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Police are still killing us. It’s a fact I think about frequently. Recently it happened again, when police shot and killed Lindani Myeni, a South African man living in Honolulu.

The George Floyd Justice in Policing Act is the product of compromise and would make policing less violent and more accountable.

Too often officers view Black people as a threat and react accordingly, sometimes taking their lives. We need major action on policing across America, and while much of the work to address police violence needs to be done at the local and state level, federal legislation is also urgently needed.

Following the murder of George Floyd by police last year, Congress took action by introducing H.R. 1280, the George Floyd Justice in Policing Act (JPA). This bill is the product of compromise and would make policing less violent and more accountable. The House of Representatives passed the legislation and the bill was received by the Senate, but it has stalled in the face of disagreement between Democrats and Republicans, who hold competing viewpoints for reform.

In his address to Congress, President Joe Biden urged negotiators to reach a deal to advance the JPA by May 25, the one-year anniversary of Mr. Floyd’s death. In an attempt to jump start the process, Sens. Cory Booker (NJ) and Tim Scott (SC) teamed up with Rep. Karen Bass (CA-37), the former chair of the House Congressional Black Caucus, to discuss a negotiated package that both sides can agree on.

FCNL believes any reform legislation should ban chokeholds and no knock warrants, limit the transfer of military grade equipment to state and local law enforcement, raise the use of force standard, and reform qualified immunity.

Bridging the gap between the parties will require quite a lot of work because their understanding of the problem is fundamentally different.  

Bridging the gap between the parties will require quite a lot of work because their understanding of the problem is fundamentally different. Republican negotiators have framed the issue as one of training, while Democrats have identified implicit bias and white supremacy in policing as a primary challenge.

Despite this, negotiations are progressing. Previous points of disagreement—including reforming the 1033 program and banning no-knock warrants and chokeholds—have been resolved.

Two sticking points remain under negotiation right now in the Senate:

18 USC 242 Mens Rea

This is a section of the law—18 USC 242—that determines the circumstances under which an officer can be held criminally responsible for depriving an individual of their rights. Currently, prosecutors must prove that an officer willfully intended harm. This is an incredibly high legal bar and difficult to prove. The JPA would change the intent standard from “willful” to “reckless,” which will allow more cases to move forward in court. The result would be greater criminal accountability for officers who deprive citizens of their constitutional rights.

Qualified Immunity

According to Cornell Law, “qualified immunity protects a government official from civil lawsuits alleging that the official violated a plaintiff’s rights.” Under current law, individuals can only bring a suit when an officer violates a “clearly established statutory or constitutional right.” This means to bring a case there must be clearly established precedent, or a previous case that is practically identical to the current case. This standard is so high that very few civil cases brought against police ever move forward. Couple that with the fact that few officers are ever indicted, much less prosecuted, for criminal wrongdoing and the result is near impunity for law enforcement.

Republican negotiators argue that section 242 and qualified immunity are necessary protections which allow officers to do their jobs without interference from frivolous lawsuits. In response to the systematic abuse of people in Black and brown communities by police, activists have pushed Democratic negotiators to ensure greater accountability by reforming these provisions of the law.

Your voice is needed. Negotiations are moving forward, and we need your help to ensure that they produce a strong JPA. Urge your senators to make policing less violent and more accountable.

José Santos Woss

José Santos Woss

Director for Justice Reform
José is FCNL’s Director for Justice Reform. He leads FCNL’s work on criminal justice reform, election integrity, and policing.