The Long Road to a Police-Reform Compromise

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Sen. Cory Booker (D., N.J.) speaks during the third day of the confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett before the Senate Judiciary Committee on Capitol Hill, October 14, 2020. (Samuel Corum/Pool via Reuters)

Politico reports that Senators Tim Scott and Cory Booker are further from working things out than some hoped. The publication also got hold of a draft of the bill the two are writing with a small group of others.

One of the major issues the bill touches on is “qualified immunity.” I went into the gory details of that underlying debate here, but basically: Federal law allows Americans to sue government officials who violate their rights, but the courts have ruled that police are immune to such suits unless their conduct violated “clearly established law.” Over time, this standard has become ridiculously demanding, to the point that anyone suing an officer has to show that a previous case involved exactly the same facts and the cop’s behavior was found unconstitutional.

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There’s a clear case for coming up with a new standard — and for Congress to take up the issue rather than leaving it to the courts, which have made a mess of it over the years. Some even argue for ditching any form of immunity whatsoever, though this raises the possibility that cops could be punished for doing things they had no reason to think would later be found unconstitutional.

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The leaked draft basically sidesteps the problem. Lawsuits against individual cops are left alone, but new language is added allowing people to sue police departments in federal court, “regardless of whether a policy or custom of the public employer caused the violation, and regardless of whether the officer has any defense or immunity from suit or liability.” (The “policy or custom” language overrides another Supreme Court doctrine that makes it very hard to sue departments federally.)

This compromise has a lot to recommend it. More victims would be ensured justice in the federal courts, and the current options for suing cops personally would remain on the table. Further, cops dragged into court are typically “indemnified” by their employers anyway, so there’s not as big of a difference between suing one and suing the other as you might think. But this is not likely to satisfy the Left.

The bill does a lot of other things too, including making it easier for the feds to prosecute cops criminally for the worst misconduct. As Politico puts it:

The draft also proposes criminal penalties for officers who “intentionally” use excessive force if the officer “knows” the force is excessive or “consciously disregards” risks.

The draft bill doesn’t address section 242, which makes it a crime for an officer to willfully deprive a person of their constitutional rights, but it does create new criminal offense charges for other crimes that officers commit. In addition, the bill would create an officer accountability database, would ban chokeholds unless an officer is in danger, impose limitations on no-knock warrants and limit the transfer of military equipment to law enforcement agencies. A source familiar with the negotiations said the document is the product of months of negotiation.

Hopefully these senators can work out their differences and find a balance that works for everyone. It would be good to have clear, fair federal laws on the books when it comes to police misconduct.

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