Current Status of Police Reform Legislation

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society’s teleforum conference call. This afternoon, June 28, we present a teleforum on the “Current Status of Police Reform Legislation.” My name is Guy DeSanctis, and I’m Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

      Today, we are fortunate to have with us Zack Smith, Legal Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation. After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

      With that, thank you for being with us today. Zack, the floor is yours.

     

Zack Smith:  Thank you so much, Guy. I really appreciate that introduction. As Guy mentioned, my name is Zack Smith, and I currently serve as a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation. Prior to that, I served as an Assistant United States Attorney for several years, worked in private practice, and clerked for a judge on the U.S. Court of Appeals for the Eleventh Circuit. Because of my time as an AUSA, policing issues are especially near and dear to me.

 

      The topic of today’s call obviously is the current status of police reform legislation. Now, before we begin, I want to make clear that the purpose of today’s call is not for me to take a position on any of the pending or proposed legislation, but it’s simply to provide an update of where things stand and where it looks like things might be headed.

 

      So to that end, I thought we could take today’s call in three parts. First, I’ll give a little bit of background, talk about the major piece of police reform legislation that’s before Congress right now, which is the George Floyd Justice in Policing Act, then I’ll talk about some other proposals, including Senator Tim Scott’s proposal that he put forward last year, the Justice Act. And then second, we’ll talk about the current status of the negotiations in Congress on those pieces of legislation and where they might be headed over the next several weeks. And then third and finally, before we get to our Q&A session, I’ll briefly talk about police reform legislation that several states have enacted over the past year or so.

 

      First up is the George Floyd Justice in Policing Act. Now, this act was initially introduced last year on June 8, 2020, about two weeks after the tragic death of George Floyd. It was introduced by Representative Karen Bass, a Democratic congresswoman from California. And it passed the House of Representatives last year on June 25 of 2020, but it never made it out of committee in the Senate, and so it died at the end of the 116th Congress. But Representative Bass reintroduced the bill on February 24 of this year, and it passed the House of Representatives along pretty much a party line vote on March 3 of this year. And in fact, two Democratic congressmen joined the Republican members of the House in voting against the bill.

 

      So what exactly does the George Floyd Justice in Policing Act propose to do? Well, there’s a lot to it. It’s about 136 pages. So the summary I’ll give isn’t all encompassing, but I think there are approximately 18 major things that it proposes to do.

 

      First, it proposes to limit the ability of local law enforcement agencies to receive surplus military equipment.

 

      Second, it would ban the use of no-knock warrants in drug cases at the federal level and prohibit state and local governments that allow them from receiving certain federal grants.

 

      Third, it would impose new standards for when it’s appropriate for law enforcement officers to use deadly force.

 

      Fourth, it would provide that if law enforcement officers did not strictly follow these new standards, or if the law enforcement officers own gross negligence contributed to the use of such deadly force, that those law enforcement officers cannot use a justification as a defense for their use of deadly force.

 

      Fifth, it would lower the mens rea requirement from willfully to knowingly and recklessly for someone to be prosecuted under federal civil rights law, specifically 18 USC 242, which is used whenever someone uses their official position to violate someone’s rights, or legally speaking, whenever someone deprives someone of their rights under color of law.

 

      Sixth, this bill would also expand the actions that can be prosecuted under 18 USC 242 and include any maneuver that, quote, “reduces an intake of air to someone who is being detained.”

 

      Seventh, it would strip away the defense of qualified immunity, but it would only do so for law enforcement officers and for no other officials. And keep this qualified immunity piece in mind because we’ll come back to that in just a few minutes.

 

      Eighth, the bill would require the Justice Department to create a national registry for police misconduct complaints. And to be clear, this would be a registry that would apply to complaints and not just to official findings of misconduct, although those also would, of course, be included.

 

      Ninth, the bill would attempt to create standards to eliminate what some believe to be racial disparities involved in certain routine police activities. And this particular provision of the bill is very controversial, so I think it’s worthwhile to pause here and quote the actual text of the bill, and then talk just for a minute about it, and what opponents of it say, and what proponents of it say.

 

      The bill provides, quote, “that proof that the routine or spontaneous investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on individuals with particular characteristics described in the bill shall constitute prima facie evidence of a violation.”

 

      So let’s unpack that. The routine or spontaneous investigatory activities mentioned include things like interviews, traffic stops, pedestrian stops, frisks and other types of body searches, other types of consensual or non-consensual searches of basically anyone using any type of transportation.

 

      It would also include some data collection, assessments, and analysis as well. And it also draws in some things that happen at the border, if there are extensive border searches, or really any other type of activity that law enforcement would record and compile and turn over to either the FBI or the Department of Justice Bureau of Justice Statistics.

 

      And of course, the protected characteristics that it refers to includes things like race, ethnicity, national origin, religion, gender, gender identity, or sexual orientation.

 

      Now, those who oppose this particular provision of the bill fear that it would essentially establish a de facto quota system for these investigatory activities, and that it would encourage officers and departments to game the system by stopping more individuals with certain characteristics, specifically, that it would encourage officers to, for instance, initiate more traffic stops that involve women, white individuals, or Asian individuals than they otherwise would.

 

      And of course, proponents of this piece of the legislation say that this is something that’s necessary to combat racial bias or racial prejudice that occurs in many of these routine investigatory activities. So that’s a very controversial provision, one worth thinking about a little bit more. But I thought it was worth pausing briefly to talk specifically about it.

 

      But getting back to our bigger list, the tenth thing this bill would propose to do, it would create a cause of action for someone who’s injured by racial profiling and would grant prevailing party attorney fees to that individual if they prevail in their lawsuit.

 

      Eleven, the bill increases the authority of the Attorney General to conduct pattern and practice investigations of state and local police departments.

 

      Twelve, it would provide new tools and causes of action to state attorneys general to conduct these same pattern and practice investigations.

 

      Thirteen, it would impose new reporting requirements and data gathering requirements on both local and state police departments as well as on the Department of Justice.

 

      Fourteen, it would require the Attorney General to establish a national task force on law enforcement oversight that would be staffed by various components of the Department of Justice.

 

      And then numbers fifteen through eighteen really contain some of the less controversial provisions of the bill. The fifteenth thing the bill would purport to do or require that uniformed federal officers wear body cameras. It would encourage through grant funding state and local officers to do the same thing.

     

      Sixteen, it would require that marked federal police cruisers install dashboard cameras, again through grants. It would encourage state and local departments to try to do the same thing.

 

      Seventeen, the bill would make clear that an individual in custody cannot consent to sexual contact with an arresting officer or any other officers that may have that individual in custody or detained.

 

      And number eighteen, it would make it a federal crime for a law enforcement officer to engage in sexual conduct with someone in his or her custody.

 

      Again, those last several, fifteen through eighteen, the body cameras, making clear that an officer cannot have sexual contact with someone in his or her custody, those are relatively uncontroversial and seem to be the pieces that have garnered the broadest bipartisan support so far.

 

      I know that’s a lot, but I think that was worthwhile running through that just to give an overview of what exactly is being proposed in the George Floyd Justice in Policing Act. Now, if you recall, this act was originally proposed last June, a year ago. And at the same time that this act was proposed or shortly after that, Republican Senator Tim Scott put forward his own police reform proposal, the Justice Act.

 

      And the Justice Act really focused on some of the same things as the George Floyd Justice in Policing Act, but it did take a slightly different focus in several areas. And Senator Scott, when he put out the press release for this act, he said it focuses on smart, common sense steps to address issues from ending the use of chokeholds and increasing the use of body-worn cameras to providing more resources for police departments to better train officers and to make stronger hiring decisions.

 

      And so the Justice Act by Senator Scott really focused on providing police departments training regarding de-escalation techniques and the duty of fellow officers to intervene if they saw another officer behaving inappropriately. It would ban chokeholds. It sought to reform police hiring practices to help departments better reflect the communities they serve. It would make sure that police departments, when hiring an officer, would have access to the prior disciplinary records of that officer, his or her prior department. It sought to establish best practices for hiring, firing, suspension, and discipline of law enforcement officers.

 

      Again, it focused on encouraging state and local authorities to provide body cameras and dash cameras for their officers. It wouldn’t eliminate no-knock warrants, but it would have required reporting on it so that the Congress and the Department of Justice can better understand when and how they’re used. It would have made lynching a federal crime. It would have created two commissions, one to study the challenges facing black men and boys in our country, and another to study challenges facing our criminal justice system.

 

      And then, similarly, like the George Floyd Act, it would have made clear that it’s unlawful for a law enforcement official to engage in sexual conduct with someone under their custody or care. So you can see there’s some areas of agreement, some areas of disagreement.

 

      So that brings us to the second aspect of our talk, where do things stand today? Well, the George Floyd Justice in Policing Act, as I mentioned, it passed the House of Representatives pretty much along a party line vote in June of this year, and so it’s currently pending before the Senate. The Biden administration said that their goal was to have some type of police reform legislation passed and signed by May 25 of this year, which, of course, was the anniversary of the death of George Floyd. That didn’t happen, and so discussions regarding police reform legislation are ongoing.

 

      The three members of Congress that are most involved in these discussions are Representative Karen Bass, Senator Tim Scott, and Senator Cory Booker. And when Senator Tim Scott was talking about this earlier this year, he said that it looked like it was pretty much June or bust for a deal to get done on police reform legislation.

 

      And there are a couple of practical reasons for that. Currently, the Senate is in recess until July 12, and then once the Senate comes back on the 12th, they’ll have about a month until they take their month long August recess. And so I think that’s why Senator Scott and others were really saying June was kind of the have to get it accomplished date for this legislation to happen.

 

      Well, it just so happens, late Thursday afternoon, June 24, Representative Bass and Senators Scott and Booker released a joint statement saying, quote, “After months of working in good faith, we’ve reached an agreement on a framework addressing the major issues for bipartisan police reform.” They went on to say that there is still more work to be done on the final bill and that nothing is agreed to until everything is agreed to, but they look forward to continue hammering out the details over the next several weeks.

 

      So it looks like there is some type of agreement on bipartisan police reform legislation. We don’t know yet what the details of that deal will look like. In reading articles, talking to individuals on the Hill, it looks like we could get some type of announcement within the next several weeks at least outlining some of the rough parameters of that deal. But again, we’re really not sure what that compromise will look like.

 

      But based on reports that are coming out of the negotiation, it looks like there are really two main sticking points holding up this bipartisan compromise. One appears to be any changes to qualified immunity, especially any changes that apply only to law enforcement officers. And then the second sticking point appears to be changes in the mens rea standards, remember, dropping it down from that very protective willfully standard to prosecute someone under 18 USC 242. And so at least with qualified immunity, it seems like that may be where a little bit more of the sticking point is happening.

 

      And so just to kind of lay out where some senators have said they’re at on this, Senator Mike Braun has said he wants a reform to qualified immunity, but he doesn’t want to eliminate that legal protection. Senator Mike Rounds, a Republican from South Dakota, said he was open to talking about changes, but he was also very, very hesitant to do so without having a full grasp of the potential ramifications of the changes.

 

      Senator Lindsey Graham, a Republican from South Carolina, said that he is also open to having conversations with Democrats about making changes to qualified immunity, but that if they insisted on eliminating it altogether, it would, quote, “be a very short conversation.” And then Senator John Cornyn and Minority Leader Mitch McConnell both have made clear they don’t think there’s support to pass a bill that includes removing or changing qualified immunity.

 

      And then Senator John Thune, also a Republican from South Dakota, said that he thinks including qualified immunity in this legislation is a bridge too far for most Republicans. So obviously, this is a very contentious issue, a lot of debate on both sides of the aisle, a lot of debate both within both the Republican party and the Democratic party themselves.

 

      Also, if you follow recent court opinions, a lot of very interesting qualified immunity opinions have been coming out of the courts recently as well. In fact, there was an interesting one recently in the Fifth Circuit that came out last week. It was a denial of a rehearing en banc where there were split opinions between many of the judges on that court. It’s a very interesting read.

 

      And then another piece of police reform legislation at the federal level that I’ll just very briefly mention is one that was put forward by Senator Josh Hawley last week. His legislation would propose to help provide funding to add 100,000 new police officers to our nation’s streets as soon as possible. It would increase penalties for assaulting federal law enforcement officers by up to 50 percent. It would increase protections for judges, prosecutors, and law enforcement officers from potential violence and doxing. It would finally increase protections for courthouses and judges and would promote concealed carry for federal judges and prosecutors.

 

      And then it would also try to expand programs for federal law enforcement officers who may need help dealing with any trauma they’ve suffered on the job. And it would also seek to protect law enforcement officers from targeting or ambushes and would increase the penalties for those types of activities.

 

      So that’s a new, recent proposal, hasn’t really been talked about in the context of some of the other reform legislation that’s been out there for a year or more at that point. But I thought it was worth mentioning because it was a recent piece of legislation that’s just begun circulating.

 

      And so this brings us to the third part of our talk today before we get to the Q&A session, and that’s state level reforms. Over the past year and a half, many of the conversations that have been happening at the federal level have also been happening at the state level too. And so what you’re seeing is many states have done things like ban chokeholds.

 

      They’ve limited various crowd control techniques and the use of force that police officers can engage in. They’ve passed bills encouraging officers or requiring state law enforcement officers to wear body cameras. And they’ve also passed legislation to enhance training or law enforcement officers, or in some cases to have crisis response teams respond to different calls instead of law enforcement officers.

 

      And so the banning of chokeholds, California, Colorado, Connecticut, Iowa, New Jersey, New York, those are just a few of the states that passed that type of legislation. Body cameras have been required in Colorado and Connecticut. Arkansas and Michigan have taken a particular focus on the training approach. And then Colorado actually significantly reformed qualified immunity, eliminated it in many cases at the state level for law enforcement officers.

 

      And so I think that’s an overview of where things stand right now and where things may be headed in the next several weeks, at least at the federal level. It looks like there may be an outline for some type of bipartisan police reform legislation, but it really will be a waiting game for now to see what exactly that legislation will look like.

 

      And with that, I’m happy to cede the floor and answer any questions folks may have.

 

Guy DeSanctis:  Thank you for that. We’ll now go to audience questions. All right, our first question.

 

Matt McReynolds:  Hi. Thanks for an outstanding presentation. Matt McReynolds here from the Pacific Justice Institute in Sacramento. A comment and then a couple of questions for you.

 

      First, we have been opposing some police reform legislation here focused on a slightly different issue, which is the potential for officers to be disciplined based on their political and religious viewpoints. I’m wondering, one, if you’ve been tracking the lead legislation out here which is currently called Senate Bill 2, and two, whether or not you’re seeing anything in the federal legislation, particularly the George Floyd legislation, which would raise similar concerns.

 

      And I’ll just mention one other thing, which is that what we’re focused on right now is a provision that would subject officers to discipline or termination for, quote, “acts demonstrating bias,” end quote, against a protected class with no definition of what those acts are supposed to be.

 

Zack Smith:  Well, thank you for the question. I haven’t been tracking as closely the state level legislation as I have the federal legislation in part because there’s just been so much activity over the past year in so many states.

 

      But to answer your second question, whether there’s anything in the George Floyd Justice in Policing Act that might raise similar concerns, one of the criticisms of this act has been that there are in several places poorly defined terms that would make it difficult for officers to know what conduct would be prohibited, would raise potential concerns when coupled with the lower mens rea standard that the bill proposes. And so those are concerns that have been flagged with this bill.

 

      And especially, when you go back to things like the controversial provision we talked about where some are afraid that it might lead to departments or individual officers trying to game the system, those provisions really have been the focus of a lot of the criticism around this bill. And so I think those who oppose the bill or even some of those who are in favor of the bill or police reform legislation generally want to be sure that as many of these types of issues are hammered out before any final legislation is enacted because certainly no one wants to substitute one type of potential discrimination for another type of potential discrimination.

 

Guy DeSanctis:  Thank you. Our next question.

 

Carl:  Great presentation. Thank you very much. Carl [inaudible 24:55]. So here’s a question. Is there anything, standards for data collection or any effort to provide some kind of piece or guidance on how to establish some kind of framework on what kind of data gets collected or not at the different levels? Thank you.

 

Zack Smith:  That’s a fantastic question. I really appreciate it because a lot of the focus of both the George Floyd Justice in Policing Act and Senator Scott’s Justice Act focus on gathering data and then how either the Justice Department or individual law enforcement officials will use that data. And so the short answer is while the bills focus on collecting data, again, some of the criticism has been that they don’t necessarily focus on the finer details like I believe you’re getting at on how the data should be retained, how it should be used, who has access to it.

 

      The George Floyd Justice in Policing Act does provide some level of funding for this data collection. But again, the concern is that a lot of the burden for this data collection would be placed on state and local police departments, and that it would require them to divert resources away from officers on the street to set up the processes for collecting this data.

 

      And so I think, generally speaking, there’s been pretty broad consensus that the data collection itself isn’t necessarily problematic. What’s problematic so far is the details. Like everything in life, it’s always the details. The details need to be worked out, and how that data collection will be funded really needs to be resolved before legislation is enacted.

 

Carl:  Thank you very much. A quick follow up on the access. I think you touched upon it, but nothing on who gets to use it or not?

 

Zack Smith:  I would want to go back and look at the George Floyd Justice in Policing Act to be sure that I’m giving the correct information, but for instance, one of the concerns with the bill is the collection on officer complaints. The George Floyd Justice in Policing Act says that all complaints against officers will be collected.

 

      Now, it makes provision for those to be searchable and be aggregated by whether or not they’re dismissed for not having support, whether they’re substantiated. And then a lot of that information, especially with regards to law enforcement complaints, is set to be made public with appropriate redactions for things like social security numbers, identifying information other than the name of the officer.

 

      But there are very real concerns that making that information public without, again, thinking through all of the ramifications could lead to potential harassment for officers, potential doxing of officers. And so that’s been a concern for many who oppose this bill. But then, of course, those who support this bill, of course, obviously take the position that the more information we get out there about potential violations, potential bad actors in the law enforcement community, the better off we’ll be and the more readily we can address many of the issues that are perceived to be there today.

 

Carl:  Thank you very much.

 

Zack Smith:  Of course. Thank you.

 

Guy DeSanctis:  Thank you. Our next question.

 

Caller 3:  Hello. Thank you for the good presentation. Do you know if Josh Hawley’s bill would provide more police officers and resources to communities that have defunded police or reduced police forces or cut back?

 

Zack Smith:  I don't know. My suspicion is that there would be some type of ties to different grants and things to those cities. If they were to accept the additional officers or funding for the additional officers, there would likely be conditions placed on that. And in fact, like many of the conditions that the George Floyd Justice in Policing Act is trying to place on state and local authorities, they’re predominantly attempting to do that by placing conditions on different funds that the Department of Justice currently administers. So I would imagine that Josh Hawley’s bill would do something similar to that.

 

Caller 3:  Thank you.

 

Guy DeSanctis:  Thank you. Is there anything else you’d like to cover right now while we see if we have any more questions?

 

Zack Smith:  Sure. I’ll jump in quickly and say the last question was a great one. It talked about many of the cities that are defunding the police, many of the cities that are seeing a spike in violent crimes across the country right now. And so I think a part of the conversation has to be how is that impacting the debate around police reform legislation? How is that impacting the debate around qualified immunity?

 

      And I think first of all, it’s undoubtedly impacting the conversation around police reform legislation and policing in our country. Last week, you saw the Biden administration hold a press conference on how they were going to combat violent crime. Part of that, they were going to provide additional resources to help ATF, other agencies prosecute certain gun related crimes. They were going to surge resources to certain cities that are seeing particularly dramatic spikes in violent crimes. You saw something similar under the Trump administration, at least with regard to the surging resources to various cities.

 

      And so I think that will be certainly part of the conversation, especially part of the conversation occurring around qualified immunity and reform or changes to that. Many individuals, even if they agree that qualified immunity needs to be changed, are concerned about what impact that will have on police officers, whether it will create a renewed Ferguson effect in many of these cities where you see police officers pulling back, underenforcing laws, even more so than they may be forced to do in many of these cities right now.

 

      And so I think that may be part of what’s holding up the bipartisan negotiations, especially if you see qualified immunity kind of carved out or taken separately from these other issues. And so I think that is certainly something worth keeping in mind.

 

      But again, there are certain aspects which are pretty noncontroversial that have broad bipartisan support, training for officers on de-escalation techniques, increased use of body cameras and dashboard cameras for officers, making it clear that law enforcement officers cannot have sexual contact with someone in their custody or care, that someone in their custody or care cannot consent to any type of sexual contact. Those are pretty noncontroversial, pretty broad bipartisan support. Again, there may be differences on the detail about what the appropriate remedies are if an officer doesn’t turn on their body camera. But generally, folks support the increased use of cameras and those types of things.

 

      Where it may be a little more of a gray area is in things like no-knock warrants. The George Floyd Justice in Policing Act proposes to essentially eliminate no-knock warrants for drug cases and essentially discourage their use as much as possible. Senator Tim Scott’s bill obviously didn’t ban no-knock warrants, but he wanted to study them and get more information, so you may see continued discussion surrounding that.

 

      But again, the qualified immunity and the lowered mens rea to bring civil rights prosecutions, those appear to be the two biggest sticking points, and where I think if a deal is going to get done, it will really have to be those two issues either being removed from this legislation, or some type of compromise being struck on them.

 

Guy DeSanctis:  Thank you. It appears that we don’t have any further questions, so do you have any closing comments you’d like to make after that? Oh, actually, we just got one more question.

 

Carl:  This is Carl again with a quick follow up on the data aspects. You touched upon storage. Is there any guidance on who or where or how, or is there any notion of who should own these kinds of processes at this point, clear guidance on these kinds of data getting collected, or is it something that’s not supposed to be centralized, more of a guidance statement so that they’re not supposed to be quote, unquote, “aggregated” in some sense at the federal level or national level for something that would be kind of comprehensive?

 

      And as a follow up, how much in the weeds or details was the conversation willing to go as far as you know because you mentioned, of course, that would be a detail in the definitions. I was wondering if there’s anything you can point us to where someone is arguing the definitions openly. Thank you.

 

Zack Smith:  Well, thank you for that question. In terms of the data, this is obviously something that’s supposed to be more centralized. And I think many police departments around the country right now currently collect all kinds of statistical data and transmit them either to the FBI or to the Justice Department’s Bureau of Justice Statistics. And we see the results of that with the uniform crime reports, the UCRs, that the FBI puts out every year showing trends in violent crimes. And so I -- again, the details can be a little fuzzy in the legislation right now, but it looks to me like they’re anticipating a similar type of process.

 

      And so some of the data, there are explicit restrictions in the text of the statute. So for instance, the George Floyd Justice in Policing Act requires collection of data on the use of excessive force by law enforcement officers, but it says that the Attorney General can use that data in conducting certain investigations, but that the data can’t contain any information that may reveal the identity of a victim or of any law enforcement officer.

 

      And so you also see other limitations on different types of data that are being collected saying that in those instances the Attorney General can always use those for research or statistical purposes. And again, most of the data appears, except for some of the complaints against officers type data that’s being collected, is there’s an emphasis on trying not to identify particular officers or particular victims, but really to try to get at this and see what’s happening at a little bit higher level, even with specific police departments or specific jurisdictions or specific states. And so I think that is a lot of what is being anticipated here.

 

      And then just an interesting note in terms of where a little bit of a disagreement may come in on some of the data collected, especially in terms of the body cam footage that’s being collected, there are very specific details about the body camera footage, when officers have to turn off their cameras, when they have to turn on their cameras, what they have to do if they’re in a non-law enforcement capacity and someone’s asked them to turn off their cameras. All of that are very -- that specific aspect of it is very detailed.

 

      But it may come before the final passage of the bill that law enforcement groups, prosecutors, defense attorneys, may have additional input on that because how the body camera footage is collected, how its retained, how its provided to attorneys throughout the court process, it’s very important to hammer out those details because it can become quite cumbersome and quite expensive very, very quickly.

 

      And then can you remind me again what the second part of your question was, if you don’t mind?

 

Carl:  I think broadly, data quality concerns. And I guess a follow up, recourse when there is a mistake kind of thing.

 

Zack Smith:  Yeah. Again, the data quality concerns, I think it’s in many instances, it’s on the state and local jurisdictions to collect and transmit the data similar to what they do for the UCR process. And again, that goes back to the concerns some have about the additional burdens this will place on departments and whether they’ll have enough resources to collect the data. It also goes back to some of the concerns about whether departments will be able to gain some of the required data collection by either stopping or over-enforcing certain crimes or stopping certain individuals more than they may otherwise have.

 

      And then in terms of recourse, not a lot has been written about that. And I think this would most prominently come into play especially with the database for officers who have had complaints filed against them. And so while the George Floyd Justice in Policing Act does provide that the complaints should be sorted by those that have dismissed for lack of evidence or they were unsubstantiated versus those that were substantiated, there’s really no mechanism provided for the officer, that I’m aware of, for the officer to annotate the complaint or make sure their side of the story is also included in the record. And so I think that is a concern for many in the law enforcement community as well.

 

Carl:  Thank you very much. I was just thinking credit scores or something. Data quality is always a major concern, and there’s frameworks built into it to deal with it. No kind of cross-regulatory partialization, if you will, has been enacted. No one’s thinking laterally in this sense. It’s really a law enforcement matter.

 

Zack Smith:  It is. And so one of the things that it does provide for is that after two years after the enactment of the George Floyd Justice in Policing Act, if it’s enacted, the Attorney General is supposed to provide a report to Congress basically analyzing how the data has been collected, how it’s being used, and any changes or tweaks that may need to be made. And so the Attorney General will have to submit a report to Congress. Local law enforcement agencies for certain aspects will have to submit a plan to the Attorney General saying how they’re going to collect the data, how they’re going to retain the data, and those types of things.

 

      And so there are different reports required. There are some requirements in the bill in terms of the length of time the data has to be retained. But really, as far as providing for audits and that type of thing, not a lot of detail has been provided.

 

Carl:  Thank you.

 

Guy DeSanctis:  Thank you. Next question.

 

Matt McReynolds: Hi. If I could venture a further question  related to my previous, I’m wondering if you’ve seen or heard anything in the federal George Floyd legislation or the debates involving it that suggests restricting officers’ social media posts or membership in hate groups? And just as background if it seems a little bit off the wall, we had two pieces of legislation in the California legislature earlier this year that we opposed that would have done both of those two things. They appear to be dead for this session, but we’re very concerned about those concepts reappearing at the federal level or anywhere else.

 

Zack Smith:  Sure. That’s a great question. I know this became a big issue about social media posts several years ago with Border Patrol, some of the things that some Border Patrol agents had posted in a Facebook group or other social media websites. And so I know it’s a very important issue.

 

      But my sense is -- so the short answer to your question is no, there’s nothing that I’m aware of at the federal level currently that’s explicitly proposing to restrict the affiliation of law enforcement officers in certain groups or restrict their ability to post on social media. But my sense is, especially after the incident with the Border Patrol agents several years ago, may law enforcement agencies and law enforcement officers became particularly sensitive to this because, obviously, if they’re going to testify in court, this is something that could potentially be turned over as Giglio material used to impeach their credibility by defense attorneys at trial.

 

      And so once that started happening to law enforcement officers, once they became aware that prosecutors particularly were going to start asking for this type of information, maybe asking specific questions about what posts they made, what Facebook groups or other social media type groups they’re involved in, I think a lot of law enforcement officers became very cognizant of that. A lot of agencies became very cognizant of that and are working to make sure -- holding trainings themselves to try to make sure that officers aren’t posting anything inappropriate or anything like that. But no, nothing is being proposed that I’m aware of, that would explicitly restrict that.

 

Matt McReynolds:  Thank you.

 

Guy DeSanctis:  Thank you. Our next question.

 

Caller 6:  Yes, good afternoon. Thanks very much for a very interesting presentation. I joined a little late, so I apologize if you already covered this. But when you mentioned the discussions about, I guess, repealing or obviating or removing qualified immunity, I’m not sure if there’s been any thought to replace any of that, replace that kind of immunity with anything.

 

      I know for -- in many instances of public employment, there’s an obligation to reimburse public employees for expenses or lawsuits to which they’re subject through the course of their employment. I’m not sure if this just sort of opens up those state and local governments to liability without creating some sort of liability standard. And most folks in law enforcement that I know aren’t going to be rich enough to pay any judgement anyway. So I don’t know if it’s just intended to sort of hang the sword of Damocles over the head of every police officer.

 

      And then kind of a tangentially related question, a number of the measures that you did cite, things like restricting use or forbidding, I guess, the use of chokeholds or things like that, I’m just curious as to how much of that could be described as sort of fact-based decision making. How many deaths have occurred because of chokeholds, or something like that, or is this just because of the visibility of the George Floyd case? A classic example of what I think [inaudible 45:58] described as, “What can we appear to do?” This is not actually based on any kind of a statistical analysis or quantum of a recognized problem that this can address, and if it might even make things worse by removing from officers’ repertoire or arsenal less-lethal techniques that might otherwise be available to them.

 

Zack Smith:  Sure. Great questions, both. I appreciate you asking them. On the qualified -- well, on both of these fronts, my purpose today is just to give an overview, not to take an issue on the substant aspects of the debate here today.

 

      So on the qualified immunity front, I think what a lot of law enforcement officers object to, particularly with the George Floyd Justice in Policing Act, is that it singles out law enforcement officers and would eliminate qualified immunity for law enforcement officers but not for other government officials. And so anyone who’s litigated constitutional torts against the government knows that other government officials get sued all the time. This comes up a lot in the university context where university administrators are potentially sued for violating a student’s First Amendment rights or other rights.

 

      And so I think law enforcement officers are saying, “Look, you’re eliminating qualified immunity for us. We have to often make difficult, split-second decisions. University administrators who get to consult with their lawyers may not have this immediate need to make these life and death decisions, may not even be life and death decisions, and yet, they’re entitled to qualified immunity, but we would not be.” And so I think for law enforcement officers, this kind of targeting them, eliminating qualified immunity for them but not for government officials, is particularly problematic and troubling for them.

 

      And so I suspect part of what the conversations happening right now may be is whether there’s some type of more global qualified immunity agreement that can be reached. Certainly, I would suspect it would include all government officials. I hope it would include all government officials, not just law enforcement officers, especially without, as you mentioned, thinking through what consequences of that removal might be.

 

      And I think that’s some of the objections we heard as well from some of the Republican senators. They weren’t quite sure what the ramifications of removing qualified immunity would be, what altering it would be, what would take its place. And so again, I suspect that’s part of the ongoing conversations that are happening right now.

 

      But in terms of chokeholds, many police departments’ training currently has shifted or is shifting to bar the use of chokeholds. I think what we need to be careful about in the George Floyd Justice in Policing Act, as well as other state level laws that are barring chokeholds, is definition. How are those laws defining chokeholds?

 

      And so, for instance, the George Floyd Justice in Policing Act says that any maneuver that, quote, “reduces an intake of air to someone being detained” can be prosecuted. Well, that’s potentially a very broad category of conduct that may include things that are not what we think of as traditionally being chokeholds. And when you combine that with the lowered mens rea standards that will now be needed to prosecute someone under 18 USC 242, again, I think that’s part of what’s giving many law enforcement groups and many opponents of the bill pause.

 

      And so I think those types of things will be hopefully things that this bipartisan group of representatives and senators are working through trying to hammer out those types of definitional issues to be sure that law enforcement officers can clearly know what conduct is prohibited and what conduct is permissible.

 

Guy DeSanctis:  Thank you. Our next question.

 

Caller 7:  Hi. My question relates to the claimed over-enforcement by police. There was a theory that enforcement by police of even minor offenses led to greater prevention of more serious offenses. That theory seems to have been rejected by a lot of people that claim that there’s over-enforcement by police. Do you know of any basis for rejecting that theory, or actually supporting the theory? And secondly, does any of the legislation that you’re aware of deal with supposed over-enforcement by police?

 

Zack Smith:  Just to be sure I understand what you mean by over-enforcement, are you talking about that broken windows theory of policing?

 

Caller 7:  Yeah.

 

Zack Smith:  Look, again, my job today isn’t to necessarily take a position on whether broken windows policing is good or bad. I certainly have thoughts I’m happy to discuss offline.

 

      But I think that certainly what the proponents of the bill are saying is happening right now. There’s kind of that over-enforcement of minor infractions, especially against certain groups, particularly black males, is something the proponents of the bill say. And so what they’re trying to do by requiring, obviously, police departments to collect data on many of these activities like traffic stops, like pedestrian stops, and then also providing that it’ll be prima facie evidence of a disparate impact if certain groups are stopped more frequently than other groups, is they’re trying to combat the perception, or reality, depending on who you talk to, that certain groups are targeted.

 

      And again, opponents of the bill say, “Look, this is very troubling. It creates an easy mechanism for police departments to game the system because in practice, what will start happening to avoid this prima facie evidence, this disparate impact analysis, is they’ll just start stopping other groups more frequently than they otherwise would have, maybe even in circumstances where a stop isn’t warranted, just so they can avoid some of these very onerous consequences.” And so it’s certainly a very -- this provision is certainly one of the more contentious provisions of the bill other than the qualified immunity and the lowering of the mens rea provisions.

 

Caller 7:  Thank you.

 

Guy DeSanctis:  Thank you for that question. It appears that we don’t have any more questions after that, so do you have final closing comments you’d like to make?

 

Zack Smith:  Well, I just want to say thank you all so much for taking the time to be on the call today. This is a very important issue in our nation right now. Obviously, it’s a very contentious issue with a lot of passion on both sides. And I think over the next several weeks, we’ll get better clarity on what this bipartisan compromise at the federal level might look like. And I’m more than happy to stay in touch or continue this conversation at a later date. But again, thank you all so much for having me on and for taking the time to listen. I really appreciate it.

 

Guy DeSanctis:  On behalf of The Federalist Society, I want to thank our expert, Zack Smith, for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned. 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.