Analysis: Policing overhaul hinges on compromise

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WASHINGTON — Representatives and senators have now laid the groundwork for legislation to protect African Americans from police brutality and to improve policing across the land.

Less than a month since Minneapolis police officer Derek Chauvin killed George Floyd, Congress finds itself in a rare place. Both Republicans and Democrats are galvanized to act and act quickly.

But whether that feeling of urgency, driven by the multitudes protesting, leads to a new law now depends on whether they are willing to compromise.

That willingness is still rarer. And following through will depend, in part, on how rigidly lawmakers view the policy disputes separating them, around whether the federal government should order police departments to make changes, or use incentives to encourage them to, and on whether the government should allow citizens to sue individual police officers.

But the bigger consideration may be political, with Election Day now less than five months away. Some Democrats may view it in their interest to hammer their Republican opponents for failing to embrace the far-reaching changes to policing that progressives are demanding, while some Republicans will see advantage in framing themselves as sensible reformers opposed by those who would defund, or even abolish, the police.

Senators will signal their intentions this week when Majority Leader Mitch McConnell says he will move to proceed on the GOP’s bill, by South Carolina’s Tim Scott.

The Scott bill would require police departments accepting federal funds to bar police officers from using chokeholds except when their lives are in danger. It would insist that the departments train their officers to de-escalate conflicts, collect disciplinary records that other departments can review before hiring officers, and mandate that departments report to the FBI when their officers use force or fire their guns, and that they disclose instances when they use “no-knock warrants” to raid private properties.

But the bill the House Judiciary Committee marked up Wednesday, led by the Congressional Black Caucus, Judiciary Chairman Jerrold Nadler of New York, and the two African American Democrats in the Senate, Cory Booker of New Jersey and Kamala Harris of California, would go further, by making chokeholds and carotid holds like that used by Chauvin against Floyd a potential civil rights violation, by denying federal law enforcement grants to jurisdictions that permit “no-knock warrants” in drug cases, and by making it easier for plaintiffs to sue individual police officers for violating their constitutional rights.

For all its dysfunction, Congress is still capable of legislating on tough issues. It was only this past March that both the House and Senate passed, with near unanimity, a roughly $2 trillion relief law to prop up an economy devastated by the coronavirus and the economic lockdowns that sought to slow its spread. In calling for cooperation on policing, McConnell noted the overwhelming Senate passage just last week of a bill that would address the longstanding backlog in maintenance needs at national parks. On policing, too, “We should be able to make law on a bipartisan basis,” McConnell said.

But, as Senate Minority Leader Charles E. Schumer pointed out, there are glaring examples of cases where Congress has failed to find compromise, even when majorities desire one, as with the plague of mass shootings, or on immigration.

If McConnell cannot find 60 votes to move forward with Scott’s bill, between his Republican majority of 53, and the chamber’s 45 Democrats and two independents, this will all enter the realm of the political.

Schumer said the Scott bill did not “rise to the moment” in failing to bar racial profiling or the transfer of military equipment to police departments and by leaving untouched the “qualified immunity” doctrine that protects individual officers from civil liability.

But Schumer also gave more ground than he has in the past on the potential for compromise. He said he’d discuss with his caucus the best way forward.

Speaker Nancy Pelosi, while also criticizing the GOP bill as inadequate, said she’d like to go to conference to work out the differences between the competing proposals. That can only happen if 60 senators agree to move forward. And Pelosi said she believed Congress would act because of the continuing protests. “To ignore that call for justice would be wrong, so I have confidence that something will happen now, because it must, because the people insist,” she said.

McConnell has pledged to allow amendments if Democrats accede to his request to proceed on the Scott bill. There, Democrats might win the sort of changes Schumer has insisted on. For example, some in the GOP conference, like Mike Braun of Indiana, favor changes to the immunity doctrine and might join Democrats in altering it. Braun said that he sees no reason police officers should have more protections from civil lawsuits than other people and that he’d “be disappointed if we don’t reform qualified immunity.”

Other Republicans, such as John Kennedy of Louisiana, said that could prove the sticking point that brings down a deal. He, along with many others in the GOP, worry that withdrawing those protections could harm policing and potentially police officers themselves. “I don’t want a police officer to hesitate because he’s worried about losing his home or his retirement savings,” Kennedy said. “If you hesitate a second, you can lose your life.”

In defending the Democrats’ proposal to allow suits against individual officers, Senate Minority Whip Richard J. Durbin rebutted Kennedy’s charge, arguing that in “99 to 100 percent” of cases in which suits against officers do go forward, the damages are covered by insurance policies paid for by their employers, and that officers, therefore, would not lose their homes or retirement savings.

That cuts both ways though. An officer is more likely to think twice if his own bank account is on the line.

The irony is that for all the focus on qualified immunity, it’s not clear how much of a role it plays in influencing police officers’ behavior. The protection for officers does not prevent mistreated citizens from suing the departments and the jurisdictions that employ them, and they pay out millions in settlements each year for police abuses.

That, in theory, should cause departments to discipline or dismiss abusive officers. Often it does not, though, because of the power of police unions and the protections for officers they’ve won in collective bargaining, critics of those unions say.

It’s possible that if the cost of the insurance policies covering officers rises, it would spur police departments to dismiss more bad cops. But it’s also possible that the same dynamic, in which protections won in collective bargaining shield those officers, will persist.

Scott argued that the other sticking point, surrounding whether Congress should mandate changes in police procedures or merely make them contingent on federal funding, was a distinction without a difference. “I think we achieve some of the same ends by our approach,” he said.

Scott’s credibility on the issue — as the only African American Republican in the Senate, one of only three African Americans in the chamber and himself a victim of racist policing — could help spur a deal.

But political pressures are mounting. Progressive groups from the Leadership Conference on Civil and Human Rights to the Drug Policy Alliance pilloried the Scott bill as window dressing, while not a single Republican backed the House Democrats’ bill in the Judiciary Committee. Compromise typically takes a willingness, on both sides, to give, and no one has yet.


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