State of the Union: Biden faces pressure on police reform following killing of Tyre Nichols

One year after President Joe Biden made vocal calls to “fund the police” in his State of the Union speech, police reform advocates in and outside of Congress are closely watching Tuesday night’s remarks to see if he offers a different message that centers on fixing a system they say is still broken.

Advocates hope attention on recent deaths, like that of Tyre Nichols, a 29-year-old who was fatally beaten by Memphis police in January, will help break Congress’s impasse and compel lawmakers — including Biden — to be more aggressive about reforms. Nichols’s mother and stepfather, RowVaughn and Rodney Wells, will be in attendance Tuesday night as guests of Congressional Black Caucus Chair Steven Horsford (D-NV), one of the lawmakers who have urged Biden to address the issue in his remarks.

“A year ago, you were yelling about funding the police,” says Amara Enyia, the policy and research coordinator for the Movement for Black Lives, which supports defunding police. “Will they turn a corner on this, or will it be more of the same?”

In a fact sheet released Tuesday, the White House promised that Biden would press Congress to pass the George Floyd Justice in Policing Act in his 2023 State of the Union speech while also backing funding for 100,000 more police officers.

The pledge is in keeping with Biden’s stance on policing, in which he’s at once called for reforms and for more funding for police, an approach that advocates have criticized as inconsistent. In May 2022, Biden also signed an executive order that would establish a database tracking police misconduct and require federal agencies to establish new use-of-force standards. Thus far, other federal action on policing has been stalled in Congress due to differences Republicans and Democrats have on issues including qualified immunity, a provision that makes it tougher to sue police for harm and damage they’ve caused.

As national police reform legislation has foundered, incidents of police violence have continued unabated: In 2022, police killed 1,192 people, the highest number in at least a decade, according to the Mapping Police Violence database; and in 2021, 1,147 people were killed by police.

The Congressional Black Caucus also recently met with Biden to discuss police reform efforts, and urged him to use the State of the Union to both drum up support for a bill and to lay out a path forward. Both activists and lawmakers, including members of the CBC, have ramped up the pressure on Biden to address police reform during his address and offer a rallying cry that builds public backing for legislation in a divided Congress.

“The State of the Union is one of the best organizing opportunities at present,” says Rashad Robinson, the executive director of Color of Change, which has supported calls for defunding. “This is a chance for him to give people some marching orders.”

This evening’s State of the Union address is the latest test of just how aggressive Biden is willing to be in his messaging on the issue. Although he has backed the Justice in Policing Act, the administration’s rhetoric about law enforcement — such as the calls for funding — has raised advocates’ concerns in the past. Additionally, some advocates hope Biden will more explicitly call out police unions’ opposition to certain reforms.

“What I’m hoping for from the president is a stronger story and a stronger narrative,” says Robinson. “I think it’s just been missing.”

What activists and lawmakers want to hear from Biden

First and foremost, advocates want to see Biden taking a more active role in fighting for legislative police reforms despite the political obstacles they face. They argue that his role is to build public support and to maintain the attention on the issue, which has seen a greater focus following the coverage of Nichols’s death. Biden’s speech at the State of the Union will be indicative of how dedicated he is in not only continuing to urge action, but explaining what barriers are holding it up.

“The president should be rallying the American people to put pressure on the Congress, or big problems are going to just continue to repeat, repeat, repeat,” said Marc Morial, the president of the National Urban League.

Police reform, including many provisions of the Justice in Policing Act, has seen solid public support. In a 2022 Gallup survey, 81 percent of people supported changing legal practices so that police officers face legal action for abuse of power or unnecessary harm, a policy like curbing qualified immunity, and 78 percent backed community-based alternatives like violence interventions.

Activists argue that Biden can use the bully pulpit to activate and bolster this support, so that people continue to push lawmakers to focus on the issue.

Enyia, the policy coordinator with the Movement for Black Lives, has also said she would like to see Biden and other lawmakers approach the issue through a lens of redirecting investments in police to provide more investment in communities.

Robinson argued, too, that Biden should explicitly point to how opposition from police unions has contributed to talks on reforms failing, so supporters of these policies know where to focus their energies. Morial told Politico Biden has said to him in the past that it could be helpful for the president to be less vocal in order for progress to be made on the issue. Morial believes, however, that this moment calls for a more robust approach after past attempts at compromise have failed.

“An effort to quietly persuade did not work,” Morial told Vox.

Right now, for any police reform to pass, it would need House Republican backing as well as the votes of at least nine Republican senators to clear a filibuster threshold in the upper chamber.

And Republicans have been hesitant to make sweeping changes to policing, concerned that increasing officers’ legal accountability would make it harder for them to do their jobs.

Top congressional negotiators like Sens. Cory Booker (D-NJ) and Tim Scott (R-SC), as well as members of the CBC, have sounded both optimism and urgency on the subject, but it’s not yet clear how the existing stalemate would be resolved. A disagreement about the handling of qualified immunity stymied further talks in 2021, and Scott has already noted that the passage of the Justice in Policing Act would be a nonstarter with his party.

That reality has led advocates to argue that Biden should continue using his role to build momentum and potentially consider other executive actions.

Biden could use executive actions on police reform

In addition to the focus on legislation, the CBC has said it’s weighing more executive actions that Biden could take. “We’re exploring all options: legislative, executive, and community-based solutions,” Horsford told reporters following last week’s White House meeting, though he declined to offer additional specifics.

Biden’s 2022 executive order set up a new database aimed at tracking police misconduct, curbing the use of chokeholds at the federal level, restricting the use of no-knock warrants, and using federal discretionary grants to incentivize local agencies to comply.

Additional executive actions could direct federal agencies to issue other grants based on certain requirements. Each year, significant federal funding is distributed to law enforcement via discretionary grants, and it’s possible that these resources could be withheld from police stations that have been found to engage in discriminatory practices.

Robinson also points to federal funds that are provided for traffic stops — including millions in annual highway safety grants — and says the administration could curb these resources, too. Udi Ofer, a former director of the American Civil Liberties Union’s Justice Division and professor at Princeton, adds that Biden could use executive action to strengthen the provisions his previous order put in place. He could make the standard for federal officers’ use of deadly force even higher, for example, and further limit the militarization of local police.

Both advocates and the White House have cautioned that there are limitations with executive actions because they can apply more directly to federal law enforcement, which is only a fraction of police, and that they are no substitute for actual legislation on the issue. These incremental policy shifts could still send an important message, however.

Beyond additional executive actions, CBC lawmakers also pressed the administration to walk through how implementation is going on the existing executive order. “One of the things we’re asking for is a status of where we are in the progress of the implementation of that executive order from 2022,” Horsford told reporters. “And what more can we do that that executive order did not include?”

According to the Marshall Project, the establishment of the misconduct database remains a work in progress, with Ofer, who previously worked with the White House, telling the publication that its implementation seems to lack “urgency and level of commitment.”

In its Tuesday fact sheet, the White House claimed that multiple provisions from the executive order have been put in place, including agencies’ updates to use-of-force policies and barring the transfers of military-grade weapons to local law enforcement agencies.