Members of Congress have offered no shortage of ideas in recent years for reforming policing in America.
Rep. Hakeem Jeffries, D-N.Y., proposed the Eric Garner Excessive Use of Force Prevention Act in 2019 to make constricting a person’s airway a civil rights offense. The same year, Rep. Gwen Moore, D-Wis., promoted the use of de-escalation techniques with the Preventing Tragedies Between Police and Communities Act.
Since George Floyd’s murder in 2020, federal lawmakers on both sides of the aisle have proposed legislation to address police behavior: Sen. Tammy Duckworth, D-Ill., reintroduced a bill that provides funding for anti-bias training. The George Floyd Justice in Policing Act from Rep. Karen Bass, D-Calif., offered sweeping changes to officer accountability and limitations on use of force. In response, Republican Rep. Tim Scott of South Carolina proposed the JUSTICE (Just and Unifying Solutions to Invigorate Communities Everywhere) Act, which includes reforming police hiring practices and funding training that would end the practice of chokeholds.
But in every case, the reform efforts have stalled or failed.
Many of the bills introduced by Democrats prior to Floyd’s murder have gone nowhere. The George Floyd Justice in Policing Act was approved in the House but fell apart in September amid opposition from Senate Republicans. Scott’s bill died within a week of its introduction.
“I’m astounded at how quickly we went from, after [Floyd’s] murder, a recognition that we need to fundamentally think about policing differently, we need to fundamentally think about the system more broadly,” said Jamila Hodge, executive director of Equal Justice USA. “We’re not at two years [since Floyd’s death], and it’s like it never happened.”
Political strategists say there is hope for meaningful federal police reform, with some bipartisan overlap in pending bills that could reignite cooperation after the midterm elections. But for years, federal police reform has fallen victim to political polarization, concerns over rising crime, and disagreement over how to address qualified immunity – the principle that protects police from legal accountability while on the job.
Laws rooted in Black Americans’ civil rights often have struggled to get through Congress. It took more than 100 years for federal lawmakers to agree on an anti-lynching bill. First introduced in 1918 by a Republican congressman from Missouri, the legislation met resistance from Southern lawmakers for decades. Scott and Sen. Cory Booker, D-N.J., as well as then-Sen. Kamala Harris, D-Calif., sponsored a new anti-lynching bill in 2018 that unanimously passed through Congress earlier this month. The bill was signed into law by President Joe Biden on March 29.
Given that history, Black Americans show little faith that federal police reform will happen soon. In a national poll conducted last month, 70% percent of Black respondents said more needs to be done to achieve equal treatment of African Americans by police. Of those, 49% said they are “very/somewhat pessimistic” that equal treatment will be achieved.
The poll, conducted by The Associated Press-NORC Center for Public Affairs Research, also asked respondents how much progress they believe has been made over the last 50 years in receiving fair treatment from the police, and 65% of Black respondents said “only a little/none.” The same percentage of Black Americans feel little or no progress has been made in receiving equal treatment in the criminal justice system.
“I do feel less optimistic, given our history of how the devaluing of Black life has just been from our founding and how it’s something we’re continuing to have to fight against,” Hodge said during a panel this month for the 17th annual Harry Frank Guggenheim Symposium on Crime in America.
Meanwhile, the list of Black men and women who have been killed by police has continued to rise. Last year, 264 Black people were killed, according to the Mapping Police Violence database, an increase from 250 the year before.
While those numbers spurred national protests in recent years, they have failed to sway federal lawmakers to find compromise on national police reforms.
“Prior to a couple of years ago, it might have been possible, but in the course of the last two years, policing has become so politicized on both sides, and I just don’t think it’s possible to come together behind a police reform bill,” said Vin Weber, a Republican strategist and former Minnesota congressman.
Rising Crime and Funding the Police
Biden could use executive powers to push a bipartisan plan that includes elements of Republican and Democratic proposals, political strategists say. Biden made police reform a major part of his presidential campaign, but instead, his administration has proposed a more than $32 billion increase in funding for police in the 2023 budget.
The 2023 budget proposal includes almost $11.2 billion to tackle violent crime, including more than $1 billion in new investments in reducing gun violence and violent crime and $3 billion in sustained investments for grant programs that help communities address violent crime, according to the Justice Department.
Police reform has already been enacted in several states. New Mexico Gov. Michelle Lujan Grisham signed a bill in April 2021 that ends qualified immunity for government officials found to have violated a person’s constitutional rights. Colorado enacted a sweeping police reform bill in July 2020 that mandates all law enforcement officers wear body cameras by 2023.
Massachusetts passed a police reform package that includes “strict limits” on no-knock warrants, a tactic that allows police to enter private property without first identifying themselves to residents. The tactic was used in an incident that led to the death of Breonna Taylor in Louisville, Kentucky, in 2020.
Still, federal legislation is needed to set “a national bar that all of the states would be required to meet,” said Masai McDougall, an associate professor at the University of the District of Columbia David A. Clarke School of Law, “a federal law that either the Department of Justice could enforce … [or] private citizens could enforce in the event that their own constitutional rights are violated.”
Federal police reform is now competing against reports of rising crime nationwide, said former Philadelphia Mayor Michael Nutter. Though there isn’t solid research to prove that a perception of rising crime, specifically homicides, is connected to dwindling momentum on federal police reform, Nutter said fear has caused people to pull back on conversations about addressing issues in law enforcement.
“These two things seem to happen at the same time: defund the police and crime going on,” Nutter said during the Harry Frank Guggenheim symposium earlier this month. “And I think that just flipped a lot of people out – Black, white, purple, whatever – and the immediate response in a moment of danger or fear is to retreat to what you know.”
Weber, the Republican strategist, said that reform efforts that can be tied to “defund the police” rhetoric could come off as being soft on crime at a time when many lawmakers are campaigning to keep their jobs.
Political strategist Toby Moffett said the slogan had made Democrats “our own worst enemy.”
“‘Reform the police’ would have been fine. You would have had people in the suburbs with bumper stickers saying ‘reform the police,’” said Moffett, co-host of the “November 4” podcast. “But you didn’t have people in the suburbs and the suburbs are critical” during election season.
Reforming Qualified Immunity
One of the most contentious parts of police reform is qualified immunity, which prevents police officers from being held civilly liable for actions that they believe are reasonable and necessary based on their training while on duty.
Qualified immunity “results in too many police officers doing too many egregious constitutional violations,” McDougall said. But, he noted that “there’s at least some consensus on it” between lawmakers.
“If you look at it from a perspective of pure rational conduct, if a police officer thinks that whatever they do they will be immune from suit, they’re more likely to do things that will violate people’s constitutional rights,” McDougall said. “Similarly, on the other side, if a police officer thinks that they might be liable for that sort of conduct, they will do less than that. And the question is how do you balance where the line should be drawn?”
Since 2005, “appellate courts have shown an increasing tendency to grant immunity in excessive force cases,” according to a Reuters investigation. Appellate courts ruled in favor of police receiving qualified immunity in 57% of reviewed cases involving allegations of excessive use of force between 2017 and 2019, the report showed.
Inimai Chettiar, the federal director for the Justice Action Network, said that while “there doesn’t seem to be an agreement with qualified immunity,” her organization has been combing through Scott’s and Bass’ bills to find overlapping measures to encourage lawmakers to come up with bipartisan legislation.
Chettiar’s organization, which focuses on bipartisan criminal justice reform solutions, supports Republican Indiana Sen. Mike Braun’s Reforming Qualified Immunity Act, which would “reinstate the original qualified immunity standard.” The bill would not protect officials when sued if they were found to have violated one’s constitutional rights, or federal and/or state laws.
Scott’s and Braun’s offices did not respond to emails. Booker’s office also did not respond to questions.
“With the elections on the horizon and with ‘defund the police’ handicapping everything, no Republican wants to go anywhere near anything that looks like, you know, you’re trying to significantly change the police,” said Moffett. “What I know about the climate and the political environment at the moment, and I’m telling you, it’s not good for passing anything substantial at any front. They cannot even agree on another shot of COVID aid.”
While Chettiar says she has been disappointed that lawmakers haven’t come to an agreement on federal policing reform, she has hope that one will eventually pass. She noted that the First Step Act – a measure focused, in part, on reducing the prison population – won bipartisan support in Congress in 2018 after a 10-year back-and-forth.
“So it does take time, but I do think that with policing, since it really captured the nation’s attention, that had become an urgent public matter,” she said. “They probably could have acted quicker if they had a bipartisan bill to begin with.”
Chettiar predicts that there will be bipartisan support for a federal policing reform bill in the next five to 10 years. Weber didn’t give a specific timeline, but he doesn’t think it will take as long as the anti-lynching law.
“I don’t think we will have to wait 100 years,” he said, “but I do think we will have to wait until after the election.”