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Rare momentum for reform

Speaker Nancy Pelosi (D-Calif.) moved the Democrat's bill

Speaker Nancy Pelosi (D-Calif.) moved the Democrat's bill on police reforms out of the House last week.  Credit: AP/Susan Walsh

Suddenly, in a nation suffering divisions beyond mending on the most fundamental issues facing it, there is one broad agreement: our policing methods and the culture surrounding law enforcement need to change.

Progress is needed in how police departments operate, and on the behaviors their cultures cultivate. While laws and policies governing law enforcement are mostly set at the state and local level, the federal government plays an important role as well, especially in protecting civil rights.

And shortcomings in the administration of justice, often rooted in race, must be addressed quickly in Washington to set an agenda and model for the nation.

Captured in video footage that infuriated and revolted the nation, a police officer’s deadly pinning of George Floyd with a knee to the neck galvanized Americans in a way that three decades of videos, seen since Rodney King was assaulted by the Los Angeles Police Department, hadn’t. And after Floyd’s death, when mostly peaceful protests filled the streets, the images of over-armed law enforcement officers responding with unmerited swagger and violence dramatically changed the national mood. Now 57% of Americans believe police are more likely to use excessive force on black people, up from 34% in 2016, according to Wall Street Journal polls.

The need for change

Calls for changes in how the nation’s police departments operate began to mount and they swiftly garnered national support, a long-overdue shift in public opinion toward systemic change.

It’s no surprise that Democrats in the House of Representatives are demanding reforms. But this time the Republicans who control the Senate are joining in with demands for improvement, seeking changes and offering substantive ideas. Even President Donald Trump, in between tweets of “LAW AND ORDER!!!,” has issued an executive order.

Trump’s order would incentivize but not require local departments to meet higher standards on training in de-escalation and the use of force; end the use of chokeholds; have experts on mental health, addiction and homelessness respond to scenes with police; and do more to track abusive officers and prevent them hopping from one jurisdiction to another.

Every one of these could reasonably be made a law and not just a suggestion, and national bans on both chokeholds and the hiring of officers proven to be abusive are necessities.

Trump’s plan is complemented by that of South Carolina’s Tim Scott, the only black Republican in the U.S. Senate, whose proposal has some of the same strengths and shortcomings. Scott’s plan would also financially incentivize discontinuing, but not actually ban, chokeholds and some no-knock warrants. It would make lynching a federal hate crime, create a commission to establish policing best practices, require that all officer-involved deaths be reported to the FBI, and encourage de-escalation training. 

The use of no-knock warrants, increasingly and unreasonably common, ought to be reduced by federal law to cases where officers have clear reason to fear for their safety, not just de-incentivized. De-escalation training ought to be a requirement, not a hope. But a study and compilation of best practices is indeed needed, and making lynching a hate crime and requiring federal notification of officer-involved deaths are all steps forward that are long overdue.

A stronger plan

The best proposal is the House Democrats’ plan, and while Republicans are calling it overkill, it’s the better framework to use. The legislation would make it easier to prosecute officers for misconduct by punishing acts taken with the lower standard of reckless disregard, rather than the harder-to-prove burden of a willful violation. It would create a tougher version of the national registry of misconduct Republicans propose, ban chokeholds rather than disincentivize them, make police wear body cameras and help pay for them, and tie federal funding to establishing anti-bias programs.

Nowhere in the Democratic proposal are calls to defund or abolish police departments, which is wise. Adopting it would leave the nation less safe, and would make it impossible to make progress on serious reforms if some House Democrats hold out for it.

The biggest divide between the Senate and the House is the Democrats’ demand to end “qualified immunity,” the rule that bars individual police officers from being held personally liable for on-duty conduct.

It’s a judicial doctrine that Congress can and should rein in. It is not unreasonable for police officers, along with the city, town, village and state governments that employ them, to be held financially responsible for the damage their misconduct causes. Establishing a federal civil rights claims system would set a clear and uniform standard. However, eliminating qualified immunity is the one demand the GOP appears to have no wiggle room on. Unless that changes this week when the Senate is expected to take action, holding out for it would likely doom the passage of any serious improvements. The other proposed reforms are more important right now than ending qualified immunity.

The Republicans have some good ideas on police reform. The Democrats have better ones.

— The editorial board