In Washington’s bitterly divided political environment, bipartisanship is a bird so rare that the mere promise of seeing it spurs cheers — even if its wings are bound to be clipped.
Such is true with the much-hyped potential for an across-the-aisle compromise on, of all divisive issues, policing reform.
Bipartisan negotiations led by Democratic Representative Karen Bass of California and GOP Senator Tim Scott of South Carolina are close to yielding a deal, according to Scott, making the prospect of Congress meeting President Biden’s deadline of passing police reform legislation by May 25 — the one-year anniversary of George Floyd’s murder — more likely than ever.
But as with any deal, the devil is in the details. A bill introduced by Scott, which served as the starting point of bipartisan talks, doesn’t go nearly as far as the House-passed policing reform bill that bears Floyd’s name, which would, among other things, federally ban choke holds and no-knock warrants and place police officers who engage in misconduct in a national database to prevent them from being hired in other jurisdictions. Scott’s bill would only provide federal funding as an incentive to local police departments to end choke holds, establish a commission to study no-knock warrants, and create a database of use-of-force incidents for the Department of Justice to study.
To the extent that a compromise can be reached, it will probably come at the steep price of protecting the very thing that has allowed police departments and unions to shield officers from full accountability for their misconduct: qualified immunity.
That doctrine prevents most victims of abusive policing from seeking damages for the injuries they suffer unless they can prove violation of a “clearly established law.” That legal standard, a creation of the Supreme Court, has proved nearly impossible to meet even in the most clear-cut of cases, and as Justice Sonia Sotomayor wrote in a 2018 dissent, essentially “tells officers that they can shoot first and think later.”
Scott, who once called ending qualified immunity a “poison pill” for Republicans, now backs ending police departments’ ability to assert it but keeping the defense in place for individual officers.
“How do we change the culture of policing? I think we do that by making the employer responsible for the actions of the employee,” Scott said Sunday on CBS’s “Face the Nation.” “We do that with doctors. We do that with lawyers. We do that in almost all of our industries. And if we do that in law enforcement, the employer will change the culture.”
As a former civil litigation attorney, I can assure Scott that he is wrong. Lawyers and doctors can be held personally liable for malpractice, which is why they carry malpractice insurance. There are also state licensing authorities, which can take disciplinary action against doctors and lawyers for misconduct, including ordering them to pay restitution and stripping them of their ability to practice altogether. If their conduct rises to criminality, they can be prosecuted. And, generally speaking, they don’t carry guns on the job.
The civil justice system was never meant to be limited to employers. Police reform that enables departments to take the hit for officers who engage in misconduct, and allows those officers — with the aid of police unions — to keep their badges, is no true reform at all.
Scott should remember that the very federal statute that gives Americans the ability to sue for damages when someone acting “under the color of law” violates their civil rights was part of the Ku Klux Klan Act, passed in 1871 to address the domestic terror Black Americans faced. Scott may not believe the nation and its laws are shaped by racism, but history proves otherwise.
True police reform can transcend partisan divisions. After Floyd’s killing last year, Republican-turned-Libertarian Representative Justin Amash of Michigan and Democratic Representative Ayanna Pressley of Massachusetts introduced a bill to abolish qualified immunity. The bill has been reintroduced in both houses of Congress this year by Pressley and fellow Bay State Senator Ed Markey.
Abolishing qualified immunity is something that Scott, who, in his GOP response to Biden’s address last week recounted his own experiences of being racially profiled by police, should reconsider. And he should urge his fellow Republicans to do so as well if he really wants to effect lasting change that truly bends the arc of history toward justice — and not just notch a political win in the hollow name of bipartisanship.