Congressional negotiators crafting a bipartisan proposal to change policing in America have reached agreement on a key sticking point, with Democrats abandoning one key demand of making it easier to sue individual police officers, a lead Republican senator said Monday.
But Sen. Tim Scott of South Carolina also said the sides have agreed to the framework of a policing deal that would make it easier to sue law-enforcement agencies or cities for officers’ conduct, while continuing to shield officers from being taken to court.
Mr. Scott said on “Fox & Friends” Monday it is significant that the agreement does not eliminate qualified immunity for officers.
“We’ve agreed to the framework. So we know what’s not in it, which is as important as what’s in it,” he said.
Pressed further, Mr. Scott said about eliminating the legal shield, “for the individual officer, it’s not on the table.” But, he said, “you’ll be able to go after the jurisdiction whether it’s local or state.”
Mr. Scott said the sides are still negotiating the exact language of a bill they plan to jointly propose to Congress.
“Nothing is agreed to until everything is agreed to,” he said.
But he said negotiators have agreed to “the fact that we’re not going to make it easier to criminalize police behavior.”
“We’re not going to expose the officers to more liability,” he said. “We know those two things are off the table. And that’s good news for our officers.”
A Democratic aide familiar with the negotiations said Sen. Cory A. Booker, New Jersey Democrat and one of the lead negotiators, had actually floated the idea in his proposal to the other negotiators two weeks ago.
“That’s good news,” James Pasco, executive director of the National Fraternal Order of Police, said of Mr. Scott’s remarks.
Lawmakers said they have not reached a deal on the bipartisan proposal they have been trying to craft for months to present to the rest of Congress.
And it remains to be seen if other Democrats and civil rights groups are willing to compromise on eliminating the legal doctrine called qualified immunity, which makes it difficult to sue police officers for constitutional violations.
Rep. Ayanna Pressley, Massachusetts Democrat, said on MSNBC on Monday that she considers doing away with the legal shield as essential.
“There can never be true justice, but there has to be accountability,” she said. “That is why we must end qualified immunity.”
Spokespeople for the American Civil Liberties Union and the Leadership Conference on Civil and Human Rights, made up of more than 200 civil rights groups, declined to comment. Both have pressed for ending qualified immunity.
Mr. Scott, though, had made it clear throughout the negotiations he would not accept any deal that weakened the legal protection.
A compromise on the issue would be a victory for police unions who worried that officers facing split-second, life-or-death decisions would have to worry about being sued individually and losing their savings and home.
“The job is difficult enough. People sign up knowing the risks and the danger with the job, but they want to know that if they have to use force, they’ll be backed up,” William Johnson, executive officer and general counsel for the National Association of Police Organizations, a national coalition of police unions, said last week.
He added “There’s a sense that today that’s not going to be the case. Why would I risk not only my physical safety but my liberty?”
Mr. Scott and the top Democrats in the negotiations, Mr. Booker and Rep. Karen Bass of California, announced on Thursday that they had reached an agreement on the framework of a deal. But they declined to discuss any details, saying negotiations over the specific language of the proposal were continuing.
Ms. Bass, whose office did not return a request for comment, has said there was merit to the idea of lifting the immunity for police departments. She said it would push departments to raise their standards and get rid of problem officers.
“I think if the agencies, the cities, if they’re concerned about lawsuits, they will not want to have problem officers,” she told reporters in April.
But she and other Democrats insisted that they wanted greater accountability for individual officers and not just their departments. “Qualified immunity must be addressed,” Ms. Bass has said. “We have to figure out ways to hold police officers accountable.”
Mr. Booker’s proposal also had included ideas such as withholding federal funding for law-enforcement agencies that do not ban chokeholds and creating a national standard for the kinds of force officers can use.
Mr. Booker also proposed making it a federal crime, punishable by up to 10 years in jail, to use excessive force. An officer who does not stop another officer from being too violent would face the same sentence.
It’s not clear where those proposals stand in the talks. But Mr. Scott’s comments indicate that the idea of subjecting police to more potential criminal charges is also off the table.
Under qualified immunity, the courts have said plaintiffs have to show that officers knew that their conduct would violate a person’s constitutional rights.
In 2019, 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.
• Kery Murakami can be reached at kmurakami@washingtontimes.com.
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