On June 8, 2020, the House of Representatives introduced the Justice in Policing Act of 2020 (hereinafter “the Act” or “the bill”) to “hold law enforcement accountable for misconduct in court, improve transparency through data collection, and reform police training and policies.”  We anticipate a House committee markup the week of June 15 and a House floor vote on the bill by the end of June.

Meanwhile, the House Judiciary Committee held a hearing June 10, 2020 titled “Oversight Hearing on Policing Practices and Law Enforcement Accountability,” and the Senate Judiciary Committee has scheduled a hearing titled “Police Use of Force and Community Relations” for Tuesday, June 16.

The House bill addresses three key areas of reform:  accountability, transparency, and training.  These key aspects of the bill are summarized below.  We anticipate Sections 101, 102, and 362 to be controversial and may have difficulty passing as currently drafted.  We will update this initial analysis as necessary.

• Accountability—Title I of the Act seeks to hold police misconduct accountable by:
  • Lowering the Intent Standard of 18 U.S.C. Section 242 (Section 101). Existing statutory language included in the federal criminal statute used to prosecute police misconduct (18 U.S.C. Section 242) makes it difficult to hold police officers accountable for excessive force that results in death because a jury must agree that the acts in question were done willfully and that the death in question resulted from the willful acts.  Between 2005 and 2019, 101 police officers were charged with murder or manslaughter in connection with an on-duty fatal shooting, and only 35% of those cases resulted in convictions, often for a lesser offense.  See John Eligon, A Black Officer, a White Woman, a Rare Murder Conviction.  Is It ‘Hypocrisy,’ or Justice?, N.Y. Times (May 3, 2019), https://www.nytimes.com/2019/05/03/us/mohamed-noor-guilty.html. Therefore, the Act seeks to lower the mens rea or intent standard from “willfully” to “knowingly or with reckless disregard.”  The bill also seeks to further define the statutory language of “if death results from the acts” by clarifying that “an act shall be considered to be death resulting if the act was a substantial factor contributing to the death of the person.”  We anticipate Section 101 will be one of the most controversial aspects of the Act.  This is primarily because 18 U.S.C. Section 242 is applicable to a host of officials beyond police officers—including judges, care providers in public health facilities, federal law enforcement officials, and others who act as public officials.  Opponents will argue these amendments are too broad, criminalizing a wide swath of new conduct unrelated to police misconduct.  For these reasons, Section 101 is unlikely to gain bipartisan support.
  • Modifying Qualified Immunity (Section 102). When an individual’s constitutional rights have been found to be violated by a police officer, the individual is typically unable to recover damages because courts interpret the principle of qualified immunity included in 42 U.S.C. 1983 (“Section 1983”) as barring such recovery.  The Act amends Section 1983 by clarifying that neither a “good faith” belief that an act was lawful, nor the argument that the constitutional rights at issue were not clearly established at the time, shall be a defense or provide immunity.  We anticipate that most police unions will vigorously oppose Section 102.  Opponents will argue that this alteration will result in police departments and individual officers spending exorbitant amounts of time and money to defend themselves against frivolous claims.  This provision is unlikely to gain bipartisan support.
  • Expanding Pattern and Practice Investigations (Section 103). The Civil Rights Division at the Department of Justice typically conducts pattern and practice investigations of law enforcement bodies alleged to be routinely or systemically violating citizens’ constitutional rights.  The Act seeks to expand the effectiveness of pattern and practice investigations by granting the U.S. Attorney General subpoena power to conduct such investigations, while also creating a grant program that would provide state attorneys general the resources necessary to conduct pattern and practice investigations.  Section 103 may gain bipartisan support.
  • Incentivizing State and Local Authorities to Conduct Independent Investigations (Section 104). State and local authorities often lack the resources to address allegations of excessive use of force that result in deaths.  The Act authorizes $750 million to be appropriated to a grant program that state attorneys general may access after enacting an independent prosecution of law enforcement statute.  Section 104 may gain bipartisan support.
  • Promoting Best Practices through the Law Enforcement Trust and Integrity Act (Title I, Subtitle B, Sections 111–118). There are nearly 18,000 police departments in the United States, but there is no universally recognized set of best practices of policing.  Subtitle B seeks to address this by requiring the U.S. Attorney General to create an accreditation standard based on the Obama Administration’s 21^st Century Policing Taskforce’s final report, among other efforts.  Subtitle B may gain bipartisan support.
• Transparency—Title II of the Act seeks to increase transparency in data by:
  • Establishing a National Police Misconduct Registry (Section 201) and Requiring Submission of Certification Requirement (Section 202). Today, when officers are disciplined or fired by one agency or police department for problematic behavior, they are sometimes rehired by another department or agency in another jurisdiction.  The Act seeks to enhance accountability of police officers by creating a federal registry that would track misconduct complaints, discipline and termination records, and certifications.  States that do not submit records demonstrating their officers are properly certified will not be eligible to receive funds under certain grant programs.  Section 201 and 202 may gain bipartisan support.
  • Enhancing Reporting Requirements of States to DOJ (Title II, Subtitle B, Sections 221–227). In an effort to realize more transparency and data collection, Subtitle B mandates state and local law enforcement agencies to report all use of force incidents, including the national origin, sex, race, ethnicity, age, disability, English language proficiency, and housing status of each civilian against whom force was used.  The bill authorizes technical assistance grants to ensure compliance with the Act for agencies with fewer than 100 employees.  This Subtitle may gain bipartisan support.
• Training—Title III of the Act seeks to improve police training and policies, with a focus on ending racial and religious profiling, by:
  • Prohibiting Racial Profiling (Title III, Parts I–V). The Act (Section 311–312) seeks to discourage racial, religious, and discriminatory profiling in law enforcement by creating a cause of action for declaratory or injunctive relief for individuals injured by racial profiling.  Section 321 requires federal law enforcement agencies to maintain policies and procedures designed to eliminate racial profiling.  In summary, parts III–V of Title III standardize data collection, establish conditions for federal funding available to state and local agencies based on their implementation of policies and practices designed to eliminate racial profiling, and requires the U.S. Attorney General to report on data related to racial profiling and efforts to combat it.  Parts I–V may gain bipartisan support.
  • Training on Racial Bias and the Duty to Intervene (Section 361). The Act requires the Attorney General to establish a training program that covers racial profiling, implicit bias, and procedural justice.  The bill mandates such training at the federal level and conditions federal funding for states and local agencies on implementation of such trainings.  Section 361 may gain bipartisan support.
  • Banning No-Knock Warrants (Section 362). No-knock warrants are when a law enforcement officer enters a property without announcing his or her presence or intention to enter.  The bill bans no-knock warrants in federal drug cases and conditions funding for state and local agencies on implementing a ban of such warrants.  This section will be portrayed as a threat to officer safety.  Opponents of this provision will also argue that federal drug cases are more focused on high-volume trafficking and violent drug trafficking organizations, where the execution of a no-knock warrant is even more important to officer safety.  We expect opponents to provide data and anecdotes with regard to instances where no-knock warrants saved lives, where knock warrants led to officer deaths, and examples of how knock warrants in drug cases led to destruction of evidence.  Section 362 is unlikely to gain bipartisan support.
  • Banning Chokeholds and Carotid Holds (Section 363). The use of chokeholds has been a controversial issue for decades.  The bill bans the use of chokeholds and carotid holds at the federal level, and conditions state and local agency funding on prohibiting the use of such restraints.  Section 363 may gain bipartisan support.
  • Changing the Use of Force Standard through the Peace Act (Section 364). The Peace Act alters the standard to evaluate use of force from whether the force was reasonable to whether it was necessary.  “Necessary” means that “another reasonable Federal law enforcement officer would objectively conclude, under the totality of the circumstances, that there was no reasonable alternative to the use of force.”  Section 364 may gain bipartisan support.
  • Reducing the Militarization of the Police (Section 365). Today, federal, state, and local law enforcement agencies are able to acquire free “military-grade” weapons from the Department of Defense.  More than $6.8 billion worth of such weapons have been transferred to non-military agencies over time, with more than $500 million being transferred in Fiscal Year 2017.  The Act seeks to limit the transfer of military-grade weapons to local law enforcement through enhanced regulations.  Section 365 may gain bipartisan support.
  • Requiring Body and Dashboard Cameras (Subtitle C). The proliferation of camera footage—often from civilian phones—has revealed certain abuses that otherwise may have been covered up or disputed factually.  The Act requires federal uniformed police to wear body cameras and marked federal police vehicles to have dashboard cameras.  The bill requires state and local jurisdictions to use existing federal funds to ensure the use of police body cameras.  The Act also commissions a Government Accountability Office study on federal police officer’s training, vehicle pursuits, and the use of force interactions with the public.  Subtitle C may gain bipartisan support.
• Finally, Title IV of the bill makes it a federal crime to conspire to violate existing hate crime laws. Title IV is likely to gain bipartisan support.