Americans believe the time has come for police reform. In the wake of the George Floyd protests, support for measures to reform the police has surged. A recent Reuters/Ipsos poll shows overwhelming support for many changes:
- “82% of Americans want to ban police from using chokeholds,”
- “83% want to ban racial profiling,”
- “92% want federal police to be required to wear body cameras,”
- “89% of Americans want to require police to give the people they stop their name, badge number and reason for the stop,” and
- “91% support allowing independent investigations of police departments that show patterns of misconduct.”
But reform efforts seem to have stalled as quickly as they started. A Republican backed bill asking for some of these measures was held up in the Senate after Democrats objected that the bill didn’t begin to go far enough, particularly in terms of tackling qualified immunity and federal bans on specific police tactics such as chokeholds. A parallel bill from Democrats which addresses these issues just passed in the House but is regarded as dead on arrival in the Senate, with Republican colleagues unwilling to consider some of its provisions and President Trump signaling his intention to veto.
Americans are no strangers to such congressional deadlock, but the sides are hardly as fundamentally opposed as this deadlock might suggest. There is genuine agreement, at large, that police oversight needs to be strengthened, that body and dashboard cameras need to become more widespread, and that reporting on the use of violence within the police needs to be more transparent. Democratic and Republican lawmakers even find themselves similarly opposed to the idea of “defunding” the police. So while discord dominates the headlines, we thought it is worth highlighting where both sides agree and disagree, shining a light potentially on a future trajectory for policy.
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Areas of Disagreement
By most accounts, the issue of qualified immunity is the biggest point of disagreement between the right and left. In a few words, qualified immunity protects government employees from being personally held liable for constitutional violations as long as their actions do not break “clearly established” law. This means a plaintiff would need “to produce a binding precedent establishing ‘a constitutional rule specific enough to alert these deputies in this case that their particular conduct was unlawful.’ (emphasis in original).” In effect, this means that minor variations in a scenario can result in such cases being thrown out by judges, effectively giving police substantial leeway to avoid repercussions for misconduct, an issue acknowledged left, right, and center.
“Judges now have the power to dispose of cases on qualified immunity grounds without ever ruling on whether anyone’s rights were violated . . . judges are increasingly likely to declare government officials immune from a suit without resolving whether those officials acted illegally.” – Vox
Democrats in Congress are keen to have qualified immunity ended completely, but Republicans have thus far been unwilling to entertain this idea over worries that such legal protections are necessary for police to do their jobs. Last week, Senator Mike Braun (R-IN) became the first Republican to favor curtailing qualified immunity (but not end it entirely). Braun adroitly captured the issue: “protection is extended to those acting under the color of the law, even when they commit egregious acts which deprive fellow citizens of their constitutional and statutory rights.” Braun’s recently introduced bill hints at a middle path of reforming qualified immunity, but such a solution remains unlikely.
Elsewhere the left and the right disagree on other key elements of police reform, if not in principle then in methods and degree. Democrats have targeted several wide-reaching provisions, including a federal ban on chokeholds (the tactic used by police which killed both George Floyd and Eric Garner), a ban on no-knock warrants (the tactic responsible for the killing of Breonna Taylor), a national police registry to track police misconduct, mandatory racial bias training, and new limits on the transfer of military equipment to police departments. The recently rejected Republican bill would have addressed a few of these issues in part, including by using funding to discourage chokeholds, ordering an investigation into no-knock warrants, and targeting a renewed effort to retain the disciplinary records of police, but these initiatives overall were regarded by Democrats as half measures, especially in their unwillingness to address qualified immunity.
To just focus on these as areas of contention, however, would be to miss the overlap in direction on a number of issues. Both parties want to address the use of chokeholds, are concerned with the use of no-knock warrants, and think that better tracking of police behavior can play a role in restoring reigning in police behavior. They may not yet concur in terms of methods to achieve these ends, but the protests have stoked fires for action on this issue, forcing both parties to respond, and often in similar directions.
Areas of Agreement
There are also areas of genuine agreement, such as on increased use of cameras, improved reporting on the use of force, and the recognition of lynching as a federal crime. Apart from these more technical aspects of responding to the recent protests, policymakers on both sides of the aisle have resisted calls for “defunding” the police at a federal level. While the combination of these elements won’t completely solve the issues of police reform, and though this agreement does not equate to the imminent passing of legislation, it does highlight some degree of conceptual overlap that is often missing in the portrayal of two fundamentally opposed sides.
“Bodycams (which increase transparency, to the benefit of both wrongly treated police suspects and wrongly accused police) are not yet universal.” – City Journal
Cameras — both worn by officers and placed on the dashboard of vehicles — have been hailed by both sides as a way to improve transparency and accountability. The thinking goes that it will be easier to document the behavior of both police and public individuals with which they interact. Rather than lead to a shift in police behavior, however, the early results from such programs have been ambiguous: “Videos from body cameras and bystander cell phones have worked to bolster ‘reasonable fear’ defense claims as much as they have demonstrated the culpability of police officers.” The critical element, which both sides thankfully appear to grasp, is that cameras form but one element of broader, multifaceted police reform, with the technology “only as successful as the departments they are implemented in.”
Other areas of agreement are obvious and by all accounts desirable. For example, right and left agree on the need to make state and local agencies report statistics annually on the use of force to the federal government. As it stands, the absence of nationwide data complicates fully capturing and understanding aspects of police behavior. Elsewhere, there is cross-sectional support for demilitarizing the police, specifically targeting the Pentagon’s 1033 program, through which law enforcement agencies receive access to surplus military equipment. Policymakers also want to make lynching a federal crime as part of their proposed police reform bills. This long-awaited move has been anticipated for over 100 years, and the concerted interest from both parties suggests an interest in recognizing the suffering of the Black community from politicians across the spectrum — a clear result of the recent protests.
Despite vocal but limited support for “defunding” the police and early action on that front in places such as Minneapolis and Los Angeles, federal lawmakers have thus far closely followed popular sentiment on the matter. According to recent polling, nearly 60% of Americans oppose such measures, and politicians are surely happy to comply. Police unions, which both sides acknowledge wield significant influence, pose a particularly difficult hurdle to the fiscal rebalancing that advocates seek. In this issue, and others, Democratic and Republican lawmakers may be more alike than they want to let on.
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Moving the Ball Forward
The risk now is that congressional deadlock or other issues such as Covid-19 or the upcoming presidential election may dilute the impetus for police reform or delay tangible action. This wouldn’t be the first time congressional disagreement hindered the passage of measures that a majority of Americans support.
As it stands, protests continue across the country amid rising temperatures and Covid-19 case counts, serving to keep the issue front and center. The American public is quite clear where it stands on the issue of police reform. It’s time for politicians to make sure that the opportunity for real, beneficial change is not lost.
“The House just passed a sweeping police reform bill” – Vox – Credibility Grade: 81%
(Author: Li Zhou and Ella Nilsen; June 25, 2020)
“The war on drugs gave rise to ‘no-knock’ warrants. Breonna Taylor’s death could end them” – PBS News – Credibility Grade: 84%
(Author: Candice Norwood; June 12, 2020)
“We found 85,000 cops who’ve been investigated for misconduct. Now you can read their records.” – USA Today – Credibility Grade: 72%
(Author: John Kelly and Mark Nichols; June 11, 2020)
“‘Defund the police’: What does it really mean? Three questions.” – Christian Science Monitor – Credibility Grade: 89%
(Author: Harry Bruinius; June 16, 2020)
“U.S. Lawmakers Want to Curb Transfers of Military Hardware to Police” – Popular Mechanics – Credibility Grade: 89%
(Author: Kyle Mizokami; June 11, 2020)
“Police unions are one of the biggest obstacles to transforming policing” – The Conversation – Credibility Grade: 82%
(Author: Jill McCorkel; June 12, 2020)
“Democrats’ police reform bill actually has a few good ideas” – Washington Examiner – Credibility Grade: 73%
(Author: Brad Polumbo; June 10, 2020)
“Sen. Mike Braun To Introduce Police Reform Bill Tackling Qualified Immunity” – The Federalist – Credibility Grade: 70%
(Author: Evita Duffy; June 24, 2020)