Bipartisan Police Reform Negotiations

While bipartisan discussions have reportedly re-started within the new 118th Congress, there is no indication at the present time that there will be any breakthrough in the near future on a proposal that would enable a bill to be considered in the Senate, much less pass.

Recent bipartisan negotiations over policing reform legislation ended on September 22, 2021, when at that time the negotiating parties announced that they could not reach agreement on a path forward in order for a bipartisan bill to be considered in the Senate. The George Floyd Justice in Policing Act passed the House on March 3, 2021, and negotiators in the Senate were at that time attempting to develop a bipartisan bill to avoid any filibuster and ensure Senate passage. 

The most controversial matter considered in the negotiations had apparently been taken off the table before negotiations concluded -- i.e., the approach on the civil liability of police officers. Current "qualified immunity" effectively shields police officers from civil liability for their misdeeds. Even with the removal of this issue from negotiations, an agreement on a bipartisan bill could not be reached. 

(updated: 2-3-23)

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De-escalation Training Legislation

The House passed (December 15) de-escalation training legislation on a bipartisan basis, garnering the support of 50 House Republicans and all but 3 Democrats. The legislation passed the Senate earlier in 2022, and was signed into law by the President on December 27.

The Law Enforcement De-Escalation Training Act of 2022 (S.4003), sponsored by Republican Senator John Cornyn (R-TX), requires the Department of Justice (DOJ) to develop scenario-based training curricula (or identify existing curricula) that includes topics such as alternatives to the use of force, de-escalation tactics, and safely responding to an individual experiencing a mental, behavioral health, or suicidal crisis. It also directs DOJ to make grants to states for costs associated with providing training to law enforcement officers and/or mental health professionals.

Supporters of the legislation includes, among others, the Fraternal Order of Police and the American Psychological Association. 

(updated: 5-4-23)

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Executive Action on Police Reform

President Biden issued (May 25, 2022) an Executive Order (EO) to address police reform to the extent permitted at the Federal level without changes in law. Negotiation on comprehensive policing reform legislation fell apart last summer over disagreements that primarily concerned the civil liability of officers for misconduct. Overall, this EO primarily sets forth requirements for Federal law enforcement officers and would strengthen monitoring of police conduct nationally, though States and localities would merely be “encouraged” to participate.

The specific requirements set forth in this EO instructs all Federal law enforcement agencies to:

• Ban the use of chokeholds and carotid restraints unless deadly force is authorized, and restricts the use of no-knock entries.

• Meet or exceed standards that are articulated within the Department of Justice’s updated use-of-force policy, which authorizes force only when no reasonably effective, safe, and feasible alternative appears to exist; authorizes deadly force only when necessary; and emphasizes de-escalation. Key within the updated DOJ policy is that Federal officers have a duty to “intervene to prevent or stop, as appropriate, any officer from engaging in excessive force or any other use of force that violates the Constitution, other federal laws or department policies on the reasonable use of force” and to “request and/or render medical aid, as appropriate, where needed.”

• Ensure “timely and thorough investigations” and consistent discipline after incidents involving the use of deadly force or deaths in custody, as well as to prevent unnecessary discipline delays.

• Adopt and publicly post body-worn camera policies that mandate activation of cameras during activities like arrests and searches, and also provide for the expedited public release of footage following incidents involving serious bodily injury or deaths in custody.

• Develop best practices to attract, support, and retain an inclusive, diverse, expert, and accountable law enforcement workforce, including by implementing screening tools to ensure that agencies do not hire or retain, or partner with on task forces, individuals who promote unlawful violence, white supremacy, or other bias on the basis of protected characteristics.

• Implement an evidence-informed training module for law enforcement on implicit bias and avoiding improper profiling based on the actual or perceived race, ethnicity, national origin, limited English proficiency, religion, sex (including sexual orientation and gender identity), or the disability of an individual.

• Publish best practices and standards to promote officer wellness and to identify resources to support wellness programs, and requires each Federal LEA to assess and improve its own Officer Wellness program.

• Collect and submit on a monthly basis all data on incidents involving use of deadly force compiled by the FBI’s Use of Force Data Collection.

In terms of actions more national in nature, outside of a central Federal law enforcement focus, the EO requires:

• The establishment by Justice of a National Law Enforcement Accountability Database, in which all Federal law enforcement agencies (Federal LEAs) must participate and provide conduct-related information. Data would be accessible to State and local law enforcement agencies, and they will be “encouraged to enter their records.”

• Justice to take steps to improve the investigation and prosecution of criminal civil rights violations, including directing the issuance of best practices for independent investigations and improving coordination to address systemic misconduct through pattern-or-practice cases.

• Imposes restrictions on the distribution of military equipment that can be used on the streets, while keeping the ability of States and localities to access equipment for disaster-related emergencies, active shooter scenarios; hostage or search and rescue operations; and anti-terrorism efforts.

• Requires new standards for law enforcement accreditation and accrediting organizations that will include standards consistent with those outlined for Federal law enforcement agencies. DOJ will “incentivize and support” agencies seeking accreditation, including through Federal grants.

(updated: 5-25-22)

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George Floyd Act

The George Floyd Justice in Policing Act (HR 1280), passed the House on March 3, 2021. Among other things, the proposed legislation: 

• lowers the criminal intent standard—from "willful" to "knowing or reckless"—to convict a law enforcement officer for misconduct in a federal prosecution;

• limits qualified immunity as a defense to liability in a private civil action against a law enforcement officer;

• grants administrative subpoena power to the Department of Justice (DOJ) in pattern-or-practice investigations;

• establishes a framework to prevent and remedy racial profiling by law enforcement at the federal, state, and local levels; and,

 

• limits the unnecessary use of force and restricts the use of no-knock warrants, chokeholds, and carotid holds.

No action was taken in the Senate on the legislation, and no action is expected in the future.

(updated: 2-2-22)

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