D.C. Watch: Congress Negotiates Police Reform Bill, Qualified Immunity

August 27, 2021

Legislative News

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Congress Negotiates Police Reform Bill, Qualified Immunity

Since the summer of 2020, there has been a bipartisan effort in Congress to pass comprehensive policing reform legislation addressing many of the concerns expressed by reform advocates. In reaction to the death of Minneapolis resident George Floyd, reform advocates called for legislation requiring officers to intervene when another officer is perceived to be using excessive force and to render first aid to individuals in need of medical care, banning chokeholds and similar neck restraints, and ending qualified immunity protections.

U.S. Sens. Tim Scott (R-South Carolina) and Cory Booker (D-New Jersey) and U.S. Rep. Karen Bass (D-California) have acted as lead negotiators between the House and Senate on these reforms. As the more than yearlong negotiations have progressed, the issue of qualified immunity has been the point of greatest contention between the parties.

Qualified immunity is a legal protection for government officials, providing immunity from civil suits unless the plaintiff shows that the official acted in violation of “clearly established statutory or constitutional rights” that the official should have reasonably been expected to know. The doctrine of qualified immunity originated from a 1967 U.S. Supreme Court decision, Pierson v. Ray, which held that a police officer should be excused from liability when he acted under a statute that he reasonably believed to be valid, but that later may have been held unconstitutional. Today’s commonly-accepted standard of requiring the person to meet the standard of reasonable knowledge that an action would violate clearly established statutory or constitutional rights has been in place since 1982 after another Supreme Court case, Harlow v. Fitzgerald.

In March, the U.S. House passed HR 1280 along party lines. The measure lowered the criminal intent standard — from willful to knowing or reckless — to convict a law enforcement officer for misconduct in a federal prosecution, limited qualified immunity as a defense to liability in a private civil action against a law enforcement officer and granted administrative subpoena power to the Department of Justice in pattern-or-practice investigations. The bill has not received a hearing in the Senate. While the Democratic majority in the House was enough to pass HR 1280, any bill not passed by budget reconciliation in the Senate will require a 60-vote majority as long as the filibuster remains intact. The product of the Scott, Booker and Bass negotiations is expected before the winter break.

The Texas Legislature passed similar legislation during the 87th regular session. New laws relating to an officer’s duty to render first aid and to intervene in incidents of excessive force and a situational ban on the use of chokeholds and neck restraints will take effect on Sept. 1. Restriction or elimination of qualified immunity failed to pass either chamber.

Senate Passes $4.5 Trillion Infrastructure Bills; House Vote Pending

In early August, the Senate passed the $1 trillion bipartisan Infrastructure Investment and Jobs Act (IIJA) in a 69-30 vote, closely followed by a $3.5 trillion budget reconciliation resolution, bypassing the Senate’s filibuster rules, and focusing on “soft” infrastructure projects.

The IIJA proposes more than $550 billion in new spending on roads, bridges, broadband internet, water pipes and other public works systems. That $550 billion is split into two main areas of expenditures: $284 billion for all modes of transportation and $266 billion for other infrastructure sectors such as water ($55 billion), broadband ($65 billion), energy and power ($73 billion), environmental remediation ($21 billion), Western U.S. water infrastructure ($8.3 billion), and resiliency projects ($46 billion). The plan is expected to be paid for by federal fees, service charges and auctions, new reporting requirements on cryptocurrency, repurposed COVID-19 relief funds, recouping fraudulent unemployment benefits, and other methods.

Texas Sen. John Cornyn (R) jointly sponsored a critical amendment to the bill allowing greater flexibility in the American Rescue Plan Act’s infrastructure provisions to allow state and county governments to use up to $10 million or 30% of the funds received, whichever is greater, on a wider variety of transportation projects, while retaining local decision-making power on water, wastewater and broadband acceptable uses. This was an amendment that NACo leadership strongly supported.

For the 3,069 counties, boroughs and parishes nationwide, the bill will create a $40 billion Bridge Investment Program, expand Buy American requirements for certain materials, allocate $3.5 billion in Weatherization Assistance Programs, establish a new state and local cybersecurity grant program, and establish a long-term surface transportation reauthorization. Resources authorized by this legislation support local, regional, state and federal transportation projects, making these programs and the funding and financing opportunities they provide critical for counties, which maintain 45% of America’s roadways and 40% of all bridges. Additionally, the bill fully funds the STORM Act, which allows for low-interest federal grants to local government’s natural disaster preparation programs.

The $3.5 trillion budget resolution is commonly referred to as the “soft” infrastructure package. Where the IIJA focuses on “brick and mortar” or “hard” projects, the “soft” proposal directs funds to specific Senate committees to address issues relevant to them under President Joe Biden’s Build Back Better agenda. In a memo to the Senate Democratic Caucus, the resolution is described as the most significant investment in tackling climate change in U.S. history, striving to meet President Biden’s goals of 80% clean electricity and 50% economywide carbon emissions reductions by 2030. Committees will decide how to spend between $1 billion and $726 billion each on policies concerning carbon reductions or eliminating energy projects, paid family leave, universal pre-k, workforce development, border security, small business loans, Veteran Affairs facility upgrades, extending the Child Tax Credit, a tax cut for families making under $400,000 in income and many other programs. Appropriations for most of these programs would be effective in FY2022 through FY2031.

Speaker of the House Nancy Pelosi (D-California) has received both bills in the House. She called Congress back early from its August recess to vote Tuesday on the $3.5 trillion budget reconciliation, which passed 220-212. The $1 trillion IIJA will be voted on by the end of September. Both bills require a simple majority to pass.

These issues are rapidly evolving and TAC is closely monitoring them. For updates or more information on this article, please contact Austin McCarty.