The federal government should engage in sound policing, exercise its authority to promote sound policing nationwide, and avoid actions that undermine sound policing.
a. The federal role in policing. The federal government has three critical roles to play in policing. First, the federal government includes more than 80 policing agencies, among them the Drug Enforcement Administration, Customs and Border Protection, and the Federal Bureau of Investigation. These agencies empower approximately 100,000 officers to investigate crimes, patrol federal lands, facilitate court operations, protect federal departments, and coordinate with and assist state and local agencies, among other activities. In performing these functions, these agencies and officers affect individual lives, shape public perception about policing, and influence state and local agency practices. These Principles apply to policing by federal agencies and officials, and these agencies and officials should engage in sound policing.
Second, the federal government provides coordination, technical assistance, and resources to state and local agencies. Some of these efforts are directed at pursuing federal-enforcement ends, and some to facilitating and improving state and local policing. As the federal government pursues these activities, it should ensure that it designs them to promote sound policing and to avoid undermining it.
Third, the federal government promotes civil and constitutional rights. The U.S. Constitution imposes this obligation on all branches of the federal government. Policing, perhaps more than any other governmental endeavor, regularly implicates rights protected by the U.S. Constitution, including rights to be free from: excessive force; suppression of speech; discrimination of any sort; and unjustified intrusions on autonomy, privacy, and security. As noted in § 1.03, ensuring that agencies and officers respect constitutional rights, and signaling the government’s commitment to those rights, are essential to democratic society and the legitimacy of policing. As described in this Section and other Sections in this Chapter, the federal government should maintain appropriate remedies and actively enforce civil rights to fulfill its responsibility to promote sound policing.
b. The need for federal involvement in promoting sound policing. As these Principles have made clear, policing in the 21st century is a complex matter. Yet, the 18,000 or so policing agencies in the United States vary widely in size and capacity. Many have neither the expertise nor the resources to identify and implement research-informed practices for sound policing. Some simply choose not to. State capacity, and the commitment to promote sound policing, is similarly uneven across state and local agencies. Only with national leadership can policing in the United States achieve the standards advanced in these Principles and the mandates imposed by law.
The idea that federal assistance is valuable to improve state and local policing is not new. For more than a century, the federal government has provided state and local police departments with technical assistance, training, and access to national forensic databases that are critical to criminal-enforcement efforts. For nearly as long, the federal government has maintained and enforced criminal and civil-rights laws against officers who have violated the constitutional rights of individuals. For more than a half century, the federal government has offered substantial funding to improve and coordinate state and local policing. And for decades, the federal government has offered technical assistance to struggling agencies, and it has investigated and sued errant police departments to promote constitutional policing.
While recognizing and reaffirming the substantial role the federal government has long played in state and local policing, this Section emphasizes that federal intervention in state and local policing should promote only sound policing.
c. Federal power to promote sound policing. Some argue that the federal government should not play a significant role in state and local policing, or that it lacks the power to do so. Even if the federal government did not have regulatory power over local policing, it has other powers, such as the spending power, the power to attach conditions on spending grants, and the power of the bully pulpit, which can be deployed noncoercively to promote sound policing. But the federal government also has ample regulatory powers. Section 5 of the Fourteenth Amendment of the U.S. Constitution allows the federal government to address matters such as the excessive use of force or racial discrimination. And Congress has power to regulate other aspects of policing, including the use of surveillance technologies, because they constitute or are a part of interstate commerce.
The best evidence of federal power is the fact that for good and for ill, as noted above, the federal government has long acted to aid state and local law enforcement and foster federal priorities for policing. As part its antiterror and drug-enforcement activities, for example, the federal government has: offered funding to state and local agencies; created multijurisdictional task forces; provided equipment, support, training, and coordination; and encouraged and shared the proceeds of asset forfeitures. As part of its civil-rights and anticorruption efforts, the federal government has prosecuted federal, state, and local officers who have broken federal law, and sued agencies that violate constitutional rights. Congress, in passing federal privacy laws, sets the terms by which state and local agencies can acquire certain types of personal information. And federal rules and court procedures, such as the Federal Rules of Criminal Procedure, have provided models that state and local governmental entities can, and often do, adopt.
d. Avoiding programs and practices that detract from sound policing. Although some forms of federal policing and federal intervention into state and local policing, such as civil-rights enforcement, almost inevitably promote sound policing, not all have this character. Both historically and currently, some federal interventions in local policing have pursued public-safety goals by means that imposed harm, contributed to racial disparities, evaded local political accountability, or frayed public trust. For example, federal programs that provide financial incentives to state and local agencies to engage in asset forfeiture, such as equitable sharing, encourage harmful policing while circumventing ordinary political processes for checking that harm. Similarly, programs that transfer military-grade equipment and information-gathering technologies to local communities often have avoided ordinary budgeting and requisition processes and allowed agencies to adopt especially intrusive means of policing without legislative approval or other local democratic accountability. In addition, through programs such as Operation Pipeline and Data-Driven Approaches to Crime and Traffic Safety, the federal government has promoted the programmatic use of pretextual traffic stops without paying adequate attention to the racially discriminatory effects of such stops and the distrust they often sow between policing agencies and the communities they serve. In short, in too many instances, the federal government has undermined sound policing.
As this Section indicates, not only should the federal government take care to engage in and promote sound policing; it should ensure that its policing and programs do not undermine sound policing. Federal officials should ensure that federal programs and practices do not promote excessive harm, contribute to racial disparities, impede local accountability, or otherwise detract from sound policing by state and local agencies and officers.
e. The dual role of the federal government in policing. As the preceding Comments suggest, the federal government intervenes in state and local policing in two different ways. First, through the U.S. Department of Justice and civil-rights offices within other federal agencies, the federal government enforces federal rights against officers and agencies and otherwise promotes constitutional policing. Second, the federal government offers state and local policing partnerships, technical assistance, training, grants, and equipment to expand and foster policing, consistent with national goals. These roles can come into tension if, for example, federal grant programs encourage policing that may facilitate civil-rights violations or undermine accountability mechanisms used to check them. The federal government and its officials should be conscious of these dual roles and work to ensure that all federal-government interventions in state and local policing pull in the same direction: the direction of sound policing.
f. Specific areas in which the federal government does or should play a role. Although the expansiveness, form, and focus of the federal government’s role in policing appropriately changes over time, some aspects of policing especially warrant federal leadership, commitment, and participation.
- (1). Excessive force. Policing at times involves the state’s use of force upon individuals without their consent, and sometimes that force is used when it is unnecessary or is applied in an excessive or unfair manner. Such inappropriate use of force inevitably harms individuals, has historically enforced societal inequality, and often threatens community trust. Obviously, the authority to use force—to engage in violence against individuals—is a weighty responsibility, and the federal government should itself abstain from using excessive or unnecessary force, should avoid promoting local policing that does so, and should use its powers to see that policing agencies and officers nationwide minimize force and use only such force that is lawful and necessary. The federal government has sought to discharge its special responsibility for reducing excessive force primarily through civil-rights enforcement. But it should also do so by facilitating local efforts to assess and reduce the use of excessive force. Most obviously, the federal government is best positioned to set national data-collection standards on force and encourage or require data collection. In addition, the federal government may appropriately adopt and promote national standards on how force should be used in policing.
- (2). Discrimination. Policing has a long and disturbing history of discriminating against minorities and vulnerable communities, and enforcing and endorsing inequality. See §§ 1.11 (Policing on the Basis of Protected Characteristics or First Amendment Activity); 1.12 (Interacting with Vulnerable Populations). The federal government has a special constitutional role in promoting equality, and it has at times been an important protector of civil rights and an opponent of discrimination. However, it also is the case that federal actions and programs have fostered discrimination in policing, for example, by encouraging pretextual vehicle stops to uncover drug crimes, a practice long linked to producing significant racial disparities. To fulfill its constitutional role and to promote sound policing, Congress should adopt legislation to prohibit and combat racial and other types of discrimination in policing nationally, and it regularly should audit its own programs to ensure that federal actions are not promoting such discrimination, even indirectly. Federal executive agencies should take care that their actions promote racial equality and avoid racial discrimination.
- (3). Surveillance. Policing often pursues law-enforcement goals through surveillance practices that collect information on individuals and their activities. Surveillance may achieve public-safety benefits, but it also can undermine privacy, autonomy, and racial justice. The federal government has long played a role in fostering the development of surveillance tools, utilizing them, and putting those tools in the hands of state and local agencies. But the federal government sometimes has done so in ways that circumvent local political processes, e.g., by directly providing grants to agencies to adopt technologies without local approval. In order to engage in and promote sound policing, the federal government should be transparent about its own use of surveillance technology, and it should not use it in ways inconsistent with these Principles. In addition, the federal government should take care that its programs for, and collaborations with, state and local agencies that use surveillance technology are consistent with these Principles with regard to transparency, accuracy, and accountability. The federal government has the capacity to play a leadership role in educating the country about surveillance technologies and in adopting sound policies regarding their use, and it should do so.
- (4). Data collection and dissemination. Sound policing cannot occur unless there is adequate information about police activities, policies and practices, and institutions. Such information is necessary for both agencies and communities to assess and change policing, and it is essential to facilitate research about the police. Given our federal system and the sheer number of policing agencies, it is difficult to gather and disseminate uniform data to inform the public about policing and to foster sound policing. Federal leadership is essential to set national standards for data collection and ensure the collection and dissemination of information about policing.
Although there are many ways the federal government might go about ensuring data collection and dissemination, the federal government, at a minimum, should make public all the data identified in § 14.10 about federal policing agencies. It also should require the same of agencies receiving federal grants. It should provide national standards for the collection of this data. In addition, the federal government should foster the availability of national data, including by aggregating information it receives about policing and making it available to the public.
1. The federal role in local policing, generally. If anything seems apparent, it is that the federal government has an important role to play in fostering sound policing. There are 18,000 policing agencies in the United States, including more than 12,000 local policing agencies. Shelley S. Hyland & Elizabeth Davis, U.S. Dep’t of Just., NCJ 252835, Local Police Departments, 2016: Personnel 3 tbl.3 (2019). While 45 of them have more than 1,000 officers, more than 9,000 others have fewer than 25 officers. Id. Even if a deferential posture toward their decisions were appropriate, there simply is no way that the thousands of departments, many quite small, have the resources to study and implement best practices for policing. The federal government can, and does, provide funding to policing agencies, including grants from the Office of Community Oriented Policing Services (COPS Office), the Office on Violence Against Women, and the Office of Justice Programs within the U.S. Department of Justice, and grants from other federal agencies, such as the U.S. Departments of Health and Human Services, Homeland Security, Agriculture, and Transportation. It can, and does, provide technical assistance, especially through the COPS Office, but also through other offices and agencies. See, e.g., 34 U.S.C. § 10381(d) (authorizing the Attorney General to provide technical assistance to policing agencies). And perhaps most important, the federal government can, and does, take action against policing agencies and officers that violate constitutional rights, as it does through the Civil Rights Division of the U.S. Department of Justice and offices for civil rights in other federal agencies that ensure compliance with laws against discrimination in federal programs. See, e.g., 42 U.S.C. 2000ee-1 (requiring agency heads to designate officers to assist in promoting and enforcing civil rights). But it should do much more.
When the subject of the federal government regulating policing is raised, sometimes the response is an expression of concern about principles of federalism. As a matter of law, the claim is that Congress lacks power over these local agencies. See Edwin Meese, Federalism in Law Enforcement, Federalist Soc’y (May 1, 1998), https://fedsoc.org/commentary/publications/federalism-in-law-enforcement (arguing Congress should keep out of local law enforcement because “the drafters of the Constitution clearly intended the states to bear the responsibility for public safety”). As a matter of policy, the argument is that it is inappropriate for Congress to act in this area. The notion is that policing is quintessentially a local activity, and Congress should—or must—stay its hand. See 166 Cong. Rec. H2464 (daily ed. June 25, 2020) (statement of Rep. Tom McClintock) (describing policing as a “uniquely community-based function” that should not be federalized); Reuters Staff, McConnell Says Democrats’ Policing Bill ‘Going Nowhere’ in Senate, Reuters (June 16, 2020), https://www.reuters.com/article/us-minneapolis-police-senate-mcconnell/mcconnell-says-democrats-policing-bill-going-nowhere-in-senate-idUSKBN23N34M (arguing the George Floyd Justice in Policing Act will result in federal overreach); 166 Cong. Rec. H2466 (daily ed. June 25, 2020) (statement of Rep. Andy Biggs) (same). Neither of these objections holds water as a matter of history, law, or policy.
As the following Sections indicate, the federal government long has been involved in local policing, and it unequivocally has the power to do much of what is required to achieve sound policing.
2. The federal government’s historic role in policing. The federal government long has been involved in addressing matters of local policing. This was true at least since Reconstruction, when Congress responded to racial violence initiated by the Ku Klux Klan—often aided by local officials—by empowering federal law-enforcement officials to pursue Klan members. Bryan Greene, Created 150 Years Ago, the Justice Department’s First Mission Was to Protect Black Rights, Smithsonian Mag. (July 1, 2020), https://www.smithsonianmag.com/history/created-150-years-ago-justice-departments-first-mission-was-protect-black-rights-180975232/. Armed with new civil-rights laws that remain on the books today, Attorney General Amos Akerman investigated, detained, and prosecuted Klan members in the South. See id. (describing how Akerman’s Department of Justice “obtained hundreds of convictions” against Klan members in the South); Frederick M. Lawrence, Civil Rights and Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67 Tul. L. Rev. 2113, 2141-2146 (1993) (describing Akerman’s aggressive enforcement of the 1866 Civil Rights Act, now codified at 18 U.S.C. § 242, the 1870 Enforcement Act, and the 1871 Ku Klux Klan Act, part of which is codified at 42 U.S.C. § 1983).
For many decades, the federal government has played an active role in state and local policing. For instance, it has long provided funds to hire many thousands of officers and to acquire surveillance and weaponized equipment. It has given equipment away under programs like the 1033 Program and the Urban Areas Security Initiative Program. 10 U.S.C. § 2576a (Department of Defense’s 1033 Program); 6 U.S.C. § 604 (Urban Areas Security Initiative Program); see Exec. Office of the President, Review: Federal Support for Local Law Enforcement Equipment Acquisition 7 (2014), available at http://www.whitehouse.gov/sites/default/files/docs/federal_support_for_local_law_enforcement_equipment_acquisition.pdf (describing how the Department of Defense’s 1033 Program has supplied law-enforcement agencies with $5.1 billion in excess equipment). It has set priorities for enforcement, including through grant programs targeting gangs and guns, and the federal government’s declaration of and funding for a War on Drugs. See U.S. Dep’t of Just., 2021 Grant Opportunities and Resources for Violent Crime Reduction Initiatives (2021) (describing Department of Justice grant programs designed to achieve safer communities, including Project Safe Neighborhoods and the Title II Formula Grants Program); Nathaniel Lee, America Has Spent Over a Trillion Dollars Fighting the War on Drugs, CNBC (June 17, 2021), https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-drugs.html (observing that the “the federal government is spending more money than ever to enforce drug policies”). And the federal government has done much more, all with the purpose of enhancing policing and expanding its reach and resources. Whatever their public-safety benefits, these programs also can impose considerable harm. Rachel Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L. Rev. 870, 872 (2015); see ACLU, War Comes Home: The Excessive Militarization of American Police 21 (2014) (finding federal grant programs arm local police with “unnecessarily aggressive weapons and tactics designed for the battlefield”); Militarization of Police, Charles Koch Inst. (July 17, 2018), https://charleskochinstitute.org/stories/militarization-of-police/#:~:text=Police%20militarization%20is%20defined%20by,mindsets%2C%20or%20culture%20of%20the (describing and criticizing domestic policing’s militarization); Radley Balko, Rise of the Warrior Cop, Wall St. J. (Aug. 7, 2013), https://www.wsj.com/articles/SB10001424127887323848804578608040780519904 (same); Matt Apuzzo, After Ferguson Unrest, Senate Reviews Use of Military-Style Gear by Police, N.Y. Times (Sept. 9, 2014), https://www.nytimes.com/2014/09/10/us/ferguson-unrest-senate-police-weapons-hearing.html (describing how violent images from Ferguson, Missouri, “forced the federal government to review its policy of providing local police forces with military-style equipment”). By contrast—only more recently, and far less expansively—the federal government has sometimes sought to reduce the harms and unfairness of policing and promote community trust in the police. See, e.g., 34 U.S.C. § 10381 (authorizing the Attorney General to make grants for conflict-resolution training and to establish collaborative programs to address mental health and substantive abuse).
As a matter of constitutional law, and of sound policy, though, this imbalance between programs designed to expand policing and those designed to make it less harmful or fairer does not make sense. It is the responsibility of the federal government to prevent and provide redress for violations of constitutional rights. More important, the federal government is perhaps the only player with the capacity and ability to promote sound policing.
3. The federal government’s legal authority over sound policing. Congress and the Executive Branch acting in tandem have ample power to do virtually anything that would be required to foster sound policing nationwide.
Congress can, and does, attach conditions on spending grants to states and local agencies, both through eligibility requirements and express conditions on receiving grants. Such conditions are permissible so long as they encourage but do not compel compliance. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 537 (2012); South Dakota v. Dole, 483 U.S. 203, 206 (1987). This may be Congress’s most common method of regulating policing, but it often poorly used. First, it sometimes is employed to expand the intrusiveness of policing without attention to its harms. See, e.g., 34 U.S.C. § 10461 (defining eligibility grantees to encourage only agencies that encourage or mandate arrests of domestic-violence offenders); see also Harmon, supra, at 904 (2015) (noting “[f]ederal programs often encourage policing that is especially coercive and therefore costly”). Second, when grant conditions have been focused on promoting civil rights or policing that engenders community trust, those conditions have been enforced weakly if at all. See Trevor George Gardner, Immigrant Sanctuary as the “Old Normal”: A Brief History of Police Federalism, 119 Colum. L. Rev. 1, 58-60 (2019) (asserting that the federal government’s weak enforcement of the SAFE Streets Act resulted in minimal local policing reforms); Brian A. Reaves, U.S. Dep’t of Just., NCJ 231174, Local Police Departments, 2007, at 29 (2010) (explaining that while the COPS Office originally emphasized community policing, it eventually lost that focus while continuing to hire more officers). For example, the federal Death in Custody Reporting Act conditions federal dollars on reporting on individuals who die at the hands of or while in custody of law enforcement. But reporting has been uneven and often absent, and federal dollars have been withheld so far. Grace E. Leeper, Note, Conditional Spending and the Need for Data on Lethal Use of Police Force, 92 N.Y.U. L. Rev. 2053, 2088 (2017) (noting that the Death in Custody Reporting Act’s financial penalty has never actually been employed); Kenny Lo, How To Address Concerns About Data on Deaths in Custody, Ctr. for Am. Progress, (2021), https://www.americanprogress.org/issues/criminal-justice/reports/2021/05/24/499838/address-concerns-data-deaths-custody/ (describing an “absence of accurate and complete information on the number of people who die in custody and the nature of such deaths”).
Congress also has the authority to regulate local policing more directly under Section 5 of the Fourteenth Amendment of the U.S. Constitution, and it should use that power more effectively. Section 5 authorizes Congress to adopt legislation that is necessary to enforce federal constitutional rights, including the rights protected under the First, Fourth, and Fourteenth Amendments. U.S. Const. amend. XIV, § 5; Sam Estreicher & Margaret H. Lemos, The Section 5 Mystique, Morrison, and the Future of Federal Antidiscrimination Law, 2000 S. Ct. Rev. 109 (noting that, under Section 5, “Congress enjoys a remedial authority to act in a prophylactic fashion to prevent violations ever from occurring”). Congress utilized its Section 5 powers when it passed 42 U.S.C. § 1983, which permits individuals to bring suit against police officials and municipalities for violating their constitutional rights, and when it passed 18 U.S.C. § 242, which makes willful deprivations of federal rights a crime. Monroe v. Pape, 365 U.S. 167 (1961) (interpreting 42 U.S.C. § 1983); Screws v. United States, 325 U.S. 91 (1945) (interpreting 18 U.S.C. § 242); see Whitney K. Novak, LSB10487, Cong. Rsch. Serv., Congress and Law Enforcement Reform: Constitutional Authority 3 (2020) (reviewing Congress’ use of its Section 5 power to furnish remedies for deprivations of constitutional rights). More recently, it has used this power to authorize the Attorney General to bring suit against local policing agencies reasonably believed to be engaging in a “pattern or practice” of constitutional violations. See 34 U.S.C. § 12601.
So long as it makes an adequate factual record, Congress also could use Section 5 to address some of the most prominent ills of policing, among them excessive force and racial disparity. The U.S. Supreme Court has held that the Section 5 power can be used to remedy rights violations but not to define the underlying constitutional rights. City of Boerne v. Flores, 521 U.S. 507, 519-524 (1997). However, the Court also has made clear that so long as the remedy Congress chooses is “congruent and proportional” to the rights violation, Congress can exceed the right itself and adopt prophylactic measures. Id. at 520, Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88 (2000). Using this power, Congress could, for example, use its authority to establish minimum standards around the use of force, or require agencies to collect and report data around stops and arrests in order to make it easier to identify and address patterns of misconduct or racial disparity. See Jason Mazzone & Stephen Rushin, From Selma to Ferguson: The Voting Rights Act as a Blueprint for Police Reform, 105 Cal. L. Rev. 263, 299-301 (2017) (urging Congress to track use-of-force data); Ram Subramanian et al., Brennan Ctr. for Just., A Federal Agenda for Criminal Justice Reform 11 (2020) (urging the federal government to create national certification standards and a police-misconduct database).
What Congress must do to utilize these powers is develop an adequate record that state and local governments are engaging in rights violations. See Nev. Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 729-738 (2003) (finding extensive evidence of gender discrimination by states justified prophylactic family-care provision of Family and Medical Leave Act). There is ample evidence of such violations, including in the investigation reports of the Civil Rights Division of the Department of Justice. See, e.g., C.R. Div., U.S. Dep’t of Just., Investigation of the Chicago Police Department 22-45 (2017), https://www.justice.gov/opa/file/925846/download (finding the CPD engaged in a pattern or practice of unreasonable force, including deadly force, in violation of the Fourth Amendment); C.R. Div., U.S. Dep’t of Just., Investigation of the Ferguson Police Department 2-3 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf (finding Ferguson’s law-enforcement practices were partially motivated by discriminatory intent and therefore violated the Fourteenth Amendment’s Equal Protection Clause).
Congress also has power under the Commerce Clause of the U.S. Constitution to regulate the tools of policing that move in interstate commerce, including weaponry and surveillance technologies. Congress’s power over the channels of interstate commerce is plenary. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536-537 (2012) (noting that Congress’s “expansive” commerce power “has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop”). It could dictate, for example, that surveillance technologies used by policing agencies contain certain protections such as self-auditing functions to enhance public transparency. Congress also can regulate the instrumentalities of interstate commerce. United States v. Lopez, 514 U.S. 549, 558 (1995). So, for example, if policing agencies are using databases or algorithms accessed over the internet, Congress could set the terms of such use, including measures to ensure democratic accountability, transparency, and protection against unconstitutional or unauthorized uses.
4. The federal government should promote sound policing, and not detract from it. The problem has not been a lack of power, but one of will.
The federal government has engaged in any number of practices that are contrary to sound policing, or that encourage state and local agencies to engage in conduct contrary to sound policing. For example, it provides grants to policing agencies in ways that circumvent the local democratic process. See Harmon, supra, at 939 (contending that federal programs that provide resources directly to police departments “disrupt the usual means by which communities exert local control over police chiefs and departments”). This actually denigrates principles of federalism and localism rather than supporting them. It has provided technical assistance, grants, and equipment to local policing agencies in ways that were specifically intended to avoid transparency. For example, the federal government encouraged and supported the use of cell-site simulators under terms that prohibited local police from being candid with local officials and judges. See Staff of H.R. Comm. on Oversight & Gov’t Reform, 114th Cong., Law Enforcement Use of Cell-Site Simulation Technologies: Privacy Concerns and Recommendations 31-32 (Comm. Print 2016) (finding that state and local law-enforcement agencies signed nondisclosure agreements with the FBI that “actively prohibit[ed] the public from learning about the use or role that a cell-site simulator may play in a state or local criminal investigation”); Andrews v. Balt. City Police Dep’t, 8 F.4th 234, at 235 n.1, 238, 239 (4th Cir. 2020) (directing a lower court to collect data regarding the Baltimore Police Department’s use of cell-site simulators after acknowledging law-enforcement agencies who possess nondisclosure agreements with the FBI “are reluctant to disclose” this information); Adam Lynn, Defendant Challenges Use of Secret ‘Stingray’ Cell Device, News Tribune (Apr. 26, 2015), https://www.thenewstribune.com/news/local/crime/article26283343.html (explaining that Tacoma, Washington’s police department refused to publicly discuss its use of cell-site simulators due to its nondisclosure agreement with federal authorities). This sort of conduct is unacceptable. The federal government should be attentive to the principles of sound policing and take care not to undermine them.
The federal government should use its ample powers to foster sound policing. In addition to the formal powers described above, the federal government can lead by example. Federal agencies that engage in policing activities, as defined in § 1.01, should ensure that they do so in a manner that is consistent with the Principles in this volume. Indeed, to the extent that federal policing agencies benefit from national prominence and greater resources, they should strive to exemplify best practices, and not simply adhere to what is required under these Principles or under governing law. See Policing Proj., N.Y.U. Sch. of L. & Ctr. for Crim. Just., Univ. of Va. Sch. of L., Policing Priorities for the New Administration 9 (2020), available at: https://www.policingproject.org/news-main/2020/12/policing-priorities-for-the-new-administration (advocating for the adoption and promotion of national best policing practices). The federal government also can use the power of the bully pulpit to elevate initiatives and programs that are consistent with these Principles. Over the years, federal task forces and commissions—such as the Kerner Commission in the 1960s and the President’s Task Force on 21st Century Policing that convened in 2014—have drawn much-needed attention to prevailing issues in policing, and have identified a variety of steps that agencies can take to address them. Report of the National Advisory Commission on Civil Disorders (1968); President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf; see Rick Loessberg & John Koskinen, Russell Sage Found., Measuring the Distance: The Legacy of the Kerner Report (2018) (finding that the “Kerner report dramatically called America’s attention to the grave disparity between blacks and whites” and that a “surprising number of [its] recommendations were implemented”); Brent Kendall, Obama-Era Policing Proposals Find Some Success, but Ambitious Ideas Are Slow-Moving, Wall St. J. (June 15, 2020, 2:11 PM), https://www.wsj.com/articles/obama-era-policing-proposals-find-some-success-but-ambitious-ideas-are-slow-moving-11592242031 (reporting that, following the President’s Task Force on 21st Century Policing, 40 percent of large metropolitan police departments changed their use-of-force policies and updated training protocols). Federal officials can use their authority in less formal ways as well—for example, by providing a national forum for police officials and community leaders who have been working to improve policing practices in various ways.