Good Cop, Bad Cop

On a mild afternoon in September, Gov. Roy Cooper sat at a small table on the South Lawn outside the Executive Mansion, surrounded by politicians of both parties who stood and would soon applaud.

As television cameras rolled, the Democratic governor signed three bills approved by the General Assembly—each passed with strong bipartisan support—that seek to improve policing in North Carolina.

The laws are “a big step forward in criminal justice reform in North Carolina,” Cooper said to the crowd, which included law enforcement officers and those representing groups that had pushed for change.

Cooper and others said there was more work to be done to create a fairer justice system, but the new laws are some of the most significant police reforms in North Carolina in years. Some of the measures, such as a database to track police misconduct, will make North Carolina a national leader, as it was in 1999 when it became the first state to mandate the collection of data, including race, from traffic stops.

State Rep. John Szoka, a Republican from Fayetteville who spoke at the bill signing, said the legislation would not only protect the public but also help “good officers do their job better while ensuring accountability.”

About 275 miles to the north, there was no similar ceremony at the White House to tout the passage of bipartisan national police reform.

After Minneapolis police officer Derek Chauvin killed George Floyd in 2020, his knee on the neck of the handcuffed Black man, millions of protestors took to the streets across the country in the largest civil rights protests in American history.

When Chauvin was convicted in April 2021, Congress recommitted to working on national legislation to improve policing. Key negotiators said Democrats and Republicans had plenty of common ground, and at several points, an agreement appeared imminent.

But a few weeks after September’s celebratory bill-signing in Raleigh, U.S. Sen. Cory Booker stood in front of the U.S. Capitol and told MSNBC that negotiations on national legislation had ended. “We have too much of a gulf that we’re not closing,” he said.

Booker ended with a warning. “We have to deliver on meaningful police reform, or we will be back here discussing the continued videotapes that are being captured of unarmed African Americans unjustly killed or beaten,” he said. “We have work to do.”

North Carolina was one of more than 30 states to pass new police oversight and reform laws in 2021. While elected officials in Raleigh were able to find common ground, compromise on their differences, and reach a deal, members of Congress could not do the same. How police reform was enacted in North Carolina, but not by federal lawmakers, offers a case study in what was good—and disappointing—about politics in 2021.

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The recent effort to improve policing in North Carolina started with Floyd’s death in Minnesota, but accelerated after the death of Andrew Brown Jr. in April 2021 in Elizabeth City, a community of about 18,000 in the northeastern corner of the state.

Brown, a 42-year-old Black man, was shot and killed in his car by sheriff’s deputies serving warrants on drug charges. The district attorney declined to bring charges, saying the shooting was justified because the deputies reasonably believed they were in danger as Brown attempted to drive away.

State Sen. Toby Fitch, a Democrat from Wilson who was one of the negotiators on the police legislation, told The Assembly that the Elizabeth City incident was a key factor in the push for change in North Carolina.

“We had this shooting at home [in North Carolina],” said Fitch, a veteran defense lawyer who later served 16 years as a Superior Court judge, where the state’s most serious cases are tried. “It wasn’t like it was somewhere else. It had hit home. And now what were we going to do about it now that it was sitting on our doorstep?”

After the shooting, the North Carolina Legislative Black Caucus and Senate Democrats identified police reform as a priority, and took up the issue with Republicans, who control 28 of the state Senate’s 50 seats.

At first, Fitch said, Republicans were reluctant to work with them, believing Democrats wanted to reduce funding for the police. Fitch called that “propaganda,” but it wasn’t an unreasonable assumption by Republicans. Nationally, the Democrats’ left flank was calling for a portion of police spending to be reallocated for prevention or social programs, and cities such as San Francisco, Minneapolis, and Portland did so.

The Assembly reported in November about the voter backlash in Durham after the city, amid rising gun violence, moved to freeze vacant police jobs and shift them to a new community safety department.

Fitch insisted that Senate Democrats didn’t want to cut funding to police departments. “What we wanted to do was reform, not defund, but reform,” he said. “When we let the Republicans know that it was a hot-button item for us, they then started listening to what we had to say.”

Fitch, who has served 10 terms in the state Senate and House, credited two influential Senate Republicans for being willing to work with Democrats on the issue: Bill Rabon, the chairman of the Rules Committee, through which every piece of legislation passes; and Danny Britt, chairman of the Senate Judiciary Committee, where criminal-justice legislation is written.

The General Assembly ultimately approved three bills to identify officers who use excessive force or other forms of misconduct; to require independent investigations of shootings by police when requested by the governor or a law enforcement agency head; to mandate psychological screening of law enforcement officers before employment; and to create a duty for officers to intervene and report excessive force by a fellow officer.

Two bills originated in the House, while the most sweeping measure came from the Senate.

The three bills were aligned with recommendations from a task force that Cooper appointed, and he signed each.

The criminal justice system doesn’t always treat everyone the same, Cooper said, “and too often the differences are disproportionately felt by people of color.” He said the new laws were a step toward a more equitable system.

Fitch said, “I don’t think that one piece of legislation can wipe away years of discrimination. But I think that the more we get together [on legislation], the happier we will be. The more we improve the system and show that it’s not just a political football, I think the better off North Carolina will be.”

Fitch is Black; Cooper, Rabon and Britt are white.

Britt, a three-term senator and defense lawyer from Lumberton, was instrumental in the shaping and passage of the legislation. He’s a former Democrat with a reputation for being able to work across the aisle.

“Legislation is just like anything that you do in life: If you want to get people to work together, you have to be willing to compromise,” he told The Assembly. “You have to be willing to sit down and consider other people’s opinions and points of view. With this particular bill, I tried to involve from the beginning many folks from across the political spectrum,” including interest groups and legislators.

One of those legislators was Fitch, who serves with Britt on the Senate Judiciary Committee. The two senators, who share a deep knowledge of how criminal courts work in North Carolina, set aside their party differences and worked toward agreement.

“I think a lot of Senator Fitch,” Britt said. “He knows criminal law, and he knows the court system. We’ve got a lot of attorneys in Raleigh [in the legislature], but we have very few that either practice or have been in a practice setting. Toby Fitch is one of those few, and he’s one of those few that really gets it. … He’s got not only a wealth of knowledge, but a wealth of common sense that is also lacking at times in the building.”

Fitch said: “It’s a pleasure to work with [Britt]. Practitioners of the law are few and far between. … We worked through it in a bipartisan effort. I give credit to Danny Britt because I think he really, really, really wanted to work it out.”

Sen. Sydney Batch, a Democrat from Holly Springs, told the Do Politics Better podcast in October about going back and forth with Britt by text and phone conversations to improve the bill.

“He was willing to work with us, which I really appreciated, to sit down and work with Senator [Mujtaba] Mohammed [a Charlotte Democrat], myself, and Senator Fitch on a lot of the changes that we needed to make in order for everybody to support it,” said Batch, a family law attorney. “If we just sit down, and you put your political differences aside and you actually talk about the policy, that’s when we get really great legislation passed.”

No one got everything they wanted. Fitch wants to make bail less onerous. Britt wants to clarify who can be charged under the state’s riot law. Cooper wants police body-camera footage to be public record. (The bill he signed in September requires the family of a person killed by police to jump through several hoops to get access to the video.)

Still, the new law is a significant accomplishment in any era, and especially one in which partisan divisions run deep. Cooper, who was reelected in 2020, and legislative Republicans have been so at odds that the state went a couple of years without an adopted budget. This year, they reached an agreement on a spending plan (albeit several months late) and on other major legislation, including an energy bill that reduces carbon emissions.

Brandon Garrett, director of the Wilson Center for Science and Justice at Duke Law School, said North Carolina’s new police law focuses on better data collection and internal accountability, rather than external accountability. The state didn’t change civil liability rules or the standards for use of deadly force, as other states have.

“That said, this set of reforms is far more than most states and the federal government have enacted,” Garrett wrote in an email. “Still more is being done through local reforms and executive action in North Carolina as well. The Governor’s task force issued a landmark set of recommendations, while other southern states have not done a top-to-bottom review—and while the laws signed last year only addressed some of those recommendations, this was a really promising start.”

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Shortly before noon on Wednesday, Sept. 22, in Washington, Sen. Cory Booker called Sen. Tim Scott to tell him he was ending their six months of negotiations on the George Floyd Justice in Policing Act. The House had passed the measure in March along party lines, and Booker and Scott, two of the 11 African Americans to ever serve in the U.S. Senate, had been the lead Senate negotiators.

Booker is a Democrat from New Jersey; Scott is a Republican from South Carolina. They are friends (“I have love for Tim,” Booker said after ending the negotiations, in what sounded like a rehearsed breakup line) and have worked together in the past, contributing to bipartisan hopes that their shared experiences could result in a deal on police reform. They were, Booker said, “two guys who’ve had humiliating experiences with police.”

The day before discussions broke down, they’d met with Rep. Karen Bass, the California Democrat who represented the House in the discussions, NBC News reported. Bass and Booker presented a scaled-back proposal that did not include several controversial measures, such as a repeal of qualified immunity, which shields police from civil liability, or a ban on no-knock warrants.

Their proposal would have put into law an executive order signed in 2020 by President Trump that established a database of police misconduct and terminations, so that bad officers wouldn’t be hired by another department oblivious to an officer’s transgressions.

Trump’s order also used federal grants to encourage best practices regarding the use of force, including banning chokeholds, “except in those situations where the use of deadly force is allowed by law.”

Scott rejected the proposal—and Booker said he’d had enough. Then the comity between Booker and Scott dissolved, and the finger-pointing began.

Booker was stunned that Scott rejected ideas that had come from a Republican president whom Scott supported (and still supports). Booker also had won the backing of the Fraternal Order of Police, the nation’s largest police union. He said he wouldn’t give up on police reform, but said, in effect, that he needed a new Republican to work with. “We just need to get some Republican partners that will come on board and agree with Donald Trump’s [executive order] or the head of the largest police union,” Booker told MSNBC.

For his part, Scott objected to federal funds being withheld from local police departments because they would not meet federal standards. For him, that was too big a role for the federal government to play.

“There were more than seven sections in the bill that literally said we are going to reduce your funding or make you ineligible for funding if you don’t let a national standard dictate all local policing,” Scott told Fox News. “I’m not turning over local police to the Department of Justice.”

Scott blamed Democrats for ending negotiations, and said they wanted to defund the police—a creative interpretation given that the Booker-Bass proposal would have added federal funding to police departments for data collection and mental health resources. “That is a lie,” Washington Post columnist Eugene Robinson wrote of Scott’s emphatic defund-the-police claim.

Still, it was no shock that the “defund the police” rallying cry played a role in the demise of national police reform. The sticky slogan has been a burden on congressional Democrats since it emerged from the Black Lives Matter protests after Floyd’s death. No matter how often Democratic leaders say they don’t want to defund the police, they can’t get away from it.

U.S. Rep. Jim Clyburn, a Democrat from South Carolina and the highest-ranking Black lawmaker in the House, said after the 2020 elections that the catchphrase cost Democrats several congressional seats.

“We need the police,” Clyburn said. “We want the police.” He said earlier that year that he didn’t want “sloganeering to hijack this movement and cause people of goodwill to resist making the changes we need to make.” Scott apparently couldn’t resist pinning the failure of police reform on the slogan, even if he did put a wayward spin on it.

Booker and Scott declined to be interviewed or answer emailed questions for this article. Their reticence is not surprising. As Time magazine’s Philip Elliott wrote, getting federal police reform in 2021 “should have been an easy lift. A majority of Americans support Congress moving on policing, but Washington is a broken place at the moment.”

Scott wrote recently that there was plenty of common ground. “Better recruitment, more training, a culture of accountability—these are all things both sides want,” he wrote. Yet despite key interest groups getting on board and giving him and Booker political cover, and even with their collegial history, they couldn’t get it done.

In the meantime, the number of people across the country killed in encounters with police during the last year and a half has remained at an average of about three people a day, The New York Times reported. Black people remain at least two and a half times as likely as white people to be killed by a police officer.

The Assembly asked Britt and Fitch, the state legislators, how they made a bipartisan deal in Raleigh while Washington couldn’t do the same. “All I can say is that I think we are where the rubber meets the road,” Fitch said. “State legislators are closer to the people.”

“I don’t see the same level of compromise at the federal level that we have at the state level,” Britt said. “To me, it seems as though partisan politics trump what’s good policy at the federal level.”

There were plenty of other disappointments in Congress in 2021, but the failed effort on police reform must rank near the top. That breakdown illustrates that even when the stars appear to be aligned in Congress and the public supports change, there’s no guarantee of a deal that crosses party lines. That might be why public displeasure with Congress rose to 77 percent in the latest Gallup poll in November, the highest level of the year.

As the Senate finished its work for the year a few weeks ago, Sen. Lisa Murkowski, a Republican from Alaska, said, “It has been a horrible year, hasn’t it?” In Washington, indeed it was.