The uncertain prospects for police reform in the Senate, explained

Lawmakers are searching for a compromise on qualified immunity that may not materialize.

In the wake of former police officer Derek Chauvin’s conviction for the murder of George Floyd, the Senate is facing tough questions about whether it will actually get anything done on police reform, something it’s stalled on since last year.

While the US House passed Democrats’ George Floyd Justice in Policing Act for the second time in March, the Senate still has yet to advance any police reform bill of its own — and it’s unclear when exactly it will.

Among the recurring issues at hand is the subject of qualified immunity, a legal shield that makes it incredibly difficult to sue police officers for wrongdoing they committed on the job. As Vox’s Ian Millhiser has explained, because of qualified immunity, civil suits against police officers typically fail unless the officer violates “clearly established” law. In practice, this can mean that a case against an officer for something like an injury or property damage is very tough to pursue.

Democrats have long wanted to weaken these protections in order to increase police accountability, while Republicans have shied away from such changes because they argue that it could open officers up to overwhelming liability. Last year, Sen. Tim Scott (R-SC), the GOP’s chief negotiator on police reform, went so far as to call the provision a “poison pill” for many members, a dynamic that could sink any new legislation, too.

Scott on Wednesday noted that qualified immunity was one of a handful of areas that were still being worked out, though he was optimistic that the parties could find a compromise.

“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 told Bloomberg’s Laura Litvan, adding that Democrats he’s spoken with, including Rep. Karen Bass (D-CA), the lead sponsor of police reform in the House, seemed open to that idea. Effectively, this suggestion would mean that police departments, rather than individual officers, would have to deal with potential lawsuits over misconduct. The thinking behind it is that it would still pressure police to be more accountable, while reducing some of the potential risks an individual officer would face.

Bass declined to share details of current talks with reporters, but said she was hopeful. “We need the individual officers and the agencies to be accountable,” she emphasized. “Because I think if the agencies, the cities, if they’re concerned about lawsuits, they will not want to have problem officers.”

Currently Scott and Sen. Cory Booker (D-NJ) have been spearheading talks in the Senate, while Bass has been doing the same in the lower chamber. Senate Judiciary Committee Chair Dick Durbin (D-IL) also plans to hold a hearing about police reform in May, which is poised to keep the focus on the issue.

Whether these conversations can lead to a deal that gets 60 votes in the Senate — the threshold the bill will need to hit if it gets filibustered — remains to be seen. Even as Senate Democrats, as well as President Joe Biden, pushed for the Justice in Policing Act following the Chauvin verdict, multiple Republicans who spoke with Vox noted that they were interested in starting with a narrower measure that focused on training and data collection, similar to what Scott had proposed last year in the Justice Act.

“I’m not going to support getting rid of qualified immunity for our law enforcement officials. It will devastate every law enforcement agency in our country,” Sen. John Kennedy (R-LA) said.

The differences between the Democratic and Republican proposals so far, briefly explained

Neither Democrats or Republicans have put forth new bills yet, though they did introduce two versions of police reform in 2020 that have some pretty significant differences.

Democrats’ bill is the George Floyd Justice in Policing Act, which recently passed the House again, and Republicans’ is the Justice Act, which failed during a Senate vote last year after Democrats blocked it. This year, members of both parties are trying to see if it’s possible to eke out a compromise, and build on the commonalities in the legislation — in spite of the gaps that exist.

“Just about anything coming out of the House is likely to be partisan and extreme,” Sen. Ted Cruz (R-TX) said of the Democratic proposal, though he added that he hadn’t taken a close look at the measure yet. Democrats, too, have been unimpressed with the Republican offering.

“The Republican proposal is heavy on gestures and light on real reform,” Booker said last year when the GOP bill was introduced. “If we’re serious about ending police brutality and changing the culture of law enforcement, this bill is not the solution.”

The proposals overlap some, though Republicans’ is much narrower: Both would ramp up the use of body cameras, make lynching a federal crime, and incentivize state and local police departments to ban the use of chokeholds. But the GOP bill doesn’t touch qualified immunity or other legal protections police have.

Below is a rundown on the similarities between the two measures — and some of their differences:

What they have in common:

• Both incentivize state and local police to ban chokeholds: In 2014, Eric Garner was killed by New York police, who used a chokehold to restrain him during an arrest. And last May, Floyd died after Chauvin pinned him by the neck with his knee for more than nine minutes.

Both bills use federal funding to incentivize state and local police to ban chokeholds except when deadly force is authorized. Such bans have already been supported by localities across the country including, most recently, Minneapolis, though an NPR review found their effectiveness to be limited.

• Both bolster grant programs for body cameras: The use of body cameras is a technical reform that’s increasingly been adopted by law enforcement agencies across the country, as a means of documenting use of force and other police actions. These measures would set up a grant program that state and local police forces could tap into to support their use of such tech.

Cameras are a potentially useful tool, but there are limitations to the cameras’ efficacy, as PR Lockhart explained for Vox. During the police shooting of David McAtee in Louisville last June, officers’ body cameras were off. And in several past cases, body camera footage hasn’t been sufficient evidence for juries to decisively convict officers of misconduct.

• Both 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, 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. Both measures would guarantee that lynching — described by Rep. Steny Hoyer as “the premeditated, extrajudicial killing by a mob or group of people to instill fear” — would be treated as a federal crime. They would also classify conspiring to commit civil rights offenses, such as a hate crime, as a lynching.

• Both require states to report use of force to the Justice Department: Right now, little is known about the frequency with which police officers use force, something the two bills are striving to change. By mandating state documentation of use of force, law enforcement agencies can begin to determine how often police engage in such actions.

What’s different:

• Federal bans of chokeholds: Although a federal ban would only apply to a limited number of officers, since most are employed at the state and local levels, Democrats’ bill would bar federal officers from using chokeholds, while Republicans’ would not. Such a 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 who use this maneuver.
• Federal ban of no-knock warrants in drug cases: Democrats’ bill would also prohibit federal police officers from using no-knock warrants in drug cases — the type of warrant that was used when Breonna Taylor was shot and killed by police in Louisville last spring — while Republicans’ would not.

Democrats would also use grants to incentivize state and local governments to bar the use of no-knock warrants, and Republicans’ version would collect data about no-knock warrants instead.

• Establishing a national registry for police misconduct: Democrats’ legislation sets up a national registry to track officer misconduct, so those who are disciplined in one locality can’t just easily move to another one. Republicans’ version, meanwhile, would require local and state agencies to keep these records on their own.
• Reducing qualified immunity protections: In order to improve accountability for police misconduct, Democrats’ bill curbs current qualified immunity protections, a provision that Republicans have been eager to preserve. Without qualified immunity, victims would be able to more easily file civil suits in the cases of property damage and bodily harm.
• Giving DOJ more power to oversee local agencies: The Justice in Policing Act would give DOJ subpoena power to hold local law enforcement agencies accountable, and enable state attorneys general to bring a wider range of cases in the instances of misconduct by regional police departments.
• Limiting 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 under the 1033 program. Democrats’ bill would prohibit the distribution of some “controlled” military equipment by the Department of Defense, such as firearms, grenades, vehicles, and weaponized drones. There are scenarios when departments could waive this rule, however, such as when police need a vehicle for a natural disaster response.

As Vox’s German Lopez has previously reported, many reforms need to take place at the state and local levels which oversee the majority of policing, though these measures make an effort to use federal money to pressure regional agencies to make key changes.

Neither bill is viewed as strong enough by activists, who have pushed instead for shifting funding away from police and toward other social services like mental health care and education. Democrats’ bill, however, is seen by many police reform advocates as a better baseline approach than the GOP proposal.

Attempts at compromise fell apart last year — and the same thing might happen again

Barring any changes to the filibuster, any police reform bill will need 60 votes to pass, which means the 50-person Democratic caucus would have to stick together and also pick up 10 Republican votes. As a result, the two parties will need to work out a deal for anything to actually get through, a prospect that’s a bit of a longshot.

Last year, Democrats blocked Scott’s bill from passing — a sign of how limited they considered it — and this year, there will need to be substantial changes to both measures in order for either piece of legislation to get the bipartisan backing it requires to advance.

Scott’s proposal around qualified immunity could be a start to securing that support, though it would require both Democrats and a number of Republicans to get on board to actually be tenable.

Sen. Chris Coons (D-DE), a member of the Judiciary Committee, signaled some openness to it, noting that it was “worth considering, but it’s going to depend on exactly how it’s done.”

“That may be a reasonable idea for compromise,” Sen. Thom Tillis (R-NC) also told Vox, adding that he still needed to study the idea. “That’s an interesting approach. It just shows Tim Scott really does want to make progress on police reform.”

As fatal police shootings during and immediately after the Chauvin trial underscored, the need for police reform remains incredibly urgent — and also quite popular with the broader public — a sign that Congress must act quickly. Whether lawmakers do, though, is no sure thing given how the measure has fallen by the wayside before, and how other similarly important measures, like gun control, have foundered.

“At some point, our nation needs to make a decision about how many more instances of police brutality do we need to witness before we do something about it,” Bass, the lead sponsor of the Democratic bill in the House, wrote in a recent op-ed.