Despite partisan battle lines being drawn, Republicans and Democrats are mostly in agreement about what needs to happen in American policing. Yes, there’s a split on no-knock warrants and efforts to weaken qualified immunity, the legal doctrine that officers can’t be held civilly liable for actions taken under color of authority. But both sides mostly agree that there should be strong restrictions on chokeholds, a wholesale rethinking of use-of-deadly-force rules and a national database that would keep bad cops from moving from agency to agency, among other reforms that President Donald Trump laid out in his executive order last week.
The next day, Republican Sen. Tim Scott of South Carolina unveiled his “Justice Act,” which provides a financial carrot for law enforcement agencies to adopt policies that would presumably reduce violent and fatal encounters.
Democrats seem more interested in using sticks: outright bans on certain kinds of restraints and no-knock warrants in federal drug cases, and rolling back legal protections for officers, all under the threat of “defunding.”
As the nation’s only black Republican senator, Mr. Scott is in a unique position to broker a deal that makes policing more humane. It will require a sustained effort and, in Sen. Scott’s words, begin the process of “restoring the confidence that communities of color have in institutions of authority.”
The legislation has the support of South Carolina’s other U.S. senator, Lindsey Graham, whose comments have suggested he might use it as an opportunity to try to reclaim the vital role he has traditionally played as someone who can forge compromises, if not consensus , between the parties. He should do so.
The breakdown in respect for police among African Americans is a national problem inflamed by such tragedies as the shooting death of Walter Scott as he fled arrest by a North Charleston police officer in 2015, the shooting death of Rayshard Brooks by an Atlanta police officer June 12, the May 25 death of George Floyd in Minneapolis caused by an officer kneeling on his neck and numerous other accounts of unjustified use of force in arrests.
Sen. Scott’s bill would provide monetary incentives to police departments for full deployment of bodycams, increase penalties for falsified police reports, require officers to file reports when they use force or execute a no-knock warrant and deny federal grants to police departments that fail to ban chokeholds. And in a shockingly belated act, it makes lynching a federal crime and criminalizes sexual activity between a federal officer and anyone in custody.
Democratic and other critics of the bill, including a number of conservative law professors, say it should also prohibit qualified immunity, the court-created legal doctrine that police and other government officials cannot be sued individually for their actions unless it can be shown that they violated the “clearly established statutory or constitutional rights of which a reasonable person would have known.” Critics say that by making it so difficult to sue individual officers for overzealous law enforcement, qualified immunity encourages aggressive behavior.
Although there is a sound basis for limiting the personal liability of government employees, it’s never a good idea to rely on court-written law, which can’t include the nuances of a law written by a legislative body. If only for that reason, it would be wise to use this opportunity to make adjustments to the contours of that immunity.
Another criticism of the bill is that it does not provide for a national database of reports of excessive use of force by individual police officers. The Minneapolis police officer whose actions led to the death of George Floyd is reported to have had a lengthy record of abuse of power.
Since President Trump’s June 16 executive order on police reform does create such a database, it should be a fairly simple matter politically to add such a measure to Sen. Scott’s bill. That could certainly help win Democratic votes, which it must have to pass the Senate and the House. It also needs Democratic support to be seen as a credible response to the legitimate concerns among black people and a growing number of white people over abuses in policing.
A major change in police behavior has to occur before we begin to see an end to the rare but terribly destructive acts of police abuse.