Q&A: Congress is about to act on police reform. Here’s how the GOP and Democratic bills differ

Congress is moving to respond to public calls for police reform as protests continue across the country over the death of George Floyd and similar cases of excessive force. A Minneapolis police officer has been charged with murder in killing Floyd, a handcuffed, unarmed Black man, by kneeling on his neck for more than eight minutes.

While Republican and Democratic proposals differ, lawmakers on Capitol Hill seem to recognize that they have an opportunity to make real change through legislation.

But what they can do is limited by the Constitution, and their own political will.

Here’s a look at what Congress has done before to address police reform at the local level, what the limits are, and what is now being proposed.

First off, does Congress have the power to tell local police departments what to do?

Kind of. It’s complicated.

The U.S. Constitution doesn’t give the federal government power over local or state police. And the 10th Amendment says any authority not specifically granted in the Constitution is left to the states, so Congress has little direct authority over state and local police.

But what they do have is control over money the federal government sends the states, and grants from the Justice Department are often a significant chunk of local police budgets.

So they can’t tell police what to do, but Congress can withhold money unless police departments act in a certain way.

What has Congress done before?

Congress hasn’t done much to address the use of force by local police or set standards regarding local law enforcement, said Barry Friedman, director of New York University School of Law’s Policing Project.

Congress has placed conditions on popular policing grants like Community Oriented Policing Services, or COPS, or the Edward Byrne Memorial Justice Assistance Grant Program. But the Justice Department has been reluctant to use its authority to enforce the restrictions Congress has called for.

One of the most notable examples is a 2014 law passed by Congress requiring law enforcement agencies to report deaths that occur during custody. But the Justice Department still hasn’t adopted procedures to collect the data or penalized any state for not complying.

Lawmakers could force a police department to comply by threatening to restrict the Justice Department’s budget or holding hearings to increase public pressure, Friedman said, but they have not.

But beyond the legal and logistic restraints faced by Congress in regulating local police, Friedman said, there’s another reason lawmakers haven’t moved aggressively: They haven’t really wanted to.

“The problem here isn’t a lack of a capability. It’s a lack of political will,” he said. “You’re only seeing the kind of action you are seeing now because people have so loudly taken to the streets.”

So what does Congress want to do?

There are two competing proposals at this point.

House Democrats’ bill would ban federal officers from using chokeholds, or from using “no knock” warrants in drug cases. It would establish national standards for police departments, including requiring training on racial, religious and discriminatory profiling, and make some federal funding for state and local police contingent on the passage of state laws banning chokeholds and no-knock warrants for drug cases.

The bill also would limit what military equipment can be transferred to civilian police departments, require federal officers to use body cameras and have cameras on the dashboards of their vehicles, and instruct local departments to use federal funds to do the same. It also makes lynching a federal crime and requires departments to report data on use of force to a federal database.

It would amend federal statute to allow officers to be prosecuted for “reckless” rather than “willful” criminal conduct, a move sponsors say will make it easier to successfully prosecute officers for criminal violations, and also modify the “qualified immunity” protection for officers to make it easier for citizens to press civil lawsuits against officers for violating their constitutional rights.

The bill was sponsored by Congressional Black Caucus Chairwoman Rep. Karen Bass (D-Los Angeles).

Senate Republicans’ bill would require greater disclosure of police use of force and no-knock warrants and mandate the collection of data about how and when force is used. It would prohibit federal grant money to departments unless they have a policy banning the “use of chokeholds except when deadly force is authorized.”

The legislation includes emergency grant programs to increase the use of body cameras on officers, would make lynching a federal hate crime and create a commission to study the social conditions and discrimination facing Black men and boys.

It was introduced by Sen. Tim Scott (R-S.C.). and could be considered as soon as this week. But Democrats signaled Tuesday that they will block the bill.

What are the chances of a compromise?

Despite some inevitable finger pointing and brinkmanship, there are signs that a deal could be reached. House Speaker Nancy Pelosi (D-San Francisco) indicated that she’d like a chance to formally work out the differences between the bills. Some Senate Republicans have proposed going further than Scott’s version. And some elements, including making lynching a federal crime, are already included in both versions.

Both sides are feeling pressure to do something from the mass protests that have occurred in all 50 states, and neither can count on escaping blame for inaction.

What are the likely sticking points?

It may well be the fight over qualified immunity.

Many Republicans oppose ending it, saying officers shouldn’t have to second guess, or hesitate to act, out of fear of being sued. Scott called it a poison pill, though some Republicans have signaled a willingness to consider modifying it.

Democrats call it a nonnegotiable centerpiece of reform that is necessary to ensure people have some way to hold police officers accountable for violating a constitutional right.

Qualified immunity for police officers is a doctrine created by the courts.

It’s actually a fairly recent interpretation of a nearly 150-year-old law passed by Congress during the Reconstruction period following the Civil War.

Congress passed the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, to enforce the equal protection clause of the 14th Amendment across the South. It allows a person to seek civil damages in court if their constitutional rights have been violated by a person acting under state authority — with no exception for police. While other parts of the act have been struck down, this aspect still exists as 42 U.S.C. § 1983.

It was largely ignored by the courts until the 1960s, when the U.S. Supreme Court first introduced the concept of “qualified immunity,” which prevents police officers from being successfully sued for abuse of power or misconduct unless a prior case has “clearly established” that the specific abuse or misconduct is illegal. In the last decade it has been used to shield officers from being sued for using excessive force, including brutal arrests and shooting innocent people in their homes.

Just this month the Supreme Court declined a chance to revisit the doctrine by turning down eight qualified-immunity cases, including one in which an officer unleashed his police dog to attack an unarmed Tennessee burglary suspect who had sat on the ground and surrendered.

Congress has the power to essentially declare the doctrine moot and assert its need to address a nationwide problem — in this instance improper use of force by police — under Section 5 of the 14th Amendment, which allows Congress to legislate to enforce the amendment.

The question remains whether it will do so.