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A court doctrine that prevents police officers from facing financial liability for police killings and use of force continues to be a sticking point
Dr. Rashawn Ray is a Senior Fellow at The Brookings Institution and Professor of Sociology at University of Maryland.
"We have to come together to rebuild trust between law enforcement and the people they serve, to root out systemic racism in our criminal justice system and enact police reform in George Floyd's name. Let's get it done next month, by the first anniversary of George Floyd's death."
President Biden made these comments during his first Congressional address. While the House of Representatives has passed The George Floyd Justice in Policing Act twice, it still sits in the Senate. In fact, the Senate has not even voted on it. But, other legislation has passed, including resolutions to commemorate National Police Week and Hip Hop. Black people did not ask for a hip hop day/month. They asked for police reform, equitable voting rights, and reparations.
More people voted in the 2020 presidential election than any other in history. Black Americans were a key voting bloc in swing states like Georgia, Pennsylvania, and Michigan, not only for the presidency but also for the House and Senate. People who voted for Democrats are sick and tired of waiting for justice in exchange for symbolic gestures that do not make their everyday experiences more equitable. Accordingly, broken political promises have consequences at the polls for re-election.
So, what is the political hang up concerning The George Floyd Justice in Policing Act?
Qualified immunity seems to be the continued sticking point, which is a court doctrine that prevents police officers from facing financial liability for police killings and use of force. Largely agreeing on other aspects of the bill, including: collecting use of force and misconduct data, increasing de-escalation training, certifying officer training, providing more mental health training, and banning no-knock warrants and chokeholds, Republicans do not want to see changes to qualified immunity while Democrats do.
Some have urged Democrats to compromise the legislation and advance what is agreed upon. However, some policy analysts and advocates think that little will change in policing without addressing qualified immunity. I agree.
While the rest of the legislation includes important components, they will not shift the needle much on accountability without restructuring qualified immunity. This is mostly because many aspects of the legislation are already in place locally. I think that insurance policies for officers and departments are a pathway forward. The insurance model would be amplified if the federal government made “local municipalities civilly liable for federal constitutional violations.” This scenario will playout in Colorado regarding the killing of Elijah McClain.
One underlying tenant about the Floyd Act is whether police should get more or less funding. Increased funding for public safety does not necessarily mean an increase in funding to police. Funding for mental health can go to counseling centers that serve local communities and work with police. Funding for data can go to universities and think-tanks to do analysis and provide policy recommendations.
Biden and other Democrats like Senator Cory Booker have aimed to walk a tight rope on funding. Senate Democrats rebuked calls to “defund the police” to counter a form of political bravado by Senator Tommy Tuberville. The problem is the political stunt may have alienated the base Democrats need to maintain control of Congress.
Though Biden has advocated for reducing mass incarceration – utilizing the Department of Justice to form more police department investigations, ending the racialized disparity for crack versus powder cocaine and mandatory minimums, and providing better court-appointed lawyers – he also believes that investing more in law enforcement (including with COVID-19 money) is the way to build more trust. However, the past quarter century of discriminatory policies documents this approach is off base for pursuing racial equality.
Since 1980, federal spending on law enforcement has increased over 350%. The solution is not more money, particularly as police kill someone roughly every eight hours. The solution is reimagining public safety that leads to a qualitatively different relationship with police where a Black person walking home from work, viewing a home or business for sale, or strolling with their dog are not brutalized and potentially killed. Restructuring qualified immunity has to be part of the accountability model.
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