Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Illinois newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (June 2, 2020, 8:32 PM EDT ) After George Floyd's death in Minneapolis police custody last week, federal lawmakers are planning bipartisan hearings and proposing dozens of bills that would curtail legal shields for law enforcement, outlaw choke holds, end a program that provides military equipment to police departments and create a national police misconduct registry.
The U.S. Capitol seen Tuesday behind a "Black Lives Matter" banner on an overpass on North Capitol Street in Washington, D.C. (Andrew Harnik/AP)
Senate Majority Leader Mitch McConnell, the Kentucky Republican who controls the fate of bills in the upper chamber, has condemned police treatment of Floyd, whom a store employee had accused of passing a counterfeit $20 bill.
"In no world whatsoever should arresting a man for an alleged minor infraction involve a police officer putting his knee on a man's neck for nine minutes while he cries out 'I can't breathe' and then goes silent," he said Monday on the Senate floor. It is unclear what legislative responses McConnell might accept.
In the Senate on Tuesday, Sen. Tammy Duckworth, D-Ill., sought unanimous consent to approve her Police Training and Independent Review Act, which would require "fair and impartial police training for law enforcement officers" and provide incentives for states to remove investigation of deadly force incidents from local prosecutors. Sen. Lindsey Graham, R-S.C., objected and blocked immediate passage.
Both chambers of Congress have planned hearings on police use of force.
Graham, who chairs the Senate Judiciary Committee, said his panel would hold a bipartisan hearing June 16 with "a wide variety of witnesses on the topics of better policing, addressing racial discrimination regarding the use of force, as well as building stronger bonds between communities and police."
"I think this committee has a unique opportunity to build on some things that the Obama administration did — and ask ourselves some hard questions," Graham said Tuesday. "I don't have anything in mind right now. But hopefully as part of the hearing, we can find some things to do together."
House Judiciary Committee Chairman Jerry Nadler, D-N.Y., said to expect a meeting this month and legislation to address "a tradition of brutality against unarmed black Americans." He told the New York Times that the panel would look at "where and under what circumstances the federal government can step in when local governments are engaging in or not stopping or controlling violence against racial minorities."
The committees will have a wide range of proposals to consider.
The House's second-ranking Democrat, Majority Leader Steny Hoyer of Maryland, said representatives had offered 40 or 50 relevant bills in the last week. House leaders could call lawmakers to Washington for votes this month, Hoyer told reporters Tuesday; amid the coronavirus pandemic, the lower chamber currently has no votes scheduled until June 30.
Hoyer said the Congressional Black Caucus would take the lead in the House: "They want to be sure that the legislation they propose will be effective at stopping the murder of people who are either under arrest or being pursued, either by police or by private-sector individuals. They want to make sure there is accountability for the loss of life that is unjustified."
CBC Chairwoman Karen Bass, D-Calif., addressed a Democratic conference call Monday.
"Twenty-nine years ago, when the Rodney King beating was on video, we were almost excited, because we believed finally there was no way they could [say] that this didn't happen," Bass told fellow lawmakers, according to the CBC. "We were confident that these officers were going to be arrested and convicted, because it happened on video. But it didn't. In the last 20 years, how many videos have we seen?
"We have to end this," she said. "The Democrats have to lead this, and we have to show people why we're in the majority."
Bass pointed out that African Americans have suffered disproportionately from the coronavirus, accounting for about 12% of the U.S. population but 23% of its COVID-19 deaths, according to the U.S. Centers for Disease Control and Prevention. Recent killings of black Americans mark "a pandemic upon a pandemic," Bass said.
Reps. Ayanna Pressley, D-Mass., and Ilhan Omar, D-Minn., have joined with Bass to propose a nonbinding resolution to condemn police brutality, racial profiling and excessive force. Omar also has suggested making federal funding for law enforcement contingent on reforms.
Although Hoyer deferred to the CBC on specific proposals, he did endorse a bill to ban police choke holds. Rep. Hakeem Jeffries of New York, a member of the Democratic leadership team, first introduced the measure in 2015. The bill is named for Eric Garner, who died the previous year after New York City police put him in a choke hold while arresting him for selling untaxed cigarettes.
Garner's last words — "I can't breathe" — became a rallying cry in the Black Lives Matter movement. Last week, before becoming unresponsive, Floyd also used that phrase as an officer knelt on his neck.
One of the most comprehensive proposals to date came Monday from Sen. Cory Booker, D-N.J. He outlined a plan with three components: data, policies and liability.
"Persistent, unchecked bias in policing and a history of lack of accountability is wreaking havoc on the Black community," he said in a statement. "There's no one singular policy change that will fix this issue tomorrow — we need an entire set of holistic reforms to improve police training and practices, and ensure greater accountability and transparency."
On data, Booker proposed a federal database about police misconduct, which his office said would "ensure problematic officers can't avoid accountability by changing departments." He also called for all state and local law enforcement agencies to tell the U.S. Department of Justice about every use of force.
On policies, the former presidential contender discussed encouraging police departments to ban choke holds and no-knock warrants, in which officers get permission to enter potentially dangerous situations without announcing a police presence. He also suggested a ban on racial and religious profiling plus money for racial bias training.
On liability, the senator's office described two major changes: "reforming 18 U.S.C. Section 242, the federal statute governing police misconduct, by modifying the intent standard necessary to prove a case, and reforming the qualified immunity doctrine so that individuals are not entirely barred from recovering damages when police violate their constitutional rights."
Starting with a 1967 case, the U.S. Supreme Court has created and expanded the qualified immunity doctrine: Government officials do not have to face federal civil rights lawsuits as individuals unless they reasonably should have known they were violating civil rights.
As an in-depth piece for Law360's Access to Justice section explained last year, judges don't have to determine if official conduct violated someone's rights. As long as there has been no precedential court decision involving the same context and conduct, the officer doesn't have to face the lawsuit. The doctrine has recently shielded police from allegations that range from stealing $225,000 in cash and rare coins to shooting a 10-year-old in the knee.
Other lawmakers are also pushing changes to the judicial doctrine, which could draw support from libertarian-minded Republicans. Rep. Justin Amash of Michigan, the Republican-turned-independent, tweeted that he would introduce a bill to eliminate the doctrine.
Qualified immunity also faces some skepticism at the U.S. Supreme Court, including form both liberal Justice Sonia Sotomayor and conservative Justice Clarence Thomas. The high court has several pending cases that could raise the issue.
Such changes could draw Republican opposition, especially from lawmakers skeptical of allowing more lawsuits, like Sen. John Cornyn, R-Texas.
"There's laws that are on the books already to deal with police brutality and excessive force," the senior Judiciary Committee member told reporters Monday. "I think it's too early to know whether additional laws need to be passed."
Other avenues of possible action relate to the military.
A bipartisan group of lawmakers has tried since 2014 to limit a program that sends surplus military equipment to police — including grenade launchers and bayonets. The so-called 1033 program drew public outrage over the militarized police response to protests in Ferguson, Missouri. The Obama administration imposed limits that the Trump administration scrapped in 2017.
Sen. Brian Schatz, a Hawaii Democrat on the Appropriations Committee, tweeted that he would try to amend a military funding bill to end that program.
"We've been doing this one years. Happy to help," replied the chief strategist for Sen. Rand Paul, the libertarian Kentucky Republican who has sponsored the Stop Militarizing Law Enforcement Act.
Sen. Tim Kaine, a Virginia Democrat and senior member of the Armed Services Committee, tweeted Tuesday that he would try to amend the military funding bill to prohibit Defense Department funds from being "used for force against American citizens exercising their First Amendment rights." His announcement came after Trump on Monday threatened to extinguish protests and riots with "thousands and thousands of heavily armed soldiers."
--Additional reporting by RJ Vogt and Jimmy Hoover. Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
