Key differences exist among House, Senate and White House policing plans

Parties offer different approaches to chokeholds, no-knock warrants, use-of-force data and accountability

Sen. Tim Scott, R-S.C., left, talks with his GOP colleagues before attending a news conference to announce a Republican policing bill on Wednesday. (Caroline Brehman/CQ Roll Call)
Sen. Tim Scott, R-S.C., left, talks with his GOP colleagues before attending a news conference to announce a Republican policing bill on Wednesday. (Caroline Brehman/CQ Roll Call)
Posted June 17, 2020 at 7:02pm

The policing overhaul debate in Congress has confronted a familiar obstacle that falls along party lines: Democrats want to include the strongest language to force state and local law enforcement departments to make changes, while Republicans want to avoid anything that would be viewed as a federal mandate.

In some cases, the language in the Democrats’ bill, introduced June 8, goes significantly further than the GOP legislation, which was introduced on Wednesday. But in other areas, the differences are minimal.

While both sides claim they want to compromise, they’re also using harsh rhetoric to attack the other’s proposal — a sign that bipartisan negotiations are not imminent.

“We don’t need a window-dressing, toothless bill. We need to take action that is real,” Speaker Nancy Pelosi said Wednesday afternoon on CNN, reacting to the GOP bill.

“They have taken their lead from some of our pointers, but they have pulled their punch when it came to getting the job done,” the California Democrat added.

Republicans weren’t any kinder in their descriptions of Democrats’ legislation, with Senate Majority Leader Mitch McConnell calling it a “nonstarter.”

“It’s basically typical Democratic overreach to try to control everything in Washington,” the Kentucky Republican told reporters Tuesday. “We have no interest in that.”

For now, the parties are proceeding with dueling votes next week. The House will vote on the Democratic bill on June 25, and the Senate will attempt to bring up the GOP measure midweek.

Are the differences really as insurmountable as congressional leaders are making them sound? Here’s a breakdown of the different approaches — including an executive order President Donald Trump signed Tuesday — the parties take on four key issues:

Chokeholds

Despite rhetoric to the contrary, none of the plans would fully ban chokeholds. The Democrats’ bill would go the furthest toward that goal in making it a civil rights violation, thus criminalizing use of the tactic against someone because of their race.

Both parties’ bills would withhold federal law enforcement grants from jurisdictions that don’t ban chokeholds. There are, however, two significant differences in the language the bills use.

One difference is in how the parties define the tactics the bans should encompass. The GOP bill only calls for bans on physical maneuvers that restrict “an individual’s ability to breathe for the purposes of incapacitation.”

The Democratic bill is much broader in its definition. It calls for bans on “application of any pressure to the throat or windpipe, the use of maneuvers that restrict blood or oxygen flow to the brain, or carotid artery restraints that prevent or hinder breathing or reduce intake of air of an individual.”

California Democratic Sen. Kamala Harris, in describing the GOP bill to reporters Wednesday, pointed out that it does not deal with carotid holds, which is the maneuver used by a Minneapolis police officer that led to the death of George Floyd last month.

The other difference is that the GOP bill would allow states to provide an exception to their chokehold bans for cases “when deadly force is authorized.”

Trump’s executive order, meanwhile, encourages state and local jurisdictions to adopt chokehold bans by saying the attorney general should not certify independent credentialing organizations unless those organizations require law enforcement agencies to ban chokeholds. The executive order uses the same definition as the GOP bill and also provides an exception for “situations where the use of deadly force is allowed by law.” 

No-knock warrants

Democrats are also criticizing Republicans for refusing to ban no-knock warrants in their bill after Louisville police officers fatally shot Breonna Taylor while executing a no-knock warrant in a drug case. But their bill wouldn’t have necessarily stopped Taylor’s death either.

The only explicit no-knock ban in the Democrats’ bill applies to federal warrants in drug cases. Louisville police obtained the no-knock warrant against Taylor’s apartment from a Jefferson County, Kentucky, judge.

The Democratic bill would incentivize states and localities to also ban no-knock warrants in drug cases by disqualifying jurisdictions that don’t from receiving federal law enforcement grants.

The Republican bill would only require states and localities that receive such grant funding to annually report uses of no-knock warrants, excluding those used in open cases, to the Justice Department, which would then publish the information it compiles. The measure would reduce grant funding to jurisdictions that don’t comply with the reporting requirement.

Trump’s executive order makes no mention of no-knock warrants.

Use-of-force data

All of the policing plans make an effort to improve reporting on use-of-force incidents, but they go about it in different ways.

The Democrats’ legislation would require the Justice Department to set up a centralized database and mandate that state and local law enforcement agencies that receive federal grant money report all data on use of force. Their bill calls for DOJ tracking of other instances as well, like traffic and pedestrian stops, frisks and body searches. The measure says law enforcement agencies should report the race, ethnicity, age, and gender of the officers and any members of public involved in the incidents.

Trump’s executive order also requires the DOJ to set up a use-of-force database, but only to track “excessive use of force related to law enforcement matters, accounting for applicable privacy and due process rights” and “cases in which police officers have been fired, de-certified or convicted for on-duty conduct.”

The attorney general “shall regularly and periodically make available to the public aggregated and anonymized data from the database,” the order says.

The Democrats’ bill proposes a national misconduct registry to track problem law enforcement officers so they can’t switch jurisdictions to avoid accountability. It would require the information to be made public and would not provide for anonymity like the executive order.

Republicans rely on an existing FBI database in their bill, which would require state and local law enforcement agencies that receive federal grant money to report use of force incidents, including information on the officers and the individuals against whom force was used, to the FBI. The measure would reduce grant funding for states that don’t comply with the reporting requirement. It would also require the FBI to publish the information.

Accountability

Democrats say the biggest difference is the slate of accountability provisions they have that Republicans don’t.

“This is critically important. Without accountability measures we’re merely exhorting police departments to do better, crossing our fingers and hoping for the best,” Senate Minority Leader Charles E. Schumer said in floor remarks Wednesday.

Democrats include a provision in their bill to relax the qualified immunity doctrine that shields police from lawsuits for actions performed on the job. It says arguments that “the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed” shall not be a defense or immunity in civil actions brought against law enforcement officers.

Republicans don’t touch qualified immunity in their bill. South Carolina’s Tim Scott, the point man for Senate Republicans on their legislation, said he felt doing so would have been a “poison pill” because of differing GOP opinions on the issue.

The Republican measure also does not address racial profiling. The Democrats’ bill would ban racial profiling by all law enforcement agencies and would enforce it by allowing individuals to pursue “civil action for declaratory or injunctive relief.”

Republicans’ bill does include some accountability measures the Democrats’ plan does not.

It would institute a 20-year maximum sentence for officers caught falsifying police reports and make it a crime subject to a 15-year maximum sentence for federal law enforcement officers to engage in a sexual acts with individuals in their custody, regardless of consent. The measure also would authorize the Justice Department to issue grants to state and local jurisdictions to adopt similar laws barring police from engaging in sexual acts “under the color of the law.”

Trump’s executive order does not include any provisions that would penalize police officers for misconduct.