Progress on Police Reform: States Pave the Way for Federal Action

Americans overwhelmingly support a wide range of policing reforms. Regardless of race, political affiliation, or education level, the majority approve of policing in their communities, but they also believe there are areas in need of urgent improvements.¹ Despite this context, lawmakers in Washington continue to fall short in passing comprehensive police reform. The George Floyd Justice in Policing Act of 2021 that passed the House is currently stalled in the Senate, as bipartisan negotiations to get a version of the legislation to the finish line fizzled out in September. As on many other issues, the Senate has allowed polarization and partisan rancor to block them from making progress on the changes the American people truly want.

While legislation at the federal legislative level continues to stagnate, policymakers in red and blue states alike have been able to put aside their differences to make good on the promises made in the wake of protests surrounding the murders of George Floyd, Breanna Taylor, and others at the hands of police. The legislatures in 21 states passed some type of police reform in 2020, and 33 state legislatures enacted reforms in 2021. These policies encompass an array of changes aimed at improving efficiency, transparency, and equity within law enforcement departments from coast to coast.

As significant as these state measures are, they cannot serve as a substitute for meaningful reform at the federal level. There are over 18,000 law enforcement agencies in the country, each one operating with little to no guidance from federal, or sometimes even state, authorities. This creates a patchwork of inconsistencies that keep many communities feeling unsafe. And while legislative success may have eluded Congress, there is still much President Biden can do to move the needle and set the tone for fair and just policing across the nation. Building off the progress we have achieved at the state level, there is a path to making even more progress in 2022 toward the policing reforms Americans want and need.

Use of Force Standards

Law enforcement officers encounter dangers on the job every day and are constantly faced with difficult decisions that could be a matter of life or death for themselves or others. There is no dispute that these situations require officers to respond to threats of harm with strength and sometimes with force. However, every community should be reassured that in the event where an officer believes they have no choice but to use force, there are protocols in place guiding such conduct and repercussions for those who abuse this authority. Many states have made significant progress in defining what is appropriate protocol for lawful officer conduct around use of force, and we should push for similar advances at the federal level.

Chokeholds

Since the world witnessed Minneapolis officer Derrick Chauvin kneel on the neck on George Floyd for a grueling nine minutes, the use of neck restraints has been called into even more serious question. Concerns about the practice were highlighted following the 2014 death of Eric Gardner, who unforgettably cried out “I Can’t Breathe” eleven times before succumbing to the chokehold placed on him by NYPD officer Daniel Pantaleo, but the events of last summer brought them into even more stark relief.

Throughout 2020 and 2021, nearly half of the states across the country have enacted some type of restriction on the use of chokeholds and neck restraints by law enforcement officers. Immediately after the 2020 protests surrounding Floyd’s death, states like New York, Colorado, and California banned the use of chokeholds in nearly all circumstances. Other states, like Minnesota and Virginia, restricted their use to situations where fatal force is justified.² New York and Virginia have even gone a step further by attaching criminal liability to the unnecessary use of neck restraints, making it a felony for officers who don’t comply.³

In September 2021, DOJ announced that it was banning the use of chokeholds and carotid restraints for most federal law enforcement agencies, permitting their use only “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.”⁴ Although many states have taken the step to restrict the use of chokeholds, the language defining these stipulations vary—some leaving big loopholes that could be exploited. For instance, Iowa justifies chokeholds in situations where “a person cannot be captured in any other way,” and has either “used or threatened to use deadly force” or the officer “reasonably believes the person would use deadly force.”⁵ DOJ should go farther and provide a model policy for states and municipalities to implement and require that any agency working in partnership with federal law enforcement abide by that standard.

Other Kinds of Excessive Use of Force

In addition to policies restricting the use of chokeholds, several states have enacted legislation redefining the use of force standards more broadly throughout their departments. For example, Florida’s Republican-controlled legislature passed a bill in 2021 not only banning chokeholds unless there is a threat of imminent harm, but also requiring each law enforcement department within the state to institute use of force standards that meet specific criteria.⁶ And while this bipartisan legislation did not incorporate every element of reform for which activists were pushing, it was certainly a step in the right direction.

Some states have yet to make any real moves towards reining in excessive use of police force. Among the states that enacted some type of positive police reform since 2020, thirteen—including Texas, Pennsylvania, and Arizona—declined to restrict the use of chokeholds or enact a uniform use of force standard. That has not, however, stopped some local jurisdictions in those states from enacting changes. In fact, several departments in Arizona, including the city of Phoenix, have banned chokeholds in their jurisdictions.⁷

The federal government has yet to develop a comprehensive use of force standard for its agencies, and there is no federal guidance on what an ideal use of force standard should entail. Federal agents are expected to adhere to relevant federal statutes and pertinent case law to ensure their actions are not violative of constitutional rights. Using these limitations as a baseline, DOJ should craft a model use of force standard that their agencies should incorporate into their operations, setting the tone for compliance from state to state. DOJ should also require local law enforcement abide by federal standards when working in partnership.

Restricting Use of Military Equipment

There has long been a solid, bipartisan consensus that military hardware has no place on American streets. Yet in the wake of 2020 protests against police brutality, American cities were lined with armored vehicles, and local police officers were deployed with military-grade weapons. Tear gas, flashbang grenades, and projectile launchers were used against peaceful protesters in Chicago, Seattle, and the District of Columbia—and they likely weren’t alone.⁸ This militarized response was enabled primarily by the transfer of weapons of war from the federal government to state police departments. And it never should have happened. In 2017, President Trump rolled back significant restrictions that had limited the distribution of military equipment from the Department of Defense to local and state law enforcement agencies. Those restrictions were established in the first place because the use of such equipment had no effect on the reduction of crime and was only successful in instilling fear in American communities.⁹

The current administration has yet to undo these Trump-era policies, so several states have taken it upon themselves to reject the transfer of military equipment to local law enforcement and restrict their departments from deploying it. Connecticut, Virginia, and Oregon are among those states leading the charge on demilitarization of the police. The Biden Administration should act quickly to reinstate the restrictions on military hardware transfers to local law enforcement and should include incentives for demilitarization in its next Congressional budgetary request.

Duty to Intervene

While it is important to have restrictions on excessive force codified into law, the reality is that we need officers to hold one another accountable as well. In addition to reforming the rules around force exerted by officers, several states have taken additional measures to ensure that if excessive force is applied, it is recognized and stopped before a potentially deadly situation develops.

The conduct of one bad apple can tarnish the reputation of an entire department in the eyes of the public. This especially rings true when accompanying officers witness wrongdoing by their fellow officers but take no action to address it. Fifteen states have implemented a duty for officers to intervene when they witness another officer engaging in unlawful, unjustified, or excessive force, and most require those officers to then report such conduct to their superiors.¹⁰ This additional level of oversight creates a measure of accountability for every officer to actively prevent misconduct, and potentially save lives.

At the federal level, DOJ currently offers a guiding principle that an agent “who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation.”¹¹ This conditional language falls short of what several states now require of their officers and demands only a cursory assessment of an agent’s actions. DOJ should update their model policy to include a more direct and deliberate obligation to intervene and report misconduct, ensuring officers know what is expected of them in the line of duty.

Transparency and Accountability

Among the main issues eroding the trust between law enforcement and the public is the lack of accountability when officers do something wrong, exacerbated by the lack of transparency in the system that should be holding them accountable. Because police departments independently control their own operations, there is often little, if any, oversight from individuals outside of the department. The federal government and White House should use the resources at their disposal to both expand transparency in law enforcement policies and practices and assist departments that are striving to do better.

Body-Worn Cameras

In recent years, the use of body-worn cameras has generated crucial records detailing officers’ conduct while in the field. By wearing body cameras, officers are more likely to ensure their interactions with the public are compliant with the law and free from misconduct. In situations where excessive use of force or other violations are suspected, the public has been able to see and judge for themselves when there is body camera footage made available. While it is a small piece of the puzzle in holding law enforcement officers accountable for their actions, the use of body cameras has undoubtedly encouraged them to make better decisions and quite possibly saved lives.

Many states have already made body worn cameras a requirement for officers in their operations involving the public. Some states limit their use to only certain officers or situations, while others increased funding to ensure their policies can be implemented broadly. In June 2021, DOJ announced the requirement for its agents to use body-worn cameras during all pre-planned law enforcement operations.¹² Building upon this requirement, DOJ should expand the use of body-worn cameras to all operations dealing with the public and incorporate those expectations in its model standards of policing.

Data Collection and Reporting

Creating accountability for officers to maintain proper conduct goes beyond video documenting their interactions with the community. Several states have recognized the dire need for enhanced reporting of police conduct to ensure that standards are adhered to and protocol is followed. Since 2019, the FBI has maintained a use-of-force data collection database, but participation by law enforcement agencies is voluntary and can prove burdensome. A few states – including Illinois, North Carolina, and Oregon – have made reporting to the FBI’s database mandatory for its departments.¹³ Jurisdictions that have opted into participating in the database provide detailed information regarding the incident, the victims, and the officers involved.

Other states have created their own databases to keep track of excessive force and other misconduct by its officers. A Delaware law calls for the establishment of integrity reports that include the number of complaints made against each department within the last three years.¹⁴ Other states, like Washington, Missouri, and Arizona, require the reporting of use-of-force data to statewide databases. All of these accountability measures are crucial for creating transparency in law enforcement operations, which helps preserve the integrity of policing overall. DOJ’s model standard should strongly encourage reporting to the federal database, requiring the information provided meet specific criteria. Additionally, the Biden administration should publicly and forcefully criticize those departments ignoring their ethical responsibility to report such conduct, and praise those that embrace it.

Hiring and Training Standards

The most important element of every law enforcement operation is the officers on the ground, in the community, interacting with the public. These men and women are sons, mothers, brothers, and friends, but most importantly they are human. Yet the reality is that the requirements for officers in uniform have vastly diminished over the years, leaving some underqualified officers unprepared for the unexpected. The profession of police officer is a demanding job that should require a heightened level of qualification and training. However, to keep up with the demands of the community and address personnel shortages, many departments have relaxed more stringent standards that once existed for entrance into law enforcement. State and local agencies would greatly benefit from federal resources and guidance to aid in recruiting highly-competent and morally-upstanding police forces.

Once officers are recruited and onboarded, it is imperative that they endure a comprehensively rigorous training program, exposing and educating them to all the complicated components of protecting the public. Although much physical training is necessary, psychological preparation may be even more significant in developing an officer who is well-equipped to keep everyone in the community safe. In the past, departments have overlooked the importance of specific trainings that would best mentally prepare officers for the challenges they will face in the line of duty.

Many states have recognized this deficiency within their units and have expanded their training programs accordingly. Alabama and Louisiana are among the states that have implemented standards for dealing with individuals with mental illness, training their officers to recognize the indicia of psychological distress and deploy alternative methods to exerting force to get the situation under control. Many states have also embraced the necessity of implicit bias trainings as an essential element of police education programs, especially in areas where there are racial disparities between the officers and those who make up the community. States like Oklahoma, Oregon, and the District of Columbia have moved to require the inclusion of implicit bias training in their police departments.

While the improvements states have made on their own will appreciably impact their citizens, the federal government must do more to influence these changes on a national level. In his FY 2022 Budget, President Biden proposed the expansion of grants and resources that support community policing and reform efforts.¹⁵ Specifically, the Office of Community Oriented Services’ (COPS) Hiring Program financially supports the recruitment and retention of vital policing capacity in those communities who need it the most.¹⁶ While some progress has been made over the past year, the Biden administration should continue to advocate for increased hiring and training resources in its annual budget requests to ensure departments are set up for success whether patrolling small towns or big cities.

Conclusion

As much as states legislatures should be commended for their actions where Congress has thus far failed, their progress does not negate the need for reform on a national level. Although the specific details surrounding policing in a particular jurisdiction are best left to each state or city, there should be uniformity across the country on basic standards of procedure and accountability, to ensure that each community is protected with the same level of diligence and consideration. Ultimately, it is up to the federal government to ensure that the relationship between citizens and law enforcement is strong across the nation. This can be achieved by the creation of model policing standards and executive action to spur jurisdictions to embrace them. It is time for this administration to act boldly to advance the fair and equitable system of justice the country has demanded for decades.