Senate closes in on bipartisan police reform deal

·6 min read

A bipartisan deal for police reform is close to done among key negotiators on Capitol Hill, according to those familiar with the discussions.

But the politics of police reform have shifted from a year ago, and violent crime has surpassed racial justice as a top concern for many voters. That has created negative incentives for Republican lawmakers who supported a reform package last year but now don’t want to be tagged as soft on crime.

Sen. Tim Scott, R-S.C., has said he wants a deal on police reform by the end of June. Scott, the only Black Republican in the Senate, is confident he can bring at least 10 of his GOP colleagues along with him to support a bill and break a potential filibuster.

Karen Bass, Tim Scott and Cory Booker
From left, Rep. Karen Bass, Sen. Tim Scott and Sen. Cory Booker after a meeting with Rep. James Clyburn about police reform legislation on May 18. (Drew Angerer/Getty Images)

Meanwhile, Democratic Sen. Cory Booker, D-N.J., and Rep. Karen Bass, D-Calif., have negotiated with Scott but face pressure from progressive groups to push for measures that, if left out, could make it hard to get enough Democratic votes for a compromise.

Pressure from the Biden White House on Democratic lawmakers will likely be crucial in getting a final deal over the finish line. To date, the administration has been happy to let Scott serve as the public face of the bill, since that increases the chances Republicans might vote for it, even as Booker has kept a direct line of communication open with President Biden and with Vice President Kamala Harris.

Scott, Booker and Bass have reached agreement on a number of issues about how to provide better training to police to help them deescalate situations and avoid violence, virtually eliminate chokeholds and no-knock warrants, and a host of other issues.

The two most difficult issues outstanding — qualified immunity and what’s known as Section 242 — have to do with how police officers are held accountable for bad actions. But there is also a clear road map for lawmakers around these two roadblocks, if they can get their respective sides to sign off.

On the issue of qualified immunity, which protects police officers and other government officials from most civil lawsuits, there are many signs that a compromise proposed by Scott would be enough to get most Democrats onboard if Booker and Bass endorse it. Scott’s idea is to make it easier to sue police departments in civil court, but not individual officers.

Even the Fraternal Order of Police, the biggest police union in the country, has signaled that it would accept a deal with Scott’s compromise proposal.

“If police officers are protected by the doctrine of qualified immunity and others have to deal with the lawsuits, not the officers, then we’re fine with it,” Jim Pasco, executive director of the Fraternal Order of Police, told CNN last week.

A protest for racial justice
A protest for racial justice at the Ohio statehouse in Columbus on May 6. (Gaelen Morse/Reuters)

Sen. Lindsey Graham, R-S.C., has said he would support Scott’s bill as well. And Scott has the backing of Senate Minority Leader Mitch McConnell, R-Ky., which goes a long way with Republican senators.

Scott’s compromise proposal has been commended by some experts who study qualified immunity, but criticized by others as insufficient. Nonetheless, Biden clearly wants to get a deal signed into law, and the influential House Majority Whip James Clyburn, D-S.C., has said he would be willing to support a bill that does not address qualified immunity.

A challenge for Democratic lawmakers is that left-wing advocacy groups will be angered by anything less than a full demolition of qualified immunity. A group of 10 progressive Democratic House members wrote a letter in May arguing that “there can be no true accountability in America if we do not eliminate qualified immunity.”

But there is less wind in the sails for police reform than a year ago. There is growing worry about the increase in violent crime, which is now the top concern for the public, according to a recent Yahoo News/YouGov survey. The poll found that racial justice is a much lower concern for the public than it was a year ago.

Just 32 percent of Americans in the survey described COVID-19 as a very big problem, down from 61 percent last July. The share who said they consider violent crime a very big problem, however, has ticked up slightly — to 49 percent — over the same period, making it the top concern ahead of the economy (39 percent), political correctness (39 percent) or race relations (41 percent).

A vigil for the victims of a shooting
A vigil on May 27 for the victims of a mass shooting in San Jose, Calif. (Amy Osborne/AFP via Getty Images)

In 2020, the murder rate in the U.S. spiked at a historic rate of between 25 and 40 percent, according to preliminary statistics. That’s the biggest jump since national data was first collected in 1960.

In that context, Republicans will not want to do anything that could be portrayed as making it harder for police officers to do their jobs. But it’s arguable that Democrats need a police reform bill now much more than Republicans do, to reassure moderate voters spooked by activist calls in 2020 to “defund the police.”

Pasco, the police union chief who has signaled support for Scott’s compromise on qualified immunity, said that getting rid of liability protections for individual cops would in fact lead to more crime.

“It would have a really chilling effect on the likelihood that officers will act in the appropriately aggressive way that has resulted in an approximately 25-year decline in violent crime,” he told Yahoo News.

Pasco also said removing liability protections for individual officers would make it harder to recruit new officers.

When it comes to Section 242 of Title 18 under U.S. Code — the federal statute governing police misconduct — Democrats want to change the standard for proving criminal liability. As it stands, Section 242 allows prosecution of officers only if it can be shown that they “willfully” broke the law, which is often difficult to prove in court.

Scott has said he is opposed to modifying the statute, but if Democrats accept his compromise on qualified immunity, the 242 provision may be a place where the Republicans may be able to give a little.

Charles Schumer
Senate Majority Leader Chuck Schumer. (Lev Radin/Pacific Press/LightRocket via Getty Images)

There’s also another potential obstacle to getting a deal in June. Senate Majority Leader Chuck Schumer, D-N.Y., said last week that he will bring the For the People Act, a sweeping voting rights package, to the Senate floor in the last week of June.

“We will not wait for months and months to pass meaningful legislation that delivers real results for the American people,” Schumer said. “Looking ahead, the June work period will be extremely challenging. I want to be clear that the next few weeks will be hard and will test our resolve as a Congress and a conference.”

If lawmakers can pass a police reform bill before the last week of June, they could avoid getting bogged down in a fight over voting rights that promises to be acrimonious.

But given opposition to a bipartisan package from the right and left, in addition to the Senate’s already busy summer schedule, there may be no deal at all if one can’t be agreed to in the next three weeks.

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