Police reform negotiations enter crucial stretch

GOP negotiators on police reform say if there’s going to be a deal, it’ll happen this month.

Democrats and Republicans missed an informal deadline to reach an agreement by May 25, the one-year anniversary of George Floyd’s death, putting even more pressure on lawmakers to find a compromise before the end of June. But significant hurdles remain.

“I think it’s June or bust,” Sen. Tim Scott (S.C.), the lead Republican negotiator, told reporters just before Memorial Day. “I think we have three weeks in June to get this done.”

Sen. Lindsey Graham (S.C.), another Republican involved in the bipartisan negotiations, put a similar timeline on it.

“I think if it’s going to happen, it’s going to happen before the July break,” Graham told reporters.

The new informal deadline suggests that the issue could get pushed to the back burner until after the midterm elections if a stalemate extends into next month.

The biggest sticking point that has stood in the way of a deal over the past year is the issue of qualified immunity, a legal doctrine that largely protects police officers from civil litigation for their actions in the line of duty.

But Graham, a close Trump ally and former chairman of the Senate Judiciary Committee, says he sees a potential “sweet spot” on qualified immunity.

Instead of going after officers, Graham says, police departments should be subject to liability for incidents that result in death or serious bodily injury. In the latest GOP offering, legal protections would stay in place for front-line officers.

Scott floated a similar compromise earlier this spring, but Graham’s remarks about exposing police departments to more liability as a way to reduce excessive use of force go further than what many other Republicans have been willing to concede. 

“One thing that will bring about change in policing is when departments have more liability for the misconduct of officers,” he said. “I think having some skin in the game will drive better policing. That’s sort of what we’re trying to find, that sweet spot.”

Graham’s idea is to make police departments responsible for their employees’ conduct, similar to many private sector businesses, but to protect individual officers from getting sued for their actions. He said that would address concerns by many on the right of opening individual police officers, and by extension their families, to huge civil liabilities.

For any police department lawsuits, Graham said there would need to be a high standard for liability to screen out frivolous lawsuits. 

“You still got to prove constitutional deprivation [of rights], but it will require departments to up their game in terms of training because they’ll be more accountable. But you don’t want to open the floodgates. We’re talking about death and serious bodily injury cases, not somebody who had a bad experience with the cops,” Graham said.

Continued exemptions for officers, however, aren’t getting a warm reception with Democratic negotiators Rep. Karen Bass (Calif.), Sen. Cory Booker (N.J.) and Sen. Dick Durbin (Ill.), chairman of the Senate Judiciary Committee.

Bass, the lead House negotiator, insisted last month that individual officers and departments alike should be liable for misconduct, arguing it’s necessary to hold officers “accountable.”

An analysis of the negotiations by No Labels, a group that describes itself as dedicated to solving partisan dysfunction, identified qualified immunity as the biggest obstacle to a police reform deal.

Senate Minority Leader Mitch McConnell (R-Ky.) on Tuesday identified qualified immunity as a major hurdle in the talks. 

“The whole problem it seems to me in this whole area of police reform … is without qualified immunity, how do you get people to do law enforcement work?” the GOP leader said at an event in Kentucky.

Other Republican senators have expressed support for the idea of preserving qualified immunity for police officers but creating more liability exposure for police departments and city managers.

Sen. James Lankford (R-Okla.), who participated in negotiations over police reform legislation that Senate Democrats last year blocked on the floor, has warned that exposing police officers to lawsuits could cause them to hesitate in responding to life-threatening situations on the street.

But he said that giving the victims of excessive police force the chance to sue departments and city officials would likely provide incentive for better police supervision.

“Put the responsibility on the supervising entity to say, you better supervise your people and train them well so everyone is well trained, everyone is well prepared because if you don’t, then there’s going to be problems, and you’re going to have litigation on you and have liability on you,” he told NPR last year. “That pushes better supervision.”

Qualified immunity is not the only issue standing in the way of a police reform deal. 

Another sticking point is whether to lower the bar for criminal prosecutions of officers accused of excessive force. 

House legislation passed on a mostly party-line vote in March would make it easier to prosecute officers by lowering the standard for intention or knowledge of wrongdoing from “willful” to “reckless.” 

Scott has ruled out such changes, arguing that it could discourage officers from responding to certain crimes.

“If you demonize and/or eliminate protections that they have, chances are very low that you’re going to have officers responding, so community safety goes down,” Scott told CNN last month.