Police Reform and the 116th Congress: Selected Legal Issues

"Nationwide protests during the spring and summer of 2020 related to police use of force have prompted calls for increased congressional regulation of federal, state, and local law enforcement.There are an array of legal issues related to federal regulation of law enforcement, including the scope of Congress’s constitutional authority to legislate on law enforcement reform, current federalregulation of law enforcement, and various questions raised by reform proposals introduced in the 116th Congress.

 Congress has extensive power to regulate federal law enforcement. However, federalism principles embodied in the Constitution place limits on Congress’s power to regulate state and local police—an issue that the Constitution generally entrusts to the states.Congress, however, possesses some authority to regulate state and local law enforcement.Two primary tools Congress may use to act in this area are statutes designed to enforce the protections of the Fourteenth Amendment and legislation requiring states to take specified action in exchange for federal funds disbursed under the Spending Clause.

Legislating within the scope of its enumerated powers, Congress has enacted multiple statutes that regulate federal, state, and local law enforcement. Key existing legal authorities related to federal regulation of law enforcement include Department of Justice (DOJ) civil enforcement against patterns and practices of unconstitutional policing, laws imposing civil and criminal liability for officer misconduct, and grant conditions designed to spur state and local compliance with federal policies. Federal courts have supplemented these statutory authorities with certain judicially created doctrines defining the contours of liability for police misconduct..."
Police reform 

Policing the Police: Qualified Immunity and Considerations for Congress

"In the wake of unrest arising from George Floyd’s death on May 25, 2020, after a Minneapolis police officer pressed a knee into his neck, broader questions have arisen with regard to how existing law regulates the conduct of local police officers. While these issues are explored more broadly in these separate Sidebars, one particular issue of recent judicial and legislative focus has been the doctrine of qualified immunity. Qualified immunity is a judicially created doctrine shielding public officials who are performing discretionary functions from civil liability. The doctrine plays a particularly prominent role in defense of civil rights lawsuits against federal law enforcement officials under the Bivens doctrine and against state and local police under 42 U.S.C. § 1983 (Section 1983). With regard to its role in civil lawsuits concerning violations of constitutional norms regulating the police, defenders of the doctrine have suggested that qualified immunity plays an important role in affording police officers some level of deference when making split-second decisions about whether to, for example, use force to subdue a fleeing or resisting suspect. Critics of the doctrine have questioned its legal origins and have argued that its practice has provided too much deference to the police at the expense of accountability and the erosion of criminal suspects’ constitutional rights. With increasing focus on whether Congress should legislate to abrogate or otherwise modify the doctrine, this Sidebar explores the legal basis for qualified immunity, how it has operated in practice, and current debate over the efficacy of the doctrine. The Sidebar concludes by discussing considerations for Congress regarding qualified immunity..."
Policing police

Congress and Police Reform: Current Law and Recent Proposals

"In May and June 2020, protests erupted nationwide after the publication of video footage of a Minneapolis police officer pressing his knee into the neck of George Floyd, leading to his death. That incident and its aftermath have sparked heightened interest in Congress’s ability to implement reforms of state and local law enforcement.

As a companion to this Sidebar outlines in greater detail, congressional power to regulate state and local law enforcement is not without limits. The Constitution grants the federal government only certain enumerated authorities, with the Tenth Amendment reserving all other powers for the states. The regulation of state and municipal law enforcement is an area that the Constitution generally entrusts to the states. However, Congress possesses some authority to legislate on that subject, primarily through statutes designed to enforce the protections of the Fourteenth Amendment and legislation requiring states to take specified action in exchange for federal funds disbursed under the Spending Clause. This Sidebar provides an overview of existing federal statutes intended to prevent and redress constitutional violations by state and local public safety officials. It then presents some recent proposals that would change federal regulation of state and local law enforcement..."
Congress and police reform

Justice Department Releases Report on Civil Rights Division’s Pattern and Practice Police Reform Work

"The Justice Department released a comprehensive report today that provides an overview of the Civil Rights Division’s police reform work under Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994.

The report, “The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994-Present,” is designed to serve as a resource for local law enforcement agencies and communities by making the division’s police reform work more accessible and transparent.  It examines a range of topics, including the history and purpose of Section 14141, initiation and methodology of pattern-or-practice investigations, negotiation of reform agreements, the current reform model and its rationale, conclusion of agreements and the impact of pattern-or-practice enforcement on police reform and community-police trust.  To supplement the report, the division also published an interactive Police Reform Finder, which allows users to search how reform agreements have addressed specific kinds of policing issues..."
Police practices and reform