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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning everyone, happy Friday. We talk a lot here about gridlock in Congress on many of the most important issues facing the country, right? Even with Democrats in control of both Houses, unless it's a budget bill, it takes 60 votes to get anything through the Senate. There has been little to nothing on voting rights on guns, on criminal justice reform, on immigration, on so many things. After the conviction of Derek Chauvin this week for murdering George Floyd, a glimmer of hope seems to be emerging for some kind of police accountability reform, with bipartisan talks underway between Democrats Corey Booker and Karen Bass and South Carolina Republican Senator Tim Scott. Here's Corey Booker on MSNBC.

Corey Booker: It's most certainly a possibility. Tim and I are friends, we've done big bills together before and he is a good faith actor. We are in conversations and I have some confidence that we can get something done. The question is, will it be enough so that we can say it's real reform, real change? I've seen things before, from racial sensitivity training to community policing funding, and it has not led to a stop of the deaths of people like Tamir Rice, George Floyd, Breonna Taylor, Eric Garner, and the names that we all know. My standard is, are we making real substantive reforms that we can say are really going to make a difference in accountability in our country?

Brian Lehrer: That was Senator Booker speaking on Chris Hayes' show on MSNBC Wednesday night. He made similar remarks yesterday. Senator Scott, by the way, the only Black Republican in the Senate, has also been tapped by his party to give the Republican response to Biden's 100 days in office address to the nation scheduled for next Wednesday. Here is Senator Scott speaking about police reform and what he saw as democratic obstructionism last year.

Senator Scott: See, as a Black guy, I know how it feels a walk into a store and have the little clerk follow me around even as a United States Senator, I get that. I've experienced that. I understand the traffic stops. I understand that when I'm walking down the street and some young lady clutches onto her purse, and my instinct is to get a little further away because I don't want any issues with anybody. I understand that but what I missed in this issue is that the stereotyping of Republicans is just as toxic and poison to the outcomes of the most vulnerable communities in this nation. That's the issue.

Brian Lehrer: That was the issue. That's Tim Scott in the middle of the presidential election. Maybe this moment is one where the timing is more right for something bipartisan. We'll talk about that and more now with Washington Post columnist and MSNBC host Jonathan Capehar. His MSNBC show is called the Sunday Show, every Sunday morning from 10:00 AM to noon Eastern time. We also host a podcast called Cape Up. Jonathan, thanks for coming onto this. We always appreciate it. Welcome back to WNYC.

Jonathan Capehart: Good morning, Brian. Thanks for having me.

Brian Lehrer: Do you think a bipartisan police reform bill that actually contains reform in the way that Booker related out in the first clip is possible?

Jonathan Capehart: I actually think it's more possible today than I thought this time a week ago. I think that the conviction of Derek Chauvin provided a little bit more momentum to get the George Floyd Justice and Policing Act further along than where it was. I'm also hopeful because you've got Congresswoman Karen Bass of California, who is a honcho, or was the lead person in the House to get it passed in the House and she is has teamed up with Senator Cory Booker to negotiate with Senator Tim Scott to actually get a deal. From the beginning, the big sticking point has been qualified immunity or the way that it was dealt with in the bill as it passed out of the house, is that it would completely eliminate it, meaning that civilians would be able to sue police departments and police officers individually for wrongful death and other reasons.

That has always been the sticking point for Republicans. Senator Scott made that the big issue once it came over to the Senate, but yesterday I believe Senator Scott unveiled, or at least it was floated, a potential compromise, and that is making it possible for individuals to sue police departments, but not police officers individually. One more point, when I interviewed Congresswoman Bass on the Sunday show just before it passed the House, she said that she was willing to have conversations with Republicans about qualified immunity. I think that between the Chauvin verdict, the compromise that was released or revealed yesterday from Senator Scott, that there is some momentum there. I do think that the possibility of it passing is higher now than it has ever been.

Brian Lehrer: On qualified immunity and police departments, rather than the individual officers being able to be sued. What good is it to get the money from the department? You know what? I'm going to have Mayor de Blasio on next hour and I'm going to ask him a question about a particular case in New York like this. They just made a settlement, maybe you saw it, for $750,000 with a woman who was handcuffed by the NYPD while she was giving birth. The city is going to pay that $750,000, but the Blasio just protected police in a city council bill from being held individually liable for any of that money.

The taxpayers are going to pay the bill as the department is held liable in that settlement. What's the difference between just holding the city government accountable and holding the police department accountable in the compromise that you're describing in a way that could change officers' behavior at all?

Jonathan Capehart: That's a very good question, Brian. I would like to hear more from Senator Scott and Republicans. I would love to hear their answer to your specific question, because that is what comes to mind for me. In the end, you would think that Republicans would not want to stick the bill to taxpayers. You just mentioned the $750,000 settlement in New York in that case. Let's not forget that the city of Minneapolis settled with the Floyd family for $27 million. If you make it possible for individuals to sue police departments, you can't think of it, I don't think, as separate pots of money. That money is going to be coming from public funds, public funds financed by taxpayers.

This is part of the interrogation, if you will, that I would like to see of Senator Scott and Republicans, to explain to the American people why it's better to sue a public entity financed by taxpayer dollars and not make it possible for individuals to sue individual police officers for bad conduct.

Brian Lehrer: We'll see how that emerges from the Senate, if it does emerge as a bipartisan bill. In the next hour, I'll ask Mayor de Blasio the local version of that question. In one story I read on this this morning, Senator Scott was quoted saying there are four or five outstanding issues from his perspective, there's the immunity that we just talked about, there's also the 1033 program, which provides local and state police with military equipment. There's also a federal ban on choke holds and no-knock warrants. Do you think those things have been resolved? Do you get that impression?

Jonathan Capehart: That I don't know. I can't possibly see Democrats, Senator Booker and Congresswoman Bass, compromising on no-knock warrants, compromising on the militarization of the police, because that has been an issue ever since Ferguson, I believe that was 2014, or on chokehold, especially given what we saw happen to George Floyd. It wasn't a chokehold, it was a knee on the neck. Still, but if those are the issues that Senator Scott is bringing up, well, then I look forward to the negotiations or the readouts from the negotiations over those issues. These are very important issues.

I think that because the nation sat riveted, watching over the last three weeks as the Derek Chauvin trial unfolded, getting an education in what it means to be trained as a police officer, what is reasonable force, how officers are actually trained, and what they're supposed to do, and what didn't happen in the case of what happened to George Floyd, that the nation's eyes and ears are wide open. They are going to want to see, particularly, we're going to put a political lens on it, that Democratic base wants to see something done when it comes to all of these issues that you've just talked about that you mentioned that Senator Scott has raised objections to. This is a negotiation, and so I will be following this much more closely as they become much more serious.

Brian Lehrer: On no-knock warrants, I think it's worth saying, by the way, I haven't read the federal legislation or the proposed legislation, but I have read some local versions. They don't ban no-knock warrants altogether, and they probably shouldn't. There are cases where there's an active shooter or something going on behind a closed door where police really do have to break in in the name of public safety, but in the Breonna Taylor case where they absolutely did not have to, and other things like that, the standard would be raised, the bar would be raised for demonstrating imminent danger before justifiable no-knock warrants. I thought that's worth clarifying.

Jonathan, I'm almost surprised that the Chauvin conviction offers this opportunity for bipartisanship, rather than the other way around. To be honest, looking as I do at the cable station down the dial from yours, the line that I'm seeing most often is this proves that justice does work in America, that when there really is a "bad apple" police officer like Derek Chauvin, he is convicted. There isn't systemic police department racism, there are individuals. Look, this individual who was bad got held accountable. There's, in a certain way, a rationale for the Republicans to dig in on their systemic racism is a hoax line and not do anything on police reform right now.

Jonathan Capehart: Well, that argument laid out by that person on that particular cable channel is the template for the way white people view racism. It is an individual failing, not a systemic failing. Anyone watching that trial saw that it was an individual failing, but it was also a systemic failing. The other thing about the Derek Chauvin trial, and this case, in the killing, now murder, of George Floyd is hearing people talk about this. Remember that scene in Star Wars, Brian, where they're talking about how difficult it's going to be to destroy the Death Star because there's a flaw and there's an opening, but it's the size like the hole in a golf course?

You've only got one shot, everything has to be absolutely perfect in order for this missile to get down the hole to destroy the Death Star. That is exactly what the Derek Chauvin trial ended up being because all of these things had to fall into place in order for that conviction to happen. You had to have that courageous young woman pull out her phone and record the killing of George Floyd, which then, once it hit her Facebook page, proved that the statement put out by the Minneapolis police department was a bald-faced lie and totally papered over what truly happened.

You had to have the EMS worker take the stand, you had to have the off-duty EMS worker take the stand, you had to have the police chief, and about three other police officers take the stand and testify against him. You have to have the girlfriend and the bystanders take the stand and testify against Derek Chauvin. Then you have to have a jury that actually looked like the community, a racially mixed multi-generational jury, to hear that trial. All of those things had to fall into place. One other thing, a brand new Attorney General by the name of Keith Ellison, the former Congressman from Minnesota, take over the case and field an unbelievably impressive prosecution team.

All of those things had to fall into place in order to have the conviction, to have the verdict that happened. That makes what happened in Minneapolis the exception, not the rule. For anyone to think that we should be looking at this as individual failings is being blind. I think the fact that Republicans are actively negotiating on the George Floyd Justice and Policing Act tells me that there is still a spark of reality within the Republican party that is resisting the fantasy and fairy tale that goes out over the airwaves at night from Fox News and is dealing in the reality-based world that we're in, in seeking to solve or at least try to start to solve the problems of policing.

Brian Lehrer: Driven by politics and public opinion, to some degree, no doubt, because I see there's a Washington Post ABC News poll out today that finds concerns over treatment of Black Americans and other people of color by the criminal justice system is at its highest point since they started asking that question in 1988. I think that means, I hope that means, a lot of white people are getting their eyes open since George Floyd was killed, and that would mean more Republicans are getting their eyes open, just based on the political math of this country. Maybe that's one of the reasons that they're looking for bipartisanship right now.

Listeners, what would real federal police reform look like to you? 646-435-7280. The Democrats call it the George Floyd Justice and Policing Act. Republicans are negotiating in good faith says Cory Booker, you heard him say that in the clip we played. What would it take for it to look like progress to you or any questions you have for The Washington Post columnist and MSNBC host, Jonathan Capehart? 646-435-7280. Let me play one more clip of Cory Booker from his Wednesday night appearance on MSNBC, where Booker is often a both and guy. In this case, he's saying not just the victims of the way the criminal justice system works now, but the police too, and the police. Listen.

Cory Booker: The police profession, which is hurting right now. It is hurting. In my state, for example, a headline just read that we have a historic low in applications for our state police. We need to heal police-community relations and trust in law enforcement.

Brian Lehrer: And the police, the hurting police department in Cory Booker's state of New Jersey. Jonathan, I don't know if you've reported on this at all, but has the George Floyd Derek Chauvin case changed thinking within police departments at all about either what they feel their role in society is or what they feel the line is with respect to behavior?

Jonathan Capehart: Brian, I haven't done any specific reporting on this, but I do think just from reading reporting over the last year about how police departments are trying to deal with this, I do think that they have had no choice but to look inward, to see how their departments are performing and behaving, and how they're patrolling and interacting with the community is either enhancing relationships or actually being very detrimental to relationships. I think Chief Arradondo, the Minneapolis police chief, that was another thing that was one of those, "perfect things that have fallen into line."

He was known as a reformer. If you remember the way he talked on the stand about what it meant to be police chief, his words were inclusive. He didn't speak like a police officer who viewed the community as them and something that police had to fear. He talked about the community and our community being not separate and apart from the people they serve, but being a part of the people they serve. When Senator Booker talks about police departments hurting and repairing relationships, I believe that is true. I think that police departments are trying to figure out how to improve relations and this is not something that is going to be changed or cured overnight.

This is going to be a generational thing but I do think, sadly, it took the very public murder of George Floyd to shock the conscience of the entire nation and police departments to take a step back, to see what has gone wrong and what they can do to try to fix it.

Brian Lehrer: Here's Matthew, says he's a law professor in San Francisco, calling in on qualified immunity. Matthew, thank you for calling. You're on WNYC.

Matthew: Hey Brian. The reason we sue individual police officers is because states and cities are essentially immune from liability. States are completely immune and cities are immune unless the police officer's misconduct is a result of a policy or a well-established practice. There's no accountability because we can't sue the departments now and we can't sue the individuals too largely because of qualified immunity.

Brian Lehrer: Wait Matthew, let me ask you to clarify that a little further, because one of the issues we talk about on this show, at least in the New York context, I don't know if it's different in San Francisco, is that the NYPD or the city of New York on behalf of the NYPD pays out millions of dollars in settlements every year over police misconduct suits like the 750,000 agreed to this week for this woman who was handcuffed while she was giving birth, so the city can be held liable in lawsuit. Am I misunderstanding you?

Matthew: Yes, a little bit. The cities and States always pay the judgments against the individual officers not because they're liable, not because they have to, they do. It's sometimes a matter of their union contracts. Sometimes just a matter of practice. They always reimburse and cover it, but it's not because we're holding them liable. If we held them liable, we'd finally be able to take on unconstitutional behavior that now escapes under the state immunity and under qualified immunity. If we're consistently holding police officers accountable for misconduct departments can start taking that into account in the way they reform their departments. That doesn't happen now because of with both of those immunities, we just have so little accountability. This would be a huge step forward.

Brian Lehrer: In the case of the woman giving birth this week, I noticed the city agreed to this big payout, three quarters of a million dollars, but without admitting wrongdoing.

Matthew: Always.

Brian Lehrer: Always? Is that part of-?

Matthew: Always, whenever you settle, you never admit wrongdoing, but when you turn internally to look at the police behavior, can you take the settlements into account? Yes.

Brian Lehrer: Thank you, Matthew. We appreciate that clarification. Mark in Parsippany is also calling about qualified immunity. Hi, Mark you're on WNYC.

Mark: Hi Brian. Great show as always. I want to try to be clear about this. First of all, I think the verdict in the Chauvin in case was the correct verdict. I think it was the necessary verdict. I say that because I want to push back a little on this issue of suing the police officers directly. I think this creates a quagmire of a negotiating tactic between Democrats and Republicans. I say this because in the reality of lawsuits, you're always going to go after all responsible parties so that the victims will be able to get paid back. In the case of these types of lawsuits, the individual officers are never going to have the kind of money to satisfy a judgment. We're talking hundreds of thousands of dollars, millions of dollars.

The reality is it's always going to be the police department or the city government that's going to have to foot the bill in these suits. Now, there's a question as to whether the city government can try to garnish some of the wages of the police officers, as a way to make the police officers feel like they're more accountable. That's one thing, but this argument that the Republic-- The practical reality.

Brian Lehrer: I understand what way you're going this. Some of our other callers, who we're not going to have time to put on the air, are making the point that police officers like doctors, for example, should need to get malpractice insurance so those million-dollar payouts, where they're warranted, could still be paid but they have to pay out of their pockets to insure themselves if they're high risks.

Mark: If I may, Brian, I thought of that and the reality there is too, I think it's very likely that the city government will end up paying for that insurance premium. Even then, it still would be the taxpayers paying in some respects. It's a little different than a private medical doctor.

Brian: Mark, thank you very much for that call. I appreciate it. Jonathan Capehart, anything on those two callers about qualified immunity?

Jonathan Capehart: That was great. I got a little bit more of an education from Matthew and Mark and also pointing out and Matthew was the one who reminded me that you can't sue cities. The idea of a qualified immunity compromise where it makes it possible for individuals to sue the police department in that regard is probably a huge, I think as Matthew said, would be a huge thing to have happen. Thank you, Matthew and Mark both, for your calls.

Brian Lehrer: That's right. You got a little education there. I got a little education there. I'm going to have to look further into it because I thought you can sue the city. I'll have to get some more clarification from myself, but remote learning 10:00 AM to noon. That's what we do and that's what you do on 10:00 AM to noon on Sundays on your MSNBC show. I know you got to go in a couple of minutes. What do you make of the politics of having the same Senator we've been talking about, the only Black Republican in the Senate, Tim Scott from South Carolina, give the Republican response to Biden's state of the union style speech coming next Wednesday?

Jonathan Capehart: It's smart on the part of the Republican Party, given the week we've just been through and actually the year that we have just lived through. Particularly when it comes to the murder of George Floyd, the trial of Derek Chauvin, the shootings and killings of Dante Wright, Breonna Taylor, Ahmaud Arbery. Not just African-Americans shot and killed by police but in the case of Ahmaud Arbery, just run down and killed by civilian white guys. To have the Republican Party, which has a very bad reputation after the 2020 election when it comes to African-Americans and Black people, trying to stop the right to vote, block the right to vote, the insurrection and its connections to white supremacy.

The Republican Party, by having Senator Tim Scott deliver its response to President Biden's joint session address, is their way of signaling that, "We're not as insensitive to race as you might think. We have our own views when it comes to voting rights and racial justice and here is a Black Republican Senator who is going to speak on our behalf on those issues."

Brian Lehrer: Jonathan, I feel like I've seen this movie. I watched every minute of the Republican convention, at least the prime-time part, last summer, where it was Black person after Black person. I'm sure that was your perception too, in addition to a lot of Trump himself and Trump family. Black person after Black person and they still only got 10% in the presidential election.

Jonathan Capehart: Right, but also it was Black person after Black person and each one was more unbelievable than the next. That is the challenge for Senator Scott, that the response is always a thankless job but it's also a challenge for the Republican Party. They have a lot of explaining to do, they have a lot to live up to, and the way that the Republican Party is right now, they're going to fail at that as long as they are trying to deny that the insurrection happened, promote the big lie that former president Trump did not lose the election, and that they're actively trying to deny that there is a systematic problem of race in this country that needs to be addressed and should be addressed in a bipartisan nature but in an all American nature.

Brian Lehrer: Washington Post columnist and MSNBC host, Jonathan Capehart. His MSNBC show is called the Sunday Show, every Sunday from 10am to noon. He also hosts a podcast called Cape Up. Always great talking to you, Jonathan. Thank you.

Jonathan Capehart: Thanks, Brian.

Brian Lehrer: We're going to extend this segment, even though Jonathan had to go, by one caller who now becomes a guest. It's city council member Steve Levin, representing parts of Boerum Hill, Brooklyn Heights, Brooklyn Navy Yard area, downtown Brooklyn, Dumbo, Fulton Ferry, Greenpoint, Vinegar Hill, Williamsburg, all those places, we looked it up. Stephen Levin is the city council sponsor of the qualified immunity bill at the New York City level, which got through the city council and was signed by Mayor de Blasio in part. Council member Levin, thank you for calling in.

Steve Levin: Thanks, Brian. Thanks for having me.

Brian Lehrer: You're going to clarify some of the confused state that Jonathan and I were in a minute ago?

Steve Levin: Yes. The main purpose of the bill was to open the avenues for redress for people who have had their fourth and 14th Amendment rights violated by the NYPD. Your fourth amendment rights are your rights against unwarranted search and seizure and 14th amendment claims around excessive force. What this would do or what this is going to do is give people a right of action to actually sue. With qualified immunity, the officer, and by extension then the city, as your last caller said, can actually claim that they're immune, that you can't even bring the suit in the first place.

They'll throw it out of court because they're totally immune to it. By allowing the case to move forward or the claim to move forward, that provides the individual with an opportunity to have some redress on that.

Brian Lehrer: Can I jump in on that point?

Steve Levin: Sure.

Brian Lehrer: The city does already pay out millions of dollars a year to settle cases brought because of police misconduct. What was that?

Steve Levin: There are some cases where they go beyond where there's immunity, or immunity will be denied by a judge. There are some cases where the conduct is so egregious that it doesn't end up getting covered under those claims of immunity. Sometimes it's really just extreme excessive force, or the city will end up settling before because it's a class action suit or there are other PR concerns for the city that they move to settle beforehand.

Brian Lehrer: Also, people sue the city all the time over things like tripping on a sidewalk. If that sidewalk disrepair had been reported to the city and they trip on the sidewalk and injure themselves, they sue the city over that. There are all kinds of things that people sue the city for, right?

Steve Levin: What we will be able to do now, what individuals will be able to do now, is sue the individual officer. By removing qualified immunity, you can name the officer as the person who has violated your rights and make a fourth amendment civil rights claim. If you want to get even more technical about it, there's a section of the law, the federal law, the Klu Klux Klan Act of 1871. It's section 1983 of that. That provides individuals with a right of action for people that violate their constitutional rights. What qualified immunity has developed over the years is a way to deny people a right of action under that law.

Now that law still is in effect, it hasn't been repealed, it hasn't been amended. What we did at the city level is say we're going to create a civil right that's a local civil right, that mimics your federal civil rights. The language in our bill is actually verbatim the Fourth Amendment to the Constitution, and it's allowing that course of action.

Brian Lehrer: Clarify one other piece of this, and then I got to go. My understanding of the way this bill got through counsel was that you had to strike out the original proposal that would hold police officers who were successfully sued under the provisions you were just describing, for cash liability up to $25,000. The mayor opposed that, and that was not in the final bill, correct me if I'm wrong.

Steve Levin: that's right.

Brian Lehrer: If the police officers aren't being held accountable to pay anything to the people who successfully named them in lawsuits, then what really changed?

Steve Levin: Well, we have actually heard from Legal Aid Society, among others, that actually we're okay with making that change because from their perspective it's most important for the clients, the plaintiffs, to be able to recoup damages. I think your previous caller made reference to this, that there's a challenge of being able to actually recoup the damages from the individual. What we ended up doing is just not speaking to indemnification at all. We didn't say they should be indemnified or that they're prohibited from being indemnified. We're saying that can be up to the city or the union contract, how they want to handle indemnification

What we are doing is saying you are going to be sued as an individual. Whether someone else ends up picking up the tab, you're still a named party. You're still a defendant in the lawsuit, the individual officer. The judgment will be against them if it's found that they're liable. Whether the city ends up picking up the tab, I realize that that's an issue around incentives, and that would make it a stronger incentive to disincentivize misconduct. We do also think that if we're opening up the universe of claims now much more significantly, because now there is no immunity, you can actually bring the suit and have a chance of it going through, that will incentivize the city itself to start changing its policies.

The city really does not want to be responsible for these payouts either. At the end of the day, it's in the city's interest to stop the misconduct, to stop the payouts as well.

Brian Lehrer: City Council member Steve Levin of Brooklyn, the lead sponsor of the qualified immunity bill. I'm glad you were listening this morning, Councilman. I'm glad you listen.

Steve Levin: I listen all the time.

Brian Lehrer: I appreciate that you called in to clarify what we were talking about with the previous guests. That was awesome. Thank you very much.

Steve Levin: Thanks, Brian.

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