A bipartisan group of negotiators is stymied over a key issue in talks on overhauling policing practices nationwide: The standard for charging police officers with crimes.
And now, the Justice Department is directly engaged in the talks to help resolve the stalemate and ease the path for a sweeping policing deal to be reached on Capitol Hill, according to several people familiar with the matter.
As lawmakers see if they can find consensus before a self-imposed May 25 deadline, the issue continues to be a key point of contention, with Democrats pushing to lower the standard so officers can be charged for reckless conduct while Republicans say the matter needs to be off the table in the negotiations.
South Carolina Sen. Tim Scott, the chief GOP negotiator, told CNN that it’s his understanding that “in the next 24 hours or less,” the Justice Department is going to see if there’s a way to deal with the matter administratively.
“Let’s see what they come up with,” Scott said.
Scott was not among the lawmakers seeking guidance from the Justice Department and has made clear the issue remains a red line for him.
“I don’t think we’re going to resolve that,” Scott said. “That is a bridge too far for me.”
One person familiar with the matter told CNN that Democratic lawmakers sought technical assistance from the Justice Department on prosecuting police misconduct. The department suggested that lawmakers leave the statute over police misconduct untouched but suggested adding language to any new law that would enhance federal prosecutors’ ability to bring cases against officers. This would require prosecutors to prove an officer accused of excessive force acted “while knowing or consciously disregarding a substantial risk that their use of force is excessive.”
Whether that’s enough to break a logjam remains to be seen.
The issue is separate from another sticking point — changing “qualified immunity” so police officers can be sued in civil court — but both matters remain the most difficult ones to resolve, according to lawmakers in both parties. While the issue of qualified immunity is still under discussion by the Hill negotiators, the Justice Department is exploring whether it can issue executive guidance on criminal prosecution, the sources added.
The negotiators met Tuesday morning, with Scott reporting “incremental progress,” as Democrats are pushing for qualified immunity to be addressed in the legislation — despite comments by House Majority Whip Jim Clyburn, who said on Sunday that the topic could be punted in order to get a deal on the rest of the proposal.
Sen. Raphael Warnock, a Georgia Democrat and one of three Black senators, said that the issue of qualified immunity is “very much” on the table still in the talks — and he said that a final bill needs to provide reassurances to the African American community during interactions with police given the spate of deadly incidents that have galvanized the racial justice movement.
“We have to have a path that holds police officers accountable,” Warnock said. “The same way you hold people and other professionals in other professions accountable. And so, I’m open to how we get there, but we’ve got to get something passed. And we got to hold police officers accountable. Black people have to know that they can engage law enforcement, and that people cannot commit acts of abuse against them with impunity.”
To resolve the impasse, Scott has proposed overhauling the qualifying immunity standard so that police departments can be sued — but not police officers. Key Democrats, including California Rep. Karen Bass, have yet to embrace Scott’s idea, but Senate Judiciary Chairman Dick Durbin of Illinois told CNN that it’s a “step in the right direction.”
Sen. Cory Booker, a New Jersey Democrat, added that the issue is “very much” still alive in the talks.
While the two sticking points remain unresolved, the two sides have found tentative agreement on some matters, such as setting federal standards for no-knock warrants, banning chokeholds except in life threatening situations and placing limits on military equipment the Department of Defense can send to local and state police department, known as the 1033 program, according to a source familiar with the talks.
With the legislative days dwindling by President Joe Biden’s deadline for a May 25 deal, to coincide with the anniversary of George Floyd’s death, the group would need to find an agreement fast in order to shepherd the bill through Congress.
But Scott said talks would continue as long as they need to, downplaying the May 25 deadline.
“That’s not on us,” Scott said.
