Congressional Democrats unveiled a new bill on Monday that responds to the calls in all 50 states for a transformation in American policing, especially against Black and Brown communities. In the words of the New York Times, the new bill “is the most expansive intervention into policing that lawmakers have proposed in recent memory.” Also in the words of the Times, “President Trump and Republican lawmakers who control the Senate have yet to signal which measures, if any, they would accept.”
The forces of white supremacy and authoritarianism baked into current American policing practices, which any worthy bill would seek to address, are also the forces which drive right-wing politics on the federal level. It is therefore unlikely that this bill would make it, as written, through the Senate and receive Trump’s signature. And yet this bill is also not all that is needed federally (let alone at the state or local level) to address America’s racist system of law enforcement.
But Democrats who are serious about aiding the historic, bottom-up work of activists on the ground have a lot of tools at their disposal. The Revolving Door Project has pleaded since 2018 for House Democrats to aggressively use their oversight powers, and there is so much investigation and fact-finding to do when it comes to American policing. Effective oversight can not only deepen current activist-driven momentum, but it can also lay the groundwork for what is possible if Democrats reclaim power within the federal government in November. That means not only could current oversight influence potential legislation, it can help elucidate how a potential Biden Administration should wield its considerable executive branch powers to transform American policing.
Here, we humbly offer just a few suggestions of topics for House Democrats to explore. We urge, however, for the Hill to defer to activists on the ground and in organizations which have studied policing for decades as to what would be most useful. Our contribution is not subject matter experience, but rather our experience analyzing the importance of congressional oversight.
House Democrats are not powerless in the face of Senate intransigence. Democrats therefore have a responsibility to use the powers they have, very much including stringent and overdue oversight.
- Understand the scope and scale of avowed white supremacy in American police departments. The FBI first raised alarms about white supremacist groups “infiltrating law enforcement communities or recruiting law enforcement personnel” in 2006. A 2015 counterterrorism policy guide found “sovereign citizen extremists often have identified active links to law enforcement officers.” While the ideology of white supremacy is baked into all aspects of American society in deep ways, there certainly must be zero tolerance of open and avowed white nationalists in any policing apparatus. Similarly, the House should investigate whether and how social media tools like Facebook have played a role in radicalizing young officers and shaping attitudes toward their work.
- Determine every federal resource and agency which was mobilized for “law enforcement” against peaceful protesters, especially in the District of Columbia. We’ve seen extraordinary overreach in a very short period of time, from DEA Agents conducting domestic surveillance of ordinary citizens using their First Amendment rights to armed guards refusing to disclose for whom they work. We recommend particularly looking into the Office of Legal Counsel decisions which supposedly justified the use of Bureau of Prisons personnel in DC.
- Review the language currently governing domestic use of the military and military equipment in the National Defense Authorization Act. The Democratic bill introduced on Monday calls for limits on the sale of military weapons to police. But under the Section 1033 program, military equipment is often voluntarily donated to municipal police programs. The program gets its name from the part of the 1997 NDAA which first created it, and is administered through the GSA’s Surplus Property Donation Program. It is past time for the NDAA to expressly ban weapons of war from use by domestic police officers. To really address the militarization of American policing, Congress needs to understand its own role in authorizing defense budgets each year — then Democrats can and should bargain harder for reform in these must-pass bills.
- Press the Justice Department to obey federal law mandating it track the number of civilians killed by law enforcement. The bill introduced on Monday calls for a “National Police Misconduct Registry” listing nationwide complaints against police officers to prevent rehiring repeat offenders. This is a good first step, but if past is precedent, executive branch authorities may simply ignore the law if enacted. In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act, which required the attorney general to collect data on the use of excessive force by police officers, including publishing an annual summary of the data. Under four successive presidents, the Justice Department has simply refused to do so, citing “the sensitivity of the issue.” Moreover, in 2014, Congress enacted the Death In Custody Reporting Act which required federal agencies and states to report fatalities of individuals police sought to arrest or detain. The Obama Justice Department “did not even attempt to garner such data” until 2016. It is absolutely unacceptable that, despite two separate laws mandating DOJ data-gathering, the best available data on American police’s most fundamental betrayal of the charge to “protect and serve” comes from a newspaper and a non-profit advocacy group. Given how much more lethal United States officers are than officers in peer nations, the public needs a thorough, searchable database of who is killed by police officers, why, and how. The Justice Department, our highest law-enforcement arm, has unlawfully refused to gather such data for over 25 years. Intense Congressional oversight is long overdue.
- Investigate how police contracts and the qualified immunity doctrine insulate officers from accountability. The bill introduced on Monday already begins looking into legal mechanisms that shield officers from prosecution. In many states, including Minnesota, police unions have warped their right to bargain over disciplinary guidelines “to create an alternative justice universe,” in the words of the Boston Globe editorial board. A 2017 Duke University survey of 178 police union contracts found “a substantial number” interfere with or limit oversight mechanisms, often in exchange for lower pay and benefits. “Cities are agreeing to bad deals to save money,” Professor Stephen Rushin of Loyola University School of Law told the Globe. This not only perverts the labor movement, it makes government more violent for the sake of saving a few dollars.
Moreover, thanks to the Supreme Court doctrine of qualified immunity, police are effectively shielded from civil suits over most illegal behavior, making it substantially harder for the public to hold officers to account when city hall will not. The Democrats’ bill already seeks to end this doctrine, which is an excellent step. Public hearings on the topic could also help inform general understanding of qualified immunity, and reiterate Democrats’ commitment to ending the doctrine. The House must investigate how police contracts and misinterpretation of qualified immunity have shielded officers from accountability.
- Investigate enforcement of DOJ consent decrees. The Obama administration’s Department of Justice dramatically increased the use of consent decrees to both investigate and mandate change in city police departments. But consent decrees only have power if they are enforced. By 2020, no one should be foolish enough to think the Trump administration will not undermine an achievement of its predecessor on a politically charged topic. Publicly investigating whether and how the Barr DOJ has looked the other way from police departments the Obama team investigated would provide crucial context to both Trumpist actions and how federal interventions do and don’t reform policing.
- Learn about and regulate the use of non-lethal weaponry against protesters. One fact that has gone viral in the wake of the protests: tear gas, long used against American demonstrators, is illegal as a weapon of war under the Geneva Convention. Its long-term health effects are not well known. Rubber bullets, also commonly used by American police against peaceful protesters, have violent impacts too — in one case, a police de-escalation trainer was shot with rubber bullets by the very officers he trains, and it is unclear if he will now be able to have children. Weapons of war that can transform a human being’s life are an unacceptable response to exertion of First Amendment rights. It is time for Congress to understand it, and a future Democratic executive branch to regulate or ban it.
- Investigate pursuant to the 14th Amendment’s Section 5. This part of the amendment charges Congress with the power to adopt “appropriate” legislation to enforce the rest of the amendment (which ensures citizenship, due process, equal protection of the law, and Congressional representation for all Americans in all states.) Therefore, it is Congress’ duty to ensure that states are upholding the rights which fall under the 14th Amendment — most especially, civil rights. Should Democrats retake the Senate in 2021, having already conducted state-by-state fact-finding about 14th (and 15th) Amendment protections would also inform the voting rights packages which must be a top legislative priority.
- Revisit and deepen understanding of policing as a local government revenue-raising tool. This was one of the major findings of the Obama administration’s report on the Ferguson, Missouri protests. In the years since, researchers and activists have deepened their analysis of the relationship between policing and city budgets — look at the Action Center on Race and the Economy’s report on “police brutality bonds,” for example. Public hearings with expert witnesses and probing questions from representatives could dramatically further understanding among political leaders, the media, and citizens about how this dynamic works.
- Hold a hearing on why white-collar crime goes severely underenforced while lawful First Amendment activity is aggresssively policed. The number of people arrested after one week of the George Floyd/Breonna Taylor protests was more than double the number of white-collar criminals arrested for all of 2019, as Buzzfeed News reported.