(a) Legislative bodies at all levels of government should take steps to promote sound policing and should avoid taking actions that impede accountability, undermine sound policing, or encourage practices that are inconsistent with these Principles.
(b) The local legislative body in any jurisdiction that has a policing agency should, at a minimum:
- (1) acquire, on an ongoing basis, the information it requires about agency and officer conduct, as well as its impact on communities, in order to provide effective legislative oversight of policing;
- (2) adopt legislation to further sound policing and take steps to ensure that agency policies, practices, and procedures are consistent with the principles of sound policing;
- (3) ensure that there are effective mechanisms in place to hold officers accountable for misconduct and to identify systemic problems that may require policy change; and
- (4) allocate public funds in a manner that promotes adherence to the principles of sound policing within the agency, and facilitates a holistic approach to public safety within the jurisdiction.
(c) State legislatures should:
- (1) adopt legislation to regulate specific areas of policing that would benefit from state-level guidance and uniformity;
- (2) establish, or direct a state agency to establish, minimum qualifications, training requirements, and standards of conduct for all officers in the state, and provide for the decertification of officers who no longer meet these requirements;
- (3) consistent with § 14.03, provide statutory remedies for violations of both statutory and constitutional rights sufficient both to deter unlawful conduct on the part of both officers and agencies, and to provide compensation to those who are harmed; and
- (4) ensure that state-level policing agencies adhere to the principles of sound policing by using the various legislative tools and strategies outlined in subsection (b).
a. Role of legislative bodies. Legislative bodies play an essential role in setting the standards of sound policing and ensuring that policing agencies adhere to those standards. They serve as an important external check on agency officials. And they may be better able to balance the various interests involved in making critical policy choices around how policing occurs. Legislative bodies also have a set of tools at their disposal that are unavailable to other government actors. They can, for example, impose legal consequences for noncompliance and, in most jurisdictions, they retain the power of the purse. Perhaps most important, they are directly responsible for enacting the laws that policing agencies enforce, and for authorizing the means of enforcement. They therefore have an obligation to ensure that the powers they have delegated to policing agencies are exercised in a manner that is consistent with the needs of their constituents, as well as the principles of sound policing set out in these Principles.
Legislative bodies can fulfill their obligation in a variety of ways. They can enact legislation regulating specific aspects of policing—for example, by setting minimum standards around the use of force or establishing rules regarding the use of information-gathering technologies. They also can ensure that policing agencies have the resources they need to hire and retain qualified officers—and, just as importantly, that other local services, such as housing and public health, are funded adequately to ensure a holistic approach to public safety. Legislative bodies can hold hearings, request information, or establish recordkeeping and reporting requirements. And they can create administrative bodies and delegate to them the responsibility for regulating police conduct, such as peace-officer standards and training boards or commissions (POSTs) at the state level, or local oversight boards. See § 14.07 (External Oversight of Policing Agencies). In short, legislatures need not establish detailed rules for every aspect of policing, but they should take steps to ensure that rules are in fact being adopted and enforced.
b. Legislative guidance at different levels of government. The regulation of policing should occur at all levels of government. As this Section makes clear, some obligations fall most appropriately on local legislative bodies, including municipal councils and county boards. Local legislative bodies, for example, are in the best position to oversee local policing agencies through hearings, requests for information, and budgetary control—and to establish whatever additional administrative structures may be necessary to facilitate policymaking or hold officers accountable for misconduct. See § 14.07 (External Oversight of Policing Agencies). On the other hand, because officers are certified at the state level, state legislatures or state POSTs typically are responsible for establishing the minimum standards for conduct and training with which officers must comply. And it typically falls to state and federal legislatures to establish the remedial schemes that are necessary to enforce both statutory and constitutional rights. See § 14.03 (Statutory Remedies for Violations).
When it comes to establishing clear rules and guidelines for various aspects of policing, legislative bodies at each level of government can play an important role. With respect to officer use of force, for example, a local legislative body can require the local policing agency to adopt a use-of-force policy that is consistent with the Principles set forth in Chapter 7, and ensure that there are systems in place to promote compliance. State legislatures—either acting on their own or through state POSTs—can establish clear use-of-force standards for all agencies and officers; require all officers to receive timely and effective training on how to use force appropriately; mandate uniform data-collection and reporting requirements for all use-of-force incidents; and provide for the decertification of officers who are terminated for using excessive force. See § 14.13 (Certification and Decertification of Law-Enforcement Officers). And, as discussed in § 14.06, the U.S. Congress also can promote adherence to the use-of-force principles in various ways. Finally, although the focus here primarily has been on officer and agency conduct, legislative bodies also should, consistent with § 14.15, take steps to regulate the conduct of private parties—such as third-party record holders (§ 2.05) or technology companies (§ 14.15)—whose conduct affects how policing occurs.
Although there is no precise formula for how best to allocate regulatory responsibility between the federal, state, and local levels, there are a number of factors that state and federal legislative bodies may wish to consider in identifying areas in which additional guidance is necessary. See also § 14.06 (The Federal Government’s Role in Policing). First, state or federal legislation may be particularly valuable in policy areas that would benefit from greater uniformity. For example, uniform data-collection and reporting requirements can facilitate research into the effectiveness of various policing practices—or, at a minimum, enable residents in each jurisdiction to develop a better understanding of how the performance of the local policing agency compares with others. Second, because officers routinely interact with residents from other jurisdictions, it may be especially important for there to be clear and uniform rules to govern police−citizen encounters, including the conduct of stops, searches, and arrests, as well as the use of force against members of the public. State and federal legislation also may be necessary to address practices that require coordination across multiple levels of government. Reforming warrant practices, for example, necessarily must take place at the state level because it involves the practices of state and county court systems over which municipalities have no control. State and federal legislatures also can attach remedial consequences to violations that localities typically cannot, including civil or criminal liability, or the exclusion of evidence in criminal cases. For conduct that may give rise to more serious compensable harm or require more robust remedial deterrence to ensure compliance, it may be particularly important for Congress and the states to articulate clear standards as a matter of law and to create appropriate remedies for noncompliance. See § 14.03 (Statutory Remedies for Violations).
At the same time, federal and state legislatures should refrain from adopting measures that undermine local accountability or otherwise impede sound policing. States should not, for example, adopt laws that interfere with local misconduct investigations or prohibit jurisdictions from adopting their preferred structure of civilian oversight. These sorts of provisions undermine agency efforts to fulfill their independent obligation to foster sound policing. See Chapter 13. And they make it more difficult for local legislative bodies to take responsibility for the conduct of the policing agencies that they authorize and fund, including, when appropriate, by establishing administrative bodies to facilitate more effective oversight. See § 14.07 (External Oversight of Policing Agencies). States also should not undermine local efforts to bring their agency policies and practices in line with the principles of sound policing. A state that decides not to adopt a comprehensive use-of-force policy, see §§ 7.01 to 7.06, or to invest in a more holistic approach to public safety, see § 14.09, should not preempt local efforts to impose stricter limits on officer use of force or to reallocate local funding in ways that better address local safety needs.
c. Legislative oversight and information-gathering. Legislative bodies cannot govern effectively without adequate information about agency and officer conduct and its impact on communities. Local city council members cannot, for example, exercise effective budgetary oversight unless they understand how the agency plans to use the funds requested, including for any new technologies or programs that the agency plans to put in place. Similarly, legislators cannot take steps to remedy shortfalls in agency practices unless they have: timely information regarding agency strategies and priorities; data on police encounters and complaints; and information about the tactics and technologies that the agency is using to address crime and disorder. See § 14.10 (Data Collection and Transparency).
Legislative bodies can obtain this information in a variety of ways. They can hold periodic hearings with community members and police officials. They can establish recordkeeping and reporting requirements. They can set up clear protocols for approving the requisition of new equipment or technologies, including those obtained with federal or private funds. And they can create regulatory bodies, such as inspectors general, to periodically audit and report on policing practices. Importantly, they also can ensure that the information they collect is made available to the public in a manner that facilitates public scrutiny of—and engagement with—how policing within the jurisdiction occurs.
Although each legislative body with a policing agency in its jurisdiction has an independent obligation to ensure that it has the information it needs to govern, both federal and state legislatures can help to facilitate the collection, reporting, and exchange of information on critical aspects of policing. A number of states, for example, have adopted laws requiring policing agencies to collect and report data on stops, arrests, and uses of force, and they have created state-level databases to store the information and make it available to the public in an accessible way. As discussed above, these sorts of requirements can ensure greater uniformity and enable residents to see how policing practices and outcomes in their jurisdiction compare to others.
d. Promoting individual and system-wide accountability. As Chapter 13 explains in greater detail, a well-functioning accountability system: provides officers with adequate policy guidance and training on what is expected; imposes appropriate consequences for misconduct; and includes mechanisms to identify and learn from patterns of misconduct or significant adverse events with an eye toward policy change. Although legislative bodies need not—and cannot—directly supervise every aspect of policing in their jurisdiction, they have an obligation to ensure these systems exist and are functioning effectively. Particularly in larger jurisdictions, this may involve creating one or more external entities to perform some of these functions. See also § 14.07 (External Oversight of Policing Agencies).
e. Statutory remedies. Finally, as discussed in § 14.03, it necessarily falls to state and federal legislatures to establish an adequate and effective remedial scheme for violations of statutory and constitutional rights. This requires, at a minimum, that there be adequate mechanisms in place to compensate those who are harmed by unlawful policing practices and to deter unlawful conduct on the part of agencies and officers.
1. Importance of legislative role. Legislative bodies have an essential role to play in promoting sound policing. Policing involves policy choices and tradeoffs, many of which cannot plausibly or appropriately be resolved by the police alone. Decisions as to whether to utilize particular surveillance technologies, when to allow pretextual traffic stops, and what content to redact when releasing officer disciplinary records all involve sharply competing values and affect different stakeholders and communities in varying ways. Under our system of government, legislative bodies are charged with making these value choices and, as a practical matter, they are in a much better position than are policing agencies to strike the necessary balance among competing interests. They also likely are more responsive to constituencies that may not always get the ear of the police.
In addition, some of the changes necessary to bring policing in line with these Principles necessarily must come from the legislative branch. For example, legislative bodies can authorize (and in some cases mandate) broader use of citation in lieu of arrest (§ 4.05), beef up statutory remedies to address officer and agency violations of statutory and constitutional rights (§ 14.03), and mandate uniform data collection and reporting practices (§ 14.10).
Finally, it is a basic principle of democratic government that policing agencies, like all agencies of government, may only exercise those powers that have been legislatively granted (or committed to them by state constitutions or local charters). See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 94 Colum. L. Rev. 573, 577 (1984). Having authorized policing agencies to enforce the criminal laws—and to do so using extraordinary powers such as force and arrest—legislatures have an obligation to ensure that agencies exercise that authority in a lawful, equitable, and proportional manner.
2. Inadequate legislative guidance. Too often, these obligations have been honored in the breach. In many jurisdictions, policing agencies operate under broad grants of legislative authority to enforce the criminal law—with few constraints on the means they use to do so. See, e.g., N.Y.C. N.Y. Charter § 435 (2012) (broadly authorizing police to “preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages . . . [and] protect the rights of persons and property”); Detroit Charter and City Gov’t art. 7-801 (“The Police Department shall preserve the public peace, prevent crime, arrest offenders, protect the rights of persons and property, guard the public health, preserve order, and enforce laws” and ordinances.). When it comes to officer use of force, for example, most states impose few if any limits beyond the federal and state constitutional floors. Indeed, many state statutes simply say that an officer may use force when he or she “reasonably believes” such force is necessary. See, e.g., Ark. Code § 5-2-610; Fla. Stat. § 776.05; N.C. Stat. § 15A-401. Similarly, states often impose few constraints on authority to effect an arrest beyond the constitutional requirement that an arrest be supported by probable cause.
Indeed, legislative bodies often lack the basic information about policing practices within their jurisdictions that they would need in order to govern effectively. In most states, there is no comprehensive data on how often officers use force, make stops, or conduct arrests, let alone demographic information about the people stopped or arrested, or the bases for the stops, arrests, or uses of force. In some instances, local legislators only have learned after the fact that their local policing agency has acquired military-grade equipment or invasive surveillance technologies. See generally Catherine Crump, Surveillance Policy Making by Procurement, 91 Wash. L. Rev. 1595 (2016); see, e.g., Rick Anderson, Game of Drones: How LAPD Quietly Acquired the Spy Birds Shunned by Seattle, L.A. Weekly (June 19, 2014); Matt Bigler, San Jose Police Returning Mine-Resistant Armored Truck to Feds Amid Militarization Debate, CBS S.F. Bay Area (Aug. 29, 2014).
Moreover, at times, legislative bodies have intervened in ways that have detracted from sound policing. Nearly one-third of state legislatures have codified variations of law-enforcement officers’ bill of rights (LEOBORs) that contain provisions that seriously impede agencies from holding officers accountable for using excessive force and for other misconduct. See Kevin Keenan & Samuel Walker, An Impediment to Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights, 14 Pub. Int. L.J. 185 (2005). For example, many LEOBORs afford officers waiting periods anywhere from 48 hours to 30 days in which officers may not be questioned following an incident and/or give officers an opportunity to review relevant evidence before they are interviewed. See Aziz Z. Huq & Richard H. McAdams, Litigating the Blue Wall of Silence: How to Challenge the Police Privilege to Delay Investigation, 2016 U. Chi. Legal F. 213, 215-216 (2016); Iowa Code § 80F.1(5); Fla. Stat. § 112.532(1)(c). Legislative bodies also have contributed to the problem of over-policing through ever expanding criminal codes. And they have adopted measures that facilitate or even encourage revenue-driven policing. See, e.g., Tenn. Code. Ann. § 39-17-428 (providing that half of the mandatory minimum fines for certain drug offenses “shall be paid to the general fund of the governing body of the law enforcement agency responsible for the investigation and arrest which resulted in the drug conviction.”); see also § 1.10 (Policing for the Purposes of Revenue Generation). States also have interfered with local budgeting decisions by prohibiting municipalities from reducing police expenditures in order to pursue a more holistic approach to public safety. “An Act Relating to Combating Public Disorder,” Fla. Chap. 2021–6 (permitting state officials to override local budgets that reduce police-department budgets), http://laws.flrules.org/2021/6.
3. Models of legislative intervention. Legislative bodies can fulfill their essential role in a variety of ways. Legislative bodies cannot possibly regulate every aspect of policing, much like they cannot regulate every aspect of education policy, environmental regulation, or anything else legislatures authorize agencies to do. But they can take a variety of steps to ensure that adequate rules are in fact in place.
In some cases, legislative bodies can and should provide legislative guidance. Clear guidance is particularly important in areas in which the police and members of the public would benefit from legally enforceable norms and remedies. For example, legislative bodies should enact comprehensive statutes consistent with the principles that regulate: when police may use force (Chapter 7); when police may stop, detain, or arrest members of the public (Chapters 3 and 5); which surveillance technologies police may use and how they may use them (Chapter 5); and what remedies are available when agencies run afoul of the enacted statutes (§ 14.03). A number of states have adopted measures along these lines. See, e.g., Ill. H.B. 3653, available at https://www.ilga.gov/legislation/101/HB/PDF/10100HB3653lv.pdf; Md. S.B. 71, available at https://legiscan.com/MD/text/SB71/2021; Md. S.B. 178, available at https://legiscan.com/MD/text/SB178/2021; 2019 Mass. S.B. 2963, available at https://malegislature.gov/Bills/191/S2963. Legislative bodies should also enact guidance-giving statutes consistent with these Principles in contexts in which the police cannot implement reform on their own without legislative action. See, e.g., § 2.08 (Limiting the Impact of Outstanding Warrants); § 4.05 (Minimizing Intrusiveness of Stops and Arrests).
States also can delegate various responsibilities to state Peace Officer Standards and Training boards (POST boards) or other state-level administrative agencies. Although POST boards in some states have played a narrow role, limited primarily to establishing basic training and certification standards, a number of legislatures have instructed state POSTs to exercise considerably broader authority in regulating various forms of police conduct. See, e.g., Ill. H.B. 3653 at 697-762; Mass. S.B. 2963 §§ 2, 8.
As discussed in more detail in § 14.07, localities also may have an important role to play in establishing and empowering entities that supervise the police. Many localities already have established and funded various kinds of regulatory bodies to supervise policing agencies, and there is room for other localities to do the same. See generally Maria Ponomarenko, Rethinking Police Rulemaking, 114 Northwestern L. Rev. 1 (2019). In some jurisdictions, policing agencies are overseen by police commissions with authority to set policy for the department and to review existing practices to ensure that they are consistent with community needs. A number of cities also have created police inspectors general who are tasked with reviewing policing data and records to identify patterns of misconduct, or areas where policy change may be necessary to improve outcomes or reduce the risk of harm. N.Y.C. Local Law No. 70 (2013), https://www1.nyc.gov/assets/doi/oignypd/local-law/Local-Law-70.pdf (creating NYPD inspector general); Chi. Il. Municipal Code § 2–56–205 (2016) (Chicago police inspector general); Seattle, Wash., Ordinance 125315 (2017). Still others have established external entities responsible for investigating allegations of misconduct. Sharon Fairley, Survey Says? U.S. Cities Double Down on Civilian Oversight of Police Despite Challenges and Controversy, Cardozo Law Review De Novo (2020).
Legislative bodies also can adopt information-forcing mechanisms that require policing agencies to disclose data, records, and other information so that the legislators and the public have the information necessary to supervise policing agencies and make informed decisions about agency performance. See § 14.10 (Data Collection and Transparency). For example, legislatures could require agencies to collect and publish data on reported crimes, stops, arrests, and uses of force. See, e.g., Cal. Gov. Code § 12525.2 (requiring use-of-force data collection); 625 Ill. Comp. Stat. § 5/11-212 (requiring stop data collection). Local legislative bodies can require policing agencies to obtain city-council or county-board approval before acquiring and deploying new surveillance technologies. See Berkeley, Cal., Ordinance 7592 (2018); Nashville, Tenn., Ordinance Bl2017-646 (June 7, 2017); Seattle, Wash., Ordinance 124142 (2017).
And of course, as discussed in § 14.03, legislatures can help ensure that policing agencies adhere to statutory and constitutional requirements by providing for adequate remedies to vindicate violations of constitutional and statutory rights. Effective remedies are necessary to deter misconduct and to provide compensation to those who are harmed. They also can help facilitate legislative oversight and information gathering by increasing the likelihood that harmful policing practices are brought to light.
As the above examples suggest, some legislative reforms can take place at the local level, while others may require federal or state intervention. And, in some contexts, federal, state, or local legislative bodies could coordinate or act in tandem to accomplish the same goals. A state legislature could, for example, require all agencies in the state to collect and publicize data on complaints filed against the police. A local legislative body could add additional reporting requirements or require the local department to make various policy changes to address any potential problems that the complaints bring to light. Although there are some contexts in which it would be ideal to have state or federal legislation because of an interest in uniformity (e.g., uniform data, see § 14.10 (Data Collection and Transparency)), local legislative bodies should not wait for Congress or state legislatures to act when it is clear that basic legislative obligations are not being met.