Unable to hand a win to police antagonists last year by signing into law the George Floyd Justice in Policing Act on the first anniversary of Floyd’s death, President Joe Biden has settled for an executive order, titled “Advancing Effective, Accountable Policing and Criminal Justice Practices To Enhance Public Trust and Public Safety.”
The order illustrates the tightrope the president finds himself walking. Though the White House press release touts it as an historic move to build public trust and strengthen public safety, it promises more than it delivers. The word “federal” appears in the text of the order 19 times, while “state and local” show up only twice. Many provisions will make only a small impact outside the federal policing community. This is because presidents have little direct authority over the nation’s 18,000 nonfederal law enforcement agencies. According to Larry Cosme, president of the Federal Law Enforcement Officers Association (FLEOA), the order will mostly affect the approximately 100,000 federal officers—one-seventh of the roughly 700,000 police officers in the United States.
Biden could have made this executive order one of the 60 he signed in the first 100 days of the new administration. But doing so would have precluded a macabre signing ceremony on May 25, 2022, the second anniversary of Floyd’s death, attended by the Floyd family, relatives of others who died during police encounters, Vice President Kamala Harris and other politicians, and civil rights activists. Yet some of the attendees did not sound impressed. Sheneen McClain, whose son Elijah died in an August 2019 encounter with police in Aurora, Colorado, told the Denver Post, “It doesn’t do enough,” and rebuked Congress for not passing the Floyd Act. Her lawyer, Qusair Mohamedbhai, also in attendance at the signing and White House tour, agreed, said that Biden was “balancing lives against power . . . a distasteful balancing act.” New York’s Reverend Al Sharpton called the Biden order “an important step” but promised that activists would “never give up” pushing for legislation. He stole the show by bringing Floyd’s daughter, Gianna, onto the podium to sit at the desk Biden had just used to sign the order.
Law enforcement’s response to the order has seemed much warmer. Two major police organizations—the International Association of Chiefs of Police and the Fraternal Order of Police—endorsed it. The IACP emailed its 31,000 members (including me) a policy fact sheet reinforcing the point that the order applies “almost exclusively to federal law enforcement,” but also citing its “guidelines and best practices for state, local, tribal, and territorial law enforcement,” including recruiting and retaining officers; focusing on officer wellness, including suicide prevention; and developing accreditation standards. None of these is a new area for reform.
Law enforcement’s warm response could owe to the fact that, since Floyd’s death, state and local laws have already instituted most of the executive order’s guidelines, often more strictly than the order itself. Many of the new laws incorporate the IACP’s “It Is Beyond Time” reform framework and its 2017 National Consensus Policy on Use of Force. Both documents overlap with parts of the Floyd Act and South Carolina senator Tim Scott’s compromise JUSTICE Act (Just and Unifying Solutions to Invigorate Communities Everywhere). The Major Cities Chiefs Association, which speaks for police executives from the largest cities in the U.S. and Canada, has also recommended prohibitions on choke- and carotid-holds that go beyond those of the executive order.
A number of actions confirm the forced timing of the executive order. Mere days before the signing ceremony, Attorney General Merrick Garland updated the Justice Department’s use-of-force policy for the first time in 18 years. Beginning July 19, 2022, agents in the FBI; the Bureau of Alcohol, Tobacco, Firearms, and Explosives; the Drug Enforcement Administration; the U.S. Marshals Service; and the Bureau of Prisons must intervene if they see officers using excessive force. Playing catch-up, Garland noted in his memo that Justice Department policies now align with the training and practices of other federal law enforcement personnel. And only now must federal agents comply with a June 2021 Justice Department directive that they wear body cameras when executing search warrants or making preplanned arrests; meantime, half of all police departments since 2016 have issued cameras to all sworn personnel. Though only South Carolina required widespread adoption of body cameras prior to 2020, in the past two years Colorado, Connecticut, Illinois, Maryland, New Jersey, and New Mexico have mandated them, contingent on available funding.
Timing is also relevant to the executive order’s restrictions on the Defense Department’s 1033 Program, which, since the 1990s, has provided police with decommissioned military gear, including office equipment, clothing, uniforms, tools, and radios, in addition to selected military-grade equipment. The president controls the Department of Defense. Responding to concerns about the militarization of the police after the 2014 death of Michael Brown in Ferguson, Missouri, President Barack Obama issued an executive order in 2015 limiting the type of equipment that could be transferred to police. Two years later, President Donald Trump revoked Obama’s order. As a candidate, Biden spoke against Trump’s reversal. As president, he could have reinstated the Obama order’s restrictions any time he wished, while still transferring equipment for disaster-related emergencies, for active shooter, hostage, and search-and-rescue operations, and for antiterrorism efforts.
One reason for the Floyd activists’ discontent is that the executive order didn’t deliver on their major goal of eliminating police officers’ qualified immunity, which protects government employees from liability unless they clearly violate an established constitutional right. Those favoring qualified immunity’s elimination believe that it protects police when they commit illegal acts; those favoring its retention believe that it shields police (and all government employees) from being improperly charged criminally for on-duty actions.
The executive order establishes a National Law Enforcement Officer Accountability Database, but the database will include only sustained complaints, disciplinary action for serious misconduct, and resignations or retirements occurring amid serious misconduct investigations. The attorney general’s annual report will be anonymized, thus avoiding the naming-and-shaming aspect of the Floyd Act’s requirement that the data include personal details and be accessible to the public. Limited to federal reporting, the database also falls short of the many overlapping databases that the Floyd Act called for, including a National Police Misconduct Registry; a Police Reporting Information, Data and Evidence Act (PRIDE Act); and requirements that all 18,000 police departments submit quarterly reports on use-of-force and racial profiling, or risk losing federal grant funds.
These reports aimed primarily at identifying misbehaving police officers—particularly so-called wandering officers, who leave one department after being terminated for misconduct or under a disciplinary cloud and then secure employment with another department. Curtailing such wandering is a laudable goal; it is one that police departments support, and for which mechanisms already exist.
A review of research for my recent Manhattan Institute white paper, “Wandering Cops,” found that wanderers constitute about 3 percent of all police officers and that they most frequently wander to smaller, poorer departments in the same state as their original employer. The reason for this is that police officers are certified neither by the federal government nor by their departments, but by their states. To benefit a hiring agency, a wanderer must be a state-certified police officer. Certification is like a driver’s license; with it you may police, and without it you may not. Thus, states have learned that the key to preventing rogue officers from moving around is to track their movements and to decertify miscreants.
This is best achieved by requiring departments to report to their state’s police officer standards and training (POST) bureau any changes in officers’ employment or disciplinary status—including retirements/resignations of personnel under investigation—within 30 days. POSTs, in turn, should provide this information to the existing National Decertification Index (NDI) maintained by the International Association of Directors of Law Enforcement Standards and Training.
To improve data-collection standards, states are clarifying their definitions of when a police officer can be decertified and making it mandatory for departments to report to POSTs, for POSTs to provide the information to the NDI, and for all police departments to verify applicants’ certification status through the NDI. The NDI functions much like the American Bar Association’s National Lawyer Regulatory Data Bank, which makes information available to state bar admission committees. The data collected in NDI is so close to the executive order’s National Law Enforcement Officer Accountability Database that it may well have served as the model.
To his credit, President Biden has been urging police departments to use American Rescue Plan Act funds to help fill existing vacancies and for improved training for new and veteran officers. An equally good use of the funds would be for states to mandate participation in the NDI and to increase POST staff to ensure that information shared with the NDI is timely and accurate.
Rather than issuing an executive order that purports to address activists’ complaints while failing to do so, Biden would better serve the nation’s law enforcement community and the American people by supporting reform efforts already underway at the state and local levels.
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