The chief GOP negotiator on the issue, Sen. Tim Scott (S.C.), said Wednesday that his discussions with Democrats could wrap up in the “next week or two” as he sketched out potential areas of compromise, particularly on the sensitive matter of whether officers can be sued for misconduct. Democrats and civil rights activists, meanwhile, said they would push to pass legislation by the first anniversary of Floyd’s death on May 25.
The flurry of talks came as the White House sought to seize a potentially fleeting moment of opportunity on policing revisions, a priority that the president has embraced but that has often taken a back seat to others. The White House is strategizing with civil rights groups and police organizations, and Attorney General Merrick Garland on Wednesday announced the Justice Department would launch an investigation into the practices of the Minneapolis Police Department.
Much of the activity is unfolding behind the scenes. “There are times — and this is true in diplomacy, but also true in legislation — that . . . the best strategy is to provide the space for those conversations to happen privately, and that’s part of our objective,” White House press secretary Jen Psaki said Wednesday.
The result is a sense of movement not seen since the immediate aftermath of Floyd’s murder last year by former Minneapolis police officer Derek Chauvin, a killing captured on video that spurred a nationwide reckoning on racial injustice against Black men and women.
“There's an urgency in this country now. There's an urgency last month. There's been an urgency since I was a young Black man, in my teens getting pulled over by the police and scared for my life,” said Sen. Cory Booker (D-N.J.), who was been working quietly with Scott and Rep. Karen Bass (D-Calif.) on a potential compromise bill. “So we definitely have to get something done.”
Still, similar efforts to revise policing practices last summer fell victim to election-year politics. And it is far from clear that the policy differences that have stymied lawmakers can be bridged, including how aggressively to restrict the type of chokehold used by Chauvin on Floyd and whether to revise the “qualified immunity” standard that broadly protects police from lawsuits.
And some activists worried that lawmakers would take the Chauvin verdict as evidence that the system works and no change is needed, rather than as a sign of broad problems with policing.
For all his emphatic rhetoric about the need to pass legislation on the use of force in policing, Biden has taken a different approach in this area than he has on coronavirus relief or infrastructure — where he has hosted bipartisan groups of lawmakers with much fanfare in an effort to tangibly portray efforts at a compromise.
That has been deliberate, with the White House wanting to give ample breathing room for negotiations on such a sensitive issue to take place. Instead, Biden has discussed the issue in private with the Congressional Black Caucus, while his senior aides on the Domestic Policy Council and in the Office of Public Engagement have kept tabs on the legislative efforts.
In a meeting with Black lawmakers last week, Biden underscored that he supports the Democratic policing legislation named for Floyd, which passed the House in early March mostly along party lines. Reps. Jared Golden (D-Maine) and Ron Kind (D-Wis.) opposed it, while one House Republican, Rep. Lance Gooden (Tex.), backed it.
Rep. Brenda Lawrence (D-Mich.), one of the attendees at last week’s meeting, paraphrased Biden’s message this way: “I came in [as president], I wanted to heal the country, that we have so many sides and divisions — and police reform is the bedrock of that.”
Sen. Raphael G. Warnock (D-Ga.), another attendee, added: “I can tell you that it is high on the president's agenda.”
White House officials have also been in frequent contact not only with civil rights organizations such as the Leadership Conference on Civil and Human Rights — whose former leader, Vanita Gupta, was confirmed as the No. 3 Justice Department official on Wednesday — but also law enforcement groups.
Biden plans to use his address to a joint session to Congress next week, the rough equivalent of a State of the Union address that has been delayed because of the pandemic, as “as an opportunity to elevate this issue and talk about the importance of putting police reform measures in place,” Psaki said.
The legislation named for Floyd that has been endorsed by the White House would bar the use of chokeholds, ban most no-knock warrants and outlaw carotid holds — a policing tactic used to restrict blood flow to the brain — by federal law enforcement. It would also create a national database to track police misconduct while making it easier for officers to be held both criminally and civilly liable.
The Republican version, written by Scott, addresses the same issues in different ways.
For instance, it would withhold federal grants to state and local law enforcement agencies that do not proactively bar the practice of chokeholds, rather than banning them outright.
It also would withhold funding to local police agencies that don’t report their use of no-knock warrants to the Justice Department. Most Republicans have said they would support the legislation drafted by Scott, as well as the House version introduced by Rep. Pete Stauber (R-Minn.), a former police officer.
“I’d like to take up police reform,” said Sen. Lindsey O. Graham (R-S.C.), who is close with Scott. “I think it’s time to do it.”
Republicans have especially balked at dumping the “qualified immunity” standard, which they say allows police officers to do their job without the threat of potentially frivolous lawsuits.
Scott said Wednesday one potential compromise is holding liable police departments, rather than individual officers. “I think that is a way that we can make progress towards a bill that actually has the kind of impact that I think is helpful,” Scott said.
Democrats say immunity shields officers from accountability for potentially serious misconduct or brutality.
Booker declined to say whether Scott’s proposal would be acceptable to him. Bass, the chief House negotiator, said that while “there's a lot of room for discussion around qualified immunity . . . we need the individual officers and the agencies to be accountable.”
The White House declined to say whether Biden would support a bill that did not significantly revise the qualified immunity standard. But influential civil rights leaders in close communication with the administration signaled that it could be a red line.
Derrick Johnson, the president of the NAACP, said provisions to change qualified immunity for officers was “nonnegotiable.”
Warnock — who, along with Scott and Booker, is one of the three current Black senators — said the disincentive of potential lawsuits is critical to sending a message about the limits of acceptable police conduct. “I just think that it's really important that police understand that they cannot kill, maim Black and Brown bodies with impunity,” Warnock said.
Scott also said there are about four or five outstanding issues in the negotiations, such as how to address the chokehold issue and the practice of transferring military equipment to local police agencies, which Democrats want to limit.
Senate Majority Leader Charles E. Schumer (D-N.Y.) and Senate Minority Leader Mitch McConnell (R-Ky.) have given Scott and Booker broad latitude to negotiate, as the two Black senators are trusted figures within their parties on the politically fraught issues of race and police accountability.
Underscoring the sensitivity of the discussions, Booker on Wednesday repeatedly declined to weigh in on the specifics on his negotiations with Scott. Booker is close to a number of GOP senators through his past efforts on criminal justice legislation, and he called Scott an “honest broker.”
“I will do nothing to jeopardize the good faith, good energy, of all the conversations trying to get something done,” Booker said. He and Scott met with members of the bipartisan Problem Solvers Caucus on the issue last week, according to people familiar with the gathering, one of the informal conversations that have been ongoing for months.
Both Bass and civil rights advocates said that they want legislation sent to the White House by May 25, or before Chauvin’s sentencing, which is expected in about two months.
But outside activists and strategists suggested it might not be easy to keep even just the Democratic ranks in line in the evenly split Senate, saying it was still not clear a majority of senators would support a policing overhaul measure.
“There’s a lot of resistance, not just from the Republicans, but also Democrats who are deemed vulnerable,” said Angela Rye, a civil rights leader and former top aide to the Congressional Black Caucus.
Still, activists said they saw a new wave of energy behind policing overhaul efforts, hoping that policy changes would accompany a rare guilty verdict in an instance of police killing a Black man.
“The sense of urgency has propelled a new reality for us,” said Johnson, the NAACP president. “What the jury did yesterday gave people hope that we can do this and hold people accountable.”