After Congress struck out, Biden must go to bat on policing

While baseball remains the national pastime, handicapping the next casualty of congressional gridlock is a close second. The latest victim? Police reform. Despite what appeared to be good faith on both sides, Congress couldn’t touch all the bases on a bipartisan effort to improve the functioning of an indispensable institution.

The collapse of talks is unfortunate, but it should spur the Biden administration to build on its recent efforts to reduce violence by implementing portions of the George Floyd Justice in Policing Act within its purview. The most significant executive actions would enhance the accountability of federal agencies, improve data collection, and limit the transfer of military equipment to state and local law enforcement.

The first priority should be ensuring that all federal law enforcement personnel are subject to evidence-backed policies that increase accountability and reduce excessive use of force. One sticking point in negotiations over the act was conditioning the receipt of federal grant funds on the adoption of such policies. These include banning chokeholds and similar neck restraints, prohibiting no-knock raids in drug cases and establishing a duty to intervene when an officer sees a colleague using excessive force.

The Council on Criminal Justice Task Force on Policing found solid evidence supporting these reforms — and many states and local governments have adopted them. Nonetheless, the federal government lacks the constitutional power to mandate the practices of state and local police agencies, which led to a congressional stalemate over whether tying their adoption to federal grant funds is appropriate.

There is no federalism question, however, concerning the practices of federal police. Fortunately, the Department of Justice (DOJ) recently announced a prohibition on its officers using chokeholds and similar neck restraints except when lethal force is justified. It also discontinued no-knock raids by its agents unless an officer reasonably believes that announcing entry will imminently endanger the officer or another individual.

Whether through rulemaking or internal guidelines, both restrictions should now be extended to other agencies employing officers, from the Bureau of Alcohol, Tobacco, Firearms and Explosives to the Department of Education. Also, if federal law enforcement partners with a state or local agency on a raid, such agencies should similarly be required to follow these practices in all joint efforts.

Another provision in the Act — the duty of officers to intervene when witnessing wrongdoing by a peer or supervisor — should be administratively required for federal law enforcement officers. So should a requirement to report and document such misconduct.

Second, there is a distinction between the DOJ unilaterally imposing conditioning grants on changes in policy and broadening data collection in its grant programs.  Data reporting is inherently part of the grantmaking oversight process to monitor performance. Only 27 percent of police agencies participate in the FBI program for reporting use-of-force incidents. DOJ should include in related grant criteria a requirement that recipient police agencies report metrics such as shootings by officers and share relevant information in their possession for inclusion in a national database of de-certified cops. 

Finally, the president should implement a provision in the act that would have restored administrative restrictions on the transfers of military equipment to police departments that were rolled back in 2017.

These restrictions had precluded the distribution of weapons that belong on battlefields rather than in neighborhoods, such as tanks, weaponized aircraft and grenade launchers. Other military equipment, such as tactical armored vehicles and explosives, could still be transferred, but only if the requesting agency documented a need for the equipment, agreed to federal oversight on its use, and provided relevant training.

The rollback opened the floodgates, though data on frequency of use is elusive. From 2015 to 2020, the number of mine-resistant ambush protection vehicles (MRAPs), which were used in Iraq and Afghanistan, possessed by police departments doubled to nearly 1,100. Worse, even school district police departments received MRAPs and grenade launchers.

Not even police benefit from such militarization. Research has found that the widespread, unregulated use of military equipment neither increases officer safety nor reduces crime. Conversely, it increases civilian casualties and undermines the degree to which police are seen as neighborhood partners.

Still, the federal transfer program helpfully distributes unobjectionable items such as body armor, non-weaponized helicopters and even generators. Reviving the 2015 limitations would not interrupt these beneficial transfers.

Let’s hope Congress keeps at it, because executive action should not be the only game in town for overseeing the limited federal role in policing.

For now, however, the administration should fill the gap with sensible reforms that are within its authority. Tactics like no-knock raids in drug cases and the unnecessary use of military equipment drive a wedge between police and the public, who must be on the same team in both combatting crime and preserving liberty.

Marc Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice. Follow him on Twittter at @marcalevin