In January, a leaked draft executive order detailing broad police reform drew immediate backlash from senators led by Chuck Grassley, and a witheringly negative analysis from Rep. Clay Higgins.
Last week, White House advisers tried to calm them and the law enforcement community with assurances that the draft is far from final, and promising more collaboration with police leadership.
That’s a relief because even though the draft order admits that it only has direct authority over federal law enforcement agencies, there is plenty of economic leverage designed to influence state and local police buried in the 18 pages of screenshots.
There are directives tying grant funding to compliance with specific training, policies and certifications, eliminating qualified immunity, and restricting usage of military surplus equipment under the 1033 Program. The order would also bar non-compliant departments from participating in some task forces with federal agencies, which could severely hamper cooperation in investigations of everything from narcotics to human smuggling. The new and increased requirements go on and on.
President Biden, I’d like you to understand what this order would mean for small and rural law enforcement before it’s rewritten and enacted. Politicians get plenty wrong about urban policing, and they’ll get even more wrong about rural policing because they have no frame of reference for it – no nightly news cycle, no viral press conferences, few headlines. The stakes are too high to let this pass, so instead, let’s set them straight.
Grant funding concerns
This executive order means it could be even harder for small departments to access grants for training, vehicles, safety equipment and staffing. The order requires compliance with a vast agenda of training and policy changes, with no provision for paying for them first or creating paths to compliance. Without that compliance, small departments (which already experience obstacles to grant funding that urban agencies don’t) could be barred from grant approval.
Small departments that are strapped for cash and people would have to do more with the little they have, to be able to ask for help in getting the stuff and training they don’t have. That doesn’t make sense, but that’s why it’s imperative that people who don’t understand the fields they’re writing about reach out to people who do before they put new policies into action.
What’s in a name?
The language in the order refers repeatedly to “officers.” For it to be enacted without confusion and unintended consequences, somebody will have to do what no one in the U.S. has done so far: define what, exactly, a law enforcement officer is.
Unlike the title “nurse” or “lawyer,” there is no standard definition and no standard description of duties, authority, powers, or required training for police officers. Who is and is not a law enforcement officer differs not just from state to state, but in some places, from town to town and county to county. Until that changes, none of these reforms can happen in any meaningful way, anyway. There are simply too many gray areas, and most of those areas are rural. Let’s look at just a few:
Will the volunteer reserves who supplement the ranks of many small departments be covered by these requirements? Will they have to have the same training as the full-time officers?
What about special deputies, those mostly honorary appointments that fill some sheriff’s posses, help with search and rescue, or direct traffic at the fair? Those are often ceremonial, but some carry badges and carry out law enforcement functions.
How will the new requirements apply to constables? In Texas, constables are fully trained, sworn and certified law enforcement officers, just like sheriff’s deputies or police officers. In Kentucky and Massachusetts (and many other states) they’re elected, armed and have some peace officer powers, but few or no training requirements.
Who would track and report use of force for a one-man shop with no training requirements? How would decertification be recorded for officers who aren’t certified and aren’t required to be?
Even murkier is the status of officers who haven’t yet attended the police academy. Urban departments often run their own academies, so their rookies aren’t working the streets while they’re waiting their turn for a seat at a state-run academy. Small departments may not have an option. More states than you’d think permit officers to be employed, and in some cases even patrol solo, for months before they have formal training. How will those untrained officers affect the status of their departments? Are states prepared to change their own requirements and streamline access to academy classes to keep from crippling funding streams and access to other programs? How many of the state legislators who would have to act on this topic are aware of it, or understand it themselves?
Armored vehicle deployment
The executive order restricts the use of any armored vehicle acquired through the 1033 Program solely ”for disaster-related emergency preparedness or relief.” That means a repurposed MRAP could be used to rescue citizens from floodwaters, but not to protect officers from gunfire.
Rural officers’ lives are saved by armor on a regular basis, just like the lives of urban officers in their $350,000 armored RVs. It happened in Huger, South Carolina (population 3,000-ish) in 2019 when an armored vehicle finally arrived to cover a pinned officer under fire in a country neighborhood. It was even caught on dash cam, here:
It happened again in 2020 in Pinehurst, Texas, a town of about 6,000 residents, when armor permitted officers safely to wait out a 14-hour standoff while taking fire from two barricaded suspects; even the bad guys survived.
When you look for these incidents, you find them; they aren’t rarities.
President Biden, I’d like you to understand that no one would ask the DOD for a used MRAP if they could afford a Lenco Bearcat. That’s why you don’t see SWAT from Los Angeles or New York rolling out on Gulf War-era hardware. Critics will argue that small departments can ask for help from larger ones and wait for mutual aid (yes, sometimes that’s possible). Critics may also argue that rural officers are less likely than urban ones to encounter active shooters or armed standoffs. I would reply that hours seem like days when someone is shooting at you, and that presidents have traveled in armored cars since FDR repurposed Al Capone’s ride, even though presidents encounter gunfire far less often than cops.
if police reform is for “everyone,” that includes officers
President Biden, I’d like you to understand that this executive order has the potential to create two tiers of law enforcement in our country: those with the staffing and funding to comply with the training, the policy changes, the data reporting and so on (or ignore them with relative impunity), and the rest who can’t muster the basics to access grants that could fill the gaps. The urban haves will manage. The small town and rural have-nots and almost-haves would fall farther and farther behind.
The vast majority of law enforcement officers want to do what’s right. Even the smallest agencies in the smallest towns are working hard with their communities, and making strides toward transparency and outreach. The president can look from the Oval Office and watch the chaos created in Washington state where sweeping reforms, poorly written and vaguely defined, were implemented with urgency but little critical thought. It’s backfiring flamboyantly and publicly, making victims of both vulnerable citizens and the officers in the crossfire.
It doesn’t have to be this way. My hope is that the writers of this executive order hesitate. I hope they’re taken aback by the loud opposition not just from politicians but from law enforcement professionals, and that they see their order from new perspectives while it’s being rewritten.
If the real purpose of reform is to make law enforcement safer, smarter and fairer for everyone, President Biden, I’d like you to understand that “everyone” includes the officers too, no matter where they work. Don’t leave them out. Don’t leave them behind.
NEXT: A letter to the American public: Here’s what real police reform looks like
