President Joe Biden will sign an executive order today, on the second anniversary of the killing of George Floyd by Minneapolis police, restricting the use of chokeholds and no-knock warrants by federal law enforcement, as well as curbing the transfer of surplus military equipment to police.
The executive order directs all federal law enforcement agencies to adopt policies banning chokeholds and carotid restraints; adopt body camera policies; limit the use of no-knock warrants to certain circumstances; and adopt updated use-of-force standards that encourage de-escalation.
The order also directs the Attorney General to establish a "National Law Enforcement Accountability Database" to track police misconduct. The White House says the order will also broaden Obama-restrictions on the transfer of surplus military equipment to local and state police. Since 9/11, the federal government has doled out more than $1 billion in surplus military equipment to police, along with billions in more in grants for heavy equipment and surveillance technology.
"Police cannot fulfill their role to keep communities safe without public trust and confidence in law enforcement and the criminal justice system," the White House said in a press release. "Yet, there are places in America today where the bonds of trust are frayed or broken. To heal as a nation, we must acknowledge that fatal encounters with law enforcement have disproportionately involved Black and Brown people."
Civil rights groups offered measured praise for the actions. Udi Ofer, deputy national political director at the American Civil Liberties Union, said in a statement that the order "takes an important and necessary step forward in light of Congress' failure to act on police reform—but it is only a first step."
The executive order has been in the works since last fall, after policing reforms collapsed in Congress. It became a political headache for the Biden White House after a draft, first reported by The Federalist, was leaked in January. Outraged law enforcement groups said they had been left out of the loop.
Law enforcement groups particularly objected to a provision in the draft order that allowed for deadly force only "as a last resort when there is no reasonable alternative, in other words only when necessary to prevent imminent and serious bodily injury or death."
That language has since been softened. Today's executive order, reflected in an updated use-of-force policy issued by the Justice Department, instructs federal law enforcement officers to only use deadly force "when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person."
The new policy also establishes an affirmative duty for federal law enforcement officers to intervene if they witness excessive force or other constitutional violations by fellow officers, and an affirmative duty to render first aid.
Although the order will have some noticeable impacts on federal law enforcement, it will have much less power over the roughly 18,000 state and local police departments across the U.S., where the vast majority of policing occurs. The federal government can only nudge these departments toward its preferred policies by offering grants for complying agencies, or withholding grants from those that refuse to adapt. That's why the FBI has struggled to build a national police use-of-force database; police departments simply don't have to participate.
For example, all federal law enforcement agencies will be required to participate in the misconduct database, but the White House press release only notes that state and local agencies "are encouraged to enter their records as well."
As much as some would like to believe that the president can solve America's policing woes with the stroke of a pen, true efforts to improve police accountability and curb misconduct will have to be fought state by state, county by county, and town by town.