Details of the discussions with the Justice Department were first reported by CNN. One idea to eventually address police misconduct would involve omitting provisions regarding the standard for prosecuting officers from legislation and allowing the Justice Department to address the matter through federal prosecutions. The congressional source said this idea has not been formally discussed at the negotiations.
On Wednesday, Democratic Senator Dick Durbin, the majority whip, said “progress is being made” and that negotiators are “close, but not there yet.”
Durbin told reporters on Capitol Hill that the Justice Department had been consulted “particularly for technical expertise to make sure that we understand what changes will have an effect on policing in America.” But he declined to go into details when asked if it is possible to reach a policing reform deal that does not include qualified immunity.
“I don’t want to get into the specifics other than to tell you that this effort really is considering all of the issues that are before us, and we still have work to do,” he said.
Democrats have called for overhauling qualified immunity, which shields police from lawsuits and limits civil liability. One of the top negotiators, Republican Senator Tim Scott, has floated making it easier to sue police departments but not individual officers.
Scott said Tuesday that negotiators are “making progress but we aren’t there yet.” He also said he was willing to see what the Justice Department will “come up with.”
Lawmakers are deadlocked over changing Section 242 of the U.S. Code to require a jury to decide whether a law enforcement officer acted with reckless disregard in order to convict, rather than the current standard of “willfulness.”
“I don’t think we are going to solve that part, that’s just a bridge too far for me,” Scott said Tuesday about resolving differences on Section 242.
Police reform talks gained momentum after the conviction of former Minneapolis Police Officer Derek Chauvin for killing George Floyd. President Biden called on Congress to “find a consensus” on police reform by May 25, the one-year anniversary of Floyd’s death.
The congressional source said that, after a meeting on Tuesday, enough progress has been made for some form of police reform legislation to pass before the self-imposed May 25 deadline. The House has passed the George Floyd Justice in Policing Act, but this measure is unlikely to garner Republican support in the Senate, necessitating the negotiations.
There are several areas of agreement, including implementing limitations on use of police chokeholds and carotid holds, more nationwide standards for no-knock warrants and limiting the sharing of military equipment from the Defense Department to police departments.
Qualified immunity is still a major point of contention. House Democratic Whip Jim Clyburn indicated over the weekend that he was open to setting aside the issue of qualified immunity to get a deal done. But some progressives, like Congresswoman Cori Bush, have said they won’t support the negotiated package without addressing qualified immunity.
Lawmakers involved in the negotiations include Scott, Republican of South Carolina; Durbin, of Illinois; Senator Cory Booker, Democrat of New Jersey; Senator Lindsey Graham, Republican of South Carolina; and Representatives Karen Bass, a California Democrat; Brian Fitzpatrick, Republican of Pennsylvania; New Jersey Democrat Josh Gottheimer and Pete Stauber, Republican of Minnesota.
Bass said ahead of a meeting with Scott on Wednesday that “we’re just checking in on all of the major points.” She added that she did not know when legislation would be ready, but said “we’re certainly going to try — what’s most important is that we are all very motivated to get this across the finish line.”
Grace Segers and Jack Turman contributed to this report.