On March 3, 2021, the House of Representatives narrowly passed (219-213) the “George Floyd Justice in Policing Act of 2021.” If passed by the Senate, this act would overhaul many aspects of local policing.
Specifically, it would:
• Abolish qualified immunity.
• Require local law enforcement agencies that receive certain federal grants to report all uses of force to the federal government.
• Create new causes of action for racial, religious, gender-based, gender-identify-based, and sexual-orientation profiling.
• Withhold most federal law-enforcement-related funds from localities that do not make chokeholds and no-knock warrant (in drug cases) illegal.
• Require localities to use certain federal funds to buy body-cameras.
In drafting this bill, Democrats were no doubt ambitious. But this bill is too ambitious to become law.
Zero Senate Republicans are likely to vote for this bill as it’s currently written, and I can’t imagine moderate Democrats like Joe Manchin or Jon Tester supporting this bill as is.
And because the filibuster doesn’t look like it’s going anywhere, this bill’s chances of passing are slim.
The main sticking point is the Democrats’ stance on abolishing qualified immunity. A little background: Federal law allows citizens to sue police officers for violating their constitutional rights.
Since 1982, however, the Supreme Court has required citizens to show that their constitutional rights were “clearly established” before the officer can be held liable. This typically means that the officer’s conduct must have already been declared unconstitutional previously.
The reasoning is that police officers have difficult jobs that often require them to make split-second decisions in dicey situations — and it’s unfair to hold an officer liable for conduct that wasn’t clearly unconstitutional.
Democrats have long dreamed of abolishing qualified immunity, but thus far haven’t come anywhere close to whipping up the bipartisan support needed to actually get it done. And that necessary bipartisan support certainly isn’t in the Senate now.
If Democrats really want to reform policing, they need to — at least for now — adjust their stance on abolishing qualified immunity. Republicans will never go for it.
Moderate Democrats will never go for it. Municipalities and police unions will fight tooth and nail against it. And any provision that outright abolishes the doctrine will be a poison pill for the rest of the bill.
There are several provisions in the George Floyd Act that could gain bipartisan support: ending no-knock warrants in drug cases, using federal funds to require body-cameras, clearly prohibiting certain chokeholds and positional asphyxia, creating a cause of action for racial and religious profiling, etc.
These are the issues Democrats should be focusing on. But if Democrats go for an all-or-nothing approach and refuse to let go of qualified immunity, they will likely be left with no reforms at all.
There is no need to die on this hill.
There may come a time when abolishing — or at least reforming — qualified immunity is politically plausible. But, like it or not, now is not that time. Democrats need to focus their efforts on the reforms that can garner enough support to become law, and (at least for now) abandon those that cannot.
In his speech to Congress, Biden asked lawmakers “to work together to find a consensus” so they could pass a police-reform bill by May 25 — the one-year anniversary of George Floyd’s death.
If Democrats are serious about reaching this goal, they need to let go of qualified immunity. ′
Alexander J. Lindvall
Assistant City Attorney,
City of Mesa Attorney’s Office