states to report use of force to the Justice Department: Similarly, little is currently known about the frequency with which police officers currently use force, something the bill is striving to change. By mandating state documentation of use of force, law enforcement agencies can begin to determine how often police are engaging in such actions.

Mandate racial bias training at the federal level: A reform that’s been implemented in some police stations across the country, racial bias training is aimed at getting law enforcement officers to recognize their own explicit and implicit biases — and how these attitudes affect the way they respond in different situations. Researchers have found implicit racial biases could be tied to officers being quicker to shoot black subjects versus white subjects. The training involves providing officers with evidence of these biases playing out so they are forced to recognize their existence.

In addition to requiring it at the federal level, the bill would condition funding for state and local police based on their commitment to implementing racial bias training programs. Among critics of racial bias training, questions remain about how effective it is in deterring police abuses and disparate use of force.

Require that deadly force only be used as last resort: The bill would change the use of force standard for federal officers from “reasonableness” to only when it is necessary to either prevent death or “serious bodily injury.” It would require federal officers to use deescalation techniques and only resort to force as a last resort, and would condition federal funds to state and local agencies on their adoption of the same standard.

Make lynching a federal crime: The killings of both Floyd and Ahmaud Arbery, a black jogger who was shot by two white men in Georgia while he was out on a run, have been described as modern-day lynchings. Despite more than 200 attempts to consider bills addressing such acts, there remains no law on the books classifying lynchings as a federal crime.

While the House and Senate have respectively passed their own legislation that would do so, the two have yet to approve one bill and get it signed into law. This bill would guarantee that lynching — described by Hoyer as “the premeditated, extrajudicial killing by a mob or group of people to instill fear” — would be treated as a federal crime. It would also classify conspiring to commit civil rights offenses, such as a hate crime, as a lynching.

Require police to use more body and dashboard cameras: The bill would require federal police officers to wear body cameras and put dashboard cameras on all federal police vehicles. It requires state and local departments to use existing federal funds to increase body camera use, which has been on the rise since the 2014 shooting death of Michael Brown in Ferguson, Missouri. However, research has shown that more cameras aren’t the whole story; police don’t always turn them on or review the footage while writing an incident report, and footage is not always made public.

Limit the transfer of military equipment to local police departments: Currently, the military is able to distribute excess equipment including armored vehicles and ammunition to local law enforcement agencies. The bill would prohibit the distribution of equipment like drones and armored vehicles.

The policies don’t go as far as activists have been demanding

The focus for many activists in the recent protests has been a straightforward one: Defund the police.

The idea, as Vox’s Matt Yglesias explains, centers on reducing funding for police and redistributing that money to other programs such as social services like food assistance programs and workforce development. This approach could ensure that more funding can be dedicated to providing support for communities and addressing the fundamental causes of crime. Congressional lawmakers and presumptive Democratic presidential nominee Joe Biden have stopped short of backing this idea both in this bill and in recent statements.

“I can’t imagine that happening in a federal way, but let me just tell you that part of that cry is a desire for there to be significant higher investment in communities looking at why police are needed, what happens, what are the root causes of the problems in communities,” Bass said Monday. “A lot of people feel when it comes to the defense budget, maybe that money could be used in different ways, and I think that’s a similar issue.”

Democrats’ bill doesn’t reduce police funding or provide any new money for policing, though there is a provision in it that allocates grants for “projects that begin to ‘re-envision’ what policing might be about in a particular neighborhood,” according to Bass.

Biden, too, supports bolstering funding for social programs but does not back defunding the police, according to a statement from his spokesperson Andrew Bates. He instead supports additional money for community policing programs and other training. Democrats’ broader position on this subject is likely driven, in part, by the support that police still have from a majority of the public — even though people have become more aware of the racial biases behind their work. According to a Monmouth poll conducted in early June, 71 percent of people are satisfied with the job that police are doing in their local neighborhoods.

Activists, meanwhile, note that much of the pressure around police reform and defunding needs to come at the state and local levels, and requires national Democrats to acknowledge specific failings by members of their own party.

Cities, including those run by Democratic mayors, like Baltimore and New York City, for example, are among those where there have been high-profile incidents of police violence killing black individuals during those leaders’ tenure.

“While the Democrats are taking these relatively bold steps in Congress, how are you going to hold these Democrats accountable in these cities and states where these deaths are taking place?” Jorden Giger, a Black Lives Matter organizer in South Bend, Indiana, asked.