Biden Administration Issues Executive Order on Use of Force Policies

Selective De-Policing: Operationalizing Concrete Reforms

The White House recently issued an Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (the “Executive Order”) in recognition of the second anniversary of the murder of George Floyd.

Aiming to “make policing safer and more effective by strengthening trust between law enforcement officers and the communities they serve,” the Executive Order is organized in 23 sections and advances the following important policies concerning the use of force by law enforcement officers—an area of focus for the SCRJ.

Section 1, Policy: As a threshold matter, the Executive Order emphasizes that the American “criminal justice system must respect the dignity and rights of all persons and adhere to [the] fundamental obligation to ensure fair and impartial justice for all.”

Section 5, Establishing a National Law Enforcement Accountability Database: By January 20, 2023, the Attorney General shall establish a centralized repository of official records, including instances of law enforcement officer misconduct.

Section 6, Improving Use-of-Force Data Collection: By November 21, 2022, all heads of Federal law enforcement agencies (“LEAs”) shall submit data on a monthly basis concerning use of force, including data showing deaths or serious bodily injuries of persons due to law enforcement use of force and discharges of a firearm at or in the direction of a person.

Section 7, Banning Chokeholds and Carotid Restraints: By August 23, 2022, the heads of Federal LEAs shall generally prohibit the use of chokeholds and carotid restraints except where the use of deadly force is authorized by law.

Section 8, Providing Federal Law Enforcement Officers with Clear Guidance on Use-of-Force Standards: By August 23, 2022, the heads of Federal LEAs shall issue use-of-force policies that “reflect principles of valuing and preserving human life.”

By May 25, 2023, the heads of Federal LEAs shall incorporate annual, evidence-informed use-of-force training, implement early warning systems to identify problematic conduct, and utilize effective mechanisms for law enforcement officer accountability.

Section 11, Assessing and Addressing the Effect on Communities of Use of Force by Law Enforcement: By November 23, 2022, the Secretary of Health and Human Services (“HHS”) shall publish the findings of a nationwide study about the impact of use of force by law enforcement officers (whether lawful or unlawful) on physical, mental, and public health, including disparate impacts on communities of color.

Within 60 days of this report, the Attorney General, among others, shall identify for the President what resources are available or may be needed to provide mental health and social support services for individuals and communities affected by use-of-force incidents by law enforcement officers.

Section 11(c) requires the Attorney General to issue guidance on the best practices for hosting law enforcement-community discussions to improve relations and communication between law enforcement and communities, including after incidents involving use of deadly force.

By November 23, 2022, the Attorney General shall issue guidance concerning best practices for the notification of family members of persons who die in LEA custody, including as a result of the use of force.

Section 13, Ensuring Appropriate Use of Body-Worn Cameras and Advanced Law Enforcement Technologies: By August 23, 2022, the heads of Federal LEAs shall issue policies consistent with the Department of Justice policies concerning the use of Body-Worn Cameras (“BWC”).

By May 25, 2023, the Attorney General, in coordination with others, shall conduct a study to assess the advantages and disadvantages of officer review of BWC footage prior to completion of initial reports.  Within 180 days after the study, the Attorney General shall publish the findings.

Section 14, Promoting Comprehensive and Collaborative Responses to Persons in Behavioral or Mental Crisis: By November 23, 2022, the Attorney General and Secretary of HHS, in coordination with others, shall assess and issue guidance on the “best practices for responding to calls and interacting with persons in behavioral or mental health crisis or persons who have disabilities.”  The guidance shall consider “alternative responder models, such as mobile crisis response teams” and “community-based crisis centers and the facilitation of post-crisis support services,” among other potential resources and services.

Section 20, Supporting Safe and Effective Policing Through Grantmaking: By November 23, 2022, the Attorney General, Secretary of HHS and the Secretary of Homeland Security shall review and exercise their authority to award Federal discretionary grants in a manner that supports and promotes the adoption of policies of the Executive Order by State and local governments.

Guest author Tiaunia N. Henry is an Associate Attorney at Gibson, Dunn & Crutcher LLP in Los Angeles. She is currently working with the SCRJ on its Model Use of Force Policy project.