Senate Tim Scott on police reform and why ending qualified immunity is a nonstarter
Sen. Tim Scott of South Carolina, the only Black Republican serving in the US Senate, has an additional, unenviable task beyond his usual legislative portfolio: talking to his colleagues, and Republicans in general, about the issues of race and policing with which he has an intimate familiarity.
“I, like many other Black Americans, have found myself choking on my own fears and disbelief when faced with the realities of an encounter with law enforcement,” he wrote in an op-ed in USA Today earlier this year, detailing experiences that began when he was 21 and have continued into his time in Congress.
Amid the protests over the police killing of George Floyd, he delivered a similar message on the Senate floor, describing a year in which he was stopped by the police seven times.
“Just because you do not feel the pain, the anguish of another, does not mean it does not exist,” he told his colleagues.
Scott also led the Republican legislative response to Floyd’s death: the JUSTICE Act, the Senate Republican bill meant to address the crisis.
The bill, which focused on data collection and called for examining what at-risk communities need most, was blocked by Senate Democrats, who argued it didn’t go far enough.
Scott is one of the most interesting people in politics: the first Black senator elected from a Southern state since 1881, the only Black American to have served in both chambers of Congress.
There are only two Black Republicans in Congress — Scott and Rep. Will Hurd — and only three Black senators of either party.
Sen. Scott and I talked about police reform, qualified immunity for officers and why eliminating it is a “poison pill” for Republicans, race and racism, and our own family experiences of bad policing.
He told me Floyd’s death had launched a “tectonic shift on the underlying issue” of police brutality.
“I hope that we don’t miss this opportunity” to address it, he said.
This interview has been edited for length and clarity.
I want to talk about the JUSTICE Act and some of the criminal justice reform efforts that you’ve been helping to spearhead. But I wanted to start out with a more general question, because I’ve been focused on this issue for a long time and focused on how conservatives have talked about criminal justice reform for a long time.
As a senator, as a person involved in this discussion, what do you see as the biggest issue in policing in America?
Sen. Tim Scott
I would say the biggest issue in policing in America is probably integrity and/or character, from my perspective.
Character in law enforcement produces excellent results. The lack of it produces situations that we all come to regret.
Why is data collection — like requiring state and local agencies to provide data on use of force and no-knock warrants — so central to the JUSTICE Act?
Sen. Tim Scott
I think the more information you have, the better your results, because then you’re sending your resources in the best direction possible. If you look at our bill versus the House bill, what you’ll find is on data collection.
We want [data] from serious bodily injury to death, so as to be able to move in directed grants to the places where we need it the most.
Ultimately, what both bills recognize is that you cannot change local law enforcement by executive fiat. One of the reasons why in our bill, as well as in the House bill, [they] ban the chokehold on the federal level and not a local level is because we can’t.
And so you want to have the data that gets the best [information] for the citizens that the law enforcement agencies on the local level patrol.
So as you mentioned, policing is a local concern, which makes it challenging to take federal action. But what actions do you think such data collection leads to in the future?
Sen. Tim Scott
I think that proper data collection leads to the best practices that other agencies around the country will be able to adopt. One of the things I would love to have is the best practices from around the country on the variations of the use of force boards.
And then you come to the conclusion that here is a force review board that can bring about the best results.
When that happens, I think you change the culture of law enforcement, as opposed to almost like a knee-jerk reaction on so many topics. I would rather start collecting enough information so that we are directing resources.
My example is that probably more than two-thirds of departments today have already banned the chokehold, so the truth is the more complete the data becomes, the easier it is for us to cite for local departments to end things like the chokehold.
And I think that’s one of the reasons why we’re having success now without even passing legislation.
I have been advocating on behalf of [body cameras] for five years. And the truth is if we had five years of video stored and accessible, there might be more attention on a number of issues that without that those videos we just don’t know about.
So a part of data collection is collecting the videos of these instances and having them made available so that we can do something about it.
Part of the bill is for the establishment of a commission on the social status of Black men and boys. And I have a couple of questions on that.
First, why do you think it was important to focus on a community that is arguably overpoliced in many ways and underpoliced in many ways, and not on the people doing the policing? Police brutality and police violence is a cross-racial experience.
There have been numerous white and Latino people who have been, in my view, unjustifiably killed by police. So why the focus on this particular community and not on the police doing the policing, so to speak?
Sen. Tim Scott
We actually do both. So we have the commission on the social status of Black men and Black boys, because we look at the groups in our nation — Native Americans and Blacks have the highest poverty rate of any racial group in the country. So we’re not just studying it for the outcomes of law enforcement.
We’re trying to break the pipeline from a criminal justice perspective, the pipeline from a poverty perspective. We established, with the support of the NAACP and other civil rights organizations and police organizations, the National Criminal Justice Commission, and that will study police behavior.
And frankly, in South Carolina in 2015, there was a white teenager, I think he was 19 years old, that was shot by police. And so you’re right, the issues are not simply issues with minority communities, this is an issue that really does cross all racial boundaries, but that’s one of the reasons why we have the National Criminal Justice Commission.
Writers like Chris Arnade and others have argued that what many communities experience is simultaneous underpolicing and overpolicing. So what we learned from the Department of Justice after Ferguson was that you had people who committed small offenses, like a broken taillight or turning without signaling, and received big penalties because those require big fines. But then if you call 911, no one responds. Do you think that there’s a way for Republicans to lead on this issue and talk about this kind of simultaneous challenge?
Sen. Tim Scott
I think this is a way for people of good conscience to lead on the issue, not just Republicans. I say that because all of the issues that you’re describing are issues that are literally local issues and most local governments are nonpartisan.
And so your local city council, your mayor, can confront that issue faster than we can from the federal level. But I do think that it’s important for us on the federal level to study the policies and the practices. We can do that through our commission. I would say that no doubt about it, when you look at the tickets written, sometimes you see a disproportionate share [of Black people being ticketed]. All you have to do is go to traffic court around the country and see what you see. So I get your points there.
But the bottom line is it’s an issue that Republicans can address, but it’s not actually a Republican or Democrat issue. These are happening in communities around the nation. And most often, those communities are not run by Republicans; they are either run by Democrats or they’re nonpartisan. We should tackle the issue at which level with the government that’s closest to the people. And that would be your municipal and county governments.
But we certainly will continue to keep a focus on that, because that’s certainly my personal experiences, part of the reason why I’ve been [working on this] for quite a while.
You’ve talked about being pulled over numerous times with your Senate pin. And I know that’s something my dad’s dealt with it, you know, getting pulled over because he was driving a Miata and that didn’t seem like the right car for him to own.
Sen. Tim Scott
Exactly, your dad’s experience is my experience. I remember I had my Infiniti G35 sports coupe, all black, tinted windows, four cops surrounding it because the car was “too nice for the neighborhood.” But frankly, when your grandfather loves his neighbors, doesn’t want to move, you go see him wherever he lives, no matter what kind of car you drive.
I wanted to ask one more question about the JUSTICE Act, which is that it contains a provision focused on asking the Department of Justice to create a deescalation training curriculum. Now, Baltimore has seen success with such a program, but because most states leave trainings up to individual police departments, deescalation isn’t commonly taught, which I think puts a lot of people at risk. Because we’ve seen time and time again, these incidents happen so quickly and an incident that wasn’t threatening can quickly become threatening. Why do you think these trainings haven’t been more widely utilized before?
Sen. Tim Scott
Out of the several hundred law enforcement departments in South Carolina, 118 of those departments have less than 10 people. So when you have fewer than 10 people in a local department, your training, I would imagine, is going to be quite limited.
It’s one of the reasons why I focus on providing more grant dollars so that we can induce or compel the behavior that I think is in the best interest of the citizens within those jurisdictions. So in South Carolina, we have one [police] academy. And so some of those departments that are too small to train their officers themselves would then be able to access grants and resources.
I think it’s a smart approach realizing that most departments are not like Chicago, Detroit, Charleston, North Charleston, Los Angeles, Cleveland, Cincinnati; most offices are much smaller, and their training budgets are infinitely smaller. And so what I hope to do is take the intelligent approach: figure out the problems, work back to the solution, because that’s the fastest way for me to actually help the departments that are willing.
I want to step back a little bit. How do you think that your peers have shifted on the issues of policing since you joined the Senate in 2013?
Sen. Tim Scott
When I went to the floor to talk about Walter Scott and then, of course, the shooting in June of 2015, [there was] a lot of sympathy on the floor from Republicans and Democrats but no action from my friends on the other side or my side.
What I saw instantly after [George Floyd’s death] was a nation’s response to it, as almost like a tectonic shift on the underlying issue that some of us had been advocating for the last number of years came into focus.
I hope that we don’t miss this opportunity that is right in front of them because we’re playing for the ability to write the bill you want after the election.
You’ve been a leading steward for the GOP on issues of race, whether it’s on judicial nominations or even on just talking about your own experiences. Do you feel in some ways responsible for shepherding your colleagues on some of these issues? I know that’s something I’ve had, even at Vox, of just feeling like I need to walk people through ideas that they may not have had the chance to experience personally.
Sen. Tim Scott
I’m a believer in divine intervention. I believe that the Good Lord himself designed every one of us, and I was made Black on purpose and factually as a person of conservative construct, which I think is, by the way, [similar to] the vast majority of Black people in America. I would say that the ability for me to communicate my personal experience to a broader audience is helpful.
When you look at the Senate, I am the only Black Republican, but there are only two Black Democrats in the United States Senate.
You noted that many African Americans hold, I would say, small-c conservative views. They might be more socially conservative or actually more economically conservative. Why do you think that has not translated to support for the Republican Party?
Sen. Tim Scott
That’s a good question. I think there are several reasons. Number one was the Southern Strategy from the 1970s and early ’80s where you saw the Republican Party use race, at least to me, in a divisive manner. But I would say that when you look at the actual history, we all know about Abraham Lincoln, but frankly during the civil rights era, more Republicans voted for the civil rights-era legislation than Democrats. So we lost a marketing war in the 1970s and ’80s, and we never regained any prominence.
I think that’s why the history of who we are and how we vote is critically important as it relates to where we go from here. Black people are very diverse. There’s no monolithic group of thinkers in the Black community. It doesn’t exist.
Sen. Tim Scott
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.
If that’s not enough, then I don’t think we’ll get anything done. But if you need 99 percent of what you want in order to make a deal, I guess we’ll just leave the community that’s most vulnerable, vulnerable, because 99 percent is too high of a price to pay.
Do you think that there’s also some people just waiting for the Supreme Court to handle the issue — because the Supreme Court is the entity that invented qualified immunity?
Sen. Tim Scott
Qualified immunity is really the result of judicial rulings, not the law. So we’ve seen Justice Clarence Thomas and others speaking out about the nature of qualified immunity as we see it. I think you’ll have lots of rumblings for many years.
We learned in 2016 that elections have consequences. So in 2020, those consequences might be a majority of people in a position to usher in a brand new approach to police reform that we can’t get done. Now, I would certainly hate to wait seven months to get something done, or you can get 80 percent of what you want now. And if you do win, you can get the other 20 percent, but let’s take baby steps for the communities that desperately need it now and not worry about who gets the victory. The victory goes to the community, not to Democrats or Republicans, but that’s just not how the game is played right now.
We’re in the midst of a very strange moment in which this issue that’s so important, it has been so important to folks like you and other people who’ve been working on this for nearly a decade. We’re also dealing with a pandemic and we’re also in the midst of an election year. So on the subject of criminal justice reform, what comes next in this conversation?
Sen. Tim Scott
The impetus for change in the criminal justice conversation should start with how do we break the pipeline to incarceration. And to me that starts with education, that starts with poverty, that starts with an awareness and a recognition that we have to get this right 10 years earlier than we are now and not dealing with the outcomes when the cell opens and the inmate leaves.
Getting those conversations going is the primary objective, from my perspective, in the next wave of criminal justice conversations. And then the private sector, and I am encouraged by the number of private sector companies that have gone toward “ban the box”, which I think is better done in the private sector. So I would once again like to champion causes [where] we can produce meaningful change in reasonable time.