Democratic push to make it easier to prosecute officers emerges as sticking point in policing bill talks

A sweeping bill to overhaul policing practices in the United States still faces an uncertain future — in large part because the two sides remain at sharp odds over whether to make it easier to criminally prosecute officers.

South Carolina Sen. Tim Scott, the lead GOP negotiator, opposes Democratic efforts to lower the legal standard to prosecute individual officers.

“(Section 242) is off the table for me,” Scott said, referring to the part of the law that Democrats are trying to amend.

But California Rep. Karen Bass, the lead House Democratic negotiator, said Thursday the issue is paramount for Democrats, who are pushing to change federal law to ensure that police officers can be charged for “reckless” conduct, rather than “willful” misconduct under existing law — currently a higher bar to meet in court.

“It is,” Bass told CNN when asked whether lowering the standard is essential to cutting a final deal. “Because the point is that we have got to hold police officers accountable. Essentially now the standard that’s used to prosecute an officer is so high. That’s why they’re never held to account. So you need to lower it just like you would for anybody.”

The issue is different from another contentious subject in the talks: whether to overhaul so-called qualified immunity, which currently protects police officers from civil litigation. But taken together, the two issues remain major hurdles facing negotiators as they try to respond to episodes of police violence that have prompted an outcry in communities of color across the country.

“Yes, we are,” Bass said when asked if they are still far from reaching a deal. But she added there’s “tremendous goodwill” in the talks.

Whether to make it easier to criminally prosecute officers is one of several key hurdles still facing the three main negotiators — Scott, Bass and Democratic Sen. Cory Booker of New Jersey — as they race to see if they can cut a major deal to force a change in police practices by the May 25 anniversary of the death of George Floyd, killed by then-Minneapolis police officer Derek Chauvin, who was convicted on three counts earlier this week. Other lawmakers are involved in the talks as well, including members of the bipartisan Problem Solvers Caucus and Senate Judiciary Chairman Dick Durbin, an Illinois Democrat.

Booker said Thursday that the negotiators are having “really, really good discussions” but declined to get into the details. But he noted that Senate Majority Leader Chuck Schumer has tapped him to find a deal on the issue, just as Scott has been chosen by his own leadership team — two close friends who are also among just three African Americans in the entire Senate.

“Chuck has given me wide latitude to do everything I can to get a bill done,” Booker said.

But while the two sides have signaled optimism on reaching a final deal, there are other contentious issues left to resolve, with Republicans resistant to Democratic measures they fear will make it easier to unfairly target police officers, including through criminal prosecutions. The other sticking points: whether to impose a federal ban on no-knock warrants and chokeholds — as Democrats want — or instead give states incentives to reform to policing practices through federal grant money, an idea pushed by Republicans.

And it’s uncertain if the two sides will find consensus on changes to qualified immunity as Democrats have long sought to allow victims of police violence to have recourse in civil court. Republicans have defended the lawsuit protections as essential to protecting law enforcement. To resolve the sticking point, Scott has proposed an alternative: llowing police departments to be brought to civil court, not officers themselves.

The idea has gotten some positive reception among influential Democrats, including Durbin and South Carolina Rep. Jim Clyburn.

“That’s a good start,” Clyburn, the No. 3 Democrat in his party’s leadership and highest-ranking Black member of Congress, told CNN on Thursday. “And maybe it will force police departments to do better recruiting.”

But a number of progressive Democrats have raised questions or have been downright opposed to Scott’s idea — and Bass herself isn’t yet convinced.

“What I’m looking for is accountability,” Bass said. When asked if Scott’s proposal achieves that, she said: “I don’t think so. But that’s what we are all examining.”

Scott, who was tapped by his party leaders to deliver a rebuttal to President Joe Biden’s speech to Congress next week, said Thursday that that there’s still an effort to find consensus on qualified immunity.

“I don’t think so,” he said when asked if they were far apart on the issue. “I think that there are a number of Democrats that have proposals that actually put the burden on the employer, not the employee or the department. I’ve spoken to many senators on the left who are very amenable and open to that. I think we will bridge that gap.”

But Scott later wouldn’t detail why he was opposed to Democrats’ push to make it easier to criminally prosecute officers.

“You can ask the question,” Scott said. “But I’m not going to answer the question.”