As another American city is gripped by protests following the shooting death of an unarmed Black person by a police officer, the Biden administration is renewing focus on one of the “four historic crises” he pledged to address in his first hundred days: a long-overdue reckoning over racial justice in policing.
“With Daunte Wright in Minnesota, that god-awful shooting resulting in his death, and in the midst of an ongoing trial over the killing of George Floyd… we’re in the business, all of us meeting today, to deliver some real change,” President Joe Biden said on Tuesday before a meeting with the Congressional Black Caucus. “We also have an awful lot of things we have to deal with when it comes to police, when it comes to advancing equality.”
But as the death of 20-year-old Wright puts renewed urgency behind Biden’s push to pass a landmark police reform bill through Congress, stakeholders in law enforcement and reform advocacy alike are increasingly at odds over the bill’s primary components. As the longtime divide between police and watchdogs widens, Biden’s call for reform that satisfies both groups appears increasingly unlikely.
“You can’t reconcile abolition with reform—they’re irreconcilable,” said Eugene O’Donnell, a former NYPD officer and prosecutor in New York City and professor of law and police science at John Jay College of Criminal Justice. “Biden is going to have to confront reality… which is that policing has collapsed completely, and it’s probably irreparably damaged.”
Democrats have long walked a thin tightrope in their relationship with law enforcement, particularly in recent years as the Black Lives Matter movement has helped push police reform to the top of the party’s political agenda. This is particularly true of Biden, who worked closely with police unions during his time as a senator—when he was at the forefront of anti-crime legislation that has since become a primary target of reform advocates—and has since made concerted efforts to bring law enforcement organizations into the fold as stakeholders in developing policy.
The decision on Monday to kill the national police oversight commission that Biden had promised to create during his first months in office, for example, came at the urging of both law enforcement groups and reform advocates who argued that it was redundant. Instead, the administration announced that its primary focus would be on passing the George Floyd Justice in Policing Act, which would, among other things, ban chokeholds and no-knock warrants in drug cases, require the use of de-escalation techniques before use of deadly force, and eliminate qualified immunity for law enforcement.
Asked about how much effort the White House would put into getting that bill passed, Psaki pledged Biden would “use the power of his presidency to move it forward.”
“The strong consensus from all of these [civil rights] groups is that the work should be focused on trying to pass the George Floyd Act, and the commission would not be the most constructive way to deliver on our top priority,” she said Tuesday. “So we are working together collectively to do exactly that. There are steps that we certainly will work in conjunction to take as they are possible. And some of them we've signed through executive orders, and we’ll continue to communicate with these groups about what is most effective.”
But police union stakeholders have already marked the issue of rolling back qualified immunity a red line.
“The biggest sticking point is qualified immunity,” said Andrea Edmiston, director of governmental affairs at the National Association of Police Organizations (NAPO), a lobbying group that represents more than 1,000 police units and associations—which in turn represent roughly a quarter million working and retired police officers. “We’ve heard from a lot of our members who are really worried that qualified immunity will go away.”
Qualified immunity, in short, shields government officials, including police officers, from being sued in civil court for violating a suspect’s constitutional rights in the course of the performance of their duties as long as those duties were carried out in “subjective good faith”—that is, if an officer believes their actions are reasonable in the moment. Critics of the protection say that it encourages police abuse without accountability, while law enforcement advocates say that it protects officers from frivolous lawsuits and potential financial ruin.
Even as public polling suggests a growing national consensus on the need for police reform in the context of racial justice, the two sides are increasingly at odds over the bill that the Biden administration has now made the gold standard for police reform. According to law enforcement groups that have been at the table, putting the George Floyd Act at the center of the administration’s focus for police reform could be the final straw for the police unions that Biden has courted for decades.
“If they break a law or knowingly violate someone’s constitutional rights, yes, that has to be addressed,” Edmiston said. “But if this officer is acting in good faith, and you take away qualified immunity, then that opens that officer up to being sued—and officers don’t make a lot of money, right? Suddenly, they’ll lose their life savings, they’ll lose everything.”
Edmiston noted that NAPO, as well as other law enforcement advocacy organizations, has been welcomed to the table by members of Congress seeking the input of police groups in the legislation. But while some aspects of the bill have gotten qualified support from law enforcement stakeholders—including mandated data collection for use-of-force statistics, and a national decertification database that would prevent officers fired for misconduct from being hired by police forces in other states—the sticking point of qualified immunity is seen as both a nonstarter in law enforcement circles.
“You’re going to get police officers to do absolutely nothing other than being an observer,” said said Tom Scotto, president emeritus of the Detectives’ Endowment Association, one of the three major police unions in New York City, who also served as president of the NAPO. Scotto, who called measures eliminating qualified immunity “absurd,” worked closely with Biden during the drafting of the 1994 crime bill from which the future president would later distance himself. “Every piece of action you take is now subject to some civilian getting an ambulance chasing attorney.”
Meanwhile, the removal of qualified immunity, which has already been passed in some states, is a baseline requirement among reform advocates.
“It is clear that the only way to end the scourge of police violence is to immediately divest from policing institutions that, from their inception, have been used to oppress Black people,” said Paige Fernandez, a policing policy advocate in the American Civil Liberties Union’s justice division. “You don’t reform police—you remove their responsibilities and reallocate taxpayer money into harm-reducing solutions. It is now far past time for tangible action to avoid killings like that of Daunte Wright.”
The impossibility of reconciling those two positions has put Biden, a politician who has defined his career on his ability to bring together warring factions in support of common goals, on a collision course with two longtime constituencies.
“If the president fails to deliver meaningful criminal justice reform, it’s essentially waving the white flag on one of the major crises he pledged to address,” said one former longtime staffer who worked in Biden’s office during the passage of the 1994 crime bill. “But if he turns his back on police—or even if they perceive him as turning his back on them—he loses a constituency he has courted for decades, and sets himself up for Crime Bill 2.0 if Republicans retake Congress.”
O’Donnell, pointing to statistics showing a decline in qualified candidates for jobs in law enforcement and shortened career spans for those who do qualify, said that the only way to reconcile the two positions may be to accept that street cops may not exist forever.
“It’s like coal mining—it’s just a job that we’re not going to lament the passing of,” O’Donnell said. “Assuming that you’re going to have humans doing this job… then how do you protect the country? If Biden wants to lead on that, that’s the question. How do you do that?”
Black lawmakers on Tuesday told reporters that the president intends to do so by pushing for the George Floyd Act.
“We know we’re going to have other meetings to develop our next steps, but we are moving forward,” said Rep. Sheila Jackson Lee (D-TX), after an Oval Office meeting between Biden and Congressional Black Caucus leadership. “And we were able to discuss those very openly with the president today.”