On March 3, 2021, the House of Representatives passed HR 1280, titled, “The George Floyd Justice in Policing Act of 2021”. The purported purpose of HR 1280 is;
“to hold law enforcement accountable for misconduct in court, improve transparency through data collection, and reform police training and policies.”
HR 1280 does a lot more than this! Below are highlighted twelve (12) of the requirements/prohibitions listed in the bill. This listing is not meant to be all-inclusive.
- First, HR 1280 amends 18 U.S. Code Section 242, Deprivation of rights under color of law, to lower the standards for a violation under this section. It changes the standard from a defendant “willfully” engaging in an act to deprive another of rights under the law to only “knowingly or recklessly” causing the deprivation of rights under the law.
- Second, HR 1280 eliminates qualified immunity by preventing a local law enforcement officer (LEO) from defending him or herself in a criminal action if the LEO was acting in good faith, or that the LEO believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed.
- Third, HR 1280 would authorize the use of independent investigators and independent prosecutors in a criminal matter in which one or more of the possible defendants is a LEO; one or more of the alleged offenses involves the LEO’s use of deadly force in the course of carrying out that officer’s duty; and the non-Federal LEO’s use of deadly force resulted in a death or injury.
- Fourth, HR 1280 requires the development of national standards, in consultation with law enforcement accreditation organizations and community-based organizations, that will result “in greater community accountability of law enforcement agencies and an increased focus on policing with a guardian mentality,” including those relating to—(i) early warning systems and related intervention programs; (ii) use of force procedures; (iii) civilian review procedures; (iv) traffic and pedestrian stop and search procedures; (v) data collection and transparency; (vi) administrative due process requirements; (vii) video monitoring technology; (viii) youth justice and school safety; and (ix) recruitment, hiring, and training;
- Fifth, with respect to youth justice and school safety, HR 1280 requires uniform standards that include best practices for law enforcement interaction and communication with children and youth, taking into consideration adolescent development and any disability, including—(A) the right to effective and timely notification of a parent or legal guardian of any law enforcement interaction, regardless of the immigration status of the individuals involved; (B) the creation of positive school climates by improving school conditions for learning by—(i) eliminating school-based arrests and referrals to law enforcement; (ii) using evidence-based preventative measures and alternatives to school-based arrests and referrals to law enforcement, such as restorative justice and healing practices; and (iii) using school-wide positive behavioral interventions and supports.
- Sixth, HR 1280 requires the establishment of a National Police Misconduct Registry to be compiled and maintained by the Department of Justice. The Registry will contain, among other things, with respect to a LEO: (1) each complaint filed against a law enforcement officer, (2) discipline records, disaggregated by whether the complaint involved a use of force or racial profiling. (3) termination records, the reason for each termination, disaggregated by whether the complaint involved a use of force or racial profiling, (4) Records of lawsuits against law enforcement officers and settlements of such lawsuits, and (5) Instances where a law enforcement officer resigns or retires while under active investigation related to the use of force.
- Seventh, HR 1280 prohibits racial profiling of any kind, and requires the development of a training program for LEOs to cover racial profiling, implicit bias, and procedural justice; and to identify a clear duty for Federal LEOs to intervene in cases where another LEO is using excessive force against a civilian.
- Eighth, HR 1280 imposes a ban on the use of no-knock warrants in drug cases. It also requires that “a search warrant authorized under this section shall require that a law enforcement officer execute the search warrant only after providing notice of his or her authority and purpose.” In this section, the term “no-knock warrant” means “a warrant that allows a law enforcement officer to enter a property without requiring the law enforcement officer to announce the presence of the LEO or the intention of the LEO to enter the property.”
- Ninth, HR 1280 prohibits chokeholds. A “chokehold” is defined as “the application of any pressure to the throat or windpipe, use of maneuvers that restrict blood or oxygen flow to the brain, or carotid artery restraints which prevent or hinder breathing or reduce intake of air.”
- Tenth, HR 1280 prohibits the use of deadly force unless—(A) the form of deadly force used is necessary, as a last resort, to prevent imminent and serious bodily injury or death to the officer or another person; (B) the use of the form of deadly force creates no substantial risk of injury to a third person; and (C) reasonable alternatives to the use of the form of deadly force have been exhausted. This means that, when feasible, prior to using force against a person, a Federal LEO shall identify himself or herself as a Federal LEO, and issue a verbal warning to the person that the Federal LEO seeks to apprehend, which shall—(A) include a request that the person surrender to the LEO; and (B) notify the person that the LEO will use force against the person if the person resists arrest or flees.
- Eleventh, HR 1280 requires Federal LEOs to wear body cameras and in-car video camera recording equipment. However, no camera or recording device authorized or required to be used under this part may be equipped with or employ facial recognition technology, and footage from such a camera or recording device may not be subjected to facial recognition technology.
- Twelfth, HR 1280 punishes anyone, acting under color of law, who knowingly engages in a sexual act with an individual, including an individual who is under arrest, in detention, or otherwise in the actual custody of any Federal LEO, shall be fined or imprisoned not more than 15 years, or both.
Does this bill defund the police? It may do this in indirect ways.
- First, some have indicated that the Act imposes Federal requirements (or mandates) upon State and local police agencies that are not funded. These are always referred to as “unfunded mandates.” Because they are unfunded, LEO agencies would have to reallocate funds from their existing budgets to pay the costs of meeting the Federal requirements. But, please note that there is a 1995 Federal statute that prevents the Federal Government from doing this. It is called the “Unfunded Mandates Reform Act of 1995.” The exception to this Act—dealing with interagency meetings to exchange views and advice—does not seem to fit what the George Floyd Justice in Policing Act wants to do.
- Second, the bill conditions Federal grant funding for LEO agencies upon implementation of the requirements within the bill, if enacted. If no or late implementation, funds are severely reduced.