1. There could be room for compromise on qualified immunity — but it’s Trump’s red line
Should Congress make it easier for people to sue police? It’s a key demand from Democrats in Congress. In his opening remarks, Senate Judiciary Chairman Lindsey O. Graham (R-S.C.) became the most high-profile Senate Republican yet to signal he’s open to changing the legal protections for police officers, known as qualified immunity.
“We don’t want to deter people from going into law enforcement. But we also want to have a sense of accountability,” Graham said. “And to the extent that qualified immunity fosters a sense of ‘It’s really not my problem,’ let’s take a look at it.”
Lee Merritt, a lawyer for the family of George Floyd, was among the witnesses. He gave several examples of families who would like to sue police (the daughter of a fire chief in Arlington, Tex., who was shot as a police officer aimed at her 6-month-old puppy, was a visceral example) but can’t because of qualified immunity. “He should be held accountable for his reckless behavior and the damage that it caused,” he said later of that officer.
Shortly after that testimony, Graham was more firm about his potential support for changing or eliminating qualified immunity: “Qualified immunity is an intriguing idea to me,” he said. “I don’t want the cop to lose their house, but I do want people to think twice if they’ve got a police force about how to organize it and how to train. ‘Cause that’s when change will happen, when people feel the sting of bad policies.”
The problem is that the White House has said it won’t consider any changes to legal protections for officers from lawsuits.
Supporters of qualified immunity argue that getting rid of it could make officers criminally liable for doing their jobs. “A law enforcement officer has to make a split-second decision that could cost him his life,” testified Patrick Yoes, president of the Fraternal Order of Police. “And my fear is, without this in place, that you’re going to find law enforcement officers that are going to be less engaged, which means less effective community policing.”
As he signed an executive order to reorient federal grants to police in a way that incentivizes training to avoid brutality, Trump sent a not-subtle message that he would side with police on this and any other major issues. Officers and police union officials surrounded him. “Americans want law and order,” he said.
2. Congress is skeptical anything will get done
Democrats have already introduced their bills in the House and Senate on policing reform. Senate Republicans, led by Tim Scott (S.C.), plan to release their package Wednesday.
It’s not expected to go as far as the Democrats’ bill on things like banning chokeholds. But there could be areas of overlap, such as whether to track police accused of misconduct.
But passing something, especially in an election year, would be the exception to the rule. You only have to look at immigration or gun issues to know that members of Congress are more familiar with a pattern of momentary outrage in reaction to tragedy, then ultimately inaction. That skepticism seemed the dominating sentiment at the Capitol on Tuesday.
“I worry in this moment — I really do — that we’re going to repeat history. That this is the movie ‘Groundhog Day,’ ” Sen. Cory Booker (D-N.J.) said.
And look at this from Washington Post reporting outside the hearing room:
Sen. Roy Blunt (R-Mo.) said Monday that both sides have laid out matters that they consider nonnegotiable — a bad omen for a possible deal.“If that’s the way we start out, we probably don’t get to a very good conclusion, but maybe as we debate it the nonnegotiables get more negotiable,” he said.
Senate Democrats were also skeptical of Trump’s intentions to play ball. Richard Blumenthal (D-Conn.) at one point said: “Frankly, the elephant in this room is the president of the United States who issued an executive order today that I think almost everyone privately would agree is mostly empty promises, no real change, no real standards that can be imposed.”
3. Defunding the police is not something serious policymakers are considering
“Defund the police” has different permutations, the most extreme of which is to disband police departments, as the Minneapolis City Council is moving to do following Floyd’s killing.
But a recent poll shows this demand from some protesters is unpopular, and Democrats in Congress have shied away from it, with House Speaker Nancy Pelosi (D-Calif.) saying last week that it’s up to localities to decide. In Tuesday’s hearing, Sen. Kamala D. Harris (D-Calif.) talked about “reimagining” public safety in a way that invests in community resources while keeping police departments, which is on the less extreme end of the spectrum of what “defund the police” could entail.
“The status quo thinking that more police creates more safety is wrong,” she said. “It’s wrong. And it has motivated too much of municipal budgets and the thinking (of) policymakers and has distracted them from what truly will be the smartest use of resources to achieve safety in communities, which is to invest in the health of those communities.”
Philip Atiba Goff, president of the police equity research organization Center for Policing Equity, said this as he testified: “Historical and polling research reveal the black communities do not favor eliminating law enforcement. They mostly want less biased and deadly law enforcement,” though he said that rapidly moving public opinion could change that.
4. Barr and the Justice Department face criticism
If Senate Democrats had their way, Attorney General William P. Barr would be testifying Tuesday, specifically to be questioned on why the Justice Department under him has not investigated any cases of excessive force in a police department — compared with 25 investigations brought by the Obama administration, according to stats Harris shared.
“He should be here to answer for his shameful record investigating civil rights violations in police departments in America during the Trump administration,” she said, echoing the top Democrat on the committee, Sen. Dianne Feinstein (D-Calif.).
A former Justice Department official testifying Tuesday also had harsh words, albeit more indirectly, for the Trump Justice Department. “The disruption of the crucial work of the civil rights division and throughout the Department of Justice to bring forth accountability and transparency in policing is deeply concerning,” said Vanita Gupta, head of the Justice Department’s civil rights division under President Barack Obama.
5. Are police systemically racist?
Sen. John Cornyn (R-Tex.) asked this provocative question, clearly skeptical that you could answer it in the affirmative. But a number of those testifying said they did think there was structural racism in American policing and American society writ large.
“I think every American institution has been kind of shaped by these forces,” said Gupta, the former Justice official. That prompted Cornyn to ask, “Do you believe that basically all Americans are racist?”
Gupta answered, “I think we all have implicit bias and racial bias. Yes, I do.”
“Wow,” Cornyn responded.
Democrats kept bringing Cornyn’s concerns back up: “I encourage our colleagues to not fall into these simplistic traps,” Harris said, “that are really about suggesting that if we reform the system it is because we are calling everyone in this system racist.”
That was the most interesting exchange, but perhaps the most eloquent response on this question came from Merritt, the lawyer for Floyd’s family:
“The reason that I’ve observed that all police in America is embroiled in a systemic racism is because their mission is bad. We empower our police to go over-policed inner-city communities, to go in there and find drugs and guns and punish wrongdoers. The issue is the problems in the inner-city community are blight or poverty or sickness or homelessness. Those aren’t situations that are necessarily remedied by a man with a gun, but rather the appropriate social workers, for example, or health-care workers that would remedy the problem. When we over-concentrate our black and brown communities, specifically with militarized policing, what you’re going to have is disproportionate use of force and incarceration of black and brown people.”
Different sides in this debate may not agree on how far to cast the “racism” net. But that notion, to provide communities with more resources than police, seems like something all sides can agree on. Trump’s executive order would pair police with mental health experts, for example.