In May and June 2020, protests erupted nationwide after the publication of video footage of a Minneapolis police officer pressing his knee into the neck of George Floyd, causing his death. That incident and others like it sparked heightened interest in Congress's ability to implement reforms of state and local law enforcement. More recently, the January 2023 death of Tyre Nichols after a beating by Memphis police officers prompted renewed calls for law enforcement reform. A companion to this Legal Sidebar provides an overview of existing federal authorities intended to prevent and redress constitutional violations by state and local public safety officials. This Sidebar presents selected recent proposals related to federal regulation of federal, state, and local law enforcement, including an overview of two comprehensive law enforcement reform bills from the 117th Congress, the George Floyd Justice in Policing Act of 2021 and the Just and Unifying Solutions To Invigorate Communities Everywhere Act of 2021 (JUSTICE Act).
Proposals for Law Enforcement Reform in Congress
Before the high-profile events of May and June 2020, commentators and legislators had suggested various avenues for congressional reform and oversight of federal, state, and local law enforcement. Events since May 2020 have prompted additional proposals, including bills that would target specific issues and comprehensive proposals that would alter federal regulation of law enforcement on many fronts.
Qualified Immunity
One topic that has generated significant debate in recent years is the doctrine of qualified immunity, which limits the liability of federal law enforcement officers in suits under Bivens v. Six Unknown Federal Narcotics Agents and state and local law enforcement officers in suits under 42 U.S.C. § 1983 (Section 1983). A May 2020 report by Reuters found that "since 2005, the [federal appellate] courts have shown an increasing tendency to grant immunity in excessive force cases." Critics of qualified immunity assert that the flexibility the Supreme Court provided to courts in Pearson v. Callahan improperly hinders Section 1983 claims. That decision allows courts in some cases to consider only whether a defendant violated clearly established law, without reaching the question of whether the defendant violated the plaintiff's rights. Critics therefore assert that not only is it difficult for plaintiffs to overcome a claim of qualified immunity, but such cases will also not clearly establish law that could govern future Section 1983 cases. Some commentators assert that the current doctrine of qualified immunity fails to protect law enforcement officers from suit. Others defend the doctrine or favor limited judicial reforms, seeking to preserve police officers' ability to make split-second decisions about the use of force, for example, while requiring courts to take seriously the constitutional questions that plaintiffs raise.
Qualified immunity arises from the Supreme Court's interpretation of Section 1983. Thus, either the Court or Congress could modify the doctrine, and some legal scholars have called on both branches to address the issue. The Court has considered multiple petitions for certiorari raising challenges to qualified immunity, and Justice Thomas and Justice Sotomayor have both expressed concerns about the doctrine.
On the legislative side, the Ending Qualified Immunity Act, introduced in June 2020 and reintroduced during the 117th Congress, would have "remove[d] the defense of qualified immunity." Another proposal from the 116th Congress that sought to remove barriers to Section 1983 liability was the Reforming Qualified Immunity Act, which would have changed the burden of proof in Section 1983 cases in plaintiffs' favor and would have made it easier to establish liability against municipalities and local governments. A proposal from the 117th Congress entitled the Constitutional Accountability Act would have rendered federal, state, and local governments civilly liable for constitutional violations by law enforcement officers in their employment, "without regard to whether such employee or contractor would be immune from liability, and without regard to whether the employee or contractor was acting pursuant to a policy or custom" of the employer. The Accountability for Federal Law Enforcement Act would have imposed similar liability on the federal government only.
In contrast to proposals that would limit qualified immunity, other recent legislation sought to maintain or expand the doctrine. The Qualified Immunity Act of 2021 would have amended Section 1983 "to codify the defense of qualified immunity." The Local Law Enforcement Protection Act of 2021 would have required states that receive certain federal funds to have in place laws that "provide robust qualified immunity to law enforcement officers."
Criminal Liability
While changes to the doctrine of qualified immunity could alter civil liability for law enforcement officers, other recent proposals aimed to expand criminal liability for civil rights violations by officers under 18 U.S.C. § 241 (Section 241) and 18 U.S.C. § 242 (Section 242). For example, the Eric Garner Excessive Use of Force Prevention Act of 2021 would have amended Section 242 to provide explicitly that "the application of any pressure to the throat or windpipe which may prevent or hinder breathing or reduce intake of air is a punishment" that may not be imposed on a racially disparate basis. The Police Accountability Act of 2020, introduced during the 116th Congress, would have provided a federal criminal penalty for assault or homicide committed by certain state or local law enforcement officers. Some commentators also advocate removing the specific intent requirement for Sections 241 and 242 that the Supreme Court announced in Screws v. United States and United States v. Guest.
Limitations on Transfer of Military-Grade Equipment
Under a federal program known as the 1033 Program, the federal government transfers certain excess military equipment to state and local law enforcement agencies. Some commentators contend that this equipment contributes to militarization of police forces without increasing public safety and increases the risk of incidents of excessive force. The 1033 Program is authorized by statute, so Congress has the power to alter or discontinue the program. In 2021, Congress enacted the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 which, among other things, prohibited transfer through the 1033 Program of bayonets, grenades, weaponized tracked combat vehicles, and weaponized drones. In February 2022, some Members of Congress urged President Biden to limit the program further. President Biden's May 2022 executive order related to law enforcement reform directed relevant federal agencies to limit certain transfers under the 1033 Program to the extent authorized by law. One proposal introduced in the 116th and 117th Congresses, the Stop Militarizing Law Enforcement Act, would have imposed statutory limitations and reporting requirements on the 1033 Program.
Grants and Conditions on Federal Funds
Numerous recent proposals would have invoked the Spending Clause in an effort to regulate state and local law enforcement activities. Some proposals would have funded voluntary state and local measures, such as use-of-force and bias awareness training or body cameras. Other proposals would have required states to enact certain policies in exchange for federal grants. For instance, the Police Training and Independent Review Act of 2021 would have funded training on cultural diversity and de-escalation tactics while requiring participating states to "enact laws requiring the independent investigation and prosecution of the use of deadly force by law enforcement officers." The Preventing Tragedies Between Police and Communities Act of 2021 would have obliged recipients of funds under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program to mandate training on ways to reduce the use of force. The Police Exercising Absolute Care With Everyone Act of 2022 (PEACE Act) would have required Byrne JAG grantees to enact laws limiting the use of lethal and less-than-lethal force by law enforcement. The Next Step Act of 2019 would have, among other things, directed Byrne JAG grant recipients to submit reports to the Attorney General on officers' use of force.
Comprehensive Reform Efforts
On June 8, 2020, Members of the 116th Congress, led by the Congressional Black Caucus, presented the Justice in Policing Act of 2020. Later renamed the George Floyd Justice in Policing Act, the bill passed the House in 2020 and 2021. On June 17, 2020, Senate Republicans unveiled the JUSTICE Act of 2020. Both proposals sought to reform multiple facets of federal, state, and local law enforcement, and each of them included some proposals discussed above that had also been introduced separately. An earlier Legal Sidebar compared 2020 versions of the two proposals in detail. Both bills were reintroduced with limited changes in 2021 during the 117th Congress. This section summarizes key provisions of the two 2021 bills.
George Floyd Justice in Policing Act of 2021
The Justice in Policing Act as passed by the House in the 117th Congress included the following provisions:
JUSTICE Act of 2021
The version of the JUSTICE Act introduced in the House in the 117th Congress included the following provisions: