Hilary on the Hill is a new column which puts a spotlight on current legislative areas for our members. Hilary Jochmans is the policy director for the New York State Bar Association and a member of the House of Delegates. She is also the founder of Jochmans Consulting, a boutique government affairs business. Previously, Hilary was the director of the New York State Governor’s Office in Washington for both Andrew Cuomo and David Paterson, and has spent a dozen years on Capitol Hill working in the House and Senate.
In the wake of the horrific killing of George Floyd at the hands of the police, in addition to numerous other instances throughout the country, elected officials in Washington are considering policing reform measures.
Motivated by protests throughout the country demanding changes on the use of force, racial and religious bias and national police standards, Congress and the White House responded to the same crisis with different political solutions.
On June 8, House and Senate Democrats introduced a broad reform package and later that week held a legislative hearing on the measure in the House Judiciary Committee, chaired by New York Congressman Jerry Nadler.
The star witness was Philonise Floyd, George Floyd’s brother. His moving, deeply personal and touching testimony resonated with the members of the committee on both sides of the aisle, with many expressing condolences and support for his family.
In contrast, the mark-up of the legislation the following week in the same committee was a contentious, personal, and bitterly partisan spectacle.
In his first outreach to Congress as the new president of the New York State Bar Association, Scott M. Karson wrote to commend Chairman Nadler for introducing the legislation. He encouraged Congress to, “embrace its constitutional and moral authority to pass police reforms that address the use of deadly force, create strong standards for training on bias and profiling, and ensure that officers who violate the public trust and their oaths to protect are removed from service and not merely transferred to other jurisdictions.”
On June 25th, the House passed the George Floyd Justice in Policing Act, with all the Democrats and three Republicans supporting the sweeping reform measure. Senate Majority Leader Mitch McConnell has said the entire House bill is a non-starter as it would federalize too many issues that should be left to state and local governments. He also characterized the Democratic House bill as overreaching and typical of Democrats.
In the Senate, Tim Scott (R-SC), the only African-American Republican in the Senate, introduced the Republican bill. The measure addresses many of the same issues as the House-passed measure, but there are significant differences between the two bills, specifically dealing with chokeholds, no-knock warrants, a misconduct database and qualified immunity.
Under the Democratic bill, chokeholds, which are defined as any maneuver that restrains an individual and restricts blood or oxygen flow to the brain or impedes breathing, are completely banned. In contrast, the Senate Republican bill has no outright ban, but instead prevents state and local law enforcement departments that do not have a ban from receiving certain federal grants.The definition of a chokehold is also narrower.
The Democratic bill also effectively ends the practice of no-knock warrants in federal drug cases and conditions certain federal funding on state and local law enforcement agencies banning this practice. The Republican measure requires states and localities to annually report their use and the Attorney General would then publish it.
There has been a systemic practice throughout the country that when a police officer is involved in misconduct, that officer is often just transferred to a different area or is rehired in another jurisdiction that is unaware of the incidents. The Democratic bill seeks to address this issue by creating a nationwide federal database that would document misconduct by the police so that other jurisdictions would be aware of the misconduct.
Under the Republican bill, state and local jurisdictions would have to report officer-involved shootings and other use-of-force incidents each year to the FBI, which would make those records available to the public no later than one year after the legislation is enacted. To encourage participation, cities and states that failed to report the incidents would face cuts in federal funding.
This is indicative of the different viewpoints of the two political parties. Democrats traditionally favor a federal, nationwide law and the Republicans are inclined to empower states and localities to make laws that pertain to their citizens.
The issue of qualified immunity is one of the most contentious. According to FindLaw, this legal construct is designed to provide protection for police officers from civil lawsuits. Without such protection, proponents argue that officers would be subject to constant litigation in the normal course of their jobs. But opponents assert the shield has facilitated violating citizens’ rights without being held accountable.
The Democratic bill would make it easier for victims of police brutality to take legal action against police officers and to seek civil damages. For Congressional Republicans and the White House, this provision is a non-starter. They fundamentally believe that bad actors should be dealt with by other means and that this legal doctrine, created by the courts, should go untouched.
The Republicans, who hold the majority in the Senate, did not work with the Democrats on the proposal, and the Democrats, who hold the majority in the House, did not consult with their Republican counterparts either. The Senate held a procedural vote on whether to proceed with debate on the Republican-backed bill. Democrats blocked consideration of the measure, arguing the legislation is insufficient. The lack of cooperation across the aisle and across the Capitol has resulted in an impasse.
At the other end of Pennsylvania Avenue, the White House pursued a different tack and rather than backing a legislative measure, instead issued an Executive Order on policing reforms.President Trump’s plan incentivizes and encourages changes but does not expressly mandate reforms at the local level. Certain federal funding would be conditioned on adopting changes concerning tracking abuses by officers and working with mental health and addiction specialists. Chokeholds are not completely banned as there is an exception for when a police officer’s life is at risk.
Presumptive Democratic Presidential Nominee Joe Biden has spoken out in support of policing reforms including legislation banning chokeholds. In his campaign, he has called for creating a national police oversight commission, which he would do during his first 100 days in office.
He also supports a $300 million investment in the Community Oriented Policing Services (COPS) program, while distancing himself from calls to “defund the police.”The phrase “defund the police” has became a rallying cry during the protests this summer. But many are asking what the phrase really means. Does it mean zero funding for any police department?Does it mean re-directing money from police departments to social services agencies? It means different things to different people and has become politicized and weaponized in Washington.
But despite the partisan jabs and posturing there does appear to be a genuine interest in getting a bill passed and some room for compromise. The timeline for action is tight. Congress is set to adjourn for the summer recess by the beginning of August and is not set to return until after Labor Day. There is great momentum for Congress to act, but as we have seen with other national tragedies such as mass shootings, political divisions can derail the legislative process resulting in no action.