Daddy Changed the World”: How the Death of George Floyd May Impact the Law

ing the last moments of the life of George Floyd uttering the words “I can’t breathe” as the knee of an officer remained on his neck went viral. The next day protestors began marching in the streets of Minneapolis demanding justice for George Floyd. That spark spread like wildfire leading to protests in all 50 states and internationally, from Europe, to Asia and Africa.

The sustained protests awakened an examination of a racist and broken criminal justice system. The cries for justice on “daddy Changed the World”: the streets reached the halls of Congress, leading to police reform legislation in the How the Death U.S. House and Senate as well as in the Texas Legislature. a. the House Bill On June 8, 2020, House Democrats inof George Floyd troduced H.R. 7120, the George Floyd Justice in Policing Act (the “House Bill”), which they hailed as the “the first-ever bold, comprehensive approach to hold

May police accountable, end racial profiling and change the culture of law enforcement.”1 The George Floyd Justice in Policing Act bans the use of deadly force by fedImpact eral law enforcement, including chokeholds and carotid holds, “except as a last resort to prevent imminent and serious bodily injury.” The House Bill harnesses Congress’s power of the purse by condithe Law tioning funding to state and local governments through the Byrne Memorial Justice Assistance (Byrne) and Community Oriented Policing Services (COPs) grant

On May 25, 2020, a video capturprograms on their adoption of a law prohibiting the use of chokeholds and carotid holds, the type of hold that took the life of George Floyd. Restricting funding through Byrne and COPs is significant because the two federal programs have helped expand police funding by over 200 percent since 1980.2

The House Bill also targets the controversial use of no-knock warrants, which came under scrutiny after the death of Breonna Taylor, a Black woman employed as a frontline medic who was at home sleeping on March 13, 2020, when police, utilizing a no-knock warrant, entered her home and riddled it with bullets, killing Taylor. The House Bill forbids “no-knock warrants” in federal drug cases and conditions funding to state and local law enforcement agencies on adopting a policy to that effect.

The proposed law also addresses “qualified immunity,” a legal protection that shields government officials from li-

ability for misconduct. In the 1982 U.S. Supreme Court case Harlow v. Fitzgerald, the Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”3 The House Bill would amend 42 U.S.C. § 1983 to eliminate the defense that the defendant was “acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed.”4 The measure also would amend 18 U.S.C. § 242 to lower the requisite mens rea for criminal liability from “willfully” to “knowingly or recklessly.”5

In order to increase transparency, the House Bill creates two primary reporting mechanisms for law enforcement officers: (1) the National Police Misconduct Registry, a public, searchable database compiling complaints of misconduct for federal, state, and local law enforcement officers, including those for use of force and racial profiling, discipline records, and lawsuits; and (2) the Police Reporting Information, Data, and Evidence (PRIDE) Act, which would require states to report to the Department of Justice any use of force against a civilian or law enforcement officer and retain related records for four years.6

The proposed law additionally forbids racial profiling by law enforcement and expands the term to include profiling based on ethnicity, national origin, religion, gender identity, and sexual orientation in addition to race.7 It also creates a cause of action for racial profiling that can be filed by the Attorney General or any injured party for declaratory or injunctive relief, with attorney’s fees for the prevailing party.8

B. the senate Bill The George Floyd Justice in Policing Act overwhelmingly passed in the House, but it became stalled in the Senate after Republicans introduced a competing bill on fying Solutions to Invigorate Communi- the receipt of Byrne and COPS grants on ties Everywhere (JUSTICE) banning the use of chokeAct (the “Senate Bill”).9 The Senate Bill focuses on data collection and restricting funds to law enforcement departments, rather than penalizing police misconduct. The Senate Bill seeks to ‘‘ The proposed law also addresses ‘qualified immunity,’ holds except when deadly force is authorized.12 If passed, the Senate Bill would create a criminal penalty punishable by a 20-year maximum sentence for “knowingly increase police accountabil- a legal protection and willfully falsify[ing] ity by reducing federal funding for localities that fail to annually report to the FBI National Use-of-Force Data Collection program any law enforcement events involving fatalities, serious bodily injury, or discharge of a weapon either at or by the police.11 Similarly, the Senate Bill includes the Breonna Taylor Notification Act, requiring entities receiving federal law enforcement grants to report the use of “no-knock warrants” or face a 20 percent reduction in federal law enforcement grant money.12 As with the House Bill, the Senate Bill conditions that shields government officials from liability for misconduct.”

a police report in a material way with the intent to falsify... a material fact,” if said report leads to a civil rights violation resulting death.13 It also “[c]reates a

in serious bodily injury or new criminal offense for

e.g., voting.”14

conspiracy to injure, intimidate, or interfere with protected civil rights activities,

The Senate Bill would create a new commission to study the systematic “conditions affecting Black men and boys, including homicide rates, arrest and in-

carceration rates and health issues,” and propose measures to alleviate those issues.15 The law also directs the formation of a National Criminal Justice Commission to comprehensively review the criminal justice system and to develop best practices for policing, which is similar to the National Crime and Justice Task Force recommended by President Barack Obama’s 21st Century Task Force on Policing.16

C. the texas Bill On August 13, 2020, the Texas Congressional Black Caucus announced its intention to introduce the George Floyd Act (the “Texas Bill”) in the forthcoming legislative session.17 The Texas George Floyd Act would mirror some provisions found in the House Bill and focus on policing issues amplified by the death of George Floyd. The Texas Bill is expected to ban the use of chokeholds across the state, rather than leaving the tactic to the discretion of each police department and locality. Under the proposed legislation,

police would be required to intervene or render aid if they witness another officer using excessive force while on duty.

The Texas Bill would address qualified immunity by allowing civil lawsuits at the state level “for deprivation of rights under color of law.” The Texas George Floyd Act builds on the 2017 Sandra Bland Act18

by ending arrests for fine-only offenses. In 2015, Sandra Bland, a Black woman who was arrested incident to a traffic stop, died in jail three days after her arrest.

d. Curtailing efforts to “defund the Police” On August 21, 2020, Texas Governor Greg Abbott announced legislation that would permanently freeze property tax revenues at current levels in cities that vote to defund police,19 a move that came just eight days after the Austin City Council voted to cut their police department budget by one-third.20 If passed, the law “could prevent local officials from redistributing money typically dedicated to law enforcement purposes.”21 Governor Abbott, who previously committed to working with George Floyd’s family on police reform, said he prioritized this issue because he believes that “defunding the police puts residents in danger and it invites lawlessness into our communities.”22

Police reform will undoubtedly remain a top priority in the 2021 United States and Texas legislative sessions, but the passage of any version of the current proposed laws is uncertain. What is clear is that the death of George Floyd was not in vain. As his six-year-old daughter Gianna Floyd exclaimed, her “Daddy changed the world.”

Stacy M. Allen is the Principal of the Law Office of Stacy M. Allen PLLC, a Houston-based boutique law firm providing legal expertise in areas of criminal, civil, and probate law. Stacy currently serves as a Director of the Houston Lawyers Association.

endnotes

1. House Comm. on the Judiciary, Justice in Policing

Act, https://judiciary.house.gov/issues/issue/?IssueID =14924 (last visited Sept. 10, 2020). 2. Nathaniel Lee, Here’s How Two Federal Programs

Helped Expand Police Funding by Over 200% Since 1980, CNBC (June 25, 2020), https://www.cnbc.com/ 2020/06/25/two-federal-programs-helped-expandpolice-funding-by-over-200percent.html. 3. Harlow v. Fitzgerald, 457 U.S. 800, 801 (1982). 4. George Floyd Justice in Policing Act, H.R. 7120, 116th

Cong. § 102 (2020). 5. Id. § 101. 6. Id. § 201, § 221. 7. Id. § 302. 8. Id. § 332. 9. Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act, S. 3985, 116th Cong. (2020). 10. Id. § 101. 11. Id. § 102 12. Id. § 105. 13. Id. § 106. 14. U.S. Senate Republican Policy Comm., Notable Bill

Provisions: S.3985 – Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act (June 19, 2020), https://www.rpc.senate.gov/legislative-notices/ s3985_just-and-unifying-solutions-to-invigoratecommunities-everywhere-justice-act (discussing § 403). 15. George Floyd Justice in Policing Act, H.R. 7120, 116th

Cong. § 505. 16. Id. § 703; see David Hudson, President Obama Creates the Task Force on 21st Century Policing, THE WHITE

HOUSE (Dec. 18, 2014, 5:28 p.m.), https://obamawhitehouse.archives.gov/blog/2014/12/18/president -obama-creates-task-force-21st-century-policing. 17. Cassandra Pollock, Texas Legislative Black Caucus Unveils the George Floyd Act to Ban Chokeholds and Limit

Police Use of Force, TEX. TRIBUNE, Aug. 13, 2020, https://www.texastribune.org/2020/08/13/texasgeorge-floyd-act/. 18. TEX. CODE CRIM. PROC. ANN. art. 16.23 (West 2017). 19. Jessica Schladebeck, Texas Gov. Greg Abbott Suggests

Freezing Property Tax Hikes for Cities Defunding Police,

N.Y. DAILY NEWS, Aug. 20, 2020, https://www.msn. com/en-us/news/us/texas-gov-greg-abbott-suggestsfreezing-property-tax-hikes-for-cities-defundingpolice/ar-BB18bJEJ?ocid=uxbndlbing. 20. Meena Venkataramanan, Austin City Council Cuts Police Department Budget by One-Third, Mainly Through

Reorganizing Some Duties Out from Law Enforcement

Oversight, TEX. TRIBUNE, Aug. 13, 2020, https://www. texastribune.org/2020/08/13/austin-city-council -cut-police-budget-defund/. 21. Schladebeck, supra note 19. 22. Id.