Justice in Policing Act

The House sent its version of a policing overhaul bill to the Senate late Thursday, as Congress settled into a familiar partisan stalemate in which Democrats and Republicans staked out positions that appear to leave little room for compromise.

Speaker Nancy Pelosi, D-Calif., and House Democrats did not allow amendments to their comprehensive bill (H.R.7120) ahead of a vote just 18 days after it was introduced. Senate Majority Leader Mitch McConnell, R-Ky., had already said the bill would not go anywhere, and the Trump administration threatened to veto it if it did because it would “undermine law enforcement and make communities less safe.”

And Pelosi told reporters Thursday that the narrower Senate Republican version (S 3985) would have no effect and “did nothing” and is a nonstarter in the House. Democrats had voted to block it on the Senate floor Wednesday, with complaints that it was flawed and not bipartisan, stopping one key legislative path to compromise that Pelosi said wouldn’t work anyway.

“We don’t want chokeholds. They allow chokeholds, what are we going to compromise? A certain number of chokeholds?” Pelosi said at a Washington Post event about a provision in the House bill to ban officers from using the maneuver during arrests. “This is irreconcilable. Some things are just not reconcilable. That’s it.”

The 236-181 vote, announced by Pelosi and followed by some applause on the floor, cut mostly along party lines. Republican Reps. Will Hurd of Texas, Fred Upton of Michigan and Brian Fitzpatrick of Pennsylvania voted for the bill. Just prior to that final vote, the House also rejected, 180-236, a motion to recommit the bill that sought to change the text to that of the Senate Republican bill.

“Today we are missing an opportunity to pass an overwhelmingly bipartisan bill,” Hurd, the only Black member of the House Republican caucus, said earlier on the floor. “We are missing an opportunity for a police reform bill to actually become law. We are missing an opportunity to do our part to prevent another Black person from dying in police custody.”

Just like that, the latest wave of political demand to address law enforcement misconduct and racial bias at this moment — generated in protests and marches in cities nationwide, which were in response to a video of George Floyd’s death at the knee of a Minneapolis officer — appeared destined to dissipate futilely at the steps of a deeply polarized Congress.

Democrats blamed Republicans and Republicans blamed Democrats, throughout the day, on the House floor and to reporters in the Senate hallways. The sides complained that the other party didn’t work together to address an issue both sides say should be addressed.

“I don’t know what we do now,” Senate Judiciary Chairman Lindsey Graham, R-S.C., told reporters. “It’s a shame, but we are where we are.”

Pelosi, at a news conference on the House steps Thursday, said the marchers and protesters have demanded “this moment of national agony become one of national action.” She then put that obligation onto the Senate to act on the House version.

“When we pass this bill, the Senate will have a choice: to honor George Floyd’s life or to do nothing,” Pelosi said.

House Judiciary Chairman Jerrold Nadler and other Democrats said Thursday that the House bill now will put political pressure onto Senate Republicans to do something — and that pressure will continue to build in the country.

“This is not the time for half-measures, it is not the time for further study, it’s not the time for sham, fake reform,” the New York Democrat said. “The Senate bill is sham, fake reform. It gestures, it uses some of the same words, but it does nothing real.”

During the floor debate, Rep. Paul Mitchell of Michigan was among the Republicans who criticized the Democratic approach in the House, saying he reached out to the bill’s lead author, Congressional Black Caucus Chairwoman Karen Bass, D-Calif. He sought to support the bill and offer input, but “to no avail.”

“This issue will not go away. I think we agree on that, it’s staying,” Mitchell said. “What do you say we focus on doing our current jobs rather than worrying about the November election? How about we legislate to achieve effective reform instead of messaging, because messaging right now is a disaster for this nation.”

Mitchell concluded: “We should all in this body feel shame for taking up space and time when we’re not solving the problem. God help us all.”

Nadler, whose committee advanced the bill at a markup last week, responded that Democrats had reached out to Republicans but that the Republicans wouldn’t share the text of amendments ahead of a markup or the floor action.

“We have not received a single outreach regarding this important matter from either the Trump White House or the Trump Department of Justice,” Nadler said. “In my experience, if there were a serious and good-faith effort to enact legislation, the White House would seek to work with both sides of the aisle and both sides of the Capitol.”

Rep. Daniel Crenshaw, R-Texas, said on the floor that it wasn’t too late to work together toward common goals.

“If we voted on this section by section, I believe there are sections where there would be an overwhelming bipartisan majority for some necessary and crucial reforms,” Crenshaw said. “There’s other parts where, if we just worked together and made some changes, we’d likely get to yes on a lot of these.”

But Republicans also see provisions in the House bill that aren’t ripe for compromise because they would undermine law enforcement, such as those that would end a court-created doctrine of qualified immunity that protects police officers, or would ban chokeholds or no-knock raids.

Arizona Republican Rep. Debbie Lesko, citing conversations with law enforcement officers, said on the floor that the provisions would be “making criminals out of decent cops enforcing the laws in good faith.”

“It’s disappointing that we can’t have a bipartisan bill in front of us today,” Lesko said.

Democrats wasted no time in trying to use the vote to help with the fall campaigns. The Democratic Congressional Campaign Committee launched digital ads Thursday against nine GOP House members: Reps. Don Bacon of Nebraska, Steve Chabot and Michael R. Turner of Ohio, Mike Garcia of California, Richard Hudson of North Carolina, John Katko and Lee Zeldin of New York, Scott Perry of Pennsylvania and Jeff Van Drew of New Jersey.

"By voting 'no' to the Justice in Policing Act, Scott Perry is enabling police violence to go unchecked," reads the text on screen at the end of a 44-second video, shared first with CQ Roll Call. The footage show a makeshift memorial outside the White House honoring people of color who have died at the hands of police.

The ads will run on YouTube, targeted toward women under 40. Though the DCCC plans to spend a relatively small amount — a "four-figure" buy — the ads are an early sign that Democrats view combating police brutality as a salient campaign issue, even as Republicans try to tie vulnerable Democrats to activists' calls to "defund the police."

Section-by-Section Summary

The Justice in Policing Act would:

• Prohibit racial and discriminatory profiling by all law enforcement;
• Ban chokeholds and limit the transfer of military-grade equipment to local law enforcement; 
• Classify lynching as a federal hate crime;
• Ban no-knock warrants at the federal level; 
• Mandate the use of body cameras by law enforcement personnel; 
• Establish the National Police Misconduct Registry to increase accountability; 
• Reform qualified immunity; and
• Require law enforcement to report use of force statistics. 

House and Senate Democrats released a broad bill aimed at policing practices today, as Black Lives Matter protests continue across the country after the death of George Floyd while in the custody of Minneapolis police. The Senate today will hold a procedural vote on a bill to permanently fund the Land and Water Conservation Fund and national parks maintenance.

DETAILED SUMMARY

Policing 'Reform'

    The bill, which was drafted primarily by the Congressional Black Caucus, takes numerous actions intended to overhaul police departments and practices across the nation and end any racial profiling and the use of excessive force by police against minorities, and to make police departments and individual officers more accountable.

    Among its provisions, it requires enhanced training on the use of force (including by prohibiting the use of deadly force except "as a last resort"), requires detailed reporting of incidents in which force is used, provides for more vigorous investigations of police departments where misconduct may occur, and bars certain practices such as racial profiling and the use chokehold restraints. It also makes it easier to prosecute individual police officers for violating someone's constitutional rights and for private citizens to sue officers who violate their rights.

    The president opposes the House bill and a veto has been threatened; instead, he has expressed support for a more limited measure drafted by Senate Republicans.

Section I

Background & Summary

    The United States has long suffered from racism, with the initial period of emancipation and constitutional rights of citizenship enjoyed by African Americans after the abolition of slavery soon being eclipsed by the enactment of laws that discriminated against Black citizens and deprived them of their civil rights. For decades thereafter Blacks were subjected to discrimination and sustained violence — including through extrajudicial lynchings by whites, particularly in the South.

    Along with key Supreme Court rulings, the civil rights movement of the 1950s and 1960s ended the legalized racial discrimination and segregation with enactment of laws such as the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act.

    An element in achieving support for those laws, particularly the landmark Civil Rights and Voting Rights acts, was national television coverage in the early 1960s of the civil rights movement — in particular video of violent attacks by southern law enforcement against Black protestors, including attacks by police dogs. Those images helped broaden public awareness of the treatment of Black Americans in the South, creating political pressure to change the law.

George Floyd Killing / Call for Police 'Reforms'

    Similarly, the recent killing of George Floyd in Minneapolis by a white police officer who smothered Floyd by pressing his knee into Floyd's neck for nearly nine minutes while Floyd lay handcuffed on the street — all of which was captured on video by others — has triggered a national call for action to address such injustices.

    Coming after a decade of high-profile cases where many other Black Americans nationwide died at the hands of police because of excessive force, including through chokeholds and police shootings that were often caught on video, most Americans recognize there has been a history of abuse and use of excessive force inflicted on the Black community, usually without serious repercussions to the officers involved.

    That has led to massive protests across the nation in support of the Black Lives Matter movement to finally end such racial injustice (a well as protests globally), and prompted some local police departments to begin making certain changes.

    Recent polls have indicated a large shift across racial and ideological spectrums in favor of making substantial changes to the nation's criminal justice system. And while there have been calls by some activists to "defund the police" (which is interpreted in a wide number of ways), there is little public support to reduce police funding.

    In response to this national movement to address racial injustices, congressional Democrats and Republicans have each proposed legislative solutions and President Trump has issued an executive order seeking to address the issue (see below).

Past Police Accountability Efforts

    The Congressional Research Service (CRS) in a 2015 report notes that "By the very nature of their job, law enforcement officers are tasked with using physical force to restrain individuals and protect themselves and others from harm. Police officers must stop and seize violent suspects, serve search warrants in hostile environments, and maintain the peace and safety of the communities in which they serve." And unlike in other nations, the challenge of the job of police officers is heightened by the prevalence of guns in the United States.

    For decades, however, it's been acknowledged that some police abuse their authority.

    In the 1960s the Supreme Court began to set certain national standards for policing by determining that evidence obtained illegally by the police in violation of the Fourth Amendment's protection against "unreasonable searches and seizures" may not be used against someone in a court of law, and by requiring police to inform detained criminal suspects of their constitutional right to an attorney and against self-incrimination (Mapp v. Ohio in 1961 and Miranda v. Arizona in 1966, respectively).

    For many police departments, permanent civilian review boards have been created to conduct external oversight, review complaints made against officers, and recommend disciplinary actions as a means of improving accountability. In some cases, special commissions have been created to investigate an entire department, such as the independent commission created after the police beating of Black motorist Rodney King in 1991.

    (That commission found a significant number of officers in the Los Angeles Police Department had repetitively used excessive force against the public, and that failure to control those officers was a management issue at the heart of the problem. Despite video evidence of the beating, the four officers charged with assault and excessive force against King were not found guilty in 1992, which sparked a week of rioting in Los Angeles.)

'Pattern or Practice' Investigations & Consent Decrees

    Also in response to the Rodney King beating and subsequent commission investigation of the L.A. police department, Congress as part of the 1994 crime bill (the Violent Crime Control and Law Enforcement Act) authorized the Justice Department to file civil lawsuits against local police departments where there is a "pattern or practice of conduct by law enforcement … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States."

    This authority (also known as Section 12601 authority) was intended to ensure that police departments where a pattern or practice of constitutional misconduct occurs will implement institutional reforms to ensure officers comply with individual rights established by the Constitution.

    According to CRS in a report this month, the Justice Department reported that as of 2017 it had opened 69 formal investigations in the law's history. Typically the department and targeted local police agency negotiate a court-approved settlement (a consent decree) that outlines steps for reform, which is monitored by the court. (For police departments with just minor problems, Justice may issue a court-enforceable "memorandum of agreement" or a "technical assistance" letter of voluntary recommendations.)

    During the Obama administration, 25 investigations were initiated and an estimated 15 or more consent decrees were reached, including against the Ferguson, Missouri, police department after Michael Brown was shot by police in 2014 and against the Baltimore police department after Freddie Gray died in police custody in 2015.

    During the Trump administration, however, then-Attorney General Jeff Sessions early in 2017 ordered a review of all existing consent decrees and during his last week in the job in November 2018 imposed strict limits on any new investigations, making it more difficult to enter into a consent decree. To date, the Trump administration has initiated just a single investigation, while seeking to back out of the consent decree with Baltimore.

21st Century Policing Task Force

    The Ferguson police shooting of Michael Brown also prompted President Obama in late 2014 to establish a Task Force on 21st Century Policing to identify best practices and offer recommendations on how policing practices can promote effective crime reduction while building public trust.

    The task force reported its final findings in May 2015 and made nearly 60 recommendations organized around six main topic areas (or "pillars"): building trust and legitimacy on both sides of the police/citizen divide, including by adopting a "guardian" rather than "warrior" mindset; establishing clear policies on policing that reflect community values with civilian oversight mechanisms; the use of technology and social media to improve policing practices and build community trust and legitimacy; strengthen community policing and crime reduction; bolster training and education of police officers, including with respect to implicit bias and cultural responsiveness and for dealing with individuals in crisis or living with mental disabilities; and enhance officer safety and wellness initiatives.

    With regard to the use of force by police, task force recommendations included the establishment of clear, concise policies on the use of force reinforced by officer training; officer training that emphasizes de-escalation and alternatives to arrest; the establishment of independent external investigators and prosecutors to handle cases of police use of force that results in death and any officer-involved shootings; and the collection of data on officer-involved shootings or in-custody deaths that must be reported to the federal government.

    While some of the task force's recommendations have been adopted by many of the nation's estimated 18,000 police departments, there is currently no centralized effort to further promote adoption of the recommendations.

Current Proposals

    In response to the nationwide calls for racial justice, House Democrats led by the Congressional Black Caucus along with Democratic Sens. Kamala Harris of California and Cory Booker of New Jersey assembled a wide-ranging bill with federal mandates they say will hold police accountable, end racial profiling and change the culture of law enforcement.

    Senate Republicans, meanwhile, drafted a much more narrowly tailored bill (S 3986) that addresses certain police practices and seeks to incentivize police departments to take certain actions. Unlike the House bill, it does not include explicit policies to prohibit racial profiling, provide for more aggressive investigations of police departments where misconduct may occur, or make it easier to prosecute or sue individual police officers who violate an individual's constitutional rights by using excessive force.

    President Trump on June 16 issued an Executive Order similar to the Senate GOP package, and he has expressed support for that bill and opposition to the Democratic bill.

Executive Summary of HR 7120

    This bill takes numerous actions intended to overhaul police departments and practices across the nation and end any racial profiling and the use of excessive force by police against minorities, and make police departments and individual officers more accountable.

    Among the measure's provisions, it requires enhanced training on the use of force (including by prohibiting the use of deadly force except "as a last resort"), requires detailed reporting of incidents in which force is used, provides for more vigorous investigations of police departments where misconduct may occur, and bars certain practices such as racial profiling and the use chokehold restraints. It also makes it easier to prosecute individual police officers for violating someone's constitutional rights and for private citizens to sue an officer who violated their rights.

    In most cases the bill's mandates and prohibitions apply just to federal law enforcement, with state and local police departments required to adopt the same standards in order to receive federal policing grants.

    The measure also includes language not associated with policing practices that makes lynching a federal hate crime.

Police Department Accountability

    The bill provides for the establishment of law enforcement accreditation standards based on President Obama's Taskforce on 21st Century policing, and it creates law enforcement development programs to develop policing best practices and improve police training, hiring and retention programs.

    To gain better insight regarding the policing practices of law enforcement, it requires all federal, state and local law enforcement agencies to regularly report to the Justice Department on specified police practices. And to ensure that federal, state and local law enforcement agencies don't hire officers with poor records or who were fired for misconduct by another police department, it requires the creation of a National Police Misconduct Registry.

    It requires the development of new use of force guidelines, generally prohibiting law enforcement use of deadly force except "as a last resort" — instead requiring officers to first attempt de-escalation techniques or other reasonable alternatives and to provide a verbal warning before using force. Certain types of "less lethal" force also would be restricted. It requires police departments to regularly provide to the Justice Department details on incidents in which the use of police force occurred.

    The measure also includes a number of provisions to strengthen investigations of possible police misconduct, including by bolstering the Justice Department's ability to conduct "pattern or practice" investigations of police departments and empowering state attorneys general to do the same, by supporting "independent" investigations and reviews of cases of police use of deadly force (including through civilian review board and independent prosecutors), and by creating a Justice Department task force to help coordinate investigation, prosecution and enforcement efforts.

Prohibited Practices

    The bill generally prohibits federal, state and local law enforcement agencies and officers from profiling individuals based on racial, religious and other discriminatory profiles, and allows individuals to sue for violations of that ban. It requires the development of training programs on racial bias, implicit bias and procedural justice for law enforcement officers, and creates for officers a clear "duty to intervene" when they witness another officer using excessive force against a civilian.

    To help the Justice Department identify whether law enforcement agencies are engaged in racial profiling or other discriminatory patterns in policing, all federal, state and local law enforcement agencies would be required to submit data regarding their policing activities.

    The measure also prohibits law enforcement officers from using chokeholds or carotid holds to restrain an individual, and it prohibits police departments from using no-knock warrants in drug cases.

Individual Officer Accountability

    The bill makes it easier to prosecute individual police officers for violating someone's constitutional rights and for private citizens to sue an officer who violated their rights.

    Specifically, it modifies the federal standard for criminally prosecuting police officers for violating an individual's constitutional or civil rights by changing the current standard from an officer being "willful" in his or her actions to "knowingly or with reckless disregard" depriving someone of a constitutional right.

    And it effectively eliminates the court-created legal doctrine of "qualified immunity" as it applies to civil lawsuits against police officers, which critics say now effectively acts as a nearly impenetrable shield from liability for police officers, regardless of how egregious their actions may have been.

    Finally, the measure also requires all federal uniformed police officers to wear body cameras and have dashboard cameras in all marked police vehicles, and it establishes protocols for the use and retention of body camera video. State and local governments that receive federal Byrne grants would be required to establish similar body camera protocols, and to use at least 5% of that federal funding for their body camera programs.

Section II

Police Department Accountability

    This section describes the provisions of HR 7120, the George Floyd Justice in Policing Act, that affect police departments.

    The bill seeks to ensure that federal law enforcement agencies and state and local police departments operate in a more accountable manner through the development of accreditation standards that promote accountability and the establishment of best practices, through the collection of detailed data on policing practices and creation of a national police officer misconduct registry, through the development of new use of force guidelines, and by requiring detailed reporting of incidents in which force is used.

    It also provides for more vigorous investigations of police departments where police misconduct may occur, including through Justice Department and state attorney general "pattern or practice" investigations, and through support for independent investigations such as through civilian review boards.

Police Accreditation & Management

    The bill provides for the establishment of law enforcement accreditation standards based on President Obama's Taskforce on 21st Century policing, and it creates law enforcement development programs to develop policing best practices and improve police training, hiring and retention programs.

    According to the committee, accreditation entities institutionalize best practices in the delivery of public safety services by establishing a professionalized set of policing standards that are developed by public safety practitioners and other experts, and which address core issues impacting community confidence while supporting police as an institution.

    In order to maintain accreditation, law enforcement agencies must voluntarily demonstrate that they meet established standards. Accredited police agencies must develop comprehensive, uniform directives linked to the accreditation standards, which are reinforced on an ongoing basis through data collection, onsite observation, agency reporting, community input, and public commission hearings — all of which promotes a culture of compliance and accountability within a police department.

Law Enforcement Accreditation

    Under the measure, the Justice Department must initially analyze existing law enforcement accreditation standards developed by law enforcement accreditation organizations nationwide, and then in consultation with law enforcement accreditation organizations and community-based organizations recommend additional standards that will result in greater community accountability of law enforcement agencies and an increased focus on policing with a "guardian" (rather than "warrior") mentality.

    At a minimum, the standards must include policies related to early warning systems and related intervention programs; use of force procedures; civilian review procedures; traffic and pedestrian stop and search procedures; data collection and transparency; administrative due process requirements; video monitoring technology; youth justice and school safety; and recruitment, hiring, and training.

    The Attorney General must partner with law enforcement accreditation organizations, professional law enforcement associations, labor organizations, community-based organizations, and professional civilian oversight organizations to encourage federal, state and local law enforcement agencies to become accredited by certified law enforcement accreditation organizations, as well to develop recommendations for a national accreditation that would be tied to eligibility for federal policing grants.

    State and local police departments would be required to use at least 5% of their annual federal Byrne policing grants to gain or maintain accreditation from certified accreditation organizations.

Promote Best Practices

    To further build trust and accountability with their local communities and reduce the risk of violent interactions, the bill creates two streams of funding to provide for the development of best practices in the management, training, recruiting, hiring and oversight of state and local police departments.

    Under the measure, state and local police departments must use at least another 5% of their annual Byrne grants to study and implement effective management, training, recruiting, hiring, and oversight standards as well as programs to promote effective community and problem solving strategies.

    It also authorizes $25 million in FY 2021 for grants to community-based organizations that would be used to work with police departments for the same purposes — as well as towards "effective strategies and solutions to public safety, including strategies that do not rely on Federal and local law enforcement agency responses."

    The bill requires that both sources of funding be used to study management and operations standards for police departments, including standards relating to administrative due process, residency requirements, compensation and benefits, use of force, racial profiling, early warning and intervention systems, youth justice, school safety, civilian review boards or analogous procedures, and other activities designed to address police misconduct.

    The funds must also be used for the development of pilot programs to improve police management and address police misconduct. Among other things, those pilot programs must address training standards to comply with accreditation standards regarding the use of deadly force, less lethal force, and de-escalation tactics and techniques, as well a department's recruitment, hiring, retention and promotion of a more diverse police force. The pilot programs also must address oversight, including through independent civilian review boards that have investigatory authority and subpoena power; youth justice and school safety activities; and victim services.

    The Justice Department must develop a monitoring program to oversee each program, with the department allowed to revoke or suspend a police department's Byrne grant if it determines the department is not in substantial compliance with program requirements.

Public Safety Innovation

    In addition to the use of grants to community-based organizations for alternative, non-police public safety initiatives (see above), the bill allows Byrne grants to be used for local task forces on public safety innovation that would be responsible for exploring and developing new strategies for public safety, including non-law enforcement strategies.

    The task forces would represent partnerships between community-based organizations and other local stakeholders, and would seek to "develop innovative law enforcement and non-law enforcement strategies to enhance just and equitable public safety, repair breaches of trust between law enforcement agencies and the community they pledge to serve, and enhance accountability of law enforcement officers."

    The committee in its report notes that police often must address public safety concerns that stem from other societal problems, such as the homeless and those with mental health conditions — which are often the basis for police encounters that escalate to the use of force or turn deadly. Numerous community groups have proposed strengthening community resources as a means of better addressing such concerns.

    Meanwhile, to better connect local police departments to the communities they serve, the bill allows federal COPS grant program funding to be used for the recruitment, hiring, and training of new or additional police officers who are willing to relocate and live in the communities they serve.

    COPS funding could also be used for data collection on the number of law enforcement officers who are willing to relocate to the communities where they serve, and to develop and publicly report strategies and timelines to recruit, hire and train a diverse and inclusive law enforcement workforce.

Data on Policing Practices

    To gain better insight regarding the policing practices of law enforcement, the bill requires all federal, state and local law enforcement agencies to regularly report to the Justice Department on specified police practices. States that fail to report this data could lose federal policing funding.

    Specifically, police departments must report on all traffic violation stops, pedestrian stops, first and body searches, and all instances in which the police used deadly force — including where and when the deadly force was used, and whether it resulted in death. The information provided must include a breakdown in each activity by race, ethnicity, age, and gender of the officers and members of the public that were involved.

Police Officer Misconduct Registry

    To ensure that federal, state and local law enforcement agencies don't hire officers with poor records or who were fired for misconduct by another police department, the Justice Department must create a National Police Misconduct Registry that includes all misconduct complaints (including pending, sustained and exonerated complaints) as well as discipline, termination and certification records of police officers. It must also include all records of lawsuits against law enforcement officers and settlements of those lawsuits.

    Under the measure, all complaints, discipline records, and termination records must be disaggregated by whether a complaint involved use of force or racial profiling.

    All federal agencies must initially report the information within a year of enactment, and then every six months thereafter, and states that receive Byrne grant funding must also provide updated information to the registry regarding the state and each local police department in the state every six months. The registry must be available to the public on the internet, with the ability to search an individual law enforcement officer’s misconduct records.

    State and local governments that receive Byrne grant funding would be required to submit to the Justice Department evidence that they have in place a program to certify or decertify law enforcement officers. They also must annually submit to the Registry records demonstrating that all their law enforcement officers completed state certification requirements in the prior year, in order for the police department to receive Byrne grants.

Other Provisions

    The bill requires the Justice Department study the prevalence and effect of laws, rules, and procedures that allow a law enforcement officer to delay responding to questions by police internal affairs officers or a review board regarding possible misconduct.

    It also authorizes an additional $3 million for FY 2021 for conflict resolution activities within the Justice Department's Community Relations Service, which mediates disputes within communities where there are actual or perceived conflicts with respect to race, color, national origin, gender, gender identity, sexual orientation, religion, or disability. The agency works with all parties to develop solutions to conflict and serves as a neutral party.

Use of Force Rules

    The bill generally prohibits law enforcement use of deadly force except "as a last resort" — instead requiring officers to first attempt de-escalation techniques or other reasonable alternatives and to provide a verbal warning before using force. Certain types of "less lethal" force also would be restricted.

    When feasible, law enforcement officers must identify themselves as a law enforcement officer and give a verbal warning prior to using force. The warning must include a request that the suspect surrender and notify the person that the officer will use force if the person resists arrest or flees.

    These use of force restrictions would be set by law for federal law enforcement officers, and state and local law enforcement would not be eligible for Byrne grants unless they adopted the same standards.

New Use of Force Standards

    Over the years, the Supreme Court has established constitutional standards regarding police use of force and deadly force. Generally, all uses of force must be "objectively reasonable" based on the totality of the circumstances viewed through the lens of the officer in the field who must make split-second decisions in dangerous situations; they have not been required to use the least intrusive means of force.

    Under the measure, deadly force could be used only if necessary as a last resort to prevent imminent and serious bodily injury, the use of such force does not create a substantial risk of injury to a third party, and reasonable alternatives have been exhausted. Less lethal force, meanwhile, could be used only if necessary and proportional in order to make an arrest of an individual the officer has probable cause to believe has committed a crime, and reasonable alternatives to the less lethal force have been exhausted.

    Reasonable alternatives are defined by the bill as verbal communication, distance, warnings, de-escalation tactics and techniques, tactical repositioning, and other tactics and techniques intended to stabilize the situation and reduce the immediacy of the risk so that more time, options, and resources can be called upon to resolve the situation without the use of force. With respect to the use of deadly force, a "reasonable alternative" would include the use of less lethal force.

    The department must issue guidance to federal law enforcement agencies on types of less lethal and deadly force that are prohibited, and how an officer can assess whether use of force is appropriate and necessary — and use the least amount of force depending upon the situation.

Use of Force Reporting

    To get a fuller picture of the extent to which police departments use force, and how they use force and against whom, the bill requires federal law enforcement agencies and states that receive Byrne grants to provide details every three months to the Justice Department on incidents in which the use of police force occurred, including the shooting of law enforcement officers by civilians.

    The committee in its report notes that accurate and comprehensive data regarding police use of force is generally not available to police departments or the public, and that no comprehensive national database exists that captures rates of use of force. There currently is no mandatory reporting requirement.

    Under the measure, information that must be provided includes the gender, race, ethnicity and age of each individual who was shot, injured or killed; whether the individual was armed and the type of weapon; the type of force used against the individual and the reason force was used; and the number of officers and civilians involved. Also to be provided is a description of the circumstances surrounding the incident; when and where it occurred, including whether in a school zone or in a jurisdiction that allows for open-carry or concealed-carry of firearms; and any death in custody.

    Each law enforcement agency reporting use-of-force data must maintain records for at least four years, and must conduct an annual audit of its use-of-force incident reporting system and submit a report on the audit to the Justice Department. Police departments that fail to complete and submit the audit would have their Byrne grant funds reduced by 10%, with those funds being reallocated to police departments that did comply.

    The Justice Department would be required to produce a report based on the data collected, and must guidance on best practices for collecting the required data. It also must make grants to certain local law enforcement agencies (those with fewer than 100 officers) to cover the costs of the data reporting requirements, public awareness campaigns on use of force by or against law enforcement officers, and use of force training for law enforcement agencies and personnel.

Misconduct Investigations

    The bill includes a number of provisions to strengthen investigations of possible police misconduct, including by bolstering "pattern or practice" investigations, supporting "independent" investigations, and creating a Justice Department task force to help coordinate investigation, prosecution and enforcement efforts.

'Pattern or Practice' Investigations

    The bill authorizes the Justice Department to issue subpoenas when conducting "pattern or practice" investigations of law enforcement agencies for possible violations of the constitutional rights of individuals (such as for cases of unnecessary force), and it makes explicit the authority to conduct pattern and practice investigations for possible misconduct by local prosecutors.

    The 1994 Violent Crime Control and Law Enforcement Act authorized the Justice Department to file civil lawsuits against local police departments where there is a "pattern or practice of conduct by law enforcement … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." Specifically, the department may seek equitable or declaratory relief when it has "reasonable cause to believe" that such a pattern of constitutional violation has occurred.

    This authority is intended to get police departments where a pattern or practice of constitutional misconduct occurs to implement institutional reforms, and ensure that officers comply with individual rights established by the Constitution — typically through a court-approved settlement (a consent decree) that is monitored by the court.

     The department's first "pattern and practice" suit targeted the Los Angeles Police Department in response to the 1991 beating of Black motorist Rodney King by L.A. police officers and other incidents of violence against minorities, and that authority was regularly used by the Clinton, Bush and Obama administrations — but has been effectively curtailed by the Trump administration which has initiated just a single investigation (compared to 25 under Obama).

    Under the bill, the Justice Department could issue subpoenas for all information, documents, reports, answers, records, accounts, papers, and other data that may be relevant to its pattern and practice investigation of a police department. The department, acting through the Civil Rights Division, must annually report on the number of investigations that began or were resolved during the prior year, and the status of pending investigations. The bill authorizes an additional $25 million for FY 2021 for departmental pattern and practice investigations and associated activities.

    The measure also grants state attorneys general the same subpoena power and allows them to conduct their own pattern and practice investigations, and it authorizes $100 million a year through FY 2023 for grants to state attorneys general to support such investigations. In addition to police departments, state attorneys general could also conduct pattern or practice investigations of misconduct by officials or employees of any governmental agency responsible for administering juvenile justice or the incarceration of juveniles.

Independent Investigations

    The bill authorizes $750 million a year through FY 2023 to support "independent" reviews of cases of police use of deadly force, including officer-involved shootings that result in injury or death.

    Under the measure, such reviews may include using an agency or civilian review board to independently review all allegations in a case, assigning the state attorney general or an independent prosecutor to investigate the case, or allowing other law enforcement agencies perform an investigation.

    States and localities would be allowed to use their federal COPS Act funding to create civilian review boards to independently investigate charges of police misconduct.

Task Force on Law Enforcement Oversight

    The bill creates a task force within the Justice Department, known as the "Task Force on Law Enforcement Oversight," to coordinate the process of the detection and referral of complaints regarding incidents of alleged law enforcement misconduct.

    The task force is to be comprised of at least 11 current employees of the Justice Department and must consult with professional law enforcement associations, labor organizations, and community-based organizations to coordinate the process of detecting and referring of complaints regarding incidents of alleged law enforcement misconduct.

    The measure authorizes $5 million a year for the task force.

Military Equipment

    The bill limits the transfer of military equipment to state and local law enforcement agencies, which under the Pentagon's so-called "1033" program currently allows the transfer of excess Defense Department equipment to federal, state and local law enforcement agencies to assist with counterterrorism, counter-drug and border security activities.

    Specifically, the measure limits the program to only the transfer of equipment for counterterrorism activities, it requires that such equipment be specifically requested with the approval of the city council or other local governing body, and it prohibits the transfer of specified equipment.

    Prohibited items include controlled firearms, ammunition, grenade launchers, grenades, and explosives; controlled vehicles, trucks, highly mobile multi-wheeled vehicles, mine-resistant ambush-protected vehicles; drones; controlled aircraft that are combat configured or have no commercial use; silencers; and long-range acoustic devices.

    The measure provides that the program may continue only if the Defense Department annually certifies to Congress that each participating law enforcement agency has demonstrated complete accountability for all transferred property, and also certifies that certain other accountability actions have been taken. No recipient agency would be allowed to take ownership of property transferred under the surplus military property program.

    The Pentagon also must annually report to Congress on the property to be transferred, with a certification that the transfer will not be unlawful.

    In the wake of racial unrest in Ferguson, Mo., after Michael Brown was shot by police in 2014, critics argued that local police overreacted with the deployment of heavily armored military vehicles they had acquired through the program. President Obama subsequently issued an Executive Order directing an interagency group to develop guidelines for the program and impose certain limitations, but that Executive Order was revoked by President Trump in 2017 and many of the accountability orders that had been put in place were lifted. As of June 2020, there are around 8,200 federal, state and local law enforcement agencies from 49 states and four U.S. territories participating in the program.

Section III

Prohibited Practices

    This section describes the provisions of HR 7120, George Floyd Justice in Policing Act, that prohibit certain police practices.

    Specifically, the measure bars certain police practices — including any racial profiling, chokehold restraints and no-knock warrants in drug cases — as described further below. It also generally requires law enforcement officers to intervene when they see another officer using excessive force against a civilian.

    In general, the prohibitions and requirements would be set in law for federal law enforcement, while state and local law enforcement would not be eligible for certain federal police assistance aid unless they adopt similar prohibitions.

    The bill also includes language not associated with policing practices that makes lynching a federal hate crime.

Racial Profiling

    The bill generally prohibits federal, state and local law enforcement agencies and officers from profiling individuals based on racial, religious and other discriminatory profiles, and it requires law enforcement agencies to provide training to officers with respect to how to prevent and avoid such profiling.

    Racial profiling is defined as any reliance by law enforcement on a person's "actual or perceived race, ethnicity, national origin, religion, gender, gender identity, or sexual orientation" in making decisions with respect to law enforcement activity.

     Under the measure, both individuals subject to such profiling and the Justice Department would be authorized to sue a police department, individual officer or supervisor for declaratory or injunctive relief in state or federal court for violations of the prohibition, and evidence that the actions of law enforcement in a jurisdiction has had a disparate impact on individuals with the above described characteristics would constitute prima facie evidence of a violation. Courts could allow for the payment of attorneys fees for individuals who bring such legal action.

    The prohibition on profiling and requirement for training would be set by law for federal agencies and officers, while state and local law enforcement would be eligible for federal Byrne grant funding and COPS funding only if they adopt similar policies and establish best practices to discourage profiling.

Federal Law Enforcement

    The bill requires federal law enforcement agencies to maintain policies and procedures to eliminate racial profiling, as well as to cease existing practices that permit racial profiling.

    The policies must specifically prohibit racial profiling, require the agency’s training to include specific training with respect to racial profiling, and include procedures for investigating and meaningfully responding to complaints of racial profiling by the agency’s federal law enforcement agents.

    The Justice Department also must create a training program on racial bias, implicit bias and procedural justice for federal law enforcement agents — and it creates for federal agents a clear "duty to intervene" when a law enforcement officer witnesses another officer using excessive force against a civilian — which also must be part of the training program.

    This training would be mandatory for federal law enforcement officers, with the availability of Byrne grants to state and local police departments being dependent on their police receiving the same training.

State & Local Law Enforcement

    The bill requires state and local law enforcement, in order to receive federal Byrne grant funding or most forms of COPS funding, to have in place similar policies that prohibit racial profiling and requiring training, and to have eliminated any existing practices that permit or encourage racial profiling.

    State and local law enforcement must use 10% of their Byrne grant funding to develop and implement best practices to eliminate racial profiling — including training, the development and acquisition of feedback systems and technologies that identify law enforcement units or officers engaged in (or at risk of engaging in) racial profiling or other misconduct, and the operation of complaint systems.

    The Justice Department, meanwhile, must issue regulations requiring all law enforcement agencies to establish procedures for receiving, investigating and responding to complaints of racial profiling, as well independent audit programs to ensure those mechanisms provide an appropriate response to allegations of racial profiling. The regulations, which must be developed in consultation with federal, state and local law enforcement agencies and community, professional, research, and civil rights organizations, must create a means for private parties to present evidence that a law enforcement agency is not in compliance.

Data Collection & Reporting Requirements

    To help the Justice Department identify whether any law enforcement agencies are engaged in racial profiling or other discriminatory patterns in policing, the bill requires all federal, state and local law enforcement agencies to provide to the department data regarding its policing activities.

    Specifically, law enforcement agencies and police departments must provide detailed information regarding their "routine and spontaneous investigatory activities," including interviews, traffic stops, pedestrian stops, and frisk and body searches — with the information to be broken down by race, ethnicity, national origin, gender and religion and to include the date, time, and location of the investigatory activity. Law enforcement agencies and police departments must maintain the data for at least four years.

    The Justice Department's Bureau of Justice Statistics would subsequently analyze the data for any statistically significant disparities that are indicative of possible racial profiling, and within three years must being issuing annual reports of its findings. The underlying data, scrubbed of any information that would identify individuals, must be publicly posted by the bureau.

    The bill also provides for a pilot program under which up to five police departments would provide data regarding their "hit rates" when engaged in investigatory activities (i.e., the percentage of stops and searches that yield contraband). The bill authorizes $5 million to conduct those data collection efforts, as well as $500,000 for the Justice Department to analyze the data.

    Finally, within two years of enactment, the Justice Department must begin issuing annual reports on racial profiling by law enforcement agencies. The report must include a summary of data collected, the status of federal, state and local policies to eliminate racial profiling, and a description of any other policies the attorney general believes would facilitate the elimination of racial profiling.

Chokeholds

    The bill prohibits federal law enforcement officers from using chokeholds or carotid holds to restrain an individual, and it withholds Byrne grant funding and COPS funding to state and local police unless state or local laws are enacted to prohibit the practice.

    A chokehold or carotid hold is defined as the application of any pressure to the throat or windpipe, the use of maneuvers that restrict blood or oxygen flow to the brain, or carotid artery restraints that prevent or hinder breathing or reduce an individual's air intake.

    The measure also amends civil rights law to makes chokeholds and carotid holds a federal civil violation by classifying maneuvers that restrict blood or oxygen flow to the brain, or prevent or hinder breathing or air intake, as "a punishment, pain, or penalty" imposed on someone that is punishable under criminal law.

    It was such restraint maneuvers that killed George Floyd in May and Eric Garner by New York police in 2014. The committee in its report notes that because chokeholds are inherently dangerous, police departments in numerous cities already prohibit them, including New York, Atlanta and Miami.

No-Knock Warrants

    The bill bans all no-knock warrants in drug cases at the federal level, and it withholds federal COPS program funding from state and local police unless state or local laws are enacted to prohibit no-knock warrants.

    A no-knock warrant is a search warrant authorizing police officers to enter certain premises without first knocking and announcing their presence prior to entering. They are an exception from the Fourth Amendment's "knock and announce" rule which normally requires law enforcement officers to first knock, identify themselves and their intent, and wait a reasonable amount of time for the occupants to let them in.

    They usually are issued where entry with a prior announcement could compromise safety or result in destruction of objects they are seeking, and to obtain a no-knock warrant law enforcement must show to the court that providing notice may be dangerous, futile, or result in the destruction of evidence. The committee notes that no-knock warrants are primarily used in drug investigations, and typically justified by the belief that offenders will destroy drugs.

    Critics argue that no knock warrants are inherently dangerous as occupants are more likely to use weapons to try to defend themselves when police burst into people's houses unannounced, and that innocent children, bystanders and others have&