States Pick Up Policing Reform Effort After Congress Fails to Strike a Deal

This summer, efforts to enact major policing reform in Congress have failed after talks broke down between U.S. Senators Tim Scott (R-NC) and Cory Booker (D-NJ) and U.S. Representative Karen Bass (D-CA). These negotiations had been ongoing for most of the year as prospects for the passage of the George Floyd Justice in Policing Act (US HR 1280) dimmed. In light of the failure of these efforts at nationwide policing reform, we must now turn our attention, as always, to the states.

The Failed Federal Efforts

The main legislative vehicle through which advocates were hoping to enact meaningful nationwide reform is the George Floyd Justice in Policing Act (US HR 1280), which is named for the man whose death last May at the hands of Minneapolis police sparked a national outcry for policing reform. That bill is a wide-ranging piece of legislation capturing virtually all of the specific solutions that advocates say are essential to the goal of safer and fairer policing. The bill includes provisions to end qualified immunity, prohibit racial profiling, and ban no-knock warrants in certain cases. The the George Floyd Act passed the U.S. House of Representatives on March 3, 2021, by a near party-line vote of 220-212 but was dead on arrival in the U.S. Senate with no hope of receiving the 60 votes (at least 10 of which would have to come from Republicans) needed to overcome a filibuster.

As it became clear that the George Floyd Act wasn’t going to become law this session, Senators Scott and Booker and Representative Bass began working together to negotiate legislation that would be able to pass both chambers and make it to President Biden’s desk. The three have spent most of the year in discussions over which elements of policing reform both parties, and their supporters, could agree on.

Though the discussions never generated a definite piece of legislation encompassing a clear set of policy proposals, public statements by the negotiators give some insight as to what topics they hoped to resolve. One major focus was the use of chokeholds and similar police tactics which obstruct air or blood flow through an arrestee’s neck. The negotiators hoped to end the practice, which was a factor in Floyd’s death last May.

A major goal of the Democratic negotiators was an end to the use of no-knock warrants, which permit police to forcefully enter premises without first announcing their intentions. The practice is considered to be the main factor in the March 2020 death of Breonna Taylor in Louisville, Kentucky. Police in that case obtained a no-knock warrant in preparation for a raid of Ms. Taylor’s apartment because they believed that one of the subjects of a narcotics investigation was using her home to receive packages relevant to that investigation. After police used a battering ram to enter the apartment, Ms. Taylor’s boyfriend, Kenneth Walker, fired a weapon and hit one of the officers in the thigh. The police responded by firing blindly into the apartment, hitting Ms. Taylor five times. Walker claims that he fired his weapon because he believed that Ms. Taylor’s ex-boyfriend was attempting to break into the home. Advocates say that executing these warrants creates circumstances ripe for the kind of violence and danger that was borne out in this case.

One of the Democrats’ largest priorities, and one which was apparently a significant sticking point in the negotiations, was ending the legal doctrine known as qualified immunity. Qualified immunity (QI) grants police officers and other government officials immunity from personal civil liability for any act performed in the course of their official duties as long as the act has not previously been declared unconstitutional by a court in the jurisdiction where the act occurred. The doctrine requires a victim to demonstrate that the facts of their case are functionally identical to the facts of the previous case. For example, in a 2020 case, the Fifth Circuit Court of Appeals held that although pepper spraying an inmate without cause violated the inmate’s civil rights, the correctional officer was immune from suit because no previous case had established that it is unconstitutional to pepper spray an inmate without provocation.

The talks ultimately appeared to break down due to political pressure from outside groups. In the wake of Floyd’s death last year, many progressives adopted the slogan “Defund the Police” to demand an end to what they describe as a problem of over-policing. The saying became a rallying cry for opponents of reform as well, who used it to argue that reformers are attempting to eliminate police altogether. This dynamic led to a point where the merest suggestion of reducing expenditures on law enforcement became politically toxic for Republicans, lest they be accused of supporting the demands of “Defund” protestors.

According to statements and press appearances by Senator Scott, this dynamic is ultimately what killed the negotiations. Under the Constitution, Congress has very little authority to set policing policy, which is a power reserved to the states. In order to sidestep this problem, Congress often attaches fiscal incentives to its policy proscriptions, providing federal funds to states that comply with a particular directive and withholding them from states that do not. As recently as last summer, this was the approach that Senator Scott endorsed as a means of enacting policing reform from the federal level.

Recently, however, Senator Scott adopted the position that conditioning federal funds on policing reform amounted to defunding the police. In an interview on CBS’ Face the Nation, Senator Scott said, “We have about $1 billion in grant money that goes to police. When you start saying, ‘In order to receive those dollars, you must do A, B, and C. And if you don't do A, B, and C, you literally lose eligibility for the two major pots of money’. . . when you tell local law enforcement agencies that you are ineligible for money, that's defunding the police, there's no way to spin that.”

Democrats, meanwhile, assert that the negotiations ended because of the lack of prospects of any significant reform. “We weren't making progress — any more meaningful progress on establishing really substantive reform to America's policing,” Senator Booker said.

Progress in the States

State legislators have had much more success in passing and enacting the kinds of reforms contemplated by the congressional negotiators. In the current session, seven states and D.C. have adopted restrictions or bans on neck holds so far: District of Columbia (DC B 196, DC B 197, DC B 311), Indiana (IN HB 1006), Louisiana (LA SB 34), Texas (TX HB 3712, TX SB 69), Virginia (VA HB 5069 B), Vermont (VT HB 145), Washington (WA HB 1054), and Wisconsin (WI SB 121).

States have made similar progress on the issue of no-knock warrants. Since the beginning of the current sessions, seven states have adopted bans or restrictions on the use and execution of such warrants. One of the highest profile of these was enacted in Breonna Taylor’s home state of Kentucky (KY SB 4), but lawmakers have enacted similar bills in Louisiana (LA SB 34), Maine (ME LD 1171), Nevada (NV SB 50), Tennessee (TN SB 1380), Virginia (VA SB 5030 B), and Washington (WA SB 1054).

In contrast, qualified immunity reform appears to be as thorny of an issue at the state level as the federal level. State lawmakers have introduced 23 bills on qualified immunity but only Iowa (IA SF 476) and Louisiana (LA HB 609) have managed to progress QI reform bills through even a single chamber of the legislature. Each of these two bills faltered in the second chamber and failed to reach the governor’s desk. No state has enacted legislation reforming qualified immunity so far in 2021.

Most recently, North Carolina’s enactment of a major policing reform law (NC SB 300) is the most significant statewide effort. As we discussed last month, this law addresses a wide variety of topics including police training, the duties of law enforcement officers to intervene in and report instances of excessive force by their fellow officers, and hiring and firing practices. The law is notable for its overwhelming bipartisan support in both chambers of the state legislature and has the potential to serve as a model for other states considering their own policing reform measures.

A number of other bills have been signed into law in September. Bills in New Hampshire (NH HB 471, NH HB 530), New Jersey (NJ SB 2767, NJ SB 2765), and North Carolina (NC HB 536) have all been enacted within the last month.

Additionally, the California Legislature sent a handful of policing reform bills to Governor Newsom’s (D) desk this month, including issue areas of duties to intervene/report (CA AB 26), transparency and profiling (CA SB 16), decertification of police officers for misconduct (CA SB 2), use of force and incident review (CA AB 48), and restrictions on the procurement and use of military equipment (CA AB 481). These bills now await Governor Newsom’s signature.