Senators Mitch McConnell and Tim Scott revealed their proposed Justice Act this morning. The proposed legislation has been released to the media, and the full text is available on some sites like NPR. The reforms suggested within are expected to pass the Senate easily but will likely bog down in the House, where a separate measure called the Justice in Policing Act is already moving through the legislative process.
The Senate bill would make lynching a federal crime; as a recent effort to do so was stymied by the efforts of one Senator, Rand Paul of Kentucky, there has been shown to be widespread support for creating that law.
It does not provide for any reform of the laws regarding qualified immunity. For a detailed analysis of this issue, I suggest reading an expert article on the matter at the Lawfare blog. One of the key takeaways from it is this point: that due to the most recent Supreme Court interpretation of the applicable law, there are at least three distinct and significant obstacles to plantiffs wishing to sue officers for violation of Constitutional rights, with the combination rendering nonviable nearly all efforts at seeking redress for alleged wrongs.
The other key point of contention is that the Senate bill does not outlaw the use of choke holds by police, instead recognizing that decision as the purview of individual states and localities. In an effort to reduce choke hold use, incentives are provided to states and localities. The stated reason for refusing to outlaw the choke holds is a deference to the principle of federalism.
Personally, I have issues with the Republican bill.
It is true that Democrats – in particular Cory Booker, who has been given the lead as a Democrat speaking on behalf of his party on the issue of police reform – have misrepresented qualified immunity as complete immunity. From his web site, on the issue, he seeks “reforming the qualified immunity doctrine so that individuals are not entirely barred from recovering damages when police violate their constitutional rights.” That does not mean there is no truth to the spirit of his words. Individuals are not entirely barred, but in recent decades they have effectively been so.
To that end, a reform has been suggested by Representative Justin Amash which was co-sponsored by Democrat Ayanna Pressley. A key interpretation of qualified immunity is that the civil rights violation of an officer must be so egregious that not only would the officer know they were violating the law, but every officer would recognize that rights were being violated. This reform would strip such protections away and seek to return the interpretation to the pre-1982 levels, when the only time police would have limited immunity was when their actions were judged lawful at the time of their commission but were later determined to be unlawful by a related Supreme Court ruling. The Senate bill has refused to take up this reform, and further has referred to it as a “poison pill”, strongly indicating that they have little interest in safeguarding civil rights.
They have included funding to increase training on the subject for police, but so long as one uninformed, ignorant or simply stupid policeman exists and doesn’t recognize that rights are being violated, nothing changes as regards what approaches complete immunity for police in this matter.
Another issue is federalism. While wisdom is being demonstrated in the refusal to expand authority over local police departments by the federal government, the application of those principles seems disturbingly arbitrary by the contemporary Republican party. There were attempts by the Obama administration to exert direct control over local authorities, and it is reasonable to believe that similar attempts will occur in the future. As a nationalized police force is undesirable to most people who wish to promote freedom it makes sense to fight against policies which would encourage shifting local police under a wide federal umbrella.
That said, it was less than two weeks ago that the White House was reported to have been discussing nationalizing the police force of Washington D.C., according to NBC News. That’s only one of many broad overreaches of Presidential power that the Republicans have been silent on, often involving violations of federalism. The President regularly makes demands on Governors which are directly counter to the doctrine, and his administration has brought suit in court as he attempts to force them to do his bidding… most notably, on immigration policy. The Republicans have not merely stood idly by but have actively and aggressively supported his attacks on federalism.
They are taking the correct position on this subject regarding police reform, but because of their refusal to amend qualified immunity and their utter abandonment of federalism in so many other cases, the rationale for their stance here is highly suspect.