As protesters across the United States continue to demand that cities defund police departments in the wake of George Floyd's death, a stalemate between Democrat and Republican lawmakers could thwart the passing of nationwide police reforms.
Both the Republican-controlled Senate and the Democrat-controlled House have introduced police reform bills. Even though the Senate bill was blocked by Democrats this week, the House’s bill passed 236-181 on Thursday, with three Republicans voting for it. The legislation is unlikely to pass in the Senate.
While there are major differences, there are also similarities that could indicate areas of common ground. Below are five areas where there are some similarities or differences between the two police reform bills.
Many outraged demonstrators have been calling for a ban on police use of chokeholds following the videoed death of the 46-year-old Floyd underneath the knee of a Minneapolis police officer on Memorial Day.
Sen. Tim Scott, R-S.C., introduced the GOP police reform package earlier this month that sought to increase transparency at police departments and incentivize state and local agencies to ban the use of chokeholds by their officers.
However, Scott’s bill was opposed by Senate Democrats, with Senate Minority Leader Chuck Schumer, D-N.Y., calling the bill “woefully inadequate.” Democrats argue that the GOP bill does not outright ban what they are calling chokeholds — more accurately known as a "vascular neck restraint" or "carotid restraint control hold." These are sleeper holds that temporarily reduce blood supply to the brain and render a person unconscious for seven to 10 seconds. These holds do not restrict a person's ability to breathe because they do not compress the trachea.
The other type of hold is a respiratory hold that puts pressure on the trachea and restricts a person's ability to breathe. "This type of hold should never be used by law enforcement unless lethal force is justified," says Police magazine.
The GOP bill would condition federal funding on whether state and local police departments enact policies that restrict the use of chokeholds — defined as maneuvers that block the ability for suspects to breathe — except in cases where deadly force is authorized.
Scott contends that requiring state and local agencies to adopt policies that restrict the use of chokeholds to get federal funding is essentially a “default a ban on chokeholds.”
His bill also instructs the Justice Department to develop a policy for federal law enforcement agencies that would ban chokeholds except when deadly force is authorized, according to The Wall Street Journal.
One criticism by Democrats of the GOP bill is that while it also incentivizes bans on the use of chokeholds, it does not expressly call on agencies to ban the use of carotid restraint control holds. Scott has said that he's open to amending the language of the bill but accused Democrats of stonewalling the legislation.
According to The Associated Press, the House bill goes as far as banning respiratory holds and carotid restraint control holds for federal law enforcement agents. It would also condition federal funding for state and local law enforcement agencies based on the enactment of bans on both.
Many have also called for a ban on no-knock warrants following the police shooting of Breonna Taylor in Louisville, Kentucky, earlier this year. Taylor was shot when police officers executed a no-knock search warrant of her apartment.
Democrats oppose the GOP bill because it doesn’t ban no-knock warrants while the Democrat bill does.
No-knock warrants are court orders allowing police to enter a property without knocking on a door or ringing a doorbell before they enter. The practice is typically used in more dangerous police investigations and raids.
The House bill — the George Floyd Justice in Policing Act of 2020 — would specifically ban the use of no-knock warrants by federal agents investigating drug cases and would incentivize through federal funding that state and local law enforcement departments prohibit the use of no-knock warrants.
AP reports that the Republican proposal requires — through the threat of withholding federal funds — that state and local law enforcement agencies report specific data on their uses of no-knock warrants to the Department of Justice every year. Scott’s bill would require the Justice Department to produce a yearly public report on the use of no-knock warrants nationwide.
Scott has said that Republicans in the Senate want to collect more data on no-knock warrants before instituting a sweeping change banning the practice.
Sen. Rand Paul, R-Ky., introduced a standalone bill in the Senate earlier this month that would require federal law enforcement officers to provide notice before they execute a search warrant. His bill would also require state or local law enforcement agencies to adopt a similar policy to receive Justice Department funds.
Taylor’s mother, Tamika Palmer, praised Paul’s bill.
"I think it's just the beginning, but I'm definitely satisfied," Palmer told The Courier-Journal. "I definitely think it will help families after mine."
The House bill seeks to end what is known as “qualified immunity,” a legal principle that provides government officials with immunity from civil lawsuits relating to their actions as government agents.
The immunity generally should not protect actions that violate established legal precedent. The immunity principle has been seen as a way to guard against unnecessary legal action filed against government officials.
Because of the qualified immunity doctrine, police officers are not typically held responsible for questionable actions on the job, even in cases where people have died.
The U.S. Supreme Court has upheld the qualified immunity principle in the past, and the court recently turned down other challenges to the doctrine in its next term.
The House bill would radically change federal misconduct laws to make it easier for courts to hold officers personally liable for violating the rights of suspects. GOP leaders argue that eliminating qualified immunity will open officers up to unnecessary legal liabilities and hurt efforts to recruit qualified police officers.
Rep. Doug Collins, R-Ga., argued on the House floor this week that the recent elimination of legal shields in precincts around Atlanta could result in an exodus of officers who are applying for jobs elsewhere “because they don't think they can get backed up.”
White House Press Secretary Kayleigh McEnany told media this week that she believes the Democrat “bill would undermine the due process rights of every officer by making pending and unsubstantial allegations available to the public, causing reputational damage based on allegations alone.”
In the Senate, one Republican, Mike Braun of Indiana, has introduced his bill seeking to reform the doctrine of qualified immunity. Braun argues that the current interpretation of qualified immunity allows law enforcement in high-profile excessive force and abuse-of-power cases to avoid civil suits.
He says that government employees have access to an “overly broad qualified immunity defense” that is extended to cases when officers commit egregious acts.
Scott has proposed the idea of implementing a “decertification” process for officers who commit misconduct. Scott’s bill also calls for and would fund training for law enforcement officers that touches on alternatives to using force, de-escalation strategies, and when officers should engage when another officer is using excessive force. The Democrat bill does not address this concern, according to a side-by-side comparison of the legislation by AP.
Senate Minority Whip Dick Durbin, D-Ill., called the Republican-backed proposal a "token, half-hearted approach," which many took as a racial slur since Scott is black.
"To call this a token process hurts my soul for my country, for our people," Scott, the author of the legislation, said.
National registry and database
Both bills call for greater reporting by police departments to the federal government when it comes to cases that involve police use-of-force.
The Democrat bill calls for a national registry that logs complaints and disciplinary records of police officers. The House bill also requires states to report to the Justice Department any incident in which force is used against a civilian or law enforcement officer, AP reports.
Additionally, under the House bill, agencies would be required to report to the Justice Department the reason why force was used as well as information on the race, sex, age, ethnicity, national orientation and housing status of every civilian who was handled by use of force.
The Senate bill would require state and local law enforcement agencies to report all use-of-force incidents and officer-involved deaths to the FBI every year. Under the bill, the FBI would produce a yearly report based on the national use-of-force data collected from all agencies. The bill holds that jurisdictions that do not comply could lose federal funding.
Scott’s bill also calls for the creation of commissions to study the criminal justice system and the status of black men in America.
Changes to federal law
According to AP, the House bill would amend federal civil rights law that governs police misconduct to no longer require prosecutors to prove something that carries a high burden of proof if they want to prosecute officers: that an officer’s actions were “willful.”
Such a measure would make it easier to hold police officers criminally responsible under federal law for violating the rights of an individual “knowingly or with reckless disregard.”
By comparison, the Senate bill does not amend that section of civil rights law.