And any deal on policing will almost certainly include some changes to the qualified immunity standard, likely making it easier for victims of excessive force to make their case in civil court.
That has caused heartburn among some senior Republicans who argue that weakening the standard in any way would make it harder for police to do their jobs in dangerous environments — and could potentially cause more officers to leave their jobs.
“We’re already having trouble recruiting police, and police are retiring early,” Sen. John Cornyn, a Texas Republican, said Wednesday in the Capitol when asked about the issue. And he contended that the conviction of former Minneapolis police officer Derek Chauvin for last year’s murder of George Floyd shows “we can hold bad cops accountable.”
“What we’re talking about now is making it possible for trial lawyers and people to sue for money,” said Cornyn, a member of the Judiciary Committee and his party’s leadership team. “I haven’t heard a specific proposal that I can agree with yet.”
Despite the recent optimism that a deal can be reached on policing, the GOP concerns underline the reality that any accord will need to win over enough lawmakers on both sides to get through a narrowly divided House and a 50-50 Senate where 60 votes are needed to overcome any filibuster attempt.
Cornyn’s concerns were echoed by a range of rank-and-file Senate Republicans as well as some of the more senior members of the conference, including Iowa Sen. Chuck Grassley, the ranking Republican on the Judiciary Committee, which has jurisdiction over the issue.
“As of now I would be,” Grassley said when asked if he would be concerned about changing present law on the issue of qualified immunity.
The top Democratic negotiators, Rep. Karen Bass of California and Sen. Cory Booker of New Jersey, initially pushed to eliminate qualified immunity altogether, arguing the legal doctrine allows officers to operate without accountability for reckless behavior.
But South Carolina Sen. Tim Scott, the lead GOP negotiator and lone Black Senate Republican, whose original bill last summer did not address qualified immunity, has recognized that there needs to be some modifications in order to get Democrats to agree to a broader deal aimed at rebuilding frayed ties between police and African American communities and limiting the tragic scenes that have played out across the country.
Scott says some compromise needs to be reached on that issue.
“If you take qualified immunity out of a deal, wouldn’t you lose all the Democrats on it completely?” Scott told CNN on Wednesday. “I think you have answered your own question.”
But the GOP senator, who has been enlisted by Senate Minority Leader Mitch McConnell to find a compromise, acknowledges there are concerns internally that he’ll have to address if a deal comes together.
“I think we all should be concerned about changes,” Scott said. “The question is, are those concerns merited? That’s a different question. We should be concerned, though. If we can get to the spot they want to be in, they’ll say yes. If we don’t, then they’ll say no.”
The George Floyd Justice in Policing Act, which passed the House with no Republican support in March, calls for ending qualified immunity. But Scott has offered a compromise, which would shift responsibility for the lawsuits from the individual officer to police departments. Some House progressives have balked at any compromise that comes short of eliminating qualified immunity, but Booker conceded a deal can’t be done in the 50-50 Senate without Republican support.
“We are working hard on making sure there’s real accountability for police officers, both civil and criminal. And that’s my goal, it was in the Justice in Policing Act, but this is a negotiation,” Booker said. “This bill can’t get done if it doesn’t have Senate Republican support, not just some support, it’s really got to be like the First Step Act where you see a significant amount of senators on both sides supporting it,” he said, referring to criminal justice legislation passed in 2018.
Scott’s compromise proposal has been the subject of intense negotiations for weeks, and the two sides have been trying to finesse the language as they race to cut a deal in June. How it ultimately turns out remains to be seen.
“It’s June or bust,” Scott said Wednesday. “We’ve got three weeks in June to get this done.”
But both Cornyn and Grassley raised concerns about allowing police department to be subject to the lawsuits, as Scott has proposed. And there’s still skepticism in the GOP ranks over weakening the qualified immunity standard in any way.
“I think it’ll be a mistake,” said Louisiana Sen. John Kennedy, a member of the Judiciary Committee, when asked about watering down the existing standard. “I don’t think it’s necessary, number one. Number two, I think it will have a terribly harmful impact on public safety in this country.”
“I think if you have qualified immunity in a national way, there’s not going to be much Republican support,” said Sen. Mike Braun, a Republican of Indiana.
Scott has been working with some other Republicans in the House and Senate, including fellow South Carolina Sen. Lindsey Graham, who voiced confidence Tuesday that the policing deal is coming together.
The negotiators have been in communication with a number of outside groups representing all sides of the issue as they work to craft a compromise bill.
The Fraternal Order of Police has shared its position on qualified immunity with the principal negotiators on both sides.
“At the end of the day, if police officers are protected by the doctrine of qualified immunity and others have to deal with the lawsuits, not the officers, then we’re fine with it,” said Jim Pasco, executive director of the Fraternal Order of Police.
NAACP President Derrick Johnson has expressed a willingness to consider Scott’s proposed compromise and has publicly deferred to the negotiators to hammer out the specifics.
“Qualified immunity reform is essential,” Johnson said on Tuesday after speaking with Bass. “How we get there is among all those in the room negotiating how to get there.”
But some Republicans are still pushing back.
“That’s a no-go for me,” Sen. Josh Hawley, a Missouri Republican who sits on the committee, said of weakening the civil lawsuit protections.
Morgan Rimmer contributed to this report.