Today, President Biden will sign a historic executive order regarding police accountability. The EO mandates measures for all Federal law enforcement agencies, and is advisory for state and local agencies. Watch Biden's press conference. The use of force standards set forth in the EO largely follow the lead of California, adopting a necessary standard (consistent with Graham v. Connor) and the de-escalation policies set forth in S.B. 230. On behalf of PORAC, David E. Mastagni worked with PORAC's leadership to develop recommendations for consideration in the order.
In a press release, PORAC President Brian Marvel noted, “After several months of advocating for necessary changes to President Biden’s draft Executive Order, we are pleased to see that his Administration valued PORAC’s expertise and incorporated many of our proposed changes into today’s Executive Order." Marvel also expressed, "PORAC is also proud that many of the policies included in President Biden’s Executive Order mirror those that we’ve already enacted here in California, and we look forward to continuing to serve as a resource for how California’s smart public safety policies can be implemented at the federal level.”
Notably, the EO orders 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. The DOJ's use of force policy takes effect July 19, 2022.
The DOJ policy authorizes force only when no reasonably effective, safe, and feasible alternative appears to exist. The force policies bans the use of choke-holds and carotid restraints unless deadly force is authorized. It also restricts the use of no-knock entries to limited circumstances, such as when an announced entry would pose an imminent threat of physical violence. Like the law enforcement sponsored SB 230, the policy also imposes a duty to intervene to stop excessive force and a duty to render medical aid.
One notable concern with the DOJ policy is the ambiguity it creates regarding the continued applicability of Tennessee v. Garner, which permits deadly force to prevent the escape of violent fleeing felons who are a threat to the public if not immediately apprehended. The policy purports to uphold the standards set forth in Graham and Garner, yet also states "deadly force may not be used solely to prevent the escape of a fleeing suspect." Its unclear if the "solely" limitation is intended to bar ever using deadly force to prevent any escape, rather than limiting force used to prevent the escape of non-violent suspects.
Garner adopted the California Supreme Court's requirement that “police may use deadly force to arrest only if the crime for which the arrest is sought was ‘a forcible and atrocious one which threatens death or serious bodily harm,’ or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed.” Tennessee v. Garner (1985) 471 U.S. 1, 1, FN 15 (citing People v. Ceballos, 12 Cal.3d 470, 477.) A.B. 392 codified these restrictions by limiting use of deadly against a fleeing suspect of a "felony that threatened or resulted in death or serious bodily injury" where "the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended."
California struck the proper balance in permitting deadly force only to prevent the escape of suspects posing a serious threat to cause
death or serious bodily harm if his apprehension is delayed. California's policy recognizes that in limited circumstances officers might have to use deadly force to prevent the escape of a terrorist or mass shooter likely to kill or injure other members of the public if allowed to escape. Hopefully, the final version of Biden's EO will retain this important public safety measure.
The EO orders the Attorney General to establish a National Law Enforcement Accountability Database of 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 EO also requires Federal agencies to adopt measures to promote thorough investigations 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.
The EO mandates all federal agencies to use body worn cameras and publicly post body-worn camera policies that mandate activation of cameras during activities like arrests and searches. Similar to California's SB 1421, the EO also provides for the expedited public release of footage following incidents involving serious bodily injury or deaths in custody.
Additionally, the EO requires 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.The order also establishes a committee to produce a strategic plan that advances front-end
diversion, alternatives to incarceration, rehabilitation, and reentry. The order directs the Attorney General to fully implement the FIRST STEP Act.
President Biden's "fact sheet" outlining the new EO can be viewed here.
