Right now, two separate and unequal policing bills are navigating their way through America’s highest legislative bodies as a response to the protests over the death of George Floyd, Breonna Taylor, Ahmaud Arbery and thousands of other people whose lives have been snuffed out by the hands, forearms, knees and bullets of police officers.
While the two proposals are similar in many ways, The Root decided to take a deep dive into the specifics of the two groundbreaking legislative plans. To do this, The Root spoke with lawmakers from both sides of the aisle, as well as the individual Senate and Congressional staffers who had a hand in crafting the bills. The people responsible for creating these bills not only walked us through the individual plans but gave us exclusive details on the political probability and prospect of getting these bills passed.
Here’s what we learned.
What are the bills?
The Republican bill being considered by the Senate has a lot of names. GOP members have referred to it alternately as the “George Floyd/Walter Scott Act,” the “Justice Act” and the “Just and Unifying Solutions o Invigorate Communities Everywhere Act of 2o20.” Apparently Republicans are like Sean “Puffy/Puff Daddy/P. Diddy/Diddy/Brother Love” Combs—they like a lot of names.
No Republican understands that joke.
The Democratic proposal to bring justice to policing in 2020 is called the “Justice in Policing Act of 2020.” It’s more like Lil’ Wayne, in that his name describes a lil’ man whose name is Wayne. (No, Chuck Schumer and Nancy Pelosi, I’m not referring to John Wayne.)
To make it clearer, from now on, we’ll refer to the respective plans as the “Republican plan” or the “Democratic plan.”
Why not just write a bill that says: “Stop killing people or we’ll arrest you”?
Because they really can’t.
As we explained here, the 10th Amendment to the Constitution kinda prohibits the federal government from doing anything that is not specifically spelled out in the Constitution. To be fair, there’s always a loophole. For instance, healthcare is not in the Constitution so the Obama administration harnessed Congress’ authority to tax, regulate interstate commerce and other provisions to pass the Affordable Care Act.
Is that what they’re doing this time?
Kinda, but not really.
Let’s start with the basics.
Law enforcement agencies across America receive significant funding from the federal government. While the funding comes from many sources, for the sake of this discussion, most of it comes from two federal programs, which are overseen by the Department of Justice:
- The Community Oriented Policing Services (COPS): Part of the 1994 crime bill, COPS pays for police salaries, school resource officers, equipment and technology. Last year, agencies received $300 million in grants from the COPS program.
- Edward Byrne Memorial Justice Assistance Grant Program: These grants provide money for a wide range of projects, from prosecution to indigent defense to mental health programs. In 2019, this money equaled $264 million.
Why are you telling me all this? Just tell me how they’ll stop cops from choking black people to death!
I know it seems like I’m taking the long way home. But, because Congress can’t just write state laws or govern local law enforcement agencies, both the Senate and the Republican bill rely a lot on the threat of reducing available federal grant money—specifically the above grants—to enforce the provisions in their bills.
Basically, Congress can’t tell a state, county or city cop to “stop killing people or we’ll take your ass to jail.” But they can tell agencies: “If you don’t implement these reforms, we’ll defund your ass.”
What are the reforms?
OK, Let’s start with some of the basics things that both bills include and how each party tackles them.
- Chokeholds: Contrary to media reports, both the Democratic and Republican bills ban federal law enforcement officers from using chokeholds except in specific instances when deadly force is necessary. The Democratic plan outright says federal officers “may not” use chokeholds, while the GOP plan mandates that the Attorney General “shall develop a policy for Federal law enforcement agencies that bans the use of chokeholds except when deadly force is authorized.” Both parties’ bills “incentivize” local and state agencies to ban chokeholds by making them ineligible for the federal grant programs if they don’t.
- No-knock warrants: Democrats ban the use of no-knock warrants in federal drug cases and make state and local agencies ineligible for the COPS program if they don’t have a policy that bans no-knock warrants (in drug cases only, which is weird).
The Republican bill requires agencies to report all no-knock warrants to the DOJ and reduces their federal funding by 20 percent if they don’t. - Body-worn cameras: Democrats want to require all federal officers to wear body cameras, keep the footage for three years, prevent local officers from tampering with footage and make the video public even if the case is under investigation. Any state or local agency that buys equipment with federal dollars would also have to agree to these policies in order to keep receiving funds. Dems also provide funds for dash-cams and prohibit the use of facial recognition technology.
Republicans basically say: “We’ll give you some money if you want to buy cameras but here’s the catch: You have to turn them on...Please.” - Data collection: Both bills require federal, state and local agencies to collect data on the use of force, including racial data. The Democrats also want agencies to collect data on traffic stops, stop-and-frisks, civilian complaints and officers’ disciplinary records, all of which would be public. The Republican plan creates a national database of officers’ employment and disciplinary records, but it is not public. It would, however, be available to any law enforcement organization that plans to hire an officer.
- Group projects: Both bills create studies and committees to review and create best practices for policing. The Dems’ committee is focused on getting ideas from community leaders, policy experts and academics. The Republicans dictate that the law enforcement community have some involvement in creating policy but it also creates a national commission to study black men and boys.
- Training: Dems want to train officers on how to use de-escalation tactics instead of force; make it a cop’s duty to intervene when a fellow officer has gone rogue; and how to recognize and eliminate racial bias. Republicans want to do all that...except for the racism part (They do have a solution for racism in policing but I’m saving that for later).
- Lynching: Both bills make lynching a federal crime.
What are the differences between the two bills?
Let’s start with the Democratic proposals that aren’t included at all in the GOP bill.
- Changing the definition of “Deprivation of rights under color of law”: This provision is kinda important because it essentially lowers the standard for prosecuting a police officer for violating someone’s rights from “he meant to be racist” to “he did something racist, whether he meant it or not.”
- National Policing Standards: One of the most interesting ways the Democrats handle the “you can’t tell us what to do” section of the Constitution is by working with law enforcement accrediting agencies.
Basically the Dems want the groups who license agencies to create a national standard for use-of-force, civilian review boards, data collection, bodycams and interactions with juveniles. Departments that receive federal funds would be required to use 5 percent of their federal dollars to gain or maintain accreditation. - Investigations: In the cases of police misconduct or brutality, the Democrats created a mechanism that funds independent prosecutors or civilian review boards to investigate the officer or agency. They also created a grant for “pattern and practice investigations” which look into entire agencies and departments when the patterns and practices of officers violate people’s rights.
- Demilitarize the police: Democrats’ bill would stop the practice of the Department of Defense from issuing military-grade items to law enforcement agencies.
- Qualified immunity: The Democrats also end qualified immunity by...
Hold up. I keep hearing about this qualified immunity stuff but I gotta admit, I don’t know what the hell it means! It seems like everyone knows except me. Am I just dumb?
Nah. You sound like me when everyone knew what “BDE” meant except me. But I’m dumb.
For the sake of this discussion, let’s keep it to police officers. Here’s the simplest explanation of qualified immunity.
If you’re a police officer, you get to kill people.
That’s it.
For instance, even though Derek Chauvin killed George Floyd, under the current law, he can’t be sued as an individual because he was technically acting as a police officer. According to this made-up bullshit, Derek Chauvin didn’t kill Floyd because, technically, it was “Officer Chauvin” who knelt on a human being’s neck for 8 minutes and 46 seconds. So you can sue the Minneapolis Police Department for Officer Chauvin’s crime but you can’t sue Derek Chauvin because he was acting “under the color of law.”
As long as you’re doing anything that a normal police officer does in the course of their duty—or “under the color of law”—then you are “immune” from civil liability.
Wow! So there’s finally going to be a national use of force standard! And cops who kill people are going to have mandatory independent investigations or civilian review boards! This is going to save a lot of lives!
Well...
Let me guess: There’s a catch?
Exactly.
First of all, if ending qualified immunity passes, it will probably be litigated in the courts and Donald Trump has filled the courts with inexperienced, right-wing judges who couldn’t spell “qualified immunity” if it were the final puzzle on The Wheel of Fortune.
Also, those independent investigations aren’t automatic or even mandatory. Basically, the local agencies who are held liable if one of their cops is convicted and the prosecutors who don’t indict or convict cops are the ones who get to decide to pull the lever that activates an outside investigation or a civilian review board.
The Democratic plan provides funds for these investigations but doesn’t mandate that police departments use these tools whenever there’s a police shooting, which is some bullshit.
I’m glad you didn’t tell them that!
Ummm...I kinda did.
Damn, but didn’t you just say the Constitution limits what you can do?
Yep. I said that.
But you know who doesn’t give a damn about that Constitution bullshit when they want to get stuff done?
Republicans?
Exactly. There are a few things that the Republican bill does better.
- Bans lying on police reports: The GOP bill makes it a federal crime to lie on a police report with a prison sentence of up to 20 years in prison and mandates a federal enhancement similar to hate crime laws. This is a big deal.
- No sex on the job: They ban cops from having sex with people who are under arrest or in custody, which seems like a no-brainer, but at least 100 women are sexually assaulted by officers every year. And the victims are disproportionately black. And if you still find it hard to believe, we’ve written about it here, here, here, here, here, here, here, here and here.
- Racism training: This is the part I was saving for later. The GOP bill creates grants to “hire recruiters and enrolling law enforcement officer candidates in law enforcement academies to become career law enforcement officers who have racial and ethnic demographic characteristics similar to the community.” The grant would also train current and future white cops on the history of racism and create an educational racial reconciliation plan.
What’s so crazy about this? Cops actually need racial training. So, who’s responsible for the training?
You probably think I’m gonna say the attorney general or Congress or—since it’s Republicans—maybe even a black cop stereotype like Shaft or perhaps a buddy team like Will Smith and Martin Lawrence. But nope. It’s even crazier.
They want the people who run the Blacksonian to do it.
What? Get the fu... What? You lying. No. It can’t be... What?
I’m telling the truth.
The GOP bill makes the director of the National Museum of African American History and Culture responsible for ending systemic racism in American policing! This would be hysterical if it wasn’t also true.
What? Nah, bruh. Sweatergawd.
I’ll even go to the highest level of authenticity on the planet:
I swear on my grandmama grave.
The GOP proposal tasks the NMAAHC director with creating a program and a website that “educates eligible program participants on the history of racism in the United States” as well as providing:
- (A) “racial reconciliation with the goal of understanding the history of racism in America;
- (B) improving relationships between law enforcement and the communities they serve;
- (C) training eligible program participants 15 who can effectively train their law enforcement 16 peers in their State and communities.
...All while running one of the most-visited museums in the country!
I don’t know about you, but I don’t want to be stopped by a cop who got his racial training from the people who run one of the most-visited tourist destinations in America any more than I want to visit a tourist destination run by cops.
Thankfully, there’s no such thing as a cop museum, right? Please tell me there’s no such thing.
Sorry. The GOP bill says the NMAAHC director has to consult with the people who run the National Law Enforcement Museum.
To be fair, Senate Republicans wrote the bill. Aside from S.C. Sen. Tim Scott, the negro museum director might be the only black person they know. It’s either the Blacksonian guy or Candace Owens, so I guess they made the right choice.
How far will any of this go in eliminating systemic racism in police killings?
Well, consider this: In Minneapolis, black people are six times more likely than white people to be choked unconscious by a police officer. If we had police data reporting, we’d have known that before Derek Chauvin kneeled on George Floyd’s neck. Maybe Chauvin wouldn’t have even considered doing it if the maneuver was explicitly forbidden by the Minneapolis Police Department or if he knew it could land him in prison. Perhaps the Minneapolis Police Department would have trained him differently if it meant they’d lose federal funding.
If the Louisville Metropolitan Police Department would have knocked on Breonna Taylor’s door instead of breaking it down, maybe she’d still be alive. If the officers who lied on the police reports about her death were subject to 20 years in prison for simply lying on the police report, we wouldn’t be wondering when they were going to be arrested.
And if we had a federal lynching law or independent federal investigations, Ahmaud Arbery’s killers wouldn’t have been free for more than a month before they were arrested.
Is there anything that you think should have been included in these reforms that was not?
Yes. I think they should have included a part that requires all police shootings to go before a civilian review board that gets to decide whether or not to send the case to an outside investigator. I believe no prosecutor should be allowed to present evidence on a police shooting to a grand jury because it’s a conflict of interest. I don’t understand why violating some of the reforms make agencies wholly ineligible for federal funds while other violations just result in a reduction in funding.
Why can’t Congress simply require all law enforcement agencies to comply with these reforms before they receive a single dollar of federal funds from the DOJ? Police pensions are held in federally regulated institutions. Why can’t civil suits be paid out of police pensions instead of taxpayer pockets? Unions are also federally regulated. So why are they exempt from being reformed?
Also, Constitutional scholar Elie Mystal suggests that police officers who “thought” an unarmed civilian had a gun should be criminally and civilly liable if they are wrong “in fact.”
Damn, you should have told the lawmakers this.
I actually did.
Well, what happens now? Do we get police reforms or not?
Well, this is politics.
On Wednesday, Senate staffers shared this letter from Senate Minority Leader Chuck Schumer with The Root. Staff members told The Root that the Republican conference offered Senate Democrats five amendments for each point they didn’t like but Schumer insisted that the Republican bill was rushed and inadequate, so the Democrats in the Senate blocked the GOP proposal.
Meanwhile, Democratic staffers charged with crafting the House legislation touted a roster of “big celebrities, local elected [officials] and corporations” who planned to come out in support of the Democratic bill on Thursday. However, they told The Root that it was the Republicans who were obstructing the legislation.
Why, though?
It is possible that both sides are right and both sides are wrong.
Republicans seem to have avoided some of the more controversial issues that deal with race and would anger conservative-leaning police unions. The Democrats seemed to have put forth a moderate proposal instead of swinging for the fences while expecting the GOP to obstruct their bill. While they seem proud of the bill, they declined to answer whether or not this legislation is the most they could do on the issue of reforming policing.
But it’s also politics. Whichever bill passes, the party that proposed the legislation will have the ability to say: “We got police reform done,” which is a powerful piece of political capital going into the 2020 elections.
But what about the dead black people?
Geez, dude.
That’s what museums are for.