Democratic and Republican senators searching for common ground on how to change policing in America are struggling over the divisive question of whether police officers should face lawsuits if they are accused of civil rights violations.
Emerging from a closed-door negotiating session with Republicans last week, Sen. Cory A. Booker, New Jersey Democrat, told reporters that they are making progress, as lawmakers try to meet a challenge from President Biden to find agreement on policing changes before the May 25 anniversary of the death of George Floyd, a Black man killed in police custody.
But demands by Democrats and civil rights groups to get rid of a legal doctrine known as “qualified immunity,” which makes it difficult to file civil suits against police officers, is proving to be a particularly thorny issue.
“It’s a very fundamental disagreement. There are some people in this country who think that cops need to be punished. I think bad cops need to be punished, but most cops are not bad cops,” Sen. John Kennedy, Louisiana Republican.
“We’re not there yet,” Mr. Kennedy told reporters when he was asked whether the lawmakers could find a compromise.
“I’m not gonna cut a deal just to make a deal work,” he said.
The issue is important for Democrats and liberal groups such as the American Civil Liberties Union, who are calling for changing police practices in the wake of Floyd’s death and see qualified immunity as an obstacle in holding problem officers accountable.
Besides eliminating qualified immunity, the George Floyd Justice in Policing Act, which passed the House in March, also would create a national database of police misconduct, require federal law enforcement officials to use body and dashboard cameras, and ban federal officers from using chokeholds or no-knock warrants
Republicans, meanwhile, support other provisions in the bill, such as banning chokeholds, increasing the use of body cameras, and improving training in de-escalating volatile situations.
But Sen. Tim Scott of South Carolina, who is taking the lead for Republicans in the negotiations with Democrats over the bill, has said he is not willing to remove the legal shield for police officers.
“That’s off the table for me,” he told reporters.
Instead, Mr. Scott would make it easier for those saying that police violated their civil rights to sue the municipalities and police departments for which the officers work.
Officers are facing an increase in physical attacks, and Republicans worry about weighing them with the additional worry of being sued when they are already under stress.
“My feeling is that our objective should be to properly train our police so they can act quickly, protect themselves and others,” Mr. Kennedy told reporters. “I don’t want a police officer hesitating and getting him or someone else killed.”
The Fraternal Order of Police did not return press inquiries, but police unions have said the prospect of getting sued would deter many from becoming officers.
Sen. Lindsey Graham, South Carolina Republican, said making police departments legally liable for misconduct by their officers would push them to enact changes.
“What you gotta do is you’re trying to drive change,” Mr. Graham told reporters. “Legal liability drives change. If you’re making a car and you can get sued if you make bad cars, you’ll think better about making cars.”
But he said Congress will have to figure out which actions they want to encourage police departments to take and protect them from lawsuits if they make those steps.
“What you are trying to do is you’re trying to get them to up their training, trying to get them to hire better people and police the police,” Mr. Graham said.
Rep. Karen Bass, California Democrat and the sponsor of the House version of the bill, told reporters she sees some merit to the idea of making it easier to sue the police departments.
“I think if the agencies, the cities, if they’re concerned about lawsuits, they will not want to have problem officers,” she said.
But other Democrats and their allies feel strongly it’s not enough to make it easier to sue police departments and want individual police officers on the hook as well.
“Qualified immunity must be addressed,” Ms. Bass said. “We have to figure out ways to hold police officers accountable.”
Groups on the left are putting pressure on Democrats not to give in on the idea of making it easier to sue officers for their actions.
On Friday, a top ACLU attorney told The Washington Times that the compromise being pushed by Mr. Scott is insufficient to satisfy those demanding greater accountability of police officers.
“I don’t think the Tim Scott compromise is appropriate,” said Somil Trivedi, senior staff attorney for the ACLU’s Criminal Law Reform Project.
Groups pushing for policing changes have largely been silent about Mr. Scott’s proposal. But as negotiations heat up, another liberal legal group, the Constitutional Accountability Center, said on Friday that Mr. Scott’s olive branch has not changed its position that it should be easier to sue officers.
A spokesman for the group pointed to a statement the group made before the compromise was proposed.
“The only way to fix qualified immunity is to end it,” the group’s president, Elizabeth Wydra, said in March. ”Rights mean little without accountability for violations of those rights. The judge-made doctrine of qualified immunity stands in the way of such accountability.”
Proponents of ending the legal protection for officers, such as Mr. Trivedi, stress that as the country was creating new rights for recently freed slaves after the Civil War, Congress said citizens should have the right to sue the government and individual employees for violating their rights.
Congress in 1868 passed the 14th Amendment, which made former slaves citizens and granted all citizens “equal protection” under the law. To help put that in place, Congress in 1871 added Section 1983 to federal law, which gives individuals the right to sue municipalities and employees for violating civil rights in the course of performing their duties.
However, the courts have weakened that right through the concept of qualified immunity, which has made it difficult to sue and win, although Minneapolis in March agreed to a $27 million settlement with Floyd’s family.
What makes it difficult to win suits is that plaintiffs have to show that officers knew that their conduct would violate a person’s constitutional rights.
In 2019, for instance, the 9th U.S. Circuit Court of Appeals took up a qualified immunity case from Caldwell, Idaho. Even after a woman gave police there the keys to her home so they could look inside for her ex-boyfriend, a SWAT team bombarded her house with tear gas, causing extensive damage, and didn’t find him there.
The court ruled that because there had been no previous court rulings saying specifically that bombarding a home with tear gas was a constitutional violation, the officer had qualified immunity.
Mr. Trivedi said the idea Congress had intended is important in keeping government agents accountable, and he wants it restored.
“There is no way to reinstate that original purpose unless there is individual accountability,” he said. ”And individual accountability is individual liability.”
However, the idea of making police officers financially liable for what are sometimes split-second decisions is being opposed by even some Democrats.
Sen. Sheldon Whitehouse, Rhode Island Democrat, told reporters he supports Mr. Scott’s proposal.
“It puts the accountability where it belongs in a command organization,” he said of holding departments and not officers liable.
He questioned the idea that officers would not be held accountable if they are not sued, pointing to former Minneapolis police officer Derek Chauvin’s conviction in Floyd’s murder.
“We just saw Officer Chauvin held accountable, and criminal law is a very strong resource for that. Plus, there’s the full array of discipline that is available in a command organization. So I don’t think, between the criminal law and discipline, there’s a lot of concern about unaccountability,” Mr. Whitehouse said. “Officer Chauvin just proved that.”
Still, police officers rarely have to pay when they are sued. A 2014 study by UCLA law professor Joanna Schwartz found that even when officers were successfully sued, their departments’ insurance policies paid 99.9% of the officers’ civil damages.
Mr. Trivedi said police should be required to buy their own insurance.
Meanwhile, a handful of states are taking on the issue.
Colorado’s legislature last year became the first state to eliminate qualified immunity for police officers. But as a compromise it set a $25,000 limit on what officers would have to pay, with their departments picking up the rest. New Mexico followed on April 7.