Path to passing federal police reform bill appears to be narrowing

WASHINGTON — After bipartisan congressional negotiations over a federal police reform bill collapsed earlier this fall, lawmakers, civil rights groups and police unions are again looking to President Joe Biden to see if he can deliver on one of his central campaign promises to overhaul policing standards after George Floyd’s death last May.

Biden notched a victory when Congress passed a $1.2 trillion bipartisan infrastructure package, a major part of his domestic agenda. But as the president continues to focus on pushing lawmakers to pass a follow-up $1.75 trillion social infrastructure package before the end of the year, and as the midterm election season nears, criminal justice reform advocates concede that the path to passing a police reform bill in Floyd’s honor during this current session of Congress is narrowing.

The diminishing chances of passing major legislation were underscored by the Nov. 2 election results — Republican candidates brandishing tough-on-crime messaging won in local races throughout the East Coast, including winning the Nassau and Suffolk district attorney seats and capturing the governor's race in the battleground state of Virginia.

Voters in Minneapolis, where Floyd was killed after being pinned underneath the knee of former police officer Derek Chauvin, also voted down a proposal in line with the "Defund the Police" movement that would have replaced the police department with a public safety agency tasked with treating some of the underlying issues of crime such as mental health.

"As advocates, we're now saying "we’ve got to put this back on the table, we’ve got to put the pressure on," said DeAnna Hoskins, a former senior policy adviser for the U.S. Justice Department during the Obama administration, who now leads the criminal justice reform advocacy group JustLeadership USA based in New York City.

Why did negotiations break down?

For months Sen. Cory Booker (D-N.J.), Rep. Karen Bass (D-Calif.) and Sen. Tim Scott (R-S.C.) huddled behind closed doors looking to reach a compromise on a national police reform bill, but on Sept. 22 Booker announced the talks were ending after both sides failed to break an impasse over key components.

Democrats initially called for the elimination of "qualified immunity," a legal doctrine that shields police officers and government workers from lawsuits for alleged misconduct on the job. Democrats argue the doctrine often prevents rogue law enforcement officers from being held accountable for abusive practices, but Republicans oppose the outright elimination, saying police and government workers need some level of protection from potential frivolous lawsuits.

In June, the three lawmakers agreed to take the issue of qualified immunity off the table, and focus instead on what they described as a "slimmed down" version of a bill that would tackle other proposals including restrictions on the use of deadly force by officers, creating a national police misconduct database and incentivizing departments to mandate racial bias training.

Several of the nation’s largest police unions, including the Fraternal Order of Police and the International Association of Chiefs of Police, expressed support with the direction of where the negotiations were headed, but the conservative leaning National Sheriffs’ Association opposed most of the provisions being discussed. Scott and other Republicans said they would not support any measure without the sheriff association’s endorsement.

"Unfortunately, even with this law enforcement support and further compromises we offered, there was still too wide a gulf with our negotiating partners and we faced significant obstacles to securing a bipartisan deal," Booker said in a statement.

Booker said Democrats will look to "explore all other options to achieve meaningful and common-sense policing reform," but without buy-in from Republicans in the evenly split Senate, it appears unlikely Democrats will secure the necessary 10 GOP votes to pass legislation before next November.

Scott, meanwhile, has said talks should resume, and chided Democrats in a statement, accusing them of allowing "their misguided idea of perfect be the enemy of good, impactful legislation."

What are Biden’s next steps?

Immediately after the breakdown in talks, Biden promised to "continue to consult with the civil rights and law enforcement communities, as well as victims’ families to define a path forward, including through potential further executive actions I can take to advance our efforts to live up to the American ideal of equal justice under law."

The president, who campaigned heavily on the issue of police reform, had hoped Congress would act in time to pass a sweeping bill by the first anniversary of Floyd’s death. Chauvin was convicted by a jury in April on second- and third-degree murder charges.

Speaking at a CNN Town Hall on Oct. 21, the president detailed a series of executive actions he has recently taken to apply some of the reforms being discussed by lawmakers to federal law enforcement agencies.

"There’s a lot I’ve been able to do by executive order," Biden said.

Biden has signed off on mandates issued by the Justice Department banning federal law enforcement officers from using chokeholds to restrain civilians, and a new policy limiting federal authorities from using "no-knock warrants," which have allowed officers to enter a home without announcing their presence.

Despite the executive actions, advocates for reform have noted they only apply to federal agencies and not the vast network of local departments across the country. They also note that without congressional action, Biden’s new policies are subject to repeal by future presidents.

Biden’s top domestic policy officials have met privately at the White House with civil rights leaders and the families of police brutality victims in October looking to map out further actions the White House can take to revive reform discussions.

What does reform look like locally?

In the absence of federal policing reforms, local and national civil rights leaders say they will continue to push for reforms on the local level.

Nassau and Suffolk’s county legislatures each passed their own reform plans in March to comply with an executive order issued by ex-Gov. Andrew M. Cuomo that called on local departments to devise new plans to improve policing strategies in response to the national outcry over Floyd’s death.

The New York City Council also passed a series of police reform bills in March that includes limits on qualified immunity for officers and allocates funding for crime prevention programs focused on providing mental health services.

The plans passed on Long Island pledge to improve the diversity of police recruits, increase de-escalation training aimed at helping officers diffuse a situation before turning to force, and require anti-bias and cultural sensitivity training.

A coalition of Long Island civil rights groups, including Long Island Advocates for Police Accountability, have argued the county plans do not go far enough to provide for more civilian oversight of the departments. They have called for the creation of civilian oversight panels and increased access to police data on traffic stops and use of force.

Frederick Brewington, a Hempstead civil rights attorney involved with LIAPA, said he is hopeful the newly elected district attorneys — Anne Donnelly in Nassau and Ray Tierney in Suffolk — will sit down with local advocates "and have some frank discussions about how they can bring equity to a very troubled process."

"It's important for them to understand the need to address issues of racial disparities, the historical concerns concerning police actions is fact, not fiction, and their careful attention needs to be paid to it," Brewington said.