I am at the negotiation table because I want to find solutions. The other side likes the issues more than the solutions.
- U.S.Senator Tim Scott (Republican, South Carolina), Fox News, September, 2021
The effort from the very beginning was to get police reform that would raise professional standards, police reform that would create a lot more transparency and then police reform that would create accountability. And we were not able to come to agreement on those three big areas.
- U.S. Senator Cory Booker (Democrat-New Jersey), September, 2021
Several steps doomed the federal police reform negotiations at this time.
One wonders about the major negotiators in this case: US Senators Tim Scott and Cory Booker. Do they have the reputation of being flexible negotiators? Are they experts at police reform? Do they have the negotiation patience? Why give up so soon? Yes, they did not meet “self imposed deadlines” and yes, the midterm elections are right around the corner, but….
Emotions like those surrounding the George Floyd and other cases can set the stage for action but maybe not negotiation. High emotions can cloud over logic and possibly did in this negotiation.
Some may say that “political posturing” is synonymous with emotions in this case. Possibly both sides believe in their minds that they do have a BATNA (best alternative to a negotiated agreement) in regards to effective campaigning.
The controversial and intractable issue: Judicially created federal Qualified Immunity (QI), was allowed to derail the entire negotiation. All stakeholders had already issued strong positional statements on this issue before the negotiations.
A more productive approach would have been to focus on areas of possible agreement like data collection, increased resources and assistance in mental health, homelessness and drug issues to which most police are not trained to manage, and banning certain practices such as no-knock warrants and the physical restraint choke-hold. Moving on these areas might set the stage for future legislative steps on more challenging issues such as the Qualified Immunity.
Most people in the United States seem to be in agreement that now is the time for police reform on the national, state, and local level. National criminologist from the University of Missouri Richard Rosenfeld, asserts that there are two areas of police reform which are dramatically needed:
Increased police accountability.
Moving non-police issues away from the police. These non-police issues include being the first responders to the following issues: homeless, drug, or mental health. Police are not trained to deal with these issues and most do not consider them to be law enforcement issues.
The initial statement of the International Association of Chiefs of Police (IACP) sounds quite hopeful.
As police executives, community members, and elected officials seek to transform the policing profession, there are several areas of agreement where the International Association of Chiefs of Police (IACP) believes we can and should work in unison to recommend and develop meaningful solutions. This includes, but is not limited to, use-of-force policies, training and education standards, early warning systems, disciplinary procedures, and hiring practices.
In actuality, there is always time for police reform. “Now” is in light of the George Floyd and other cases cases which for negotiation may make reform timely but also emotional. These emotions, which often create unmalleable positions, may impede the negotiations.
There are a wide variety of stakeholders:
-F.O.P. (Fraternity of Police)
-International Association of Chiefs of Police (IACP)
-Black Lives Matter (BLM)
-NAACP (National Association of Colored People)
International Association of Chiefs of Police is a 501 nonprofit organization based in Alexandria, Virginia. It is the world's largest professional association for police leaders. To advance the policing profession through advocacy, research, outreach, and education in order to provide for safer communities worldwide.
Who are the key negotiators?
From the beginning of these police reform negotiations, both parties have chosen their lone African-American (black) senator to be their negotiation face. (Booker was the lone black democratic senator at the beginning of these negotiations. Now, he is one of two.) Why is this?
Both Senators Cory Booker and Tim Scott have impressive resumes. At the same time, there is nothing in their experience that indicates that they have expertise in negotiating or police reform.
Senator Tim Scott
Appointed to the Senate on January 2, 2013, Tim Scott (R-SC) became the first African-American since Reconstruction to represent a southern state in the Senate. Born in North Charleston, South Carolina…An entrepreneur, Scott pursued a career in insurance and real estate…Scott served one term in the House of Representatives before being appointed to the United States Senate. He was elected in a 2014 special election for the term ending January 3, 2017 and to a full term in 2016.
(Note he is up for re-election 2022.)
Senator Cory Booker
Cory Booker (D-NJ) became the first African-American to represent New Jersey in the United States Senate on October 31, 2013. Born in Washington, D.C., he earned his bachelor’s and master’s degrees from Stanford…Booker then attended Yale Law School, earning his juris doctor degree in 1997…Booker was elected to the United States Senate in a special election on October 16, 2013, to fill the vacancy caused by the death of Frank Lautenberg, a seat subsequently held by appointed senator Jeffrey Chiesa, and took the oath of office on October 31, 2013, for the term ending January 3, 2015. He was elected to a full term in November 2014, and reelected in November 2020.
Throughout his Senate tenure, Booker has written, sponsored, and passed legislation advancing women's rights, affirmative action, same-sex marriage, and single-payer healthcare. He has pushed for economic reforms to address wealth inequality in the U.S., particularly the racial wealth gap. Booker has pursued measures to reform the criminal justice system, combat climate change, and restructure national immigration policy.
This police reform should been framed as a police/law enforcement issue.
Police reform negotiations became too emotional
In reaction to the negotiations breakdown, the following statement were made exuding emotions and possibly excluding logic, again helping to explain the breakdown:
In a year unlike any other, when the American people spoke up, marched, and demanded reforms in policing, law enforcement unions and partisan politicians chose to stand on the wrong side of history," said Derrick Johnson, the president of the NAACP. "They have chosen to stand with those who have lynched the very people they are meant to protect and serve."
Johnson called it "disheartening that there is a lack of courage and bravery to bring about true reform."
The Rev. Al Sharpton called the lack of an agreement "appalling and unacceptable."
"To have a weak bill would make a mockery of the murder of Floyd and those of us that fought for his family," he added.
Parties became positional; poison pill of Qualified Immunity
It seemed clear from the beginning that the issue of Qualified Immunity (QI) would be the most challenging and possibly, intractable. All negotiation parties have made clear positional statements on this issue. Senator Scott probably felt bound to say NO to amending QI since his constituents included the FOP and IACP. Senator Booker probably felt he needed to say YES to getting rid of QI since his constituents included BLM and NAACP.
Effective negotiators would have encountered and dealt with this in the very beginning of the talks.
- One possibility was to take QI out of the negotiations so it would not become the “poison pill.” In reality, this did not “become” the poison pill since these strong statements had already been made.
- Another idea would be to set this QI aside and then after successful negotiations on all of the other issues, the parties could re-visit to discern if there were any room to negotiate. If not, then the reform could go for the focusing on the other issues.
What is federal government qualified immunity?
There are a number of structural factors that makes it difficult to hold federal government workers accountable for wrongdoing. (Some of these are paralleled in state government.)
Harlow v. Fitzgerald (1982)
Bivens v. Seven Unknown Named Agents of the Federal Bureau of Narcotics (1971)
Established this qualified immunity based on their interpretation of common law. They sought to balance allowing victims to hold government officials accountable while minimizing social costs to society as a whole. This immunity shields personal liability money damages for constitutional violating the right to be free from excessive police force. Their standards seems to be “any reasonable police officer” not just the average reasonable police officer should have known better.
A web of legal doctrines effectively places government workers above the law by making it nearly impossible for individuals to hold them accountable for violations of constitutional rights. Outside of narrow exceptions, these doctrines give all those employed by the government—police, mayors, school officials, IRS agents…immunity from lawsuits, even if they act in bad faith.
Thanks to its common application in instances of police abuse, the most prominent immunity doctrine is qualified immunity. But the doctrine shields more than just police. It protects all government workers from constitutional lawsuits.
The Supreme Court created qualified immunity in 1982 in a case that had nothing to do with police, but involved White House aides in the Nixon Administration who, on the president’s orders, retaliated against a whistleblower. The Court immunized the aides, and all others who worked for the government, for policy reasons, concerned that if government workers were held accountable for violating the Constitution their jobs would be more difficult and costly. Although the Court’s policy assumptions have since been disproven, the doctrine is stronger than ever.
Qualified immunity grants all government workers immunity for violating constitutional and civil rights unless the victims of those violations can show that their rights were “clearly established.” Although innocuous sounding, the clearly-established test is a legal obstacle nearly impossible to overcome. It requires a victim of government abuse to identify an earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction, holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the government worker is immune. It doesn’t matter whether the worker’s actions are unconstitutional, unreasonable, intentional, or malicious.
These are judge-made rules that make it extremely difficult or impossible to hold government workers including police accountable for violations of constitutional rights.
Holding police accountable and liable is the issue that seems to be the stumbling block. Right now, most police have immunity.
The bottom line is everybody has a core constituency and our core constituency includes law enforcement officers. That’s typical for Republicans, and frankly, from a moral hazard perspective, most of us as conservatives are very supportive of law enforcement. So not wanting to be stereotyped as a Black man, I don’t knock on the stereotype of officers as being evil and or racist by default.
One of the things that I saw in qualified immunity, and one of the reasons why [ending it] could be seen easily as a poison pill, is if you are going to go after character-driven, highly competent law enforcement officers, with the goal of making them more civil, giving them a higher level of responsibility from a civil perspective, you’re actually going to end up in situations where fewer officers are patrolling, as you noted earlier, some of the more challenging communities.
And so if you want to have a conversation about restitution and recourse under the umbrella of qualified immunity, I’ve actually said several times, count me in to that conversation, because that’s not about an officer; that’s about a culture, and the way that you make a culture more responsible is making the threshold for suing cities and departments easier because of the egregious acts of individuals. When you make it all about the individual officer, you run good cops out, you make it far more difficult to get anything accomplished, but if the actual conversation is around restitution and recourse, you can change the behavior of all officers, not simply one.
…the IACP is gravely concerned by and fervently opposed to efforts to change the qualified immunity protections for police officers.
Qualified immunity is a foundational protection for the policing profession and any modification to this legal standard will have a devastating impact on the police’s ability to fulfill its public safety mission.
It (qualified immunity) allows police officers to respond to incidents without pause, make split-second decisions, and rely on the current state of the law in making those decisions. This protection is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional. The loss of this protection would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.
Calls to limit, reduce, or eliminate qualified immunity do not represent a constructive path forward. In fact, these efforts would most certainly have a far-reaching, deleterious effect on the policing profession’s ability to serve and protect communities.
The F.O.P. in testifying before the Senate Judiciary Committee completely supports the statement of the IACP above.
Further they note the study of more than 200 cases where qualified immunity was at issue. The courts denied QI 43% of time demonstrating that the courts are balanced on this issue. Five cases recently have reached SCOTUS and the decisions were 9-0 and 8-1 showing there is little dispute over the workability of the current doctrine.
Activist and political strategist L. Joy Williams, president of the Brooklyn NAACP, told Capital Tonight that she would like to see an end to qualified immunity in New York state.
“I think signaling to officers — signaling to police unions and others — that the public will no longer tolerate [officers] hiding behind a shield as a reason to take people’s lives and to abuse people who pay their salaries, that’s definitely something that I’m looking forward to.
Janai Nelson talks about qualified immunity (QI) on MSNBC. She is Associate Director-Counsel for the NAACP Legal Defense Fund. Nelson recently sat down with Andrea Mitchell to discuss police reform measures and why ending qualified immunity is a must. The NAACP attorney mentions that she supports the George Floyd Justice in Policing Act.
In the interview, Nelson shared her thoughts on law enforcement. She tells MSNBC Andrea Mitchell that police violence is an ongoing issue. And, Nelson notes, police violence especially impacts communities of color. Nelson says that one of the biggest concerns with the state of policing is the lack of accountability.
This lack of accountability is due to qualified immunity.
Thus, as Nelson says, QI “has been the most significant barrier to accountability” that victims of police misconduct face. That’s why abolishing the doctrine is so important for police reform.
Black families across the country are having to take the fight for accountability into their own hands. When the legal system continuously failed.. families, they turned to Black Lives Matter for support. And BLM is going to do exactly that — support them. Fight alongside them. Because we keep us safe.
We demand that the deputies and system...be held accountable. We demand the end to every vestige of white supremacy embedded in the criminal legal system and beyond, beginning with the end to qualified immunity.
…it’s time to demand Congress and the White House take urgent action to end qualified immunity. Add your name to the petition and tell them to end qualified immunity immediately.
Aftermath of the stalemate announcement
Booker seems to be taking the high road stating he knows he must deal with his respected colleague in the near future and possibly in this same issue.
On the other hand, Senator Scott gave this aftermath summary:
…Scott, the lead Republican negotiator, said that Democrats had walked away from negotiations and rejected his offer to introduce a bill that included ideas that Democrats and Republicans agreed on. In a separate statement, Scott said that Democrats "could not let go of their push to defund our law enforcement
This seems to be “the low road” since the term “defunding the police” has been a slogan resoundingly rejected by mainstream Democrats. Some Democrats have even blamed this “political cry” to be one of the reasons that the Democrats did not do better in the 2020 Congressional elections.
…still hopes to sign a "comprehensive and meaningful police reform bill" into law, because legislation is necessary for "lasting and meaningful change."
But this moment demands action, and we cannot allow those who stand in the way of progress to prevent us from answering the call," he added.
…the White House would engage with key groups, including law enforcement and civil rights leaders, to discuss "a path forward…those discussions would include "potential executive actions….
The U.S House of Representatives had already passed its own policing reform bill, the George Floyd Justice in Policing Act in February, with almost exclusively Democratic votes.
That legislation sought to prohibit racial profiling by police, ban the use of chokeholds and no-knock warrants, and make it easier for police officers to be criminally charged for civil rights violations, among other things. It also would have allowed victims of misconduct to sue officers. This approach, though, confronted steep Republican opposition in the Senate.
Nonetheless, this federal negotiation failure does not necessarily impact on state and city action. Some cities have already banned such police practices as chokeholds and no-knock warrants.
Maybe learning from the lessons of this federal negotiation breakdown, another attempt may be made by Congress on re-imagining public safety.
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Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education
The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray
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