(Photo by Mark Wilson/Getty Images)
Want the best of VICE News straight to your inbox? Sign up here.
WASHINGTON — It’s taken a full year since George Floyd’s death, but Congress finally seems close to a bipartisan agreement aimed at reining in police brutality.
New Jersey Democratic Sen. Cory Booker and South Carolina Republican Sen. Tim Scott have been negotiating around the clock to try to strike a deal that will pass the first meaningful police reform legislation in more than a half-century.
“There is a sense of urgency that we have to get this done. We still have a mountain to climb, but I feel like we've made a lot of progress,” Booker told VICE News. “It’s more likely than not that we will get a bill done.”
Nothing is final in the bill, but sources say the two sides have resolved to ban chokeholds and carotid holds, address the problem of police responding to reports of mental health crises, create federal standards for no-knock warrants, limit the transfer of military equipment to police departments, and start a federal database to track police use of force.
But there are still major sticking points, especially around whether to make it easier to punish bad cops. There’s a lot riding on those negotiations in particular, spurred on by the grieving families of those who’ve been killed by cops and a nationwide outcry following Floyd’s murder at the hands of a Minneapolis police officer one year ago.
“It's blood on that bill. Pamela Turner is on that bill. Eric Garner is on that bill. Breonna Taylor is on that bill. My brother George Floyd is on that bill. And they all passed away of horrific deaths,” Philonise Floyd, George’s brother, told VICE News. “These cops need to be held accountable.”
Booker and Scott—two of the three Black men in the Senate—have been joined at the hip, spending hours together almost every day the past few weeks as they try to hammer out the details of the bill. They huddle over speakerphone conversations in the halls of Congress, use Senate votes and committee hearings to touch base with other members, and break off only to pulse-check whether possible compromises would fly with key stakeholders.
“It's blood on that bill. Pamela Turner is on that bill. Eric Garner is on that bill. Breonna Taylor is on that bill. My brother George Floyd is on that bill.”
The good news is if they can strike a deal, there’s a solid chance that Scott can bring enough Republicans with him to pass it. Senate Minority Leader Mitch McConnell has deputized Scott to lead negotiations on the bill and has signaled that he wouldn’t stand in the way if it’s successful. And multiple Republicans told VICE News that if Scott signed off on a deal, they likely would too.
“If Scott agrees to it, I think it could be pretty good,” Iowa Sen. Chuck Grassley, the top Republican on the Senate Judiciary Committee, told VICE News. “It'll have to be a bill that is reasonable, or it isn’t going to pass. But I don't have to worry about that because Tim Scott isn’t going to do anything that's unreasonable.”
What’s in the bill
Booker and Scott have also been working closely with the dealmaking veterans Illinois Democratic Sen. Dick Durbin and South Carolina Republican Sen. Lindsey Graham to try to finalize a deal.
They’ve also been in regular consultation with California Democratic Rep. Karen Bass, the lead sponsor of the George Floyd Justice in Policing Act, which passed the House this spring along mostly party lines. A trio of House moderates have also been looped in to work toward bipartisan support: Democratic New Jersey Rep. Josh Gottheimer, Pennsylvania Repubican Rep. Brian Fitzpatrick, and Minnesota Republican Rep. Pete Stauber. Both Fitzpatrick and Stauber have law enforcement backgrounds.
But negotiators on both sides have been unusually tight-lipped about what agreements they’ve reached and what they’ve been willing to give on, and all sides make clear that there are no final agreements on any portion of the sprawling bill until they’ve locked in something they can all support.
“I have found no actual benefit in negotiating parameters of the bill in public,” Scott said. Booker, Bass, and all the other players echoed the sentiment in recent conversations.
That’s actually a good sign—generally, the less lawmakers are willing to discuss the sensitive details of big bipartisan deals, the more likely they are to actually get something done. That way, advocacy groups and activists on all sides don’t get riled over any particular compromise they think goes too far before they can see the whole package.
But sources familiar with the negotiations say there’s been tentative, top-line agreement on a number of major topics.
If a bill is produced, it will likely ban police from using chokeholds—like the one that killed Eric Garner—which restrict airflow and carotid holds that can block blood flow to the brain except in rare, life-threatening situations. There’s growing momentum around this: Half of the country’s largest police departments have banned the practice in the past year. But many other departments continue to use the dangerous restraints.
The bill will also likely create new federal standards on no-knock warrants, which give police permission to forcefully enter people’s homes without announcing themselves first. Police killed Breonna Taylor in her Louisville apartment as they executed a no-knock warrant during a botched drug raid.
And the negotiators plan to set new limits on federal transfers of military equipment to police departments, blocking police from accruing weapons including bayonets, grenade launchers, and some armored vehicles like the ones used by the Ferguson, Missouri, police department during protests after Michael Brown’s death in 2014.
And the bill would create the first database for systematically tracking use of force. Negotiators are still working through how that would be implemented and whether police departments would be required or just incentivized to use it, however. Police departments are notoriously bad at self-reporting.
Booker also told VICE News that they’d made progress on finding ways to address the problem of police responding to reports of mental health crises, which account for about 10 percent of all 911 calls. Some cities have already begun to adopt having mental health professionals respond alongside or instead of police.
Black people are three times more likely to be killed during a police encounter than white people, but people with untreated mental illness are 16 times more likely to be killed by law enforcement, according to the Treatment Advocacy Center—and the chances are even higher for Black Americans with mental health issues.
“The more we work at this, the more we are finding other things that are wins for this country, to try to figure out a way to make them fit in the larger puzzle of this bill,” Booker said. “There are still big items that we have to work through. But it's making me feel better and better as the playing field is expanding.”
What could still sink the bill
But there’s plenty left to be worked out, and the big sticking point remains punishment for bad cops. The two sides have yet to agree on what to do about qualified immunity, the legal doctrine that protects police and other government officials from personal legal liability—and having to pay any resulting settlements out of pocket.
That makes it all but impossible to sue individual police who commit unnecessary violence or otherwise violate people’s civil liberties.
Democrats want to end qualified immunity, or dramatically modify its use, allowing people to sue individual police officers who commit egregious offenses.
Republicans haven’t wanted to change the doctrine at all. But in recent weeks they’ve pushed a possible compromise that would make it easier to sue police departments when their officers commit violence. Under current law, people have to sue the entire department and establish a pattern of behavior to prove the problem was institutional. That often lets departments off the hook.
The GOP proposal would lower that high bar, allowing lawsuits against police departments in cases of death or serious injury for specific individual constitutional violations committed by officers.
Booker, Scott, Graham, and Durbin have been frequently meeting to discuss how they can reach agreement on qualified immunity, including an intensive half-hour conversation on the Senate floor last Wednesday. Graham expressed cautious optimism they were making progress as he walked off the Senate floor after that huddle.
“I’m hopeful, but we’ll see. There’s a lot of work to be done, but there seems to be a good attitude about getting there,” he told VICE News when asked if it seemed like they were making progress on the thorny issue. “The key is we [Republicans] want to protect individual officers; we don’t want people to feel like they’re going to lose their livelihood, their house and car by going to work, but we also want to make the departments more accountable. That will drive better policing.”
Police departments are reluctant to even accept that compromise, but Graham said he’d been talking to key stakeholders, including the National Sheriffs Association, about how it could be good for them.
Democrats aren’t ready to say they’d agree to this proposal, but none of the key players expressly ruled it out when pressed on Graham’s proposal.
The other stumbling block is Democrats’ goal of making it easier to prosecute officers who commit federal civil rights violations. The Justice Department’s primary statute for prosecuting police conduct,Section 242 of Section 18 of the penal code, makes it a crime “for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.”
In practice, that’s been hard to prove in court. After consulting with Biden’s Justice Department, Democrats suggested compromising by leaving the statute alone but adding language to require prosecutors to prove that police acted “while knowing or consciously disregarding a substantial risk that their use of force is excessive.”
But Scott has remained adamant that he won’t agree to any changes to Section 242, and Democrats aren’t ready to back down.
“The most important thing is we have to have some way to hold officers accountable so that the killings and the beatings will stop,” Bass told VICE News. “Qualified immunity and Section 242 are two ways to hold officers accountable so maybe they’d think before they’re so quick to act inappropriately. Those are two very important measures.”
Some Democrats have expressed an openness to giving in on those issues to save the broader package. House Majority Whip James Clyburn, the highest-ranking Black man in the House, called on his party to not “sacrifice good on the altar of perfect.” But some activists—including the Movement for Black Lives—already saw the Democratic bill that Bass shepherded through the House as too much of a compromise because it didn’t defund the police. More establishment-minded civil rights groups are also on edge that the bill will wind up being overly symbolic.
“We have to make it meaningful and not watered down,” said Ben Crump, a civil rights attorney who represents the Floyd family and many other families whose loved ones were killed by police.
The basis of bipartisanship
Booker and Scott have teamed up on bipartisan victories before. They worked for years before successfully passing criminal justice reform in late 2018 that reduced mandatory federal prison sentences and partnered to craft policy that created tax incentives to invest in economically depressed communities.
But the immediate wake of George Floyd’s death left bruised feelings on both sides. Booker led the Democratic push to immediately move legislation to address the issue. Scott countered with a much more scaled-back bill that Democrats viewed as simply political cover for Republicans rather than a serious proposal. Scott bristled at what he saw as Democrats’ refusal to compromise. Both sides accused the other of playing politics, and talks quickly broke down.
Even last month, it was clear Scott wasn’t over the episode.
“I extended an olive branch. I offered amendments. But Democrats used the filibuster to block the debate from even happening. My friends across the aisle seemed to want the issue more than they wanted a solution,” Scott said as he delivered the Republican response speech to Biden’s first joint address to Congress in late April.
“Two months from now, we’ll either be done and celebrating, or it won’t be done at all.”
But that period also marked a turning point. Booker and Scott had rekindled talks already, and President Biden’s call for Congress to pass a bill by the anniversary of Floyd’s death came just one day before Scott met with a number of families of Black men killed by police.
“The fact that he's negotiating, that's an act of good faith, because at the same time he could have turned his back and say he didn't want to have anything to do with it. You need Republicans to help pass the bill,” Philonise Floyd, who was at the meeting, told VICE News.
Booker didn’t want to dwell on last summer’s tensions, but he made clear he and Scott have repaired their productive relationship, calling Scott a “legitimate friend.”
“We are very candid, very forthright, very honest to the point of just being vulnerable with each other about what our lines are, what our interests are, what our ambitions are,” Booker told VICE News. “He and I both see a need for change. And that's what's keeping this vibrant despite the difficulties we had in the last Congress.”
One thing everyone involved in negotiations can agree on: It’s now or never. Booker and Scott told VICE News last week that if they were going to achieve a bill, it would happen within weeks.
“If it takes us months, we’re not going to get it done,” Booker told VICE News on Wednesday as he and Scott walked together from Senate votes to another round of wrangling over the bill.
“Two months from now,” he said, “we’ll either be done and celebrating, or it won’t be done at all.”