President Biden Signs Executive Order That Will Give Us A Couple Of Years Of Decent Law Enforcement Reforms

from the make-the-most-of-it,-I-guess dept

The murder of George Floyd by Minneapolis police officer Derek Chauvin was a flashpoint for police reform efforts around the nation. Cops had been killing unarmed minorities for years but this one was so spectacularly brutal and symbolic of institutional racism (a white cop pressing his knee to a black man’s neck), it couldn’t be ignored.

The last administration, headed by law enforcement sycophant Donald Trump, pretty much ignored this killing. When it did react, it promised to punish victims of racial injustice for expressing their anger and made it clear the administration would not be cracking down on police violence or misconduct.

There’s a new president now and police reform efforts are back on the table. President Biden has issued an executive order instituting a number of useful, if limited, law enforcement reforms that should — at least as long as he remains in office — result in more accountability than we’ve seen to date.

For starters, it looks like we’ll finally be seeing some stats on police use-of-force and misconduct being collected at the federal level. Unfortunately, the initial efforts will be limited to federal agencies.

All federal law enforcement agencies will contribute to a National Law Enforcement Accountability Database regarding instances of police misconduct as well as submit information to the FBI related to use-of-force incidents. The U.S. attorney general will review the status of and compliance with federal reporting requirements. This also includes the issuance of guidance to state, local, and tribal law enforcement agencies on best practices for contributing their data to federal systems.

This is something the DOJ has been mostly uninterested in collecting for most the last two decades, despite periodic assurances from the FBI that it will send out another mass email reminding local law enforcement agencies to contribute data if they feel like it.

What this data collection adds is information on police misconduct, which has never been harvested at the federal level. Again, the only agencies required to contribute are federal agencies, but presumably the DOJ can apply some sort of pressure to ensure more contributions, possibly by tying federal grants to participation. Whether or not the DOJ can talk the locals into sending records, we’ll at least have a pretty comprehensive view of misconduct at the federal level:

records of criminal convictions; suspension of a law enforcement officer’s enforcement authorities, such as de-certification; terminations; civil judgments, including amounts (if publicly available), related to official duties; and resignations or retirements while under investigation for serious misconduct or sustained complaints or records of disciplinary action based on findings of serious misconduct…

The DOJ is also tasked with ensuring more participation in the long-neglected use-of-force database the FBI has barely bothered to oversee for 20 years.

The Attorney General, in consultation with the United States Chief Technology Officer, shall work with State, Tribal, local, and territorial LEAs to identify the obstacles to their participation in the Use-of-Force Database; to reduce the administrative burden of reporting by using existing data collection efforts and improving those LEAs’ experience; and to provide training and technical assistance to those LEAs to encourage and facilitate their regular submission of use-of-force information to the Use-of-Force Database.

The biggest obstacle is probably “we don’t want to,” something that’s going to be difficult to overcome when participation is voluntary and there are few options the DOJ can deploy that wouldn’t result in some Tenth Amendment issues.

There are also some quasi-bans of controversial techniques like chokeholds and no-knock warrants. Unfortunately, the same exceptions that have allowed officers to deploy these techniques are still included in the executive order. Chokeholds are “banned” except “where the use of deadly force is authorized by law.” No-knock warrants are “banned” unless officers declare in their warrant affidavit that announcing their presence would “create an imminent threat of physical violence” to the officers or someone else in the residence. In other words, say the right things and you can still get the warrant and/or choke someone to death.

On the plus side, the executive order directs the DOJ to try to turn the patchwork of law enforcement officer credentialing into something more cohesive, standardized, and (presumably) make it easier to search officers who have been stripped of their credentials. Accreditation would be handled by an independent body and law enforcement agencies will not be allowed to “self-certify” without outside review by the Attorney General’s office.

Compliance for some of the many, many reforms listed will be encouraged through access to federal funds. The administration controls several discretionary grants and the AG’s office has been told to examine what can or cannot be withheld from local agencies should they fail to meet federal standards or participate in data collection efforts.

There’s a lot to like in the expansive executive order. But much of what’s listed here should be considered a baseline, rather than the end goal. What’s most useful about this order is that these baselines haven’t previously been established at the federal level. Instead, the DOJ has been given the discretion to pick and choose what it wants to fix and what it would rather ignore.

The EO restarts some 1033 program restrictions instituted by Barack Obama when he was in office. It directs studies into the civil rights impact of facial recognition AI and other surveillance tech. It also expands federal data collection to include information on police service calls, asset forfeiture programs, stops, searches, frisks, complaints, and the demographics of law enforcement agencies.

Unfortunately, it’s greatest strength — that it’s an executive order — is also its greatest weakness. The executive branch has lots of power. But it’s limited, for the most part, to that administration. Once the president instituting the order is out of office, the next person sitting in the Oval Office has the power to roll back any orders they don’t like. Executive orders have no built-in expiration date but they’re far easier to nullify than laws passed by Congress. So, this will be good while it lasts. And given the amount of time given for the DOJ and federal law enforcement agencies to implement the elements of this order, the reforms may not even be in place before they’re negated by a regime change. If any of this is going to stick, it’s going to need to be codified. And that seems unlikely, no matter who the Commander-in-Chief is.

Filed Under: 1033 program, doj, joe biden, police misconduct, police reforms, use of force