PORAC’s legal counsel has reviewed President Joe Biden’s executive order mandating federal law enforcement agencies to implement a range of police reform measures. While the executive order imposes new requirements directly on federal law enforcement officers, PORAC’s attorneys believe the policies included in the order substantially mirror those already enacted in California. Federal law enforcement officers should take note of key provisions of the executive order that will most directly impact the performance of their duties and how they compare to existing California law.
The executive order requires federal law enforcement agencies to adopt use-of-force polices that are equivalent to or exceed the requirements of Attorney General Merrick Garland’s updated use-of-force policy issued on May 20, 2022, (hereinafter referred to as “DOJ policy”).1 The DOJ policy takes effect on July 19, 2022, and federal law enforcement agencies will have until August 23, 2022, to implement their updated use-of-force policies.
The use-of-force standards set forth in the DOJ policy largely follow the lead of California, adopting a necessary standard (consistent with Graham v. Connor  490 U.S. 386).2 Under the federal policy, force may be used “only when no reasonably effective, safe, and feasible alternative appears to exist…” Like the California law — SB 230, sponsored by law enforcement — the DOJ policy also mandates the de-escalation, intervention and medical aid policies set forth in California Penal Code section 13519.10.3
One notable concern with the DOJ policy is the ambiguity it creates regarding the continued applicability of Tennessee v. Garner (1985) 471 U.S. 1, which permits the use of deadly force to prevent the escape of violent fleeing felons who are a threat to the public if not immediately apprehended.4 The DOJ policy purports to uphold the standards set forth in Graham and Garner, yet also states “deadly force may not be used solely to prevent the escape of a fleeing suspect.” It’s unclear if the “solely” limitation is intended to bar ever using deadly force to prevent any escape, rather than limiting force used to prevent the escape of nonviolent suspects.
Garner adopted the California Supreme Court’s requirement that “police may use deadly force to arrest only if the crime for which the arrest is sought was ‘a forcible and atrocious one which threatens death or serious bodily harm,’ or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed” (Garner, supra, 471 U.S. at p.1, fn. 15 [citing People v. Ceballos (1974) 12 Cal.3d 470, 477]).5 California Penal Code section 835a (AB 392) codified these restrictions by limiting the use of deadly force against a fleeing suspect of a “felony that threatened or resulted in death or serious bodily injury” where “the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.”
California struck the proper balance in permitting deadly force only to prevent the escape of suspects posing a serious threat to cause death or serious bodily harm if the suspect’s apprehension is delayed. California’s policy recognizes that in limited circumstances officers might have to use deadly force to prevent the escape of a terrorist or mass shooter likely to kill or injure other members of the public if allowed to escape. Hopefully the executive order and DOJ policy will retain this important public safety measure.
Finally, the DOJ policy expressly prohibits federal law enforcement officers from discharging firearms at moving vehicles “unless a person in the vehicle is threatening the officer or another person with deadly force by means other than a vehicle” or the vehicle is being operated in a way that threatens serious bodily injury or death to the officer or others, and “no other objectively reasonable means of defense appears to exist, which includes moving out of the path of the vehicle.”
Chokeholds and Carotid Restraints
The executive order bans the use of chokeholds and carotid restraints “except where the use of deadly force is authorized by law” in accordance with a U.S. Department of Justice policy issued on September 13, 2021. According to that policy, “authorized by law” means “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.”
California law appears more restrictive than the executive order with respect to chokeholds and carotid restraints. California Government Code section 7286.5 (AB 1196) prevents law enforcement agencies from authorizing the use of a carotid restraint or chokehold by any peace officer employed by that agency without any express recognition of situations where the use of deadly force is authorized by law.6
The executive order mandates all federal law enforcement agencies to use body-worn cameras and publicly post body-worn camera policies that mandate activation of cameras during actions involving arrests and searches. The policies adopted by federal agencies must also be consistent with the minimum requirements identified in the U.S. Department of Justice policy memorandum dated June 7, 2021.
Similar to California’s SB 1421 (California Penal Code sections 832.7 and 832.8), the executive order also provides for the expedited public release of footage following incidents involving serious bodily injury or deaths in custody.
While not yet expressing an opinion, the executive order calls for a study regarding whether or not law enforcement officers should be allowed to review body-worn camera footage prior to giving statements concerning the use of force. The ultimate recommendation bears watching, as it may impact collective bargaining over pre-statement video access.
The executive order requires federal law enforcement agencies to adopt new policies within 60 days that implement the U.S. Department of Justice’s restriction on the use of no-knock entries. The U.S. DOJ policy on no-knock entries was issued on September 13, 2021, and generally limits the use of no-knock entries to situations where a federal officer has reasonable grounds to believe that knocking and announcing the officer’s presence would create an imminent threat of physical violence to the officer and/or another person. The U.S. DOJ acknowledges that its policy is narrower than what is permitted by law, but that the restriction is intended to limit the use of no-knock entries to instances where physical safety is at stake. If a federal law enforcement officer suspects a threat to physical safety and seeks a no-knock warrant, the officer must first get supervisory approval from both a federal prosecutor and the officer’s law enforcement agency.
The U.S. DOJ policy recognizes that there may be rare circumstances when a no-knock entry is justified by reasons other than physical safety. If an exception is sought when there is no imminent threat of physical safety, the federal law enforcement officer is required to obtain prior approval from the head of their agency and the U.S. attorney or relevant assistant attorney general before seeking judicial authorization for a no-knock warrant.
Timely and Thorough Investigations and Consistent Discipline
Federal law enforcement agencies must review their existing policies and procedures for investigating the use of deadly force and deaths in custody to ensure the preservation of evidence as well as timely and thorough investigations of such incidents. The executive order requires federal agencies to make appropriate changes to their policies and procedures to ensure the integrity and effectiveness of the investigations. Notably, the executive order recognizes the obligation of federal law enforcement agencies to comply with applicable collective bargaining requirements in regard to such changes.
The executive order also requires federal law enforcement agencies to modify existing disciplinary policies and procedures that may cause unwarranted delay or inconsistent application of discipline for incidents involving the use of deadly force or deaths in custody. Again, applicable collective bargaining obligations must be followed with respect to such changes.
National Law Enforcement Accountability Database
The executive order requires the United States attorney general to establish a National Law Enforcement Accountability Database of records of officer misconduct (including convictions, terminations, de-certifications, civil judgments, resignations and retirements while under investigation for serious misconduct, and sustained complaints or records of disciplinary actions for serious misconduct), as well as commendations and awards. Similar information collected in California pursuant to SB 1421, SB 16 and SB 2 will almost certainly be reported to this national database.
Implicit Bias Training
Similar to California Penal Code section 13519.10 (SB 230), the executive order requires development of an evidence-informed training module for law enforcement on 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.
This article was prepared in collaboration with PORAC’s legal counsel, Tim Talbot, principal at Rains Lucia Stern St. Phalle & Silver, PC, and David E. Mastagni, partner with the Labor Department of Mastagni Holstedt, APC.
- See the Justice Department’s updated use-of-force policy at tinyurl.com/j38yc9rc.
- Learn more about Graham v. Connor at tinyurl.com/44288yk7.
- See California Penal Code section 13519.10 at tinyurl.com/2p9bhn9j.
- Learn more about Tennessee v. Garner at tinyurl.com/yvtwpcyr.
- Learn more about People v. Ceballos at tinyurl.com/mrxaj9xs.
- See California Government Code section 7286.5 at tinyurl.com/4fdj3tvx.