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The Glaring Hole in the Democrats’ Police Reform Bill

The proposed legislation does little to reform the federal law enforcement agencies that have flooded the capital in recent weeks.

Chip Somodevilla/Getty Images

There’s been a sea change in the American public’s perception of law enforcement since the killing of George Floyd last month. A Washington Post survey on Tuesday found that 69 percent of Americans think Floyd’s brutal death, which came at the hands of four Minneapolis police officers, is a “sign of broader problems” in American policing. That’s a substantial leap from 2014, when the Post found that only 43 percent of Americans saw the killings of Michael Brown and Eric Garner as more than isolated incidents.

Congressional Democrats, sensing the shift in public mood, sought to harness it by unveiling a police reform bill on Monday. The Justice in Policing Act, if passed into law, would effectively impose a wide range of policy and practice changes on police departments nationwide. “What we are witnessing is the birth of a new movement in our country with thousands coming together in every state marching to demand a change that ends police brutality, holds police officers accountable, and calls for transparency,” California Representative Karen Bass, the chair of the Congressional Black Caucus, said in a statement on Monday.

The bill features a series of reforms aimed at taming America’s wayward police departments. But what’s not in the Justice in Policing Act is just as notable. Though some of its broadest provisions would affect federal law enforcement agencies, the proposed legislation spends little time addressing problems with those agencies in particular. That makes for an unusual situation. As Politico’s Garrett Graff has reported, these are the very agencies that have played a controversial role in policing Washington, D.C., of late, by sending a “motley assortment” of unidentified and, ultimately, unaccountable “military-style men” out on the streets of the nation’s capital. Congressional Democrats have thus responded strangely to the situation: Their legislative proposal does not remedy problems in the very agencies it’s best equipped to reform, and which have become so recently and famously controversial.

The Justice in Policing Act is best read as an omnibus compilation of various police reform proposals that have circulated on Capitol Hill in recent years. Its highest-profile provisions are the creation of a National Police Misconduct Registrya central database of disciplinary and termination recordsand a mandate for police departments to report regular use-of-force statistics to the Justice Department. Those measures are aimed at preventing fired cops from being rehired by other departments and providing metrics on how often police officers and departments use force.

Cops, along with other state and local officials who violate a person’s constitutional rights, can already be sued in federal court under Section 1983, a major provision of the Civil Rights Act of 1871. Over the past half-century, however, the Supreme Court has crafted a doctrine known as “qualified immunity,” which shields officials from liability unless they violated “clearly established” law. The Justice in Policing Act would abolish this controversial rule by explicitly stating in federal law that it can’t be invoked as a defense. A related provision would make it easier for federal prosecutors to bring civil rights charges under Section 242, the criminal equivalent of Section 1983.

Naturally, there are practical and constitutional limits to the power of Congress to reform local police departments. Many of the bill’s provisions, including bans on chokeholds, racial profiling, and no-knock warrants in drug cases, would apply directly to federal law enforcement officials. But those and others, including body-camera reforms and racial-bias training, can’t be imposed by Congress on state and local police through federal law. Instead, Congress would try to compel departments to make those reforms by withholding Justice Department grants if they don’t comply. The law would also make lynching a federal crime for the first time, after 120 years of failed legislative efforts.

But while federal law enforcement officials would be covered on some of the proposed law’s most sweeping changes, the bill avoids taking steps that would address several problems that are unique to the federal sphere. For instance, though the bill would strengthen Section 1983 by scrapping qualified immunity, that provision only allows civil rights lawsuits in federal court against state and local officials. There is no general statutory equivalent for civil rights violations committed by federal officials. The nearest comparable option is what’s known as a Bivens lawsuit, which draws its name from the 1971 Supreme Court case Bivens v. Six Unknown Named Agents.

In Bivens, the court sided with a plaintiff who accused federal narcotics agents of conducting an unconstitutional search. The justices held that the lawsuit was allowed under the Fourth Amendment even if no federal law specifically permitted it. Here, too, the justices have steadily pared back what could be a formidable tool against civil rights abuses by federal officials. In the 2017 case Ziglar v. Abbasi, for example, the court rejected a Bivens lawsuit brought by a group of men of Middle Eastern and South Asian descent who were arrested and detained for months without sufficient cause in the aftermath of the September 11 attacks. The justices further held that they would not expand Bivens any further beyond the few circumstances where it had already been applied. Congress has not acted to fill that void.

The Justice in Policing Act also takes no steps to reform or abolish civil asset forfeiture at either the state or federal levels. The controversial and oft-abused practice allows law enforcement officials to permanently seize a suspect’s property without a criminal conviction. Some states and cities have restricted civil forfeiture amid widespread reports of abuses in recent years. But under the Justice Department’s Equitable Sharing Program, police departments can sometimes evade those barriers by transferring what they seize to the federal government, with which it then splits the proceeds. In 2017, then–Attorney General Jeff Sessions reversed a series of Obama-era restrictions on the practice. Though it provoked an uproar across the aisle in Congress, lawmakers then and now haven’t taken concrete steps to curtail the practice.

These omissions are unsurprising, to a certain degree. Public attention is squarely fixed on abusive practices by local police departments, which make up the vast bulk of the nation’s law enforcement apparatus. Federal law enforcement, though sprawling in its own way, is likely a less urgent area of reform for many Americans than the officers in their own neighborhoods. And while federal-specific problems like the Border Patrol’s troubling internal culture or U.S. Immigration and Customs Enforcement’s coercive and unethical tactics in sex-trafficking cases are worthy of legislative attention, lawmakers might not be willing to tackle them in a bill aimed largely at local and state agencies.

None of this will affect the bill’s modest chances of becoming law, however. Trump, a staunch ally of police unions and harsh policing practices, said he would oppose efforts to defund or dismantle police departments and declared that “99 percent” of officers are “great, great people.” The White House also signaled its opposition to some of the Justice in Policing Act’s proposals, even including measures with significant bipartisan support, such as qualified immunity reform. Without the current president’s backing, the bill serves as more of an election-year wish list, indicating what policies this Congress would like to send to its future self. Under these circumstances, there’s no harm in thinking a little more broadly.