The policy ideas that Democratic members of Congress will propose this month to address deadly police force have been around for years, but so has the opposition from law enforcement advocacy groups and the lawmakers who support them.
Rep. Steve Cohen first filed a bill to track incidents of deadly police force in the wake of unrest in Ferguson, Missouri, following the fatal shooting of Michael Brown, which sparked nationwide protests in August 2014. After police later shot and killed Tamir Rice, a 12-year-old Ohio boy who was holding a toy gun, the Tennessee Democrat introduced another bill in 2015 that would have independent prosecutors review such shootings.
But those bills didn’t get a committee markup when Republicans who traditionally back law enforcement priorities controlled the House. When Democrats regained control of the chamber in 2019, the proposals fell behind other priorities such as presidential oversight, the impeachment investigation, gun control and LGBT rights.
Now, Cohen and other Democratic lawmakers say nationwide protests sparked by the death of George Floyd could generate enough momentum for Congress to act after a video showed a Minneapolis police officer placing his knee on Floyd’s neck for several minutes despite Floyd saying he couldn’t breathe.
“I think now’s the time that these bills are going to get the public support they need because they’ve been brought to the front burner,” Cohen, who had asked about his bills at a House Judiciary hearing on the issue in September, told CQ Roll Call. “I think something will definitely get passed through the House. I hope it is bipartisan, I don’t know that it will be.”
As Democratic Sens. Cory Booker of New Jersey and Kamala Harris of California spoke at an online press event Monday about their plans for a broad Senate bill to address police use of force, the lawmakers and advocates from civil rights groups listed the names of those who had died in encounters with police officers.
“Even police officers themselves are calling for change,” Booker said about the current climate, almost six years after the Ferguson protests spread nationwide. Booker was the high-profile mayor of Newark when civil rights abuses piled up against the city’s police department and the Justice Department investigated, a probe he opposed at first but later embraced.
“The will is there. We need to ensure that laws are changed, legislation is passed,” Booker said Monday. “Or you’re destined to continue to see these spasms be made ... when awful tragedies are captured on videotape.”
Congress, with its deepening partisanship, often seems most apt to act on divisive cultural events in the wake of major cultural events. A grant program to stop school shootings, the only congressional reaction to years of firearm deaths of children attending school, only passed in 2018 as part of a spending bill in the immediate wake of the deaths of 17 people at a Parkland, Florida, high school.
Booker acknowledged the strong political headwinds for police overhauls, particularly with President Donald Trump having to sign it. But he said the same was said about a criminal justice overhaul that became law in December 2018, and this time Republican senators have expressed an interest in working on this issue.
Senate Judiciary Chairman Lindsey Graham planned a June 16 hearing on potential proposals and said that the protests show it’s clear that police use of force “needs to be discussed and acted upon.”
“It’s a long overdue wake-up call to the country that there are too many of these cases where African American men die in police custody under fairly brutal circumstances,” the South Carolina Republican said. “I’d like to get to the root cause of it. Mr. Floyd’s case is outrageous on its face, but I think it speaks to a broader issue.”
Graham told reporters that he didn’t have any legislation in mind ahead of the June 16 hearing, but, “hopefully, out of the hearing we can find some things to do together.”
Among Democratic lawmakers and civil rights advocates, there’s not much disagreement about steps that Congress can take to increase police accountability.
“There’s no confusion about the measures that civil rights leaders support in terms of policing reform. We have been talking about this ad nauseam for the last five years,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. “It is now time for movement.”
One of the least controversial proposals would require all law enforcement agencies to report on the use of deadly force by officers — something The Washington Post started doing on its own in 2015 because the government doesn’t.
“It is shocking that even to this day in this country we don’t have an adequate database about who is dying in police custody,” said Vanita Gupta, president and chief executive officer of The Leadership Conference on Civil and Human Rights and former head of the Justice Department’s Civil Rights Division under President Barack Obama.
Harris said that means there is an incomplete picture of what’s happening with these interactions. “How do we solve this problem if we do not have the needed data?” she said.
Other proposals will be tougher sells to win the votes of law-and-order lawmakers. Harris and Booker called for the creation of a national police misconduct registry to ensure problematic officers can’t avoid accountability by changing departments.
Cohen’s bill would require an independent prosecutor appointed to investigate the use of deadly force by an officer that results in death or injury. That would take the decision of whether to charge an officer with a crime away from the prosecutors who might be reluctant to cross the local law enforcement agencies they must work with every day.
Such proposals would get pushback from law enforcement groups as well as unions, Cohen said. Unions defend the officers charged in such cases, and they don’t want to lose the best forum possible, he said.
Law enforcement would also vigorously oppose proposals to change the “qualified immunity” doctrine, a concept that protects government officials from lawsuits that has been strengthened by Supreme Court rulings.
Booker said Congress should make it “so that individuals are not entirely barred from recovering damages when police violate their constitutional rights.” Michigan Rep. Justin Amash, an independent who left the Republican party last year, announced he would pursue legislation on that issue as well.
Harris, a former California attorney general, also called for a national standard for use of force.
“It should not be that when prosecutors bring these cases around the country, the standard of proof is insurmountable because it only asks the question, ‘Was the use of excessive force reasonable,’ instead of what the question should be, which is asking, ‘Was that use of force necessary?’” Harris said.
Gupta said Congress should ban excessive force maneuvers, like chokeholds and knee and neck restraints, “that have been banned by many police departments but still continue as lawful in parts of the country.”
The proposals could also include provisions about the Justice Department’s role in investigating and overseeing state and local departments that are shown to have a pattern and practice of discriminatory policing.
All of those ideas are in the mix as lawmakers try to come up with broad proposals as soon as the end of the week.
California Democratic Rep. Karen Bass, the chairwoman of the Congressional Black Caucus, said the group is working on a comprehensive proposal that “goes to the core of police accountability and changing the laws that make it so difficult to hold the police accountable.”
Ahead of a House Judiciary Committee hearing and expected action on bills in June, Bass called Floyd’s death one of the most egregious episodes she has seen in her lifetime.
“At what point, at what point, will we grow tired of seeing people literally executed on video, and nothing happens?” Bass said. “This is where we say, it has to end.”
If there is no legislation, Democrats still see this issue as a political winner.
“I see this potentially transitioning into huge voter turnouts, with this being a major election issue in 2020,” Booker said. “And that, especially if we take back the United States Senate, would give us a platform to make some very strong changes in police accountability nationally.”