NRPLUS MEMBER ARTICLE I n the past few days, both President Trump and Senator Tim Scott have put forth plans to reform policing: an executive order for the former, a piece of legislation for the latter. There are some worthy ideas in both documents, but perhaps the biggest takeaway from these efforts is that there’s only so much the federal government can do. Many key discussions need to take place at the state and local levels instead.
There are both constitutional and political reasons for the federal government’s limits. Most policing is done by state and local cops, and the governments in control of these agencies are constitutionally separate from the federal government, with many powers reserved to them specifically. The official “section-by-section” summary of the Scott bill says that it will “maintain the Constitutionally-limited role the federal government plays in local law enforcement decisions.”
The federal government can redress the constitutional violations of lower levels of government, and it can also provide grants that are conditioned on police departments’ being run in a certain way. But in order to do even that, federal policymakers need a consensus of the House, the Senate (60 votes in the event of a filibuster), and the president. Since many specifics of police reform are controversial, and since many lawmakers hesitate to have the federal government dictate policy to the states anyhow, such a consensus is often hard to come by.
The way Trump and Scott treat “chokeholds” is a good example of both of these issues. Both their proposals limit these maneuvers not by banning them outright, the way a state government could, but by conditioning federal money on their being eliminated except in situations where lethal force is justified. (The section-by-section of the Scott bill, however, says that there’s so much money at stake that the threat “should essentially ban chokeholds across the nation.”) And both define “chokehold” in a narrow way, as a hold that “restricts an individual’s ability to breathe for the purposes of incapacitation.” Many departments have barred holds that block a suspect’s air flow for years already, because they’re incredibly dangerous; nowadays, the debate is more about “carotid” or “blood” chokes that, when applied properly, leave the airway free but reduce the supply of blood to the brain — which can knock someone unconscious quickly and can sometimes stop a situation from escalating into lethal violence. There’s much less consensus about how much to restrict such holds, and neither Trump’s nor Scott’s language would appear to restrict them.
Even issues that unambiguously fall under the federal purview are left out. As alluded to earlier, the 14th Amendment empowers Congress to stop states from violating citizens’ constitutional rights — and a big issue this past month has been a doctrine called “qualified immunity,” which police officers can assert in court to get themselves out of lawsuits alleging constitutional violations. (See here for a much longer discussion of the doctrine.) Congress can change or eliminate this policy at will, because it stems from the way courts have implemented a statute it enacted after the Civil War. But police groups strongly oppose any weakening of qualified immunity, and both the president and Scott have said it’s off the table.
To be fair, there are good things the federal government can and should do. The executive order will create a database of excessive-force incidents so that bad cops can’t move from one department to another without the new department being aware of their history; the Scott bill requires states to report serious use-of-force incidents and “no-knock” raids to the federal government, requires departments to retain disciplinary records for 30 years, and backs these requirements up with federal funding incentives. Scott’s bill also provides money for body cameras and training.
Both also call for new reports and studies regarding the best practices for departments to follow. As I wrote last week, there is far too little research about what works and what doesn’t. For example, as more and more departments ban carotid chokes, we might want to study what other types of force replace them.
But there’s a lot that the federal government can’t accomplish. For example, only states can rewrite their justifiable-homicide laws and curtail the power of police unions, and it will fall to lower levels of government to actually train cops.
It’s good that federal lawmakers are paying attention to this issue. But a lot of the real action will be on a much more local level.