WASHINGTON — Facing a groundswell of public support for addressing systemic racism and excessive use of force in law enforcement, Democrats and Republicans have unveiled competing proposals to tackle the issues.
The two bills, one crafted by Senate Republicans and the other by Democrats, differ in ways large and small. Both chambers plan to consider their respective legislation next week, but to reach a bipartisan agreement, they will ultimately have to reconcile two vastly different proposals.
Here are some of the main points of contrast that are likely to emerge as sticking points.
Democrats want to do away with chokeholds and similar maneuvers, while Republicans are encouraging narrower restrictions.
the house bill
TITLE 3, Sec. 363, p. 67: (2) CHOKEHOLDS AS CIVIL RIGHTS VIOLATIONS.
Section 242 of Title 18, United States Code, as amended by Section 101, is amended by adding at the end the following: “For the purposes of this section, the application of any pressure to the throat or windpipe, use of maneuvers that restrict blood or oxygen flow to the brain, or carotid artery restraints which prevent or hinder breathing or reduce intake of air is a punishment, pain or penalty.”
the senate bill
TITLE 1, Sec. 105, p. 24: (1) DEFINITION. — The term “chokehold” means a physical maneuver that restricts an individual’s ability to breathe for the purposes of incapacitation.
(2) FEDERAL POLICY. — The attorney general shall develop a policy for federal law enforcement agencies that bans the use of chokeholds except when deadly force is authorized.
The House bill would ban chokeholds and any neck-pressure maneuver that results in restricting an airway, classifying them as civil rights violations. It would also pressure state and local police departments to impose their own bans on such tactics, withholding critical federal grant money if they do not do so. The Senate measure also conditions federal grants on banning chokeholds, but defines the practice much more narrowly, applying it only to something done with the goal of incapacitating someone. It calls on the attorney general to develop new restrictions on chokeholds.
Democrats would alter qualified immunity to allow victims of police brutality to seek damages; Republicans would not.
the house bill
Title 1, Sec. 102, p. 6. QUALIFIED IMMUNITY REFORM.
Section 1979 of the Revised Statutes of the United 16 States (42 U.S.C. 1983) is amended by adding at the end the following: “It shall not be a defense or immunity to any action brought under this section against a local law enforcement officer (as defined in Section 2 of the Justice 20 in Policing Act of 2020) or a state correctional officer (as defined in Section 1121(b) of Title 18, United States 22 Code) that — ‘(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or ‘(2) the rights, privileges or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at this time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.’”
From Senator Tim Scott, Republican of South Carolina, sponsor of The Senate bill
My position has been that when the Democrats start talking about qualified immunity and the ability to aggressively pursue the officers at a higher threshold, that is a poison pill from my perspective. Is there a conversation that could be had around something different? Perhaps.
The House bill would fundamentally alter the doctrine of qualified immunity, which offers legal protections to police officers for their actions in situations where citizens are seeking damages for violations of their constitutional rights.
The Senate legislation in its current form does not address the practice, though some Republicans indicated that they may be open to discussions around the issue. Senator Mike Braun, Republican of Indiana, told reporters on Tuesday that he would be introducing separate legislation that would change how qualified immunity was applied.
Democrats would make it easier to prosecute police officers for misconduct. Republicans would call for de-escalation training for officers.
the house bill
TITLE 1, SEC. 101, p. 6: Section 242 of Title 18, United States Code, is amended — (1) by striking “willfully” and inserting “knowingly or with reckless disregard”; and (2) by adding at the end the following: “For purposes of this section, an act shall be considered to be death resulting if the act was a substantial factor contributing to the death of the person.”
The Senate Bill
TITLE 6, Sec. 601, p. 58: The attorney general, in consultation with relevant law enforcement agencies of states and units of local government, labor organizations, professional law enforcement organizations and mental health organizations, shall develop training curricula in — (A) alternatives to use of force and de-escalation tactics; and (B) safely responding to a person experiencing a behavioral health crisis, including techniques and strategies that are designed to protect the safety of the person experiencing the behavioral health crisis, law enforcement officers and the public.
The Democratic bill would lower the bar for the prosecution of police officers for misconduct. While prosecutors currently need to prove that an officer “willfully” violated an individual’s constitutional rights, the Democratic legislation would lower that standard to actions taken “knowingly or with reckless disregard” for a person’s rights.
The bill unveiled by Senate Republicans would leave the prosecutorial standard intact. Instead, it seeks to address excessive use of force by requiring local law enforcement agencies to report the use of practices like no-knock warrants and incentivize them to provide their officers with de-escalation and bystander training.