WPPA

President Biden Issues Executive Order on Policing

May 25, 2022

On May 25, President Biden issued an executive order mandating a number of initiatives regarding the law enforcement profession and policing. The following is a breakdown of the initiatives that this latest executive order intends to implement.

Create a new national database of police misconduct. The executive order directs the Attorney General to establish a National Law Enforcement Accountability Database, in which all Federal law enforcement agencies (Federal LEAs) must participate. The database will include records of officer misconduct (including convictions, terminations, de-certifications, civil judgments, resignations and retirements while under investigation for serious misconduct, and sustained complaints or records of disciplinary actions for serious misconduct), as well as commendations and awards. The database will include due process protections for officers. All federal agencies must use the database in screening personnel, and it will be accessible to state and local LEAs, who are encouraged to enter their records as well. The Attorney General will make aggregate data—by law enforcement agency—public, and will assess what whether and in what form records from the database may be accessible to the public.

Expand pattern or practice investigations. The executive order requires steps to expand the investigation and prosecution of criminal civil rights violations, including directing the issuance of best practices for independent investigations and improving coordination to address systemic misconduct through pattern-or-practice cases.

Incentivize timely and thorough investigations and consistent discipline. The executive order requires Federal LEAs to adopt measures to promote thorough investigation and preservation of evidence after incidents involving the use of deadly force or deaths in custody, as well as to prevent unnecessary delays and ensure appropriate administration of discipline.

Mandate the adoption of body-worn camera policies. The executive order directs all Federal LEAs to adopt and publicly post body-worn camera policies that mandate activation of cameras during activities like arrests and searches and provide for the expedited public release of footage following incidents involving serious bodily injury or deaths in custody.

Bans the use of chokeholds and carotid restraints unless deadly force is authorized and restricts the use of no-knock entries. The executive order directs all Federal LEAs to adopt policies that ban chokeholds and carotid restraints unless deadly force is authorized and restricts the use of no-knock entries to a limited set of circumstances, such as when an announced entry would pose an imminent threat of physical violence.

Require new standards that limit the use of force and require de-escalation for all federal agencies. The executive order directs all Federal LEAs to adopt use-of-force policies with requirements that meet or exceed those in the Department of Justice’s updated use-of-force policy, which authorizes force only when no reasonably effective, safe, and feasible alternative appears to exist; authorizes deadly force only when necessary; and emphasizes de-escalation. The policy also imposes a duty to intervene to stop excessive force and a duty to render medical aid. Federal LEAs must conduct annual training on those policies, implement risk management tools to facilitate appropriate interventions before problematic behavior escalates, and ensure accountability for policy violations. The policy is publicly available on DOJ’s website.

Restore and expand upon the Obama-Biden Administration’s restrictions on the transfer of military equipment. The executive order imposes additional restrictions on the transfer or purchase with federal funds of military surplus equipment. The list of prohibited equipment is broader than under the Obama-Biden Administration, and the executive order’s mandate is broader than the George Floyd Justice in Policing Act (GFJPA) in that it pertains to all relevant programs, not only the Defense Department’s 1033 program. The executive order continues to ensure that state and local LEAs can access and use appropriate equipment for disaster-related emergencies; active shooter scenarios; hostage or search and rescue operations; and anti-terrorism efforts.

Require an updated approach to recruitment, hiring, promotion, and retention of law enforcement officers. The executive order requires Federal LEAs to develop best practices to attract, support, and retain an inclusive, diverse, expert, and accountable law enforcement workforce, including by implementing screening tools to ensure that agencies do not hire or retain, or partner with on task forces, individuals who promote unlawful violence, white supremacy, or other bias on the basis of protected characteristics. A working group also will identify ways to expand mentorship and leadership opportunities and ensure that performance evaluations and promotions are tied to an officer’s adherence to these policies.

Expand Crisis Response Resources. The executive order directs the U.S. Attorney General and the Secretary of Health and Human Services (HHS) to issue guidance and identify federal resources for innovative models to respond to persons in crisis, including co-responder and alternative responder models, community-based crisis centers, and post-crisis care. It also orders guidance on the use of pharmacological agents such as ketamine outside the hospital setting.

Promote Officer Wellness. The executive order directs DOJ and HHS to publish best practices and standards to promote officer wellness and to identify resources to support wellness programs, and requires each Federal LEA to assess and improve its own Officer Wellness program. The Attorney General must also recommend measures to the President to help prevent officer suicide, after consultation with HHS and stakeholders.

Require new standards for accreditation and for accrediting bodies. The executive order requires the Attorney General—after consultation with stakeholders—to formulate standards for bodies that accredit law enforcement agencies, such as the Wisconsin Law Enforcement Accreditation Group. Those standards must include that the accrediting body requires policies consistent with those of the executive order, and that the accrediting body conducts independent assessments of agency compliance rather than rely on the agency’s self-certification. The Attorney General must also incentivize and support agencies in seeking and obtaining accreditation, including through grantmaking.

Implement a new, evidence-informed annual anti-bias training requirement. The executive order requires the development of an evidence-informed training module for law enforcement on implicit bias and avoiding improper profiling based on the actual or perceived race, ethnicity, national origin, limited English proficiency, religion, sex (including sexual orientation and gender identity), or disability of individuals. Federal LEAs must conduct that training annually, implement procedures to respond meaningfully to complaints of bias, and reassess 2014 guidance on use of certain protected characteristics by law enforcement.

Track data on use-of-force incidents. Within six months of the date of the executive order, all Federal LEAs must collect and submit on a monthly basis all data on incidents involving use of deadly force compiled by the FBI’s Use of Force Data Collection. The Attorney General must also facilitate the contribution of this data, as well as data about officers killed or assaulted, by state and local law enforcement agencies, and report to the President.

Study the impact of use-of-force incidents on communities. The executive order directs HHS to publish a nationwide review of the physical, mental, and public health effects of use-of-force incidents on communities, including any disparate impacts, and outline available resources to support mental health and support services. It also tasks the Attorney General to issue best practices for conducting law enforcement-community dialogues, and for ensuring timely and appropriate notification of deaths in custody.

Safeguard the use of facial-recognition technology and other sophisticated algorithmic tools. The executive order directs the National Academy of Sciences to conduct and publish a study of facial recognition technology, other biometric technologies, and predictive algorithms that assesses any privacy, civil rights, civil liberties, accuracy, or disparate impact concerns with their use. This study will then be used to make any necessary changes to Federal law enforcement practices.

Expand data collection and data transparency. A working group will write a report to the President on how to collect and publish data on police practices (including calls for service, searches, stops, frisks, seizures, arrests, complaints, law enforcement demographics, and civil asset forfeiture), and on the practices and policies governing the acquisition and use of advanced surveillance and forensic technologies.

Direct a government-wide strategic plan to propose interventions to reform our criminal justice system. A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry. The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improve conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission. The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Require full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

WPPA members with questions regarding this executive order are encouraged to contact Executive Director Jim Palmer at palmer@wppa.com.