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FMG Law Blog Line

A Summary of the Executive Order on Policing and “Instances of Misconduct”

Posted on: June 18th, 2020

By: Jake Loken

Seeking to address the “instances in which some [law enforcement] officers have misused their authority, challenging the trust of the American people, with tragic consequences,” President Trump issued the Executive Order on Safe Policing for Safe Communities, on June 16, 2020, as a way to “redouble our efforts as a Nation to swiftly address instances of misconduct.”

The executive order contains four major points:

  1. Creation of a “credentialing body” to be used to certify law enforcement agencies seeking federal grant funding have certain policies in place, such as the prohibition of chokeholds, unless “use of deadly forces is allowed by law;”
  2. Creation of a database to share information related to excessive use of force;
  3. Request for the Attorney General and Secretary of Health and Human Services to develop “co-responder programs” where mental health professionals and law enforcement officers respond together to calls, and to create a report on “community-support models addressing mental health, homelessness, and addiction;” and
  4. Request for the Attorney General to propose legislation that “enhance[s] the tools and resources available to improve law enforcement practices and build community engagement.”

The executive order does not address qualified immunity, does not use the words “racism” or “bias” or comment on such issues, and does not address some of the vocal ideas heard at protests—such as the phrase “Defund the Police.”

Regarding some of the specifics of the four major points contained in the order:

First, the order focuses on the creation of a “credentialing body” that will be used to certify law enforcement agencies seeking discretionary grant funding from the Department of Justice have certain policies and standards. Notably, law enforcement agencies seeking grant funding should have “use-of-force policies [that] prohibit the use of chokeholds… except in those situations where the use of deadly force is allowed by law.” Other policies law enforcement agencies should have include: “training regarding use-of-force and de-escalation techniques; performance management tools, such as early warning systems that help to identify officers who may require intervention; and best practices regarding community engagement.”

Second, the order seeks the creation of a database “concerning instances of excessive use of force related to law enforcement matters.” The database is to be shared between law enforcement agencies and only “aggregated and anonymized data from the database” is to be made public. The database is to also include a way to track “terminations or de-certifications of law enforcement officers, criminal convictions of law enforcement officers for on-duty conduct, and civil judgments against law enforcement officers for improper use of force.” Only law enforcement agencies that submit information to this database can obtain discretionary grant funding from the Department of Justice.

Third, the order requests the Attorney General and the Secretary of Health and human Services to work to develop “co-responder programs” where social workers and mental health professionals are to “arrive and address situations together” with law enforcement officers. Also, the Secretary of Health and Human Services is requested to “survey community-support models addressing mental health, homelessness, and addiction” and summarize the survey in a report to the President within 90 days of the signing of the executive order. The report “shall include specific recommendations regarding how appropriated funds can be reallocated to support widespread adoption of successful models and recommendations for additional funding.”

Fourth, the order requests the Attorney General propose legislation that “enhance[s] the tools and resources available to improve law enforcement practices and build community engagement.” The legislation should assist law enforcement agencies with the implementation of the credentialing body, database, and co-responder programs as found in the order. The legislation should also provide for “improved use-of-force policies and procedures, including scenario-driven de-escalation techniques,” the retention and recruitment “of high-performing law enforcement officers,” law enforcement officers having access to confidential “mental health services,” and the creation of “programs aimed at developing or improving relationships between law enforcement and the communities they serve.”

If you have any questions about this executive order or other government-related matters, please contact Jake Loken at [email protected] or any other member of FMG’s Government Law group. 

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