Trump’s Executive Order on Policing

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You can read it here. We should learn more about it as lawyers and policy researchers dig into the particulars and run some numbers, but I have a few initial thoughts.

The order instructs the attorney general to create a database 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.” This is good: It will make it easier for departments to know whether an officer applying for a job has been punished for excessive force elsewhere.

The order also instructs the AG to, “as appropriate and consistent with applicable law, allocate Department of Justice discretionary grant funding only to those State and local law enforcement agencies that have sought or are in the process of seeking appropriate credentials from a reputable independent credentialing body certified by the Attorney General.” In effect, this will condition at least some federal funding on police departments’ meeting criteria set by the executive branch. Some of these criteria are mentioned in the order, such as that departments must ban “chokeholds — a physical maneuver that restricts an individual’s ability to breathe for the purposes of incapacitation — except in those situations where the use of deadly force is allowed by law,” but the AG will have discretion to add more.

This part of the order seems a bit more problematic. For one thing, I’m not sure we want the federal government, much less someone in the executive branch, leveraging taxpayer money to set policy for police departments across the country; that’s a much more appropriate task for state and local governments. For another, the definition of “chokeholds” is pretty narrow — it singles out “respiratory” chokes that restrict airflow, leaving untouched other controversial neck restraints, including “blood chokes” that reduce the supply of oxygen to the brain. And for yet another, as the law professor Jonathan Adler has been pointing out on Twitter, it’s not even clear how many federal grants the executive branch can restrict in this way — Congress creates these grant programs and supplies their conditions; the executive has some discretion, but it arguably can’t just make up new conditions and tack them on.

The AG will also work on ideas as to how cops and others should approach the mentally ill, and suggest legislation to Congress regarding grants and other issues.

As I said up top, I think we’ll know more about how this will work once lawyers highlight potential legal challenges and budget wonks come up with an accounting of how much grant money is at stake. In the meantime, all eyes should be on the legislation brewing in Congress.