(a) Each branch of government—legislative, judicial, and executive—should take steps (including enacting policies and procedures) to ensure that, to the extent policing is necessary, it occurs in a manner that is lawful and advances the principles of sound policing.
(b) Private actors—for-profit and nonprofit entities, as well as private individuals—also can influence policing with the actions they take. Such private actors should take care that their activities advance sound policing.
a. Sound policing. As defined in § 13.01, “sound policing” refers to the full set of characteristics policing must embody and promote if it is to achieve the policing goals set out in § 1.02. Chapter 1 describes generally what it means to engage in sound policing, and the following Chapters spell out the particulars of how to achieve sound policing. Policing that is consistent with the U.S. Constitution or other governing law or agency policy nonetheless may not constitute sound policing if it does not promote the goals set out in § 1.02 or if it is inconsistent with these Principles.
b. Policing’s role in public safety. The desire for public safety is one of the main reasons we have government. Policing agencies and police officers are part of the ecosystem called upon to advance public safety. But as § 14.09 makes clear, advancing public safety is not solely, or even primarily, the task of policing agencies alone. Advancing public safety is a holistic endeavor that calls upon public and private actors of all sorts to deliver what people require to be safe. When policing occurs, it often involves attendant harms, which should be minimized. § 1.04 (Reducing Harm). The point of this project is that when the policing function is implicated, the goal always should be sound policing. This Section describes the role that actors outside of police agencies can play to advance sound policing—including providing alternatives to policing when appropriate—and identifies what they should do to avoid undermining sound policing.
c. Policing as a multibranch endeavor. Policing does not exist in a vacuum, separate from the rest of government. Rather, it is, or should be, the product of the collective decisions and policies of each branch of government. The Principles in this Chapter therefore recognize the importance of legislative, judicial, and executive action to advance sound policing.
Federal, state, and local legislative bodies are vested with unique powers that make them particularly well positioned to advance sound policing. Legislatures can go beyond the floor of constitutional constraints on policing and articulate more robust policing standards, enact adequate remedies for rights violations, and conduct oversight to ensure effective and just implementation of the law. The judiciary plays an essential role in the advancement of sound policing by ensuring officials—including prosecutors and police officers—comply with all legally enforceable obligations. Executive officials outside of policing agencies have a duty to contribute to sound policing. For example, heads of governments can issue executive orders on a broad range of issues that affect policing, and can direct police agencies to review current police practices and develop plans to improve them. Prosecutors can identify and actively deter unlawful police conduct and take care that all state evidence is reliable, truthful, and properly preserved. The Principles in this Chapter utilize this framework for multibranch regulation of policing and provide specific means by which each branch of government can advance sound policing.
d. Private actors. Private actors, both at the organizational and individual level, can exert important influences on policing agencies and their personnel. Nonprofit organizations are involved with research, advocacy activities, and programming that can support sound policing as well as advance public safety, such as providing services for unhoused persons. See § 14.09 (Promoting a Holistic Approach to Public Safety). For-profit entities produce and sell technologies and other equipment used by police. Police unions advocate for rules around policing. Individuals call upon the police both in situations in which police are necessary and those in which police presence may be counterproductive. As § 14.15 explains at length, these private entities and individuals should take care to ensure that their actions advance sound policing and that they do not detract from it.
e. Critique and progress. At points in this Chapter, there is thorough discussion of the failings of public and private actors to advance sound policing, or of action taken—intentionally or not—to undermine it. Although these discussions are intended to point to very real problems and challenges that should be addressed, nothing in this Chapter should be construed to minimize the efforts being made throughout the country by various legislative, executive, judicial, and other bodies, as well as by private entities, to advance the cause of sound policing. Some legislative bodies have enacted laws to facilitate sound policing, some prosecutors have advanced practices that facilitate sound policing, and some courts and executive agencies have done the same. These efforts hopefully signal the beginning of continued progress on this issue. Still, as this Chapter—and this entire set of Principles—makes clear, there is enormous work yet to be done.
Policing goes through periodic crises. When this happens, there is a tendency to focus on how police agencies can change to address the issues of the day. It is, however, both impractical and inappropriate to assume policing agencies can or will act on their own to address the full suite of problems affecting modern day policing. Rather, sound policing requires the buy-in and effort of actors representing nearly every facet of society.
Experts have long recognized the role that actors outside of police agencies can play in guiding police through changing norms and toward effective and rights-protective policing. These actors may include other branches of government, such as legislatures; they may include private actors, such as social scientists or creators of relevant technology; or they may include community members, such as those comprising a citizens’ advisory committee or review board. See, e.g., President’s Comm’n on L. Enf’t & Admin. of Just., The Challenge of Crime in a Free Society 95 (Feb. 1967) (“A balance between individual rights and society’s need for protection from crimes can be struck most properly through [a] combination of legislative and administrative action.”); id. at 96 (explaining that police agencies “must have the aid of representatives of academic disciplines—such as operations analysts, criminologists, and other social scientists—before crime trend prediction can be fully developed and usefully related to day to day changes in patrol concentrations and planning for long-range patrol needs.”); id. at 101 (recommending the establishment of citizens’ advisory committees to resolve conflicts between police and communities). Recent calls for improved policing reach well beyond police agencies themselves and address lawmakers at every level of government. See generally Barry Friedman, et al., Changing the Law to Change Policing: First Steps (2020) (recommending legislative changes at the federal, state, and local level); see also Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L. J. 778 (2021) (explaining reform movements that seek to shift power to policed communities by, for example, promoting local ordinances giving community control over policing agencies and national legislation reallocating resources from policing to other forms of community investment).
Although the involvement of actors outside of policing agencies will differ by jurisdiction and issue, what is clear is that each has a role to play in promoting sound policing. Governmental actors, private philanthropic institutions, and independent researchers can help promote data-driven solutions to pressing problems in policing. See, e.g., N.Y. Exec. Order No. 203 (June 12, 2020) (requiring police agencies to perform “a comprehensive review of current police force deployments, strategies, policies, procedures, and practices” and to develop a plan, considering evidence-based strategies, to improve the same). Private corporations can build technology and equipment, or set limitations on the use of their existing technology, in a way that ensures the products are used responsibly to further the goals of sound policing. Each of these entities has unique powers to promote more efficient and just policing, and they should work together with policing agencies to promote and ensure sound policing.
Especially in recent years, there have been increasing actions from all quarters of society to promote the goals of these Principles. For example, legislatures in states such as Colorado and Maryland have enacted sweeping legislative reforms. See, e.g., Jay Schweikert, Colorado Passes Historic, Bipartisan Policing Reforms to Eliminate Qualified Immunity, Cato: Cato at Liberty (June 22, 2020, 11:31 AM), https://www.cato.org/blog/colorado-passes-historic-bipartisan-policing-reforms-eliminate-qualified-immunity (describing Colorado’s Law Enforcement Integrity and Accountability Act, which requires police officers to wear body cameras, bans the use of chokeholds, and removes qualified immunity as a defense for police officers, among other reforms); Michael Levenson & Bryan Pietsch, Maryland Passes Sweeping Police Reform Legislation, N.Y. Times (Apr. 20, 2021), https://www.nytimes.com/2021/04/10/us/maryland-police-reform.html (describing recent police-reform legislation enacted by Maryland’s legislature, including creating a new, statewide use-of-force policy, repealing Maryland’s Law Enforcement Officers’ Bill of Rights, and limiting the use of “no-knock” warrants). New York City has done the same. Taylor Romine, NYPD Officers Are No Longer Protected from Civil Lawsuits After City Council Passes Police Reform Legislation, CNN (Mar. 26, 2021), https://www.cnn.com/2021/03/25/us/nyc-police-reform-nypd/index.html (describing how recent legislation adopted by New York City makes the city the “first in the nation to end qualified immunity” as a defense for police officers).
Some prosecutors are taking actions to improve policing. See, e.g., Alanna Durkin Richer & Michael Tarm, Prosecutors Charge Police, Push Reforms Amid Floyd Protests, Associated Press (June 18, 2020), https://apnews.com/article/ks-state-wire-pa-state-wire-ma-state-wire-il-state-wire-fl-state-wire-31213873f5dbe43397c50982a46d3fbc (describing various reform efforts by district attorneys, including more frequently charging police officers for alleged criminal conduct and supporting changes to police-union collective-bargaining agreements). Executive officials in many jurisdictions are considering alternatives to police response, particularly when responding to calls involving individuals in mental-health crises. See, e.g., Press Release, Off. of the Mayor of the City of New York, New York City Announces New Mental Health Teams to Respond to Mental Health Crises (Nov. 10, 2020), https://www1.nyc.gov/office-of-the-mayor/news/773-20/new-york-city-new-mental-health-teams-respond-mental-health-crises (announcing an initiative to send mental-health providers, instead of police officers, to assist people experiencing mental-health crises); Edmund Carrillo, Mayor Proposes New Public Safety Department, Albuquerque J. (June 15, 2020), https://www.abqjournal.com/1466317/mayor-proposes-public-safety-department.html (describing Albuquerque Mayor Tim Keller’s plans to create a public-safety department made up of “social workers, housing and homelessness specialists and violence prevention and diversion program experts” who would respond to certain 911 calls that do not require armed officers).
The judiciary also has taken steps toward addressing the problems of policing. Judges in many states called for greater attention to racial justice following the murder of George Floyd by a police officer in Minneapolis in 2020. See, e.g., State Court Statements on Racial Justice, Nat’l Ctr. for State Cts., https://www.ncsc.org/newsroom/state-court-statements-on-racial-justice (cataloging the statements of 25 state supreme courts and chief justices regarding plans to promote racial equity). Some judges have called out police officers for their lack of credibility as witnesses. See Jake Pearson, A Union Scandal Landed Hundreds of NYPD Officers on a Watchlist. That Hasn’t Stopped Some from Jeopardizing Cases, ProPublica (Oct. 22, 2021), https://www.propublica.org/article/a-union-scandal-landed-hundreds-of-nypd-officers-on-a-secret-watchlist-that-hasnt-stopped-some-from-jeopardizing-cases (noting judicial rebukes of untruthful police-officer testimony, though also noting that a list of such testimony compiled by public defenders remained under judicial seal). And judges have issued orders curtailing some harmful police practices. See Alsaada v. City of Columbus, 2021 WL 1725554, at *46 (S.D. Ohio, Apr. 30, 2021) (issuing a preliminary injunction enjoining the Columbus Police Department from using nonlethal force, “including tear gas, pepper spray, flash-bang grenades, rubber bullets, wooden pellets, batons, body slams, pushing or pulling, or kettling” on nonviolent protesters), modified sub nom. Alsaada v. City of Columbus, 2021 WL 3375834 (S.D. Ohio June 25, 2021).
At the federal level, the executive branch is taking actions to address troubling police and agency practices. The U.S. Department of Justice announced a new policy that largely prohibits the use of chokeholds or no-knock warrants by its law-enforcement arms. Press Release, Dept. of Just., Department of Justice Announces Department-Wide Policy on Chokeholds and ‘No-Knock’ Entries (Sept. 14, 2021), https://www.justice.gov/opa/pr/department-justice-announces-department-wide-policy-chokeholds-and-no-knock-entries. The Department reversed a previous administration’s policy that limited the use of consent decrees to reform local governments’ policing policies, and opened new pattern-or-practice investigations in Phoenix, Louisville, and Minneapolis. Katie Benner, Justice Dept. Restores Use of Consent Decrees for Police Abuses, N.Y. Times (Apr. 16, 2021), https://www.nytimes.com/2021/04/16/us/politics/justice-department-consent-decrees.html (describing the consent-decree policy reversal as a “significant move to hold police forces accountable”); Michael Balsamo & Amy Forliti, With Civil Rights Charges, Justice Dept. Signals Priorities, Associated Press (May 8, 2021), https://apnews.com/article/donald-trump-george-floyd-ahmaud-arbery-europe-death-of-george-floyd-c14e9841c69849e3e9dc36beb755298c (detailing the Department’s recent decisions to open up pattern-or-practice investigations). And the office of the Associate Attorney General is conducting a review of compliance with Title VI by agencies that receive federal funds. David Nakamura, Justice Dept. Looks to Leverage Federal Funding for Police to Ensure Compliance on Nondiscrimination Laws, Wash. Post (Sept. 16, 2021), https://www.washingtonpost.com/national-security/justice-department-grants-police-departments-nondiscrimination/2021/09/16/949efaa8-1710-11ec-9589-31ac3173c2e5_story.html
Private actors also have taken notable steps to promote sound policing. See, e.g., Letter from Arvind Krishna, CEO, IBM, to Karen Bass, Rep., U.S. Cong.; Cory Booker, Sen., U.S. Cong.; Kamala Harris, Sen., U.S. Cong.; Hakeem Jeffries, Rep., U.S. Cong.; Jerrold Nadler, Rep., U.S. Cong. (June 8, 2020), https://www.ibm.com/blogs/policy/facial-recognition-sunset-racial-justice-reforms/ (communicating IBM’s interest in working with Congress on “police reform, responsible use of technology, and broadening skills and educational opportunities [in communities of color]” and noting that IBM has ceased offering general purpose facial-recognition or facial-analysis software); see generally Am. Fed. of Lab. and Cong. of Indus. Orgs., Public Safety Blueprint for Change (2021) (detailing the union’s recommendations for public-safety reform, which include establishing national training standards for police officers and adopting a true differential response model). And it is important to recognize in particular the actions of individuals, especially in communities impacted by policing, to advance public safety in sound ways, including by engaging in lawful protests to demand change. See, e.g., Radoubeh Kishi et al., Armed Conflict Location & Event Data Proj., A Year of Racial Justice Protests: Key Trends in Demonstrations Supporting the BLM Movement 5, 7 (May 2021) (finding that more than 96 percent of protests associated with the Black Lives Matter movement in the summer of 2020 were nonviolent, despite law-enforcement officers being more likely to use force against these protestors than other peaceful protestors); Carey L. Biron ‘That is Power’: U.S. Cities Embrace People’s Budgets Amid Policing Debate, Reuters (July 28, 2020, 6:05 AM), https://www.reuters.com/article/us-usa-cities-police-feature-trfn/that-is-power-u-s-cities-embrace-peoples-budgets-amid-policing-debate-idUSKCN24T199 (discussing how policing-reform advocates and organizations like Movement for Black Lives are promoting participatory budgeting as a way of improving public safety).
Still, it bears repeating: progress has been slow, and there is enormous work to be done. The Principles in this Chapter spell out in detail how the various branches of government, as well as private actors, can advance sound policing, as well as what they should do to avoid undermining it.