Legal Sidebari
Congress and Police Reform: Current Law and
Recent Proposals
Updated June 19, 2020
In May and June 2020, protests erupted nationwide after the publication of video footage of a
Minneapolis police officer pressing his knee into the neck of George Floyd, leading to his death. That
incident and its aftermath have sparked heightened interest in Congress’s ability to implement reforms of
state and local law enforcement.
As a companion to this Sidebar outlines in greater detail, congressional power to regulate state and local
law enforcement is not without limits. The Constitution grants the federal government only certain
enumerated authorities, with the Tenth Amendment reserving al other powers for the states. The
regulation of state and municipal law enforcement is an area that the Constitution general y entrusts to the
states. However, Congress possesses some authority to legislate on that subject, primarily through statutes
designed to enforce the protections of the Fourteenth Amendment and legislation requiring states to take
specified action in exchange for federal funds disbursed under the Spending Clause. This Sidebar
provides an overview of existing federal authorities intended to prevent and redress constitutional
violations by state and local public safety officials. It then presents some recent proposals that would
change federal regulation of state and local law enforcement. The Sidebar concludes with a list of
additional CRS resources related to law enforcement reform.
Federal Regulation of State and Local Law Enforcement
Existing federal remedies for constitutional violations by state and local law enforcement include civil
and criminal enforcement by the U.S. Department of Justice (DOJ) and private suits by individuals
deprived of their rights by someone acting “under color of” state law. In addition, the federal government
encourages states to enact certain policies related to law enforcement by placing conditions on federal
funding. Federal agencies also independently investigate and gather data on law enforcement activities.
Federal Criminal Law
A provision of the federal criminal code, 18 U.S.C. § 242 (Section 242), makes it a crime for (among
other things) a person acting “under color of any law, statute, ordinance, regulation, or custom” to
“wil fully subject[ ] any person . . . to the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States[.]” Section 242 also prohibits a person acting
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under color of law from subjecting any person to “different punishments, pains, or penalties, on account
of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of
citizens[.]” A simple violation of the statute is punishable by a fine and/or up to a year in prison. If bodily
injury results, the offender may be fined and/or imprisoned for up to ten years. If death results or other
aggravating factors are present, Section 242 provides for a fine and/or imprisonment for ten years to life
or a death sentence (though the Constitution forbids imposition of the death penalty for non-homicide
offenses). A related provision, 18 U.S.C. § 241 (Section 241), makes it a crime for “two or more persons
[to] conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of
any right or privilege secured to him by the Constitution or laws of the United States[.]” Violations of
Section 241 are punishable by up to ten years in prison or, if certain aggravating factors are present, up to
life in prison or death.
The Supreme Court has held that “officers of the State . . . performing official duties,” including public
safety officials, act “under color of . . . law” for purposes of Section 242. As DOJ has explained, law
enforcement officers may violate Section 242 through “excessive force, sexual assault, intentional false
arrests, theft, or the intentional fabrication of evidence resulting in a loss of liberty to another.” DOJ
enforces Sections 241 and 242 by bringing criminal charges against officers accused of violating those
statutes. People who believe their rights have been infringed may report such violations to DOJ, but
Sections 241 and 242 provide no private right of enforcement. Notably, if DOJ elects to pursue criminal
charges under Section 242, it faces a high standard of proof: in Screws v. United States, the Supreme
Court held that to show a violation of a prior statute whose wording mirrored that of Section 242, the
prosecution must prove the defendant had “a specific intent to deprive a person of a federal right made
definite by decision or other rule of law.” The Supreme Court extended this holding to Section 241 cases
in United States v. Guest. In practice, the specific intent requirement requires the prosecution to prove that
a local official intended to violate a federal right, as opposed to simply intending to, for example, assault a
victim. This results in what some view as a significant hurdle to bringing Section 241 and 242 claims.
DOJ Civil Enforcement
Another section of the U.S. Code, 34 U.S.C. § 12601 (formerly codified at 42 U.S.C. § 14141) renders it
“unlawful for any governmental authority, or any agent thereof, . . . to engage in a pattern or practice of
conduct by law enforcement officers or by officials . . . that deprives persons of rights, privileges, or
immunities secured or protected by the Constitution or laws of the United States.” According to DOJ,
potential violations of this provision include “excessive force, discriminatory harassment, false arrests,
coercive sexual conduct, and unlawful stops, searches or arrests.” DOJ enforces this provision by filing
civil complaints against al egedly offending law enforcement agencies. The statute does not create a
private right of action (i.e., a right for individuals harmed by violations to sue). Moreover, because the
law applies only to a “pattern or practice of conduct,” it cannot remedy isolated instances of misconduct.
Final y, the statute does not provide for monetary penalties. If DOJ successfully sues under the provision,
it may “obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.”
Private Civil Rights Litigation
Federal law also al ows individuals to seek civil redress for violations of their legal rights. The applicable
statute, 42 U.S.C. § 1983 (Section 1983), provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured[.]
Unlike the foregoing statutory provisions, Section 1983 creates a private right of action, meaning that
anyone suffering a covered deprivation of rights may sue the persons responsible. Moreover, unlike
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Sections 241 and 242, courts have interpreted Section 1983 not to contain a specific intent requirement. A
prevailing Section 1983 plaintiff may be entitled to injunctive relief, attorney’s fees, and/or money
damages. Recovery may include both compensatory damages (designed to make the plaintiff whole and
compensate for the legal injury) and punitive damages (designed to punish the defendant and deter future,
similar misconduct).
Similar to Section 242, Section 1983 applies to persons acting “under color of” state law. State and local
public safety officers general y act under color of state law for purposes of Section 1983: as the Supreme
Court has stated, “a public employee acts under color of state law while acting in his official capacity or
while exercising his responsibilities pursuant to state law.” However, law enforcement liability under
Section 1983 is subject to a significant judicial y created limitation: based on concerns that frequent
litigation could interfere with the work of law enforcement officers, the Supreme Court has held that law
enforcement officers benefit from qualified immunity from suit. The Supreme Court announced the
modern qualified immunity test in Harlow v. Fitzgerald, holding that “government officials performing
discretionary functions, general y are shielded from liability for civil damages” if they do not “violate
clearly established statutory or constitutional rights of which a reasonable person would have known.”
The Supreme Court has explained that qualified immunity is “an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted
to go to trial.” As a result, courts general y consider qualified immunity early in a Section 1983 case, and
a defendant whose qualified immunity defense is denied is entitled to an immediate interlocutory appeal.
A court evaluating a claim of qualified immunity considers two questions: (1) whether, viewed in the light
most favorable to the plaintiff, “the facts al eged show the officer’s conduct violated a constitutional
right”; and (2) “whether the law clearly established that the officer’s conduct was unlawful in the
circumstances of the case.” While that two-step analysis was once considered mandatory, in the 2009 case
Pearson v. Callahan, the Supreme Court held that judges could “exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed first.” In a
series of recent cases involving police use of force, the Roberts Court has reversed lower court denials of
qualified immunity, stating that “clearly established law” must not be defined at a high level of generality
and instead needs to be particularized to the facts of the case, which can amount to a high bar for
plaintiffs to overcome.
Grant Conditions and Federal Oversight
The federal government provides financial support to state and local law enforcement in the form of
grants, and may require states to enact certain policies to qualify for such funding. As one example, the
Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program provides federal support for
state and local criminal justice programs. Among other conditions, states that receive Byrne JAG funding
must certify compliance with the Death in Custody Reporting Act (DCRA). Enacted in 2014 the DCRA
requires states to report to the Attorney General certain information regarding the deaths of individuals in
the custody of law enforcement agencies. Byrne JAG grants have also have been used to train officers on
use of force and de-escalation of conflict. In addition to guiding state and local law enforcement policy
through grant funding, federal government agencies independently collect data related to the use of force
by state and local law enforcement.
June 2020 Executive Order
On June 16, 2020, President Donald Trump issued an Executive Order on Safe Policing for Safe
Communities. In perhaps its most consequential provision, the Executive Order directs the Attorney
General to establish best practices for law enforcement agencies and condition federal grants on
compliance with those standards. Specifical y, the Executive Order directs the Attorney General to certify
independent credentialing bodies that can assess agencies’ policies in areas such as use of force, de-
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escalation, and identifying officers who may require intervention. Of particular note, credentialing bodies
wil need to “confirm” that state and local use-of-force policies prohibit the use of chokeholds. The
Executive Order directs the Attorney General to al ocate DOJ discretionary grant funding only to state
and local law enforcement agencies that have sought or are in the process of seeking such credentials.
In addition, the Executive Order directs the Attorney General to create a database to track and publish
data related to instances of excessive use of force by law enforcement, requiring law enforcement
agencies that receive discretionary grant funding to submit information to the database. The Executive
Order also requires the Attorney General to develop and propose legislation to improve law enforcement
practices and build community engagement, and to identify and develop opportunities to train law
enforcement officers with respect to encounters with individuals suffering from impaired mental health,
homelessness, and addiction. Importantly, the Executive Order provides that many of its requirements
must be implemented “as appropriate and consistent with applicable law.” As a result, provisions that
seek to change existing grant conditions may be tempered by recent court rulings expressing skepticism
of the executive branch’s ability to unilateral y change conditions related to federal grants, such as those
provided under the Byrne JAG program.
Proposals for Law Enforcement Reform in Congress
Even before the high-profile events of May and June 2020, commentators and legislators had suggested
numerous avenues for congressional reform and oversight of state and local law enforcement, and recent
events have prompted additional proposals in that area. This section provides a sample of these proposals,
including bil s that would target specific issues related to police reform as wel as comprehensive
proposals that would alter federal regulation of law enforcement on many fronts. Another Legal Sidebar
compares key provisions of those comprehensive proposals.
Qualified Immunity
Qualified immunity has been the subject of significant debate in recent years. A May 2020 report by
Reuters found that “since 2005, the [federal appel ate] courts have shown an increasing tendency to grant
immunity in excessive force cases.” Critics of qualified immunity assert that the test the Supreme Court
announced in Pearson v. Callahan improperly hinders Section 1983 claims. Not only is it difficult for
plaintiffs to overcome a claim of qualified immunity, these commentators assert, but furthermore courts
often consider only whether a defendant violated clearly established law, without reaching the question of
whether the defendant violated the plaintiff’s rights—albeit in circumstances courts have not yet assessed.
Legal commentators have argued that this limited inquiry prevents the development of clearly established
law that could govern future Section 1983 cases. Some commentators also assert that the current doctrine
of qualified immunity fails to protect law enforcement officers from suit. Others defend the doctrine or
favor limited judicial reforms, asserting the need to afford police officers some level of deference when
making split-second decisions about the use of force, for example to subdue a fleeing or resisting suspect.
The doctrine of qualified immunity arises from the Supreme Court’s interpretation of Section 1983. Thus,
either the Court or Congress could modify the doctrine, and some legal scholars have cal ed on both
branches to address the issue. The Court has considered multiple petitions for certiorari raising chal enges
to qualified immunity, and Justice Thomas and Justice Sotomayor have both expressed concerns about the
doctrine. On the legislative side, the Ending Qualified Immunity Act introduced in June 2020 would
“remove the defense of qualified immunity.”
Criminal Liability
While changes to the doctrine of qualified immunity could alter civil liability for law enforcement
officers, other proposals would aim to expand criminal liability for civil rights violations by officers. For
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example, the Eric Garner Excessive Use of Force Prevention Act of 2019 would amend Section 242 to
provide explicitly that “the application of any pressure to the throat or windpipe which may prevent or
hinder breathing or reduce intake of air is a punishment” that may not be imposed on a racial y disparate
basis. The Police Accountability Act of 2020 would provide a federal criminal penalty for assault or
homicide committed by certain state or local law enforcement officers. Some commentators also advocate
removing the specific intent requirement for Sections 241 and 242 announced in Screws and Guest.
Limitations on Military-Grade Equipment
Under a federal program known as the 1033 Program, the federal government transfers certain excess
military equipment to state and local law enforcement agencies. Some commentators contend that this
type of equipment contributes to militarization of police forces without increasing public safety and
increases the risk of incidents of excessive force. The 1033 Program is authorized by statute, so Congress
has the power to alter or discontinue the program. There are a number of specific proposals on this front.
For instance, on May 31, 2020, Sen. Brian Schatz announced his intention to introduce legislation that
would end the 1033 Program. Another proposal related to the 1033 Program, the Stop Militarizing Law
Enforcement Act, would maintain the program but impose additional limitations and reporting
requirements.
Grants and Conditions on Federal Funds
Numerous proposals currently before Congress would invoke the Spending Clause in an effort to regulate
state and local law enforcement activities. Some proposals would fund voluntary state and local measures,
such as use of force and bias awareness training or body cameras. Other proposals would require states to
enact certain policies in exchange for federal grants. For instance, the Police Training and Independent
Review Act of 2019 would fund training on cultural diversity and de-escalation tactics while requiring
participating states to “enact laws requiring the independent investigation and prosecution of the use of
deadly force by law enforcement officers.” The Preventing Tragedies Between Police and Communities
Act of 2019 would oblige Byrne JAG grant recipients to mandate training on ways to reduce the use of
force. The Police Exercising Absolute Care With Everyone Act of 2019 (PEACE Act) would require
Byrne JAG grantees to enact laws limiting the use of lethal and less than lethal force by law enforcement.
The Next Step Act of 2019 would, among other things, direct Byrne JAG grant recipients to submit
quarterly reports to the Attorney General on officers’ use of force.
Comprehensive Reform Efforts
The Justice in Policing Act of 2020
On June 8, 2020, Members of Congress led by the Congressional Black Caucus presented the Justice in
Policing Act of 2020. The bil would build on some of the foregoing proposals to reform multiple facets
of federal, state, and local law enforcement, including, but not limited to, the following:
Section 101 of the bil would amend Section 242 to change the mental state required for
conviction from “wil fully” to “knowingly or with reckless disregard.’’
Section 102 would limit qualified immunity for local law enforcement officers and state
correctional officers, providing that it is not a defense to liability under Section 1983 that
such an officer believed in good faith that his or her conduct was lawful or that the rights
the officer infringed were not clearly established.
Sections 103 and 104 would seek to enhance investigations into incidents involving law
enforcement uses of force or a pattern or practice of law enforcement misconduct by,
among things, granting subpoena power to DOJ under 34 U.S.C. § 12601.
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Multiple provisions of the Act would facilitate federal data collection related to police
reform. For instance, Section 118 and Title II, Subtitle B of the Act would require federal
funding recipients to report incidents involving uses of force by law enforcement, and
Section 201 would create a federal law enforcement misconduct registry.
Section 362 would ban no-knock warrants in drug cases at the federal level. The section
would also condition Byrne JAG funding upon states and localities prohibiting the use of
no-knock warrants in similar drug cases.
Section 363 would require states that receive Byrne JAG funding to enact laws banning
the use of chokeholds by law enforcement officers.
Section 364, the PEACE Act, would al ow federal law enforcement officers to use force
only as a last resort when necessary to prevent death or serious bodily injury, and
condition federal grants on state and local law enforcement agencies’ establishing the
same use of force standard.
Section 365, the Stop Militarizing Law Enforcement Act, would limit the transfer of
military-grade equipment to state and local law enforcement.
Title III, Subtitle B of the Act would seek to prevent and remedy racial profiling by law
enforcement, including by authorizing civil suits by DOJ and affected individuals. The
Title would also establish various programs and policies to help eliminate racial profiling,
such as by funding training programs for state and local police.
Title III, Subtitle C would require the use of body cameras by certain federal law
enforcement officers and fund expanded use of body cameras by state and local officers.
Title IV, the Justice for Victims of Lynching Act, would create a new criminal prohibition
on lynching, defined as conspiracy to violate certain federal hate crime statutes.
The JUSTICE Act
On June 17, 2020, Senate Republicans unveiled the Just and Unifying Solutions To Invigorate
Communities Everywhere Act of 2020 (JUSTICE Act). The JUSTICE Act would enact various reforms
related to law enforcement, including but not limited to the following:
Under Title I, Section 101 of the bil , the George Floyd and Walter Scott Notification Act,
and Section 102, the Breonna Taylor Notification Act, would respectively require
recipients of certain federal funding to report to the federal government information
related to incidents involving law enforcement uses of force and no-knock warrants.
Section 105 would require recipients of certain federal funding to develop law
enforcement agency policies “prohibit[ing] the use of chokeholds except when deadly
force is authorized.” This section would also require the Attorney General to develop
such a policy at the federal level.
Section 106 would create a new criminal offense of “knowingly and wil fully falsify[ing]
a report . . . in furtherance of the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States where death or
serious bodily injury . . . occurs.” The penalty for violating this provision would be a fine
and/or imprisonment for up to twenty years.
Title II of the bil would provide grants to covered government agencies to support the
use of body-worn cameras by law enforcement officials.
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Title III would require law enforcement agencies that receive certain federal funding to
retain various disciplinary records and to search the records of prior employers before
hiring a law enforcement officer.
Title IV, the Justice for Victims of Lynching Act, like the corresponding section of the
Justice in Policing Act, would create a new criminal prohibition on lynching, defined as
conspiracy to violate certain federal hate crime statutes.
Title V would create a Commission on the Social Status of Black Men and Boys to
“conduct a systematic study of the conditions affecting Black men and boys.”
Title VI would direct the Attorney General to develop training on alternatives to use of
force, de-escalation tactics, responding to behavioral health crises, and duty to intervene
when another officer uses excessive force.
Titles VII and IX would establish a temporary National Criminal Justice Commission and
require the Commission to create best practices and conduct certain studies related to law
enforcement oversight.
Title VIII would provide for development of an educational curriculum for law
enforcement personnel or candidates on the history of racism in the United States.
Title X would impose criminal liability when a person “acting under color of law,
knowingly engages in a sexual act” with a person in federal custody. Violation of this
provision would be punishable by a fine and/or up to fifteen years in prison.
Additional Resources
The following recent CRS products provide further information related to federal oversight and reform of
law enforcement agencies. This list may be updated as additional issues emerge.
CRS In Focus IF10572, What Role Might the Federal Government Play in Law
Enforcement Reform?, by Nathan James and Ben Harrington
CRS In Focus IF11572, Police Accountability Measures, by Nathan James
CRS Legal Sidebar LSB10487, Congress and Law Enforcement Reform: Constitutional
Authority, by Whitney K. Novak
CRS Legal Sidebar LSB10492, Policing the Police: Qualified Immunity and
Considerations for Congress, by Whitney K. Novak
CRS Legal Sidebar LSB10495, Federal Police Oversight: Criminal Civil Rights
Violations Under 18 U.S.C. § 242, by Joanna R. Lampe
CRS Legal Sidebar LSB10494, Reforming Patterns of Unconstitutional Policing:
Enforcement of 34 U.S.C. § 12601, by April J. Anderson
CRS Legal Sidebar LSB10498, Comparing Police Reform Bills: the Justice in Policing
Act and the JUSTICE Act, by Joanna R. Lampe
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Author Information
Joanna R. Lampe
Legislative Attorney
Disclaimer
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