How Moderate Democrats Derailed Police Reform

Centrists demanded a police reform bill that didn’t go too far. Now they don’t get one at all.

WASHINGTON, DC - SEPTEMBER 22: Sen. Cory Booker (D-NJ) speaks with members of the press after Booker said once-promising negotiations for a sweeping bipartisan police reform bill had broken down and Democrats will now "explore all other options," at the U.S. Capitol on Wednesday, Sept. 22, 2021 in Washington, DC.  (Kent Nishimura / Los Angeles Times via Getty Images)
Sen. Cory Booker, D-N.J., speaks with members of the press after once-promising negotiations for a sweeping bipartisan police reform bill had broken down on Sept. 22, 2021, in Washington, D.C. Photo: Kent Nishimura/Los Angeles Times via Getty Images

Bipartisan negotiations on police reform fell apart once and for all this week, four months after Congress missed its symbolic deadline to pass a package designed to raise standards for accountability and transparency in law enforcement. Sen. Tim Scott, R-S.C., blamed his counterpart in leading negotiations on the bill, Sen. Cory Booker, D-N.J., for walking away from talks this week after Republicans rejected Democrats’ final offer.

Booker told reporters that Republicans would not get on board with measures that even the Fraternal Order of Police had agreed to compromise on or standards for law enforcement accreditation that were in place under former President Donald Trump. One major sticking point had emerged over efforts to change some parts of qualified immunity, a legal doctrine that protects police officers from civil suits.

“The effort from the very beginning was to get police reform that would raise professional standards, police reform that would create a lot more transparency, and then police reform that would create more accountability,” Booker told reporters on September 22 after leaving a meeting with Scott. “We were not able to come to agreements on those three big areas.”

Negotiators failed to agree on measures to collect data on use of force, police killing, or bias within police departments. Criminal justice reform advocates had long criticized the bill for taking a piecemeal approach that wouldn’t fundamentally change policing because it did not drastically cut public investment in law enforcement.

“Even though we could get the FOP, the Fraternal Order of Police, to agree to changing a national use of force standard, [and] we could get them to agree to changing, in effect, qualified immunity, we could not get there with our Republican negotiators,” Booker said.

Despite Booker’s comments, it’s unclear what compromise, if any, the FOP had accepted. The union opposed changes to qualified immunity and standards for prosecuting use of force. And Rep. Karen Bass, D-Calif., told Fox News on Wednesday that the Los Angeles police union “actually was supporting the reform process, but some of the national organizations disagreed, and Senator Scott would never get to yes.”

Booker doubled down on Democrats’ attempts to compromise by using a Trump executive order, which conditioned Department of Justice grants to state and local law enforcement on proof of certain training standards, as a starting point. “When it comes to creating accreditation standards in alignment with what Donald Trump put in an executive order,” Booker said, “we couldn’t get that when it comes to raising professional standards.”

In response to Booker’s comments, a spokesperson for Scott said that he “agreed with the language in the Trump executive order; however, the provision they attached that would diminish police resources was a bridge too far.” The provision in question conditioned grants to law enforcement on having proper accreditation, as was the case in Trump’s order.

Moderate Democrats who were not directly part of negotiations also played a major role in derailing talks. Several centrists openly criticized the push from groups on the left to reallocate funding for law enforcement toward community infrastructure and social services, and they blamed their slim margins in last year’s midterm elections on calls to “defund the police.” Rep. Bill Pascrell, D-N.J., one of the largest recipients of police funding in Congress as of June 2020, said during an infamous caucus call about election results that he had been forced to “walk the plank” on qualified immunity. New Jersey’s largest police union withdrew its endorsement of Pascrell last summer after he voted for the George Floyd Justice in Policing Act, a House bill that Democrats tried to advance as a basis for the package and that reformed, but did not fully end, qualified immunity. Pascrell won reelection with 65.8 percent of the vote.

In late April, Scott had proposed a compromise on qualified immunity that would shift liability from individual officers to their departments or municipalities. In a May 2 interview with CBS’s “Face the Nation,” Scott said he was finding Democratic support for his proposal and wanted to “make sure that the bad apples are punished.” Scott praised the 2017 conviction of the officer who shot and killed Walter Scott in 2015 in his home state of South Carolina, as well as the April conviction of Derek Chauvin for killing George Floyd. Axios reported that after Chauvin’s conviction, congressional aides felt less pressure to pass a major police reform package. And Scott’s tone would soon change.

One comment from a moderate appears to have pushed the course of negotiations south. On May 9, House Majority Whip James Clyburn, D-S.C., told CNN that Democrats should be open to passing a bill that didn’t touch qualified immunity. In an interview two days later, Scott’s office declined to comment on the record but denied that Scott was against eliminating qualified immunity, and said he was still pushing his compromise proposal. The next day, in response to comments from Bass that the package needed to eliminate qualified immunity, Scott said he was “on the exact opposite side.” A June draft of the legislation included a proposal similar to Scott’s.

“Between this and Haiti, Black people naturally are wondering what they are getting for their vote,” one senior Democratic staffer told The Intercept. “Clyburn’s comment hindered negotiations, and the fact that it came from the highest-ranking African American in Congress gives cover for the number of moderates that had no intention of honoring the commitment they made as they marched or tweeted Black Lives Matter last summer.”

Scott denied reports that talks started to break down after Clyburn’s remarks, and he expressed optimism in the early months of summer that negotiators would reach a deal soon. But by August, Politico reported that proposed changes to qualified immunity were taken off the table.

In a statement Wednesday, Bass said that Democrats’ counterparts were “unwilling to come to a compromise” and that negotiators had “no other option than to explore further avenues to stop police brutality in this country. I will not ask our community to wait another 200 days.” She called on President Joe Biden and the White House to ”use the full extent of their constitutionally-mandated power to bring about meaningful police reform” in the form of an executive order.

Later that day, Bass told Fox News that there was no single sticking point that led to the breakdown in negotiations. Things collapsed because Booker couldn’t get Scott to agree on compromises, she added. “It was not over qualified immunity. It really wasn’t.”

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