By Tim Cushing
There’s some national-level police reform on the way, courtesy of Democratic lawmakers. Unfortunately, it’s going up against a party that holds a majority in the Senate and has pledged an oath of fealty to our very pro-cop president. This will make it difficult to pass in its unaltered form. And that’s even if it’s given a chance to come up for a vote when it hits the Senate, considering the Senate Majority Leader’s antipathy towards legislation he doesn’t agree with.
That being said, the bill should still be discussed. There’s a non-zero chance it will eventually make its way to a president’s desk. Possibly not this one’s, but there’s an election in November.
The Justice in Policing Act of 2020 [PDF] addresses a number of issues that have turned our nation’s law enforcement agencies into the paragons of unaccountability currently being protested en masse around the nation. The first stop is officers’ legal defenses when sued or prosecuted for violating rights.
There are two parts to this equation and the first is what prosecutors must prove when charging cops with criminal acts. This bill lowers the standard, making it a bit easier for prosecutors to get charges to stick. From the fact sheet [PDF]:
Makes it easier to prosecute offending officers by amending the federal criminal statute to prosecute police misconduct. The mens rea requirement in 18 U.S.C. Section 242 will be amended from “willfulness” to a “recklessness” standard.
The bigger change is one that attacks the Supreme Court’s “qualified immunity” construct. There’s no law to amend here because there was never any law created to grant police officers this extra right. If this bill becomes law, qualified immunity will cease to exist. The bill refers to 42 USC 1983, which is what gives citizens the right to sue officers for violating their rights. Nothing in that law says anything about qualified immunity.
This bill would add something to the law removing the qualified immunity defense constructed by the Supreme Court.
‘‘It shall not be a defense or immunity to any action brought under this section against a local law enforcement officer (as defined in section 2 of the Justice in Policing Act of 2020) or a State correctional officer (as defined in section 1121(b) of title 18, United States 22 Code) that—
‘‘(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or
‘‘(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at this time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.”
Officers will still be able to argue these things, but they won’t be able to move for summary judgment just by saying a couple of magic words. They’ll actually have to submit counterarguments and evidence if they hope to avoid losing a civil rights lawsuit.
Unfortunately, this won’t apply to federal law enforcement officers, who have mysteriously been given a carve-out by this bill. But it will be a good start if it sticks. Taking away officers’ “GET OUT OF LAWSUIT FREE” cards should have an impressive deterrent effect. Being able to prove your actions were justified is far more difficult than simply claiming any “reasonable” officer would have made the same decision under the circumstances.
There are other good reforms in there as well, although the elimination of qualified immunity is clearly the headliner.
The bill would ban chokeholds and carotid holds by federal law enforcement and make federal grants to state and local police dependent on their banning of these restraint methods. It also bans the use of no-knock warrants by federal agents and similarly restricts the distribution of federal funds to local cops who still engage in this practice.
The bill also mandates more training for cops, in hopes of reducing biased or racist policing, and makes de-escalation tactics a requirement in tense situations, rather than the usual hail of bullets in response to any “quickly evolving” interaction. It gives the DOJ more power to conduct investigations of local law enforcement agencies and establishes funding for state Attorney General investigations of problematic police departments.
The bill would also significantly modify the 1033 program, which has turned a lot of police departments into military outfits by showering them with military vehicles, guns, aircraft, and clothing. The bill would ban the transfer of armored vehicles, grenades/launchers, aircraft with “no established commercial flight application,” silencers, and long-range acoustic devices.
Another (theoretically) helpful aspect of the bill is the camera mandate. Most federal officers do not wear body cameras and often ask locals to remove theirs when participating in joint operations. That will no longer be standard practice. The bill mandates use of body cameras by all federal officers and for all marked federal police vehicles to have dashcams.
It’s a comprehensive set of reforms and it’s going to be greeted by loud opposition from all levels of law enforcement. But that’s okay. The louder they yell, the more we know this is the right direction to go. If officers are ever going to start acting like anyone else but them matters, it will take more than tepid half-efforts. Destroying the judicially-created concept of “qualified immunity” should have an immediate effect. Raising the bar for officers to escape civil rights lawsuits has huge deterrent potential. Eliminating some of the worst patterns and practices (dressing up like soldiers, using no-knock warrants, etc.) should disrupt the “soldiers in a war zone” mindset that has contributed to ongoing violence against citizens even as crime levels and killings of police officers remain at historic lows.
The bill has a lot going for it at the moment. There’s plenty of public support for reform right now. Unfortunately, the bill’s opponents have shown a preference for coddling the most powerful man in the world rather than listening to their constituents. If the bill’s momentum stalls, it may take another horrific flash point to reignite its fire.