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No one really expected Democrats to come up with a way to defund the police. The idea, which stems from the police abolitionist movement, has some traction among activists, but has very little purchase in the Democratic Party. Police funding, Speaker Nancy Pelosi said recently, is a “local decision,” though she did add “that doesn’t mean we’re going to pile more money on to further militarize police.” (Even the democratic socialist Senator Bernie Sanders, who ran for president as the standard-bearer of the party’s left, dismissed the notion of defunding in a recent interview with The New Yorker.) So what does the party have to offer us instead? The Justice in Policing Act of 2020, described by multiple outlets as “sweeping,” would indeed take some important steps to rein in the nation’s unaccountable police departments. It also addresses the specific police powers that led to the killings of George Floyd and Breonna Taylor.
In other respects, it lacks ambition — which portends some trouble for the future. Though the bill doesn’t have a chance of passing the Senate right now, it can be interpreted as the party’s first draft, a blueprint for eventual legislative action and a map to pending intraparty debates.
What’s in it, exactly?
The great news about the bill is that police unions will hate it. It would dismantle several layers of insulation they’ve gathered around themselves by bullying lawmakers, and by abusing the collective-bargaining process to enshrine certain provisions in their contracts. The bill creates a national database to track incidents of police misconduct, and would narrow the use of qualified immunity, which protects officers from lawsuits over their use of force or other violations of a person’s constitutional rights. As the Washington Post explained, “victims of excessive force or other violations need only show that officers ‘recklessly’ deprived them of their rights.” The current standard requires victims to prove that officers acted “willfully” — a higher bar that allows many acts of excessive force to go unpunished.
The bill also addresses some use of force by police. It would ban choke holds and carotid holds, a stranglehold intended to temporarily cut off the blood supply to a person’s brain. The Post says it would prohibit “no-knock warrants in drug cases at the federal level, while pressuring states and municipalities to enact similar prohibitions by withholding funding,” and “limit” the provision of military equipment and weapons to the police. The Civil Rights Division of the Justice Department would also receive increased power to investigate bias and misconduct in police departments, and lynching would become a federal crime.
Is it good enough?
Well, no. Take the choke-hold ban. The New York City Police Department banned the use of choke holds 11 years before an officer used one to kill Eric Garner in the street. As Assembly Speaker Carl Heastie noted in a June press release announcing the passage of the Eric Garner Anti-Chokehold Act, which bans its use statewide, the civilian review board reported nearly 1,000 uses of a choke-hold restraint by members of the NYPD from 2014 to 2020. For New York City cops, though, consequences were nonexistent. A federal ban would, as Vox recently noted, grant the “Justice Department more power to levy charges against law enforcement officers that use this maneuver.” Which is something, though enforcement would depend on the whims of the Justice Department.
By itself, the likelihood that police will fail to observe a law is not a good reason to avoid passing it. But the actions of the NYPD do helpfully illustrate the limitations of a choke-hold ban. The bill also appears to allow local authorities meaningful leeway in the use of no-knock warrants. Kamala Harris, a Senate co-sponsor of the bill, acknowledged to the Post that its provisions are “not sufficient,” and are only “part of what is being rightly demanded, which is greater accountability and consequence for bad policing.” Harris, a former prosecutor who came under fire during her presidential primary race for her record as California’s attorney general, didn’t specify further, at least in that interview. If the bill is a foundation upon which they intend to build, their future plans are hard to discern.
Local and state lawmakers have an opportunity to help push the national party further on measures to limit police power. The path to defunding the police, for example, may start with an individual municipality: City council members in Minneapolis, where George Floyd was killed, have said they have the votes to disband the police department altogether. It’s not quite clear what that will look like, or how it would work, in that specific case. But police abolitionists envision a broad social shift, which includes among its tactics the redistribution of public funds and power away from the police and to the social services that state and federal lawmakers have largely abandoned.
