It’s up to Democrats to pass a policing bill

Decision not to accept Tim Scott’s proposal puts some of the onus on them

“We have to focus on transforming policing in the United States,” California Rep. Karen Bass says.  (Tom Williams/CQ Roll Call file photo)
“We have to focus on transforming policing in the United States,” California Rep. Karen Bass says. (Tom Williams/CQ Roll Call file photo)
Posted April 26, 2021 at 7:00am

ANALYSIS — A jury in Minneapolis took just ten hours to reach a unanimous verdict: Former police officer Derek Chauvin murdered George Floyd last May. But nearly a year since Chauvin killed Floyd, setting off nationwide protests, Congress is still stuck on how far it should go in setting national standards to reduce police violence.

There’s a chance now that lawmakers could bridge the gap between the policing bill House Democrats proposed after Floyd’s death, and named for him, and Republicans’ less-far-reaching alternative by South Carolina’s Tim Scott, one of the three African Americans in the Senate.

If they don’t, add policing to the list of intractable issues, like immigration and gun control, that have defied legislative compromise in spite of bipartisan desire for it.

Members of the Congressional Black Caucus said they saw enactment of a new law as crucial to achieving justice for Floyd and other African Americans killed by police.  

“We have to focus on transforming policing in the United States,” California’s Karen Bass, the chief sponsor of House Democrats’ bill to address police violence, said at a news conference. 

Bass said that police had killed 100 people since Floyd’s death, to underscore the urgency. If legislation could reduce the number, it’s actually more urgent. According to a Washington Post tally, the number killed in police shootings since Floyd died, justified or not, is more than 800. 

Bass explained that she meant that Congress must now pass her bill to take from police officers the immunity they now enjoy from civil damages, to tighten the legal standard governing when police may use force, and to discourage tactics like chokeholds and no-knock warrants that have led to deaths, by conditioning federal grants to localities on barring them.

Bass and her fellow Democrats believe their bill would have saved at least some of those lives. But their decision not to accept Scott’s proposal, or an amended version of it, puts some of the onus on them.

Scott’s bill last year (he has not unveiled a new version in the 117th Congress) wouldn’t have done nearly as much to restrict police tactics and Senate Democrats last summer filibustered it, saying it would not have curtailed police violence enough to be worth passing, even as a stopgap measure.

The primary difference between Scott’s 2020 bill and the one from Bass is that Scott would not have eliminated officers’ “qualified immunity.” But neither would Scott have tightened standards for the use of force, leaving it to officers to use violence when “reasonable” instead of Bass’s preference for when “necessary.” 

Scott would have gone almost as far as the Democrats on chokeholds, barring federal officers from using them except when deadly force is authorized, and restricting grants for local police departments that continue to permit them. 

But the Republicans would have studied no-knock warrants instead of ordering federal agents not to use them. Scott would have authorized more grants for body cameras, but not required local police to use them, as Bass proposes. Scott also would not have stopped the transfer of military equipment to police, as Bass’ bill would do.

Before Senate Democrats killed the Scott bill in a 55-45 vote last year — with Republicans short of the 60 votes needed for cloture despite a united caucus and the support of Democratic Sens. Joe Manchin III of West Virginia and Doug Jones of Alabama, and independent Angus King of Maine — then-Majority Leader Mitch McConnell had said he was open to Democratic amendments.

Democrats decided not to take him up on it and we’ll never know if a more modest policing bill enacted last summer would have saved lives since. Democrats could have helped to pass Scott’s bill and promised to go further this year if voters awarded them control of the White House and Senate.

By electing President Joe Biden and a Democratic Congress, voters have put Democrats in a better position to make Bass’ bill law. The House passed it last month and Senate Majority Leader Charles E. Schumer pledged on April 20 to take it up soon.

The New York Democrat now has the power to put Republican senators on the spot. The Chauvin conviction and his sentencing, which is slated for June, helps Schumer. If 10 Republicans feel enough political pressure, Schumer will have 60 votes and Biden will soon have a bill to sign. If Republicans refuse, as still seems likely, Schumer can add the policing bill to Democrats’ case for ending or limiting the use of the legislative filibuster.

But without a change of heart from Manchin or Arizona’s Kyrsten Sinema, the two Democrats who’ve pledged to retain the 60-vote threshold, that leaves Democrats where they were last summer: negotiating with Scott.

Bass says she’s doing just that, and Scott confirmed to reporters on April 21 that he’s working with Bass and New Jersey Democratic Sen. Cory Booker on a deal. Scott said he believes they can bridge what he described as narrow differences over qualified immunity, chokeholds, no-knock warrants and police access to military equipment. 

A compromise on the critical issue of qualified immunity, he said, could focus on putting the burden for paying settlements for police misconduct on police departments, while preserving officers’ personal protection.

It’s not clear, in that case, how it would differ substantively from the status quo. Cities are already liable for police misconduct and pay a lot each year to make amends for it. According to an analysis this year by The Marshall Project, a nonprofit group that studies policing, and the news website FiveThirtyEight, 31 major U.S. cities paid more than $3 billion to settle misconduct lawsuits over the last decade. Theoretically, that should serve as incentive to dismiss bad cops.

Still, Republicans have parried Democrats’ blows on the policing debate by citing Scott’s bill. The day after the Chauvin verdict, House GOP Whip Steve Scalise of Louisiana accused Democrats of playing politics and said Republicans wouldn’t give ground on qualified immunity because getting rid of it “would actually undermine good policing.” (The GOP argument goes that immunity makes it possible for officers to act quickly in life-or-death situations and for police departments to recruit qualified personnel).

But if Democrats don’t come away from their negotiations with Scott with significant concessions, particularly on the immunity issue, their decision to wait till 2021 on a policing bill will look like a miscalculation that may have cost lives.

Worse to contemplate is the possibility that lawmakers will not reach a deal and that policing will join the list of issues Congress is failing to address.