Executive Session

Floor Speech

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Mr. GRAHAM. Mr. President, for one, I would like to say something about Senator Scott. I know how hard it is to work on this, and it has not been an easy enterprise for Tim. He is a conservative Republican, who happens to be African-American, and he has decided to take the lead on something that is very important to the country.

He has had experiences that I don't have. He has been stopped multiple times on Capitol Hill. I have never been stopped. One year, he was stopped seven times for lane changes. The point is that Tim believes--and every African-American male I have talked to in the last couple of weeks is told early on, if you are stopped by the cops, watch what you do; keep your hands on the wheel and don't go toward the dash because that could end badly. I don't know how that happened, but it is real. For us not to realize that would be a huge mistake.

Let me be on record as saying I understand that if you are an African-American male, your experience with the police is different than mine. It is unacceptable, and it needs to stop.

So how do you stop it? You bring about change. So what kind of change are we looking for? Our Democratic friends have a list of changes. I think it is Justice in Policing. The House is marking it up. Here is what I would say to my Democratic colleagues: Stop lecturing me. You had 8 years under President Obama to do the things in the Justice in Policing Act, and 90 percent of it you never brought up. I am not saying we are blameless, but there has not been this sense of urgency to deal with these problems institutionally like there is today. Why? Because of Mr. Floyd and a few other things all happening together.

Tim said in 2016 we had our chance. These episodes come and they go. The question for the country is, Will anything ever change? The only way it is going to change is to find common ground. So the proposal Senator Scott has collected, along with other colleagues, has bipartisan support, but if it is not enough, I am willing to listen regarding doing more.

Senator Sasse was with me yesterday. We had a 5-hour hearing, and I learned a lot. I learned that a police department looking like the community is important, Senator Lankford, but, more importantly, is that you live where you police.

I asked a gentleman from New Jersey: What is more important, race or community attachment? He said: Community attachment. You are less likely to hurt somebody in a community you feel a part of.

Now, having said that, we need more African-American police personnel. We need more women. Apparently, women do their jobs a lot better than men. I haven't heard one person come forward and say: I had a bad experience with a policewoman. More women would be helpful. But the main thing is, we need people from the community being in charge of policing that community with a system that is more accountable.

So Cory Booker and I have worked together on a lot of things--great guy. Tim and Cory are good friends, and I admire the heck out of Tim Scott. I am not going to take any more time. He is one of the most decent people I have ever met, and we are lucky to have him in South Carolina and the country is lucky.

The bottom line, as Cory said, there are two issues that have to be addressed or everything else doesn't matter--242 and qualified immunity. I wrote them down. For those who are not conversant in 242 or qualified immunity, there is nothing wrong with you. This is a very archaic area of the law. Qualified immunity is a judicial doctrine that has developed over time that relates to the 1983 civil rights statute that allows people to sue governmental entities for abuse of force, for excessive force.

There is nothing in the statute about an objective standard where the reasonably prudent police officer in the same circumstances acted accordingly. There is nothing about good faith.

Justice Thomas is a pretty conservative guy. He wanted to revisit qualified immunity. I don't know how he would substantively come out on the issue, but in his dissent denying certiorari of the concept, he explains how this judicial concept has exploded beyond every attachment of common law analysis. This is Clarence Thomas. If you presented to me qualified immunity in its current form as a legislative proposal, I would vote hell, no. Police officers need not worry about losing their house or being sued if they act in good faith in performing duties that are hard on any good day, but when police departments time and again fail to do the things necessary to instill good policing, I think they should be subject and accountable like any other business. There is common ground here.

Not one Democrat has suggested to me to make the individual officer civilly liable under 242, but I had Democrats suggest to me that the standard has become almost absolute immunity.

The Presiding Officer has run all kinds of businesses. Being in the policing business is not your normal business. There needs to be a filter when it comes to lawsuits. It can't be about outcome. But it is now time, in my view, to look at the development of the qualified immunity doctrine as it relates to the 1983 underlying statute and see if we could make it better, not gut it.

To my Democratic friends, if you want to eliminate qualified immunity, it will be a very short conversation. If you want to reform it so that municipalities and agencies and organizations running police departments will have some protection but not absolute immunity, let's talk. Maybe we can get there if it is that important. Let's at least try. That is what the legislative process is all about.

Section 242 allows the Federal Government to bring charges against an individual for denying another American their constitutional rights. This is about policing but not exclusive to policing.

The Presiding Officer is from Georgia. I am from South Carolina. There was a time in the South where juries would nullify all the evidence in front of them because the victim was a Black man and the perpetrator was White. A mountain of evidence could be presented, and there would be an acquittal in like 15 minutes. So we came up with a concept to allow the Federal Government to intervene in cases like that and hold somebody liable for violating the constitutional rights of another American under law Federal law.

The standard to prosecute is ``willful.'' You have to prove that the police officer willfully understood the constitutional right and violated it. My friends on the other side want to lower the standard to ``reckless.'' What I would say is, this is not 1965. The police officer involved in Mr. Floyd's death is going to be prosecuted. So while it is important to talk about section 242, most States where these events have occurred have acted responsibly. We don't need the Federal Government sitting in judgment of every cop in the country. What we do need is a system of accountability. I will talk to you about 242, but I think that is not the issue.

What is the issue? It is that police departments that are immune from liability when they engage in abusive conduct over and over are unlikely to change until that changes. You can throw all the money you want to at training and improving best practices, and they will gladly accept your money. If they don't do it right, they don't get the money. Add one thing to the mix. By the way, if you shoot a dog and you wind up killing a kid--your police officer shouldn't have shot the dog anyway in a fashion to kill the kid who was right by the dog--you are going to wind up having your ass in court. That will change things.

I have been a lawyer, and I know how people feel about this. If you are exposed, in terms of your conduct being subject to a review by a court and a jury, you are all of a sudden going to think differently.

Don't misconstrue what I am saying. I am not for abolishing qualified immunity; I am for revisiting the concept because I think it has grown too much from judicially created fiat. It is time for the legislative body--for us to speak as to what we would like to have happen to the statute that we create that now has a component to it that was never envisioned when it was originally passed. That is what Clarence Thomas is telling us as a nation we need to do.

To my friends on the other side, if it is about qualified immunity, let's talk. If it is about 242, let's talk. If it is about keeping this issue alive, don't waste my time. We have all had plenty of time around here to do better. Now we have a chance to actually do some good. The only way we are going to do some good is talk. The only way you get a law passed is to engage in debate. If you don't want to debate the topic, if you don't want to have amendments about the topic, that tells me all I need to know about where you are coming from.

I yield to the Senator from Nebraska.

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