Evaluating the GOPs JUSTICE Act – National Review

Senator Tim Scott (R., S.C.) speaks about his new police reform bill during a news conference on Capitol Hill in Washington, D.C., June 17, 2020.(Yuri Gripas/Reuters)Its better than the Democrats proposal, but it goes too far on neck restraints and not far enough on no-knock warrants, and it fails to address qualified-immunity doctrine.

George Floyds tragic death at the knee of Minneapolis police officer Derek Chauvin has sent shockwaves through an America understandably outraged and traumatized by the unnecessarily fatal episode. Public unrest has spurred political action. In Washington, both Democrats and Republicans have pulled together fast-track legislation aimed at police reform the Justice in Policing Act and the JUSTICE Act (Just and Unifying Solutions To Invigorate Communities Everywhere Act), respectively.

The lead sponsor of the Republican bill, Senator Tim Scott (S.C.), is one of only two African-American men in the upper chamber (and the only black Republican). Hes done an admirable job on a short timeframe. His bill is a better approach overall than the Democratic alternative, a well-intentioned effort that nevertheless overreaches in some areas, with very real public-safety costs in the balance. The Republican bill is generally more modest seeking data and transparency when solutions arent clear but is still a significant effort aimed at addressing more clearly defined problems.

Still, the GOP bill could be improved. There are some ways in which the bill probably does not go far enough, and others in which it may go too far. And it omits an important area of focus, included in the Democrats bill, that Republicans should address.

Where could the Republican bill go further? It could do more to constrain no-knock warrants, which authorize police to enter a dwelling forcefully, and without notice, often in the late-night or early-morning hours. There is certainly a case for such tactics in at least some cases. Organized-crime hideouts, for example, are often heavily armed. The Democrats approach a complete ban on no-knock raids in all drug cases would unnecessarily risk officer safety.

No-knock warrants are probably overused sometimes tragically, including in the case of Breonna Taylor, whose name is affixed to the corresponding section of Senator Scotts legislation. Consider also a 2014 raid in which police threw a flashbang grenade into the bedroom of Alecia and Bounkham Phonesavanh in Wisconsin. The grenade landed in the crib of their 18-month-old toddler, who took the brunt of the flashbangs blast, suffering a collapsed lung as well as severe burns to his face and chest; the child was in a medically induced coma for more than five weeks, and the family faced $1 million in medical bills. The target of their investigation did not live at the residence and was not there when police performed the raid.

The Republicans JUSTICE Act uses Congresss spending powers to encourage police departments to meet various reporting requirements relating to no-knock warrants. Such data would be useful, but there is room for more here. Congress should also push police departments to require a high-level commanding officer to sign off on any no-knock warrant. Judges already must approve, as required by the federal Constitutions Fourth Amendment, but they may lack the capacity to weigh safety-risk tradeoffs and may give police undue latitude. Requiring a commanding officer to sign off and assume public accountability in the event things go awry would help deter overuse of no-knock warrants.

While the JUSTICE Act could go further on no-knock warrants, it may go too far on the controversial use of neck restraints or chokeholds, as theyre more commonly known. Theres certainly no case for applying full body pressure on an unresisting suspects neck for eight minutes and 46 seconds the indefensible use of force that killed George Floyd. But just as no-knock warrants probably have legitimate uses in at least some cases, neck restraints can be a way for a police officer to gain control of a resisting suspect, avoiding deadlier applications of force.

We dont have a lot of data here. We dont really know, for example, just how likely it is that temporary application of a neck restraint, for the purpose of securing a suspect, will result in serious injury or death. Its vital to gather more data.

We do know one thing, however: Shooting a suspect with a gun is much deadlier than using a neck restraint. The JUSTICE Act doesnt go as far as the Democrats bill, which would ban neck restraints in all cases; the JUSTICE Act limits such restraints to cases in which deadly force is required. But such deadly-force situations also would offer a complete defense to officers shooting a suspect. If officers options for securing a resisting suspect are limited, either the Democrats or the Republicans bill could unintentionally lead to more police shootings. The dramatic reduction of such shootings over time is an unappreciated success. In New York City, for example, the number of individuals wounded and the number of individuals killed by police using a firearm each fell 90 percent between 1971 and 2016. We dont want to see that trend reverse itself.

Conspicuously absent from the JUSTICE Act is any mention of qualified immunity, a legal doctrine that the Democrats bill would eliminate as applied to police. The Democrats bill may go too far, but the Republicans should nonetheless address the issue.

Qualified immunity shields police officers (and other government officials), under certain conditions, from lawsuits based on an 1871 federal law. The 1871 statute enables citizens to collect money damages from state and local government for violations of constitutional rights. In 1967, the Supreme Court ruled that government officials couldnt be sued for actions that were not known to be unconstitutional at the time: It wouldnt allow a lawsuit against police officers for acting in 1961 to enforce a law that was declared unconstitutional in court four years later.

Both critics and defenders of qualified-immunity doctrine tend to overstate its practical importance at least with respect to police use of force. The doctrine does nothing to shield officers from criminal prosecution or disciplinary actions. Most lawsuits against police uses of force and other alleged misconduct dont involve the federal constitution. And even when they do, qualified immunity usually doesnt matter: In a 2017 article in the Yale Law Journal, professor Joanna Schwartz (a critic of the doctrine) found that qualified immunity was the basis for dismissal or summary judgment in less than 4 percent of the cases she sampled.

That qualified immunity isnt used often doesnt mean that it doesnt matter at all. It also doesnt mean that the Supreme Court got it right, or that Congress should avoid the issue. As mentioned, the underlying statute was enacted in 1871 decades before the modern Federal Rules of Civil Procedure made federal lawsuits much easier to file, imposing sizable discovery costs on defendants, win or lose. Congress should legislate a standard, rather than leave it up to unelected judges.

It makes little sense to hold government officials liable for actions based on changes in the law. When the Supreme Court announced, in the 1966 case of Miranda v. Arizona, that police officers had to read criminal suspects their rights, it would have made little sense to allow lawsuits against officers who hadnt done so in 1965. Police departments arent Supreme Court seers, and they wont change their behavior based on unknown future changes in the law. Such lawsuits would act as little more than a tax on policing one ultimately borne by the taxpayers.

In some cases, however, the doctrine of qualified immunity has been used to shield police from liability when the contours of the general legal concepts at issue are clear, but the specific factual circumstances are different. Judges have dismissed lawsuits based on trivial factual distinctions between an officers actions and earlier cases that established a clear legal principle. Congress might helpfully clarify that the qualified-immunity doctrine applies only to clear changes in legal rights not idiosyncratic fact patterns.

Although we think the JUSTICE Act could be improved, we appreciate the effort Senator Scott has made to craft a thoughtful legislative reform proposal in such a short time. In a country of 330 million people, well never eliminate the possibility of police misconduct, any more than well be able to eliminate violent crime. That doesnt mean we cant do better.

James R. Copland is a senior fellow and the director of legal policy at the Manhattan Institute for Policy Research. Rafael A. Mangual is a fellow and the deputy director of legal policy at the Manhattan Institute and a contributing editor of City Journal.