Tom Williams/CQ Roll Call via AP Images
House Majority Whip James Clyburn (D-SC) at a news conference last year
Nearly a year has passed since the May 25, 2020, killing of George Floyd, an anniversary that brings with it the informal deadline among Democrats for police reform. Despite having all that time to put together and pass a police reform package, the fate of the George Floyd Justice in Policing Act, a second version of which passed the House in March and stalled in the Senate, remains as muddled as ever. To some on the Democratic side, that’s just fine. According to reporting from Axios, the recent conviction of Derek Chauvin, the Minneapolis officer who murdered Floyd, had congressional aides feeling less urgency to move a reform bill.
That congressional comfort with inaction is not a reflection of an American public opposed to police reform. Far from it. Recent polling from Vox and Data for Progress showed that 55 percent of likely voters felt that the Chauvin conviction made the need for police reform even more urgent than before, presumably on the premise that preventing state-sanctioned murder was more important than gaining a measure of accountability for it.
The looming deadline has reignited the debate over what exactly a satisfactory bill will contain. An emphasis on bipartisanship preached by both President Biden and Democratic senators opposed to changing the filibuster rule has slowed the process even further, as House Rep. Karen Bass (D-CA) and Sen. Cory Booker (D-NJ) try to find common ground with the Republican figurehead on the issue, the GOP’s sole Black senator, Tim Scott (R-SC).
The two parties have substantively different, and likely irreconcilable, visions of what “police reform” looks like, with the fundamental disagreement coming over qualified immunity, the legal shield that makes it impossible for police officers to be sued for wrongdoing even when they knowingly break the law. Most leading Democrats have insisted that qualified immunity must be repealed as part of any satisfactory bill; Scott and the Republican caucus have been less willing.
The two parties have substantively different, and likely irreconcilable, visions of what “police reform” looks like.
That negotiation was made substantially more difficult for Democrats after House whip, Congressional Black Caucus member, and top ranking Democrat Rep. Jim Clyburn (D-SC) went on the Sunday shows this past weekend and vocally pledged a willingness to give up on qualified immunity reforms entirely. Appearing on CNN’s State of the Union, Clyburn said, “If we don’t get qualified immunity now, then we will come back and try to get it later. But I don’t want to see us throw out a good bill because we can’t get a perfect bill.”
Those comments mark a stunning undercutting of the negotiating position of Rep. Clyburn’s colleagues, and are a major departure from the position of ranking House and Senate Democrats, as well as civil rights and activist groups. Clyburn waving the white flag on the most crucial sticking point of the police reform bill that Bass, Booker, and others are still in the midst of negotiating puts them in an even tougher position, as they try to wrangle a less and less willing GOP into some sort of consensus.
Clyburn’s comments, it seems, were not lost on Tim Scott. Less than a month ago, Scott indicated a willingness to reach some sort of compromise on qualified immunity, even as Democrats elsewhere were beginning to soften on it. But with Clyburn effectively negotiating with himself, and giving away the entire position on national television, Scott has dug in further. In a meeting between Bass, Booker, and Scott yesterday, Scott pledged that he was now “on the exact opposite side” of qualified immunity reforms. Bass, meanwhile, reasserted from her newly enervated bargaining position that qualified immunity “has to be eliminated.” Bass’s office declined to respond to multiple requests for comment as to whether Clyburn’s position is shared by the caucus.
Qualified immunity reforms, of course, represent the only really meaningful part of the Justice in Policing Act. As recent years have shown, the expansion of implicit bias training, the banning of chokeholds and no-knock warrants, and the proliferation of body cameras are functionally useless as tools to prevent police brutality and killings. Police departments just ignore those prohibitions, many of which have already been on the books for years at some of the most notorious and excessively forceful police departments in the country. These are all empty and expensive gestures that do little toward reforming policing, as advocates or anyone who follows the issue closely well knows.
One would think that harsher restrictions on the 1033 program, which allows military equipment to be sold to local police departments, might curb police violence more tangibly than those other proposals, but even that has proven to accomplish little. A 2015 decision by President Obama to freeze transfers of some military gear to local police departments actually resulted in the total value of equipment disseminated through the program going up in the 12 months immediately following that decision. Trump then reversed the Obama policy in 2017.
Qualified immunity reforms, of course, represent the only really meaningful part of the Justice in Policing Act.
This is why qualified immunity is such an essential part of any bill, and why Bass and others have insisted on its inclusion. Along with lowering the bar for federal civil rights prosecutions of officers, it’s the only meaningful “reform” in the reform package. And any reform bill that passes without police accountability is sure to accomplish nothing. Look back no further than Obama’s Task Force on 21st Century Policing from 2015 and you’ll see that recommendations based on training and department culture and increased spending on novel, “less lethal” equipment are absolutely futile. Most of those proposed reforms had been adopted by the Minneapolis Police Department at the time that they murdered Floyd.
In the wake of last summer’s riots, three states passed bills ending qualified immunity, though, as Matt Ford explained at The New Republic, it’s not quite that simple. Colorado, New Mexico, and Connecticut passed bills, in descending order of strength, curtailing it in a roundabout way. This was hailed as a messaging triumph more so than a legal one (Connecticut’s version is so weak it comes off as more a cynical attempt to subvert reform). But given that the nature of the legal precedent ensures qualified immunity is a federal matter, it’s not something that can be overridden summarily by states. Crucially, as Ford writes, the only way to actually end qualified immunity is at the federal level.
Part of the problem in negotiating this bill, aside from the lack of caucus discipline among Democrats, has been the lack of involvement from activist groups. Even major national organizations have directed their energies toward shrinking local police budgets, and members of Congress have been all too happy to go without their input. That’s why stray comments from someone like Clyburn can so effectively derail the whole process, which is being steered by members of Congress themselves and not advocacy groups.
Still, the popular uprisings organized by those groups have made it such that there’s plenty of appetite for doing something among voters. In that same Vox/Data for Progress poll, the support for curbing qualified immunity remains net favorable among voters, even a year later: 51 percent of those polled think people should be given legal recourse for actions committed by police officers while on duty.
Reports out of Wednesday’s meeting indicate that the May 25 deadline is looking increasingly unlikely to be met, at least in the words of Cory Booker. To have dithered a full year, only to put up a bill that champions reform without accountability—for individual officers and police departments—means about as much as no bill at all.
