Biden’s Executive Order on Policing Could Help Spur Local Reforms

President Biden, on the second anniversary of George Floyd’s murder, signed an executive order Wednesday that brings changes to federal law enforcement that public sector groups and police reform advocates hope will help drive changes at the state and local level. 

The order calls on the Justice Department and the Department of Health and Human Services to come up with best practices to reform how local and state police respond to calls, among other things, and says the federal government will make funding available to support those efforts.

In addition, the order creates a national registry of officers who’ve been fired for misconduct, which policing reformers hope will keep cities from hiring officers who have been terminated for bad behavior. All federal agencies have to use the database, and Biden urged local law enforcement agencies in the order to enter their records into the registry.

Advocates for police reform and the head of the national group representing police officers said they hope an array of new federal requirements—including barring the use of chokeholds, allowing officers to use force only when there’s no reasonable alternative, and barring officers who have espoused white supremacy—will be a model for states and cities. 

Biden, before signing the order, said he expected the new requirements on federal officers “to have a significant impact … on local law enforcement agencies as well.”

In the executive order, the president declared that it’s his administration’s policy “to increase public trust and enhance public safety and security by encouraging equitable and community-oriented policing.” 

Jim Pasco, executive director of the Fraternal Order of Police, which endorsed the executive order, said it lays out a framework for some policies. 

“It gives a roadmap to improving the relationship between police officers and their communities,” he told Route Fifty. But, he acknowledged: “It isn’t the kind of thing that’s going to please everybody.”

The idea that the federal requirements could bring about state and local change was echoed by others.

“The hope is that responsible mayors and local police chiefs will look at the reforms that are being carried out at the federal level as a model,” Marc Morial, president and CEO of the National Urban League, told Politico. He added that Congress still needs to pass more substantive police reform legislation but credited Biden’s order as “a necessary step right now.”

Vice President Kamala Harris acknowledged the order falls far short of the reforms advocacy groups on the left wanted, most notably the elimination of a legal protection that shields police officers from being sued for civil rights violations called qualified immunity.

Though some states like Colorado have undone the protection despite the strong opposition of police unions, U.S. Senate Republicans opposed doing away with the legal standard nationally, creating a stalemate last year to passing the sweeping reforms protesters around the country demanded after Floyd’s death at the hands of Minneapolis police officers. A police reform bill that passed the House before stalling in the Senate would have eliminated the legal protection and included a national ban on chokeholds and no-knock warrants.

“We know this executive order is no substitute for legislation nor does it accomplish everything we must do. But it is a necessary and long overdue step forward,” Harris said at a ceremony Wednesday attended by the families of Floyd and Breanna Taylor, the 26-year-old Black woman who was fatally shot by police who burst into her Louisville apartment in 2020.

However, the Senate Republicans' lead negotiator in the talks over police reform, Sen. Tim Scott of South Carolina, noted that Democrats rejected his proposal to reduce federal law enforcement funding to states that did not enact restrictions on the use of chokeholds and requirements to use body cameras.

"I’m disappointed that the president who campaigned on unity has once again fallen into the trap of divisive politics," Scott, the only Black Senate Republican said in a statement Wednesday night.

Praise from Cities and Mayors

Officials for groups representing cities and mayors praised the order, saying many of their ideas on policing reforms were included in it. Irma Esparza Diggs, the National League of Cities’ senior executive and federal advocacy director, also praised the order, saying that additional tools for local law enforcement, including guidance and grantmaking to support state and local reforms, were called for in a resolution the group approved earlier this year.

The U.S. Conference of Mayors also said ideas from its police reform and racial justice plan were included. 

“America’s cities and mayors know that reform and public safety are not mutually exclusive—and that inaction is unacceptable,” the group’s executive director and CEO, Tom Cochran, said in a statement. “Until we reckon with the failures of our current system, especially for communities of color, until we recognize how those failures have spawned dangerous divides between police and communities, until we make a real effort for change, we cannot improve public safety."

According to a White House fact sheet, Biden ordered Attorney General Merrick Garland and HHS Secretary Xavier Becerra to issue guidance on innovative models for responding to calls, including having other types of professionals accompany police or respond on their own. Garland, Becerra and Homeland Security Secretary Alejandro Mayorkas are supposed to award federal discretionary grants to state and local governments within 180 days “that supports and promotes the adoption of policies” of the order.  

The three also are changed to use other incentives outside of grantmaking, such as training and technical assistance, to further the order’s goals. 

Pasco, however, said that localities shouldn’t make changes based on financial incentives from the federal government, but only on the advice of their police chiefs. “I’ve dealt with city and county governments over the years and the best bet for them is to keep the politics out of policing. The police chiefs they’ve hired have the best knowledge about law enforcement so follow the advice of their chiefs,” Pasco said. 

However, American Civil Liberties Union Deputy National Political Director Udi Ofer praised Biden in a statement for pledging to make funding available for alternative forms of policing. 

“We are encouraged that the order provides vital support and assistance for state and local governments to implement alternative first responder models, which can provide appropriate, non-police responses when someone is experiencing a mental health crisis, struggling with a substance use disorder, or is unhoused,” he said.

Funding for nontraditional forms of policing is especially important, Ofer said, because federal funds through regular law enforcement and the American Rescue Plan Act have mostly gone to traditional policing.

Other Actions

Biden also ordered Garland, after consultation with stakeholders, to formulate new standards for bodies that accredit law enforcement agencies. Those standards will require accrediting bodies to follow the new restrictions. However, according to a 2020 Justice Department document, only 838 of about 18,000 law enforcement agencies are accredited.

The executive order also asks HHS to review the “physical, mental, and public health effects of use of force incidents on communities.” Plus, Garland must issue a report on the best practices for conducting law enforcement-community dialogues.

Biden acknowledged that the protests that broke out after Floyd's death had a clear message—“‘enough.’” Even so, only a handful of states and cities have passed major reforms, according to a report issued last year by the Brennan Center for Justice. Though some cities later walked back their pledges to defund the police, at least 12 cities pledged to cut police budgets with plans to rein­vest in community programs such as support­ive hous­ing, viol­ence preven­tion and other services, the report said.

San Fran­cisco launched crisis response teams to respond to beha­vi­oral health calls in lieu of police, and Berke­ley, California voted to limit law enforce­ment involve­ment in low-level traffic stops. Minneapolis and other cities made commit­ments to end or reduce police pres­ence in schools, the report said.

Nine states and Washington, D.C. banned choke­holds and other neck restraints, and Color­ado banned the use of deadly force to appre­hend or arrest a person suspec­ted only of minor or nonvi­ol­ent offenses. Meanwhile, five states enacted restric­tions or prohib­i­tions on shoot­ing at flee­ing vehicles or suspects, the report said.

This year, 33 states have considered 111 bills regarding the use of force by police, according to the National Council of State Legislatures. Only six, though, have passed thus far, including a Washington state law that clarifies the use of force. 

Among the requirements on federal law enforcement that Biden hopes states and localities will follow is a restriction on the use of force. “Only when no reasonably effective, safe, and feasible alternative appears to exist; authorizes deadly force only when necessary; and emphasizes de-escalation,” the fact sheet said.

The order also requires federal officers to intervene if another officer violates Justice Department policy, and restricts no-knock entries only to “a limited set of circumstances, such as when an announced entry would pose an imminent threat of physical violence.” 

Further, the order requires body cameras to be activated “during activities like arrests and searches.” The agencies will then have to expedite the release of the footage “following incidents involving serious bodily injury or deaths in custody.”

“We believe this new standard, if implemented correctly, will help save lives,” the ACLU’s Ofer said, adding that he hopes it will spur “states across the nation to treat this as a new floor, and to change their laws to adopt even stronger use of force standards.” 

Garland and the federal personnel office also have to come up with training against “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.”

Besides policing restrictions, Biden’s order limits the sale or transfer of military equipment to state and local police beyond that of the Obama administration’s policies, which only restricted a certain Defense Department program. The federal government, however, is waiving the restriction if state and local law enforcement agencies show they need the equipment for situations like  “disaster-related emergencies, active shooter scenarios; hostage or search and rescue operations; and anti-terrorism efforts,” the fact sheet said.

Ofer praised that restriction as well. “Multiple studies have shown that federal provision of military equipment to police does not make communities or officers safer,” Ofer said. 

Biden’s order came after Democrats urged him to act after talks over police reform broke down in the Senate last year.

“When I saw that the Senate was refusing to act, we went straight to the White House to ensure that action would be taken to address police reform,” said Rep. Karen Bass, a California Democrat who had been the lead negotiator for House Democrats in the talks with the Senate.

Still, proponents of reform who pushed for more stringent measures said the order is not enough.  

“Today’s announcement is a step forward and, I hope, a catalyst for further change,” Sen. Cory Booker of New Jersey, who had been the Senate Democrats’ lead negotiator in last year’s talks, said in a statement.

House Majority Leader Steny Hoyer, a Maryland Democrat, praised Biden’s order in a statement. “Congress, however, has the power to do more,” he said.