Congress and Police Reform: Recent Proposals
Legal Sidebari
Congress and Police Reform: Recent Proposals
Updated February 7, 2023
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, causing his death. That
incident and others like it sparked heightened interest in Congress’s ability to implement reforms of state
and local law enforcement. More recently, the January 2023 death of Tyre Nichols after a beating by
Memphis police officers prompted renewed calls for law enforcement reform. A companion to this Legal
Sidebar provides an overview of existing federal authorities intended to prevent and redress constitutional
violations by state and local public safety officials. This Sidebar presents selected recent proposals related
to federal regulation of federal, state, and local law enforcement, including an overview of two
comprehensive law enforcement reform bills from the 117th Congress, the George Floyd Justice in
Policing Act of 2021 and the Just and Unifying Solutions To Invigorate Communities Everywhere Act of
2021 (JUSTICE Act).
Proposals for Law Enforcement Reform in Congress
Before the high-profile events of May and June 2020, commentators and legislators had suggested various
avenues for congressional reform and oversight of federal, state, and local law enforcement. Events since
May 2020 have prompted additional proposals, including bills that would target specific issues and
comprehensive proposals that would alter federal regulation of law enforcement on many fronts.
Qualified Immunity
One topic that has generated significant debate in recent years is the doctrine of qualified immunity,
which limits the liability of federal law enforcement officers in suits under Bivens v. Six Unknown Federal
Narcotics Agents and state and local law enforcement officers in suits under 42 U.S.C. § 1983 (Section
1983). A May 2020 report by Reuters found that “since 2005, the [federal appellate] courts have shown an
increasing tendency to grant immunity in excessive force cases.” Critics of qualified immunity assert that
the flexibility the Supreme Court provided to courts in Pearson v. Callahan improperly hinders Section
1983 claims. That decision allows courts in some cases to consider only whether a defendant violated
clearly established law, without reaching the question of whether the defendant violated the plaintiff’s
rights. Critics therefore assert that not only is it difficult for plaintiffs to overcome a claim of qualified
immunity, but such cases will also not clearly establish law that could govern future Section 1983 cases.
Some commentators assert that the current doctrine of qualified immunity fails to protect law enforcement
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officers from suit. Others defend the doctrine or favor limited judicial reforms, seeking to preserve police
officers’ ability to make split-second decisions about the use of force, for example, while requiring courts
to take seriously the constitutional questions that plaintiffs raise.
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 called on both branches to
address the issue. The Court has considered multiple petitions for certiorari raising challenges 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 and reintroduced
during the 117th Congress, would have “remove[d] the defense of qualified immunity.” Another proposal
from the 116th Congress that sought to remove barriers to Section 1983 liability was the Reforming
Qualified Immunity Act, which would have changed the burden of proof in Section 1983 cases in
plaintiffs’ favor and would have made it easier to establish liability against municipalities and local
governments. A proposal from the 117th Congress entitled the Constitutional Accountability Act would
have rendered federal, state, and local governments civilly liable for constitutional violations by law
enforcement officers in their employment, “without regard to whether such employee or contractor would
be immune from liability, and without regard to whether the employee or contractor was acting pursuant
to a policy or custom” of the employer. The Accountability for Federal Law Enforcement Act would have
imposed similar liability on the federal government only.
In contrast to proposals that would limit qualified immunity, other recent legislation sought to maintain or
expand the doctrine. The Qualified Immunity Act of 2021 would have amended Section 1983 “to codify
the defense of qualified immunity.” The Local Law Enforcement Protection Act of 2021 would have
required states that receive certain federal funds to have in place laws that “provide robust qualified
immunity to law enforcement officers.”
Criminal Liability
While changes to the doctrine of qualified immunity could alter civil liability for law enforcement
officers, other recent proposals aimed to expand criminal liability for civil rights violations by officers
under 18 U.S.C. § 241 (Section 241) and 18 U.S.C. § 242 (Section 242). For example, the Eric Garner
Excessive Use of Force Prevention Act of 2021 would have amended 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 racially disparate basis. The Police
Accountability Act of 2020, introduced during the 116th Congress, would have provided 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 that
the Supreme Court announced in Screws v. United States and United States v. Guest.
Limitations on Transfer of 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
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. In 2021, Congress enacted the William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021 which, among other things, prohibited transfer
through the 1033 Program of bayonets, grenades, weaponized tracked combat vehicles, and weaponized
drones. In February 2022, some Members of Congress urged President Biden to limit the program further.
President Biden’s May 2022 executive order related to law enforcement reform directed relevant federal
agencies to limit certain transfers under the 1033 Program to the extent authorized by law. One proposal
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introduced in the 116th and 117th Congresses, the Stop Militarizing Law Enforcement Act, would have
imposed statutory limitations and reporting requirements on the 1033 Program.
Grants and Conditions on Federal Funds
Numerous recent proposals would have invoked the Spending Clause in an effort to regulate state and
local law enforcement activities. Some proposals would have funded voluntary state and local measures,
such as use-of-force and bias awareness training or body cameras. Other proposals would have required
states to enact certain policies in exchange for federal grants. For instance, the Police Training and
Independent Review Act of 2021 would have funded 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 2021 would have obliged recipients of funds under the Edward Byrne
Memorial Justice Assistance Grant (Byrne JAG) Program to mandate training on ways to reduce the use
of force. The Police Exercising Absolute Care With Everyone Act of 2022 (PEACE Act) would have
required 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 have, among other things, directed Byrne JAG grant
recipients to submit reports to the Attorney General on officers’ use of force.
Comprehensive Reform Efforts
On June 8, 2020, Members of the 116th Congress, led by the Congressional Black Caucus, presented the
Justice in Policing Act of 2020. Later renamed the George Floyd Justice in Policing Act, the bill passed
the House in 2020 and 2021. On June 17, 2020, Senate Republicans unveiled the JUSTICE Act of 2020.
Both proposals sought to reform multiple facets of federal, state, and local law enforcement, and each of
them included some proposals discussed above that had also been introduced separately. An earlier Legal
Sidebar compared 2020 versions of the two proposals in detail. Both bills were reintroduced with limited
changes in 2021 during the 117th Congress. This section summarizes key provisions of the two 2021
bills.
George Floyd Justice in Policing Act of 2021
The Justice in Policing Act as passed by the House in the 117th Congress included the following
provisions:
Section 101 of the bill would have amended Section 242 to change the mental state
required for conviction from “willfully” to “knowingly or recklessly.’’ It would also have
removed the possibility of a death sentence for violating Section 242.
Section 102 would have limited qualified immunity for state and local law enforcement
officers in suits under Section 1983 and for federal law enforcement officers “in any
action under any source of law,” providing that it is not a defense to liability if an officer
believed in good faith that his or her conduct was lawful or that the rights the officer
allegedly infringed were not clearly established.
Sections 103 and 104 sought 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 the Department of Justice (DOJ) under 34
U.S.C. § 12601 and authorizing state attorneys general to bring suit based on violations
of that provision.
Multiple provisions of the Act sought to facilitate federal data collection related to police
reform. For instance, Section 118 and Title II, Subtitle B, of the Act would have required
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federal funding recipients to report incidents involving uses of force by law enforcement,
and Section 201 would have created a federal law enforcement misconduct registry.
Section 362 would have banned no-knock warrants in drug cases at the federal level. The
section would also have conditioned certain federal funding upon states and localities
prohibiting the use of no-knock warrants in similar drug cases.
Section 363 would have required states and municipalities that receive certain federal
funding to enact laws banning the use of chokeholds by law enforcement officers.
Section 364, the PEACE Act, would have allowed federal law enforcement officers to use
deadly force only as a last resort to prevent imminent death or serious bodily injury when
certain conditions are met and imposed limits on the use of “less lethal” force. This
provision would also have conditioned 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 have limited the transfer
of certain military-grade equipment to state and local law enforcement.
Title III, Subtitle A of the Act sought to prevent and remedy racial profiling by law
enforcement, including by authorizing civil suits by DOJ and affected individuals. The
title would have established 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 have required certain federal law enforcement officers to use
body cameras and funded expanded use of body cameras by state and local officers.
Title VI, the Closing the Law Enforcement Consent Loophole Act of 2021, would have
imposed criminal liability when a person “acting under color of law, knowingly engages
in a sexual act” with a person in federal custody and would have authorized grants to
states, municipalities, and Indian tribes that enact similar laws.
JUSTICE Act of 2021
The version of the JUSTICE Act introduced in the House in the 117th Congress included the following
provisions:
Section 101 of the bill, the George Floyd and Walter Scott Notification Act, and Section
102, the Breonna Taylor Notification Act, would respectively have required 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 have required 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 have required the Attorney General to
develop such a policy at the federal level.
Section 106 would have created a new criminal offense of “knowingly and willfully
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
have been a fine and/or imprisonment for up to 20 years.
Title II of the bill would have provided grants to covered government agencies to support
the use of body-worn cameras by law enforcement officers.
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Title III would have required 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, would have created a new criminal
prohibition on lynching, defined as conspiracy to violate certain federal hate crime laws.
Title V would have directed 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 VI and VIII would have established a temporary National Criminal Justice
Commission and required the commission to create best practices and conduct certain
studies related to law enforcement oversight.
Title VII would have provided for development of an educational curriculum for law
enforcement personnel or candidates on the history of racism in the United States.
Title IX, the Closing the Law Enforcement Consent Loophole Act, would have imposed
criminal liability for sexual acts with persons in federal custody as discussed above.
Author Information
Joanna R. Lampe
Legislative Attorney
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