Both promise hundreds of millions of dollars in new federal funding to state and local police for implementing specific reforms and cuts (somewhat significant for the Democrats, mostly modest for the Republicans) for failing to do so. But the reforms themselves are tepid.
The Republican bill places no restrictions on the dangerous practice of no-knock raids. Instead, it asks that states collect data. The Democratic bill bars the use of no-knock warrants for federal drug investigations and cuts funding for any state or local jurisdiction that doesn’t do the same. But the Democrats’ bill requires only that police officers execute drug warrants “only after providing notice of his or her authority and purpose.” This “knock and announce” requirement is all but meaningless if you know that police officers frequently do so either simultaneous with or just seconds before entering. (The cops who killed Taylor, for example, claimed they did knock and announce.) A truly meaningful reform would go further and bar any forced entry into a private residence unless the police have reason to suspect someone inside presents an imminent threat to others, such as an active shooter, a kidnapping or a robbery in progress.
Neither bill satisfactorily provides for changing the current reality that bad cops are rarely held accountable. Derek Chauvin, the officer who knelt on Floyd’s neck, had 17 misconduct complaints in 18 years. He received only two letters of reprimand. The New York Times reported that since 2012, the Minneapolis Police Department received over 2,600 civilian complaints of police misconduct. Just 12 were upheld. This is consistent with other surveys of police departments across the country.
Both bills do create national registries of police misconduct and require police agencies to check a potential new hire against the registry. But the Republican bill allows the registry to be accessed only by law enforcement officials. Barring the public from accessing the registry does little for transparency or accountability. The Democrats’ bill does make the registry public but, like the GOP bill, doesn’t sanction police departments who check a potential new hire against the registry, find a history of misconduct and hire the officer anyway. A better bill would also include in the registry those officers found to have lied under oath, in police reports or in court, by prosecutors, internal affairs departments or appellate courts.
The Democratic bill does provide funds for local police to set up independent bodies to investigate police abuse and deaths in police custody. But it doesn’t mandate such bodies even for federal police agencies. Moreover, the list of acceptable investigative bodies that would be eligible for the grant include other police agencies. As we’ve seen in states such as South Carolina and Georgia, cops tend to rubber-stamp misconduct by other cops. This sort of “oversight” tends to provide the gloss of thorough scrutiny with little actual scrutiny, which is often worse than no scrutiny at all. The Republican bill merely calls for a study of review boards.
When it comes to constitutional rights, the Democrats’ bill does end federal qualified immunity, which has often protected police officers from civil lawsuits. It’s probably the most significant item in either bill and one of the few areas in which Congress could actually bring some real accountability to policing. Unfortunately, Republicans have explicitly said there’s no chance it will pass the Senate.
There are lots of other areas where Congress has the power for substantive change that neither bill addresses. For example, Congress could lower the high hurdle plaintiffs must clear to file a Monell claim — a lawsuit alleging that a police department’s culture, policies or training are so lacking that misconduct and constitutional violations are inevitable.
Congress could also end the equitable sharing program, where police departments can get around state restrictions on civil asset forfeiture simply by partnering with a federal law enforcement agency. They could also set up civilian review boards for federal police agencies such as the Drug Enforcement Administration or Immigration and Customs Enforcement. They could end the practice of federal sting operations that lure people into crimes they otherwise wouldn’t have committed, a practice that disproportionately affects minorities.
And Congress could revive and codify the “provocation rule,” which states that if a police officer’s interaction with someone escalates to the point where the officer uses force resulting in death or serious injury, and the officer is responsible for the escalation, the officer is liable for the citizen’s injuries, even if by the time the officer deployed force, the force itself was justifiable.
A truly visionary bill would look at ways we could shrink the footprint of policing. Violence intervention groups such as Cure Violence have a proven track record in bringing down homicide rates in the communities where they work. Congress should fund them. Using federal highway spending as leverage, lawmakers could commission a study looking at ways to minimize police-motorist interaction by, say, relying less on traffic laws and more on engineering and highway design. This could mitigate problems such as racial profiling, pretextual stops, racial disparities in roadside searches, altercations that stem from traffic stops — all major sources of tension between police and marginalized communities.
It’s hard to overstate the importance of this moment and how revolutionary it could be. The idea that ending qualified immunity would have widespread support was unthinkable just weeks ago. But lawmakers know how easy it can be to exploit the fear of crime. Consequently, when it comes to rolling back the carceral state, Congress remains quite comfortable with leading from behind.