Federal Legislators Pitching Massive Police Reform Bill That Would End Qualified Immunity

from the lots-of-things-cops-won't-like,-all-in-one-place dept

There's some national-level police reform on the way, courtesy of Democratic lawmakers. Unfortunately, it's going up against a party that holds a majority in the Senate and has pledged an oath of fealty to our very pro-cop president. This will make it difficult to pass in its unaltered form. And that's even if it's given a chance to come up for a vote when it hits the Senate, considering the Senate Majority Leader's antipathy towards legislation he doesn't agree with.

That being said, the bill should still be discussed. There's a non-zero chance it will eventually make its way to a president's desk. Possibly not this one's, but there's an election in November.

The Justice in Policing Act of 2020 [PDF] addresses a number of issues that have turned our nation's law enforcement agencies into the paragons of unaccountability currently being protested en masse around the nation. The first stop is officers' legal defenses when sued or prosecuted for violating rights.

There are two parts to this equation and the first is what prosecutors must prove when charging cops with criminal acts. This bill lowers the standard, making it a bit easier for prosecutors to get charges to stick. From the fact sheet [PDF]:

Makes it easier to prosecute offending officers by amending the federal criminal statute to prosecute police misconduct. The mens rea requirement in 18 U.S.C. Section 242 will be amended from “willfulness” to a “recklessness” standard.

The bigger change is one that attacks the Supreme Court's "qualified immunity" construct. There's no law to amend here because there was never any law created to grant police officers this extra right. If this bill becomes law, qualified immunity will cease to exist. The bill refers to 42 USC 1983, which is what gives citizens the right to sue officers for violating their rights. Nothing in that law says anything about qualified immunity.

This bill would add something to the law removing the qualified immunity defense constructed by the Supreme Court.

‘‘It shall not be a defense or immunity to any action brought under this section against a local law enforcement officer (as defined in section 2 of the Justice in Policing Act of 2020) or a State correctional officer (as defined in section 1121(b) of title 18, United States 22 Code) that—

‘‘(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or

‘‘(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at this time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful."

Officers will still be able to argue these things, but they won't be able to move for summary judgment just by saying a couple of magic words. They'll actually have to submit counterarguments and evidence if they hope to avoid losing a civil rights lawsuit.

Unfortunately, this won't apply to federal law enforcement officers, who have mysteriously been given a carve-out by this bill. But it will be a good start if it sticks. Taking away officers' "GET OUT OF LAWSUIT FREE" cards should have an impressive deterrent effect. Being able to prove your actions were justified is far more difficult than simply claiming any "reasonable" officer would have made the same decision under the circumstances.

There are other good reforms in there as well, although the elimination of qualified immunity is clearly the headliner.

The bill would ban chokeholds and carotid holds by federal law enforcement and make federal grants to state and local police dependent on their banning of these restraint methods. It also bans the use of no-knock warrants by federal agents and similarly restricts the distribution of federal funds to local cops who still engage in this practice.

The bill also mandates more training for cops, in hopes of reducing biased or racist policing, and makes de-escalation tactics a requirement in tense situations, rather than the usual hail of bullets in response to any "quickly evolving" interaction. It gives the DOJ more power to conduct investigations of local law enforcement agencies and establishes funding for state Attorney General investigations of problematic police departments.

The bill would also significantly modify the 1033 program, which has turned a lot of police departments into military outfits by showering them with military vehicles, guns, aircraft, and clothing. The bill would ban the transfer of armored vehicles, grenades/launchers, aircraft with "no established commercial flight application," silencers, and long-range acoustic devices.

Another (theoretically) helpful aspect of the bill is the camera mandate. Most federal officers do not wear body cameras and often ask locals to remove theirs when participating in joint operations. That will no longer be standard practice. The bill mandates use of body cameras by all federal officers and for all marked federal police vehicles to have dashcams.

It's a comprehensive set of reforms and it's going to be greeted by loud opposition from all levels of law enforcement. But that's okay. The louder they yell, the more we know this is the right direction to go. If officers are ever going to start acting like anyone else but them matters, it will take more than tepid half-efforts. Destroying the judicially-created concept of "qualified immunity" should have an immediate effect. Raising the bar for officers to escape civil rights lawsuits has huge deterrent potential. Eliminating some of the worst patterns and practices (dressing up like soldiers, using no-knock warrants, etc.) should disrupt the "soldiers in a war zone" mindset that has contributed to ongoing violence against citizens even as crime levels and killings of police officers remain at historic lows.

The bill has a lot going for it at the moment. There's plenty of public support for reform right now. Unfortunately, the bill's opponents have shown a preference for coddling the most powerful man in the world rather than listening to their constituents. If the bill's momentum stalls, it may take another horrific flash point to reignite its fire.

Filed Under: congress, justice in policing act, police reform, qualified immunity


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  • icon
    That One Guy (profile), 11 Jun 2020 @ 1:30am

    Even a DOA bill shows promise

    While unfortunately the odds of this passing, or at the very least passing without being gutted of all meaningful language removed are likely to be slim at best given who is currently running the senate and the WH the fact that it's being proposed at all is still quite the improvement.

    Politicians have for far too long been cowed by police to such an extent that to even think of proposing serious reforms like this would have been downright unthinkable, so the fact that people are pissed off and drawing enough attention to the rot that this is even being considered is a serious improvement, and shows that the momentum just might be shifting the other way, if ever so slowly, for the first time in a long time.

    Even if this one fails(and I would love to be wrong on my prediction here) it's mere presence shows promise, and hopefully it will be the first step on the road to some well overdue improvements to a system that's been allowed to rot and fester for far too long, if for no other reason than I suspect that attempting to just brush everything under the rug and go back to business as usual will likely result in an outcry that makes a few torched police cars, buildings and stores look downright tame in comparison.

    reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 11 Jun 2020 @ 3:47am

    Yeah, it's going nowhere while republicans are in the majority, not even in a butchered form. They don't want the state to be anything more than a means to inflict their will on America and the world and the absolutely will not accept any reform that doesn't make things worse.

    reply to this | link to this | view in chronology ]

  • identicon
    Iggy, 11 Jun 2020 @ 4:07am

    It would be good if we had even one political to represent ordinary Americans. This bill is a sign of progress though I doubt either party's front runner would sign it.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 15 Jun 2020 @ 1:42am

      Re:

      "It would be good if we had even one political to represent ordinary Americans. "

      Well, you did. In fact almost every election tosses one up. He always gets taken out by the lack of support from his party and the obivous barbs from the DNC pitching him as "Well-intentioned but dangerously naĆ­ve" or as an outright firebrand socialist who'd unwittingly turn the entire US into a bad copy of the USSR by trying to emultate, say, Germany or the UK.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Jun 2020 @ 4:47am

    What are they be worried about, if they're not doing anything wrong?

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 11 Jun 2020 @ 5:13am

    The bill seems like a nice thought, but . . .

    it looks to me to be mainly performative. Hastily written, reactionary legislation is typically bad. "Carve outs" unsubstantiated by legitimate reasons are bad, too. It doesn't have a whizzy backronym for a name. Some would say the only thing it really has going for it is that is not named after a victim (it is not called George's Law).

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 11 Jun 2020 @ 10:34am

      Re: The bill seems like a nice thought, but . . .

      Do you have any specific criticisms of the contents of the bill, or is it just bad because it addresses something that's been in the news?

      reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 11 Jun 2020 @ 5:19am

    Election in November, Election in November!

    "What? Again? This stupid country." https://youtu.be/KLO5zn32IW4

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Jun 2020 @ 5:49am

    Need to address the fact that the local DA will be bringing up charges on the cops and that the DA's need to get along with the cops for their day to day work and that the DA's believe they need police endorsement to get elected.
    This creates a huge conflict of interest. Charges against cops should be brought up by a different group that is less reliant on cops.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jun 2020 @ 8:16am

      Re:

      I think the prosecution should be handled by local defense attorneys contacted under the DA's budget.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jun 2020 @ 2:15pm

      Re:

      the DA's need to get along with the cops for their day to day work and that the DA's believe they need police endorsement to get elected.
      This creates a huge conflict of interest. Charges against cops should be brought up by a different group that is less reliant on cops.

      Something seems strange about this idea. The DAs also rely on forensic consultants, court stenographers, janitors, judges. Are they greasing those people too?

      If DAs can't be trusted to operate impartially, with justice as the goal, they need to be gone as much as the bad cops need to be gone.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 12 Jun 2020 @ 3:54am

      Re:

      Most DA's are elected. In the US this happens;

      DA candidate #1; "I'll hold the police accountable. No longer are they to gun down people at random. No more George Floyds."

      Public; "Hear hear, well spoken that man, Candidate #1 for DA"

      Police Union; "DA candidate #1 is soft on crime. You'll all be murdered in your beds. He'll personally sell your children to Sudanese warlords. Think of the children"

      Public; "<shock and horror> Nooo!! Not our kids!!! Down with DA candidate #1!!"

      DA candidate #2; "Ah'll put dem n<beep>s in their place. Ah'll put the boot down hard on crime!"

      Police Union; "DA candidate #2 is tough on crime. Former cop. Good man. If you vote for him your kids won't get sold to sudanese warlords."

      Public; "He sounds a little extreme but I'm not black. Do you know any black people? You do? Well, I'm sure they'll be all right, they're the right kind of black people. Probably. All hail DA candidate #2. For the children!"

      Police unions have the money and the lobbying. Any DA going after cops will wish he was a southern congressman candidate going up against the NRA over gun control.

      Because of that almost every DA in the US falls all over himself trying to cater to the police. Because the public is a bunch of easily scared sheep who'll willingly vote to sell the people who aren't specifically themselves down the river as long as they can be made to believe it might avert any risk to themselves.

      reply to this | link to this | view in chronology ]

  • icon
    JohnG (profile), 11 Jun 2020 @ 5:58am

    Democrats understand the landscape right now and the prospects of this passing. They also understand that police unions donate to their reelection campaigns too. Is it possible they've proposed this bill knowing that it won't make it to a vote? It certainly wouldn't be the first time.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 11 Jun 2020 @ 10:35am

      Re:

      Is it possible they've proposed this bill knowing that it won't make it to a vote?

      I mean, yes? If you and I can figure out that this won't pass the Senate, then I'm pretty sure the thought has occurred to Nancy Pelosi at some point.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 12 Jun 2020 @ 3:56am

        Re: Re:

        "I'm pretty sure the thought has occurred to Nancy Pelosi at some point."

        Unfortunately I'm pretty sure the black people who have seen that shit happening before might not take too kindly to yet another case of the people supposed to be FOR equality dealing with it by going through the same smoke-and-mirror show they've used so extensively until now.

        reply to this | link to this | view in chronology ]

  • identicon
    me, 11 Jun 2020 @ 6:25am

    What needs to be done locally

    Wipe out the Police Unions, remove them from the board.
    Defund them of their military toys, and then the above proposed.

    reply to this | link to this | view in chronology ]

  • identicon
    Questioning, 11 Jun 2020 @ 6:49am

    Enforcement

    Someone tell me how these federal laws are going to be enforced at a state and local level?

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 11 Jun 2020 @ 8:07am

      Re: Enforcement

      If you had read the article you would know that state and local must comply or they lose out on Federal funding, should this bill pass. Possibly not the only leverage they could bring, but it might be the most expedient.

      States still have rights and hate the Fed's stepping on them. The DoJ has the power to bring significant pressure on state and local agencies, but only if they see their position as working for us, rather than the entrenched authoritarians.

      reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 11 Jun 2020 @ 7:20am

    Attack the police unions!

    Until the organized crime units known as police unions are eradicated, nothing will ever be accomplished on reform.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 11 Jun 2020 @ 7:51am

    Qualified Immunity was something I was thinking about last night that I hadn't heard anything about regarding the protests. Definitely is something that needs to be tossed. It's one more way that police are not being held accountable. Ignorance of the law is no excuse for the police either.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jun 2020 @ 10:24am

      Re:

      I've noticed that this and asset forfeiture aren't mentioned in protests, as far as i have seen. But it may be the goal to get cops to stop killing people and otherwise extremely violating their rights first, and worry about things like QI later. If you aren't being violated, you won't have to sue anyone...

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 11 Jun 2020 @ 7:55am

    Federal carve outs, no, Federal inclusion, yes

    They want dash cams on marked federal law enforcement vehicles. Why only marked? Is that so federal law enforcement personnel can get away with things they shouldn't be able to get away with?

    How about requiring the FBI to record, visually and orally all of their interrogations, even ones that happen outside of interrogation rooms?

    How about some sanction where the DoJ fails to bring civil rights complaints when it is clear to everyone else that such violations exist?

    I am fairly certain that this list is incomplete, but there is no good reason for Congress to ignore obvious opportunities for improvement, like say ending unfettered surveillance.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jun 2020 @ 9:17am

      Re: Federal carve outs, no, Federal inclusion, yes

      Mind attempting to think once in a while?

      First thing that comes to mind about not requiring dash cams in unmarked cars is so they can use unmarked cars without compromising them as government owned vehicles. Say for undercover investigations.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 11 Jun 2020 @ 9:47am

        Re: Re: Federal carve outs, no, Federal inclusion, yes

        Are you talking about the FBI sting operations where they 'create' a terrorist scenario and then coerce some marginal person to participate?

        Are you talking about the DEA sting operations where they 'create' a stash house scenario and then coerce some marginal person to participate in robbing it?

        Are you talking about the ATF sting operation (a.k.a. Fast and Furious) where they lost control of thousands of weapons that then got used against us?

        I think we have had sufficient experience with Federal agencies doing 'undercover' investigations to know that they don't do them very well, often.

        Besides, there are many civilians that have dash cams on their vehicles, do you really think they will be identified as law enforcement just because of that? I don't really see a downside to requiring accountability in even Federal law enforcement agencies. Well, they will, of course.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Jun 2020 @ 10:25am

        Re: Re: Federal carve outs, no, Federal inclusion, yes

        Plenty of people have dashcams.

        Undercover cars can have hidden cams if necessary.

        Yeah, thinking is a thing.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 12 Jun 2020 @ 4:35am

        Re: Re: Federal carve outs, no, Federal inclusion, yes

        Undercover operations performed by the feds have a very high and disturbing failure rate. I'd say the only thing they'd need unmarked cars for would be stakeouts and targeted surveillance.

        Also, undercover operations in themselves represent a VERY dubious violation of legal principle - because it invariably ends up with a police officer both risking their lives and having to violate the law, sometimes drastically, to obtain evidence that someone else broke the law.

        I'd say that shit needs to go. As a society you can't afford it.
        It's also completely fscking needless when you can simply obtain warrants and put the suspects under surveillance until evidence comes out.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Jun 2020 @ 8:25am

    A good start, but not enough

    The use of armed police as a profit centre needs to stop. There needs to be an end to civil forfeiture, there needs to be an end to revenue from fines going to the very governments handing out those tickets. An officer claiming something to be the "proceeds of crime" when it's not, just so that the agency employing that officer can pocket that loot, is an armed robber and should be sharing a cell with the rest of the armed robbers. Use a gun, steal, go to jail.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Jun 2020 @ 10:48am

    a step in the right direction but a lot more change than this needs to be brought in!

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 11 Jun 2020 @ 1:34pm

    About damn time! Although I have doubts it will pass.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 11 Jun 2020 @ 4:51pm

    What doesn't make it into law this session will make it in the next session after the Republicans are kicked out. November can't come soon enough.

    reply to this | link to this | view in chronology ]


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