The release of footage on Friday of Memphis police violently beating Tyre Nichols, a 29-year-old Black man who died from his injuries three days later, has renewed calls to pass federal police reform. But with the House of Representatives now in Republican hands and a closely divided Senate, the prospect for any such reform remains unlikely.
Chief among the existing proposals is Democrats’ George Floyd Justice in Policing Act, which passed the then-Democratic controlled House in 2021 without a single Republican vote, but failed in the Senate.
Ben Crump, a lawyer for the Nichols family, has publicly urged Congress to pass the bill, saying in an interview with CNN Sunday that he hoped Nichols’s death would prove to be a turning point. Democrats have echoed that sentiment, either rallying behind that bill specifically or calling for further bipartisan negotiations in the hopes of reaching a compromise that has a chance of passing.
Both Sens. Cory Booker (D-NJ) and Tim Scott (R-SC), who led unsuccessful negotiations on a police reform package in 2021, seemed receptive to giving bipartisan talks another chance in statements Friday. Booker said that he would “never stop working to build a broad coalition” necessary to pass policing reform, and Scott said that Nichols’s death should be a “call to action for every lawmaker in our nation at every level.” The Congressional Black Caucus has called, too, for both a meeting with President Joe Biden and a robust push for national criminal justice reforms.
Still, many Republicans have expressed opposition to key reforms proposed by Democrats, including limitations on qualified immunity, which protects officers from certain lawsuits. Others dismissed the need for reform at the federal level at all. Rep. Jim Jordan (R-OH), for instance, said in an interview with NBC that, “Democrats always think that it’s a new law that’s going to fix something that terrible. We kind of think that … no new law is going to do that.”
While a divided Congress, particularly one with a slim Democratic Senate majority, makes a bipartisan policing bill unlikely, new legislation isn’t impossible: Tragedy has galvanized bipartisan action on divisive topics in the recent past.
In December, two years after George Floyd was killed by police, Congress passed a law that supports deescalation training for law enforcement officers dealing with individuals who have mental health issues. And after a gunman killed 19 children and two teachers at an elementary school in Uvalde, Texas, last year, Congress passed its first federal gun safety law in nearly three decades, making strides in preventing guns from falling into the hands of dangerous individuals.
Both of those bills fell far short of a panacea to the epidemics of violence they aimed to address, but they represented incremental progress. So far, however, further compromise on police reform has proved elusive.
Why police reform has been at an impasse
Police reform has long been stalled in Congress for a simple reason: disagreements between Republicans and Democrats over how comprehensive such legislation should be. In 2020, in the wake of George Floyd’s murder and massive protests of law enforcement and racism, both parties introduced their own versions of legislation.
The Democratic version, the aforementioned George Floyd Justice in Policing Act, would lower the legal standard by which law enforcement officers can face criminal prosecution for misconduct and limit their protection from civil liability under qualified immunity, as well as curb federal officers’ ability to use force, no-knock warrants, chokeholds, and carotid holds. It would also establish new reporting requirements, a new national database on police misconduct, and national accreditation standards for law enforcement agencies under which officers would be trained on racial profiling, implicit bias, and their duty to intervene when another officer uses excessive force, among other provisions.
Republicans’ bill — the JUSTICE Act — focused heavily on data collection about police use of force and more documentation of police misconduct, and was much narrower than Democrats’ proposal.
Qualified immunity, in particular, has consistently been a major sticking point between the two parties, with Democrats determined to end such protections, and Republicans arguing that doing so would leave police officers too vulnerable to liability. Under existing law, qualified immunity makes it challenging to file civil suits against police officers for harms they’ve caused unless there was a prior case deeming those exact same harms illegal or unconstitutional. As a result, police officers have not been held accountable in multiple cases when they have killed people, caused serious injuries, and damaged property.
One compromise floated by Scott, though it never materialized in legislation, was the idea that instead of holding individual officers liable for harms, police departments would be held liable, in a way to take the pressure off individuals while still increasing accountability. Sen. Lindsey Graham, in a tweet this week, once again referenced this idea, noting that “holding police departments accountable makes sense.”
I oppose civil lawsuits against individual officers.— Lindsey Graham (@LindseyGrahamSC) January 29, 2023
However, holding police departments accountable makes sense and they should face liability for the misconduct of their officers.
Broadly, the federal government faces limitations when it comes to how much it can address policing practices, since most departments operate at the state and local level, and are governed by those laws. Those limits were reflected in some of the commonalities between the previous Democratic and Republican bills, both of which tried to use federal dollars to encourage policy changes the US government couldn’t mandate. For instance, both conditioned grant money to state and local law enforcement agencies based on whether they eliminated chokeholds.
One other key area of overlap between the two bills was a requirement that regional agencies do a better job reporting use of force to the Justice Department. That could also be a starting point for new negotiations.
Booker, Scott, and former Rep. Karen Bass (D-CA) — now mayor of Los Angeles — previously led negotiations in Congress on the legislation. In September 2021, talks on police reform collapsed due to the parties’ differences. Those same divides remain, and given the current makeup of Congress, it’s likely that any police reform that could advance would be much narrower and even tougher to pass.