United States President Donald Trump just signed a new executive order requiring police departments to maintain data and report on police officer misconduct. This is a big step for transparency of law enforcement and something which the private sector has been doing for years.
Section 3. Information Sharing paragraph a states:
The Attorney General shall create a database to coordinate the sharing of information between and among Federal, State, local, tribal, and territorial law enforcement agencies concerning instances of excessive use of force related to law enforcement matters, accounting for applicable privacy and due process rights.
The federal government is going to need to manage a database for 50 states and, as of 2016, includes over 12,000 municipal law enforcement agencies. How is it possible to coordinate this submission, review, and publication of this type of information and who will be held responsible.
By following the principles of governance: protocol, policy, and procedure, the United States can implement the executive order.
Protocol: Full circle of authority
The President's role
The President of the United States is the chief law enforcement official and is charged with managing the military, police, and other departments who practice law enforcement. He is essentially delegated authority to make decisions, but from whom does he receive this authority from - the people, via the Constitution (see Article 2, Section 2, paragraph 1) .
The Constitution is similar to a Matters Reserved to the Board document. The people can change and amend this authority at any time (See Article 5), and should the people choose to do so, can change the authority. At this time, the people have chosen not to change the President's law enforcement responsibility.
A new delegation
President Trump has delegated a decision to the Attorney General via the executive order. Section 2 paragraph c specifically delegates the creation of independent governing (quality assurance) bodies. The Attorney General needs to set the right policies to govern the exercising of this delegation and needs to consider the most efficient process for submission, collection and publicise this data (Section 3, paragraph c).
The role of the local agencies
Local law enforcement is also responsible for taking decisions based on the new rulings. While this executive order does not require them to maintain this database, federal funding is contingent on its usage. A municipal law enforcement agency should put into place the database itself and set the protocol to approve entries into it according to the executive order.
Policy: Central policy, decentralised implementation
The executive order sets a very clear policy. The federal government has set the following standards:
Law enforcement agencies must be audited. Section 2, paragraph b requires an external body to review practices and the agency must consider their findings.
The agencies must maintain a register of incidents. Any officer found to have committed an offence must report these offences in a register which must be accessible to the Attorney General and, by extension, the general public.
Law enforcement procedures must change. The executive order specifically prohibits chokeholds.
The implementation of these principles is at the discretion of the local agency; therefore, there they have a requirement to set a governance policy. The governance policy must follow the principles of the executive order and ensure that it demonstrates compliance with it. Law enforcement agencies should set governance policies which clearly state:
The person responsible for compliance. This is most likely going to be the Chief. The Chief of Police (or detectives, etc.) is responsible for the day to day management of the department; therefore, will always be held responsible for handling non-compliance. This person should also approve the policy.
The owner of the policy. Depending on the size of the department, this could go to a Captain or Sergeant; however, this will vary. This person is usually responsible for the management of this policy and its process, reporting to the Chief compliance, and keeping a focused eye on compliance monitoring.
When to report. What situations is the reporting triggered? When do officers need to update the database due to an incident, who is responsible? The policy needs to set these standards and reference other policies and procedures, which should also be updated.
The roles and responsibilities of all officers. The policy needs to explain the relationship between the staff (the officers), policy procedures, and the database. What are officers required to do when there is something to report?
Compliance monitoring procedures. How will the policy owner and the Chief take assurance that the department is compliant, and what remediation will take place should there be repeated non-compliance?
It's important to note, that the policy which was set in the executive order does not change existing authorities (See Section 6, paragraph a) or the ability to set policy; however, it does change a department's ability to receive access to certain types of funding should the department not comply with this order. This means, that while the federal government has set a standard, it is in theory optional for the department to implement it.
Procedure: Incident reporting, reconciliations, and evidence
The procedure to report these incidents needs to be clearly mapped, but more importantly needs to include guidance to support the policy. The requirement to report incidents is not a separate policy and must be included in existing procedures.
Awarding discretionary budget
The Attorney General has been restricted from giving funds to departments who do not meet the executive order's standards. The procedures which are set to support compliance must include:
Data submissions. Policy departments will need a portal to upload their department's figures.
Review standards. When a departmental applies for funding, is there a step in the Attorney General's process to check to see that the database has been submitted?
Compliance monitoring. If a department does not submit a report, what will happen? How will this be reported back to the President?
Reporting. The Freedom of Information act will give anyone an ability to request these reports. Will the process be flexible enough to allow for bespoke reporting?
Police department designs vary. Large city policy departments may have a full area dedicated to internal reporting and review, whereas a smaller town may only have one officer who is responsible. Some departments may have administrative staff who can prepare reports, others may not. Each office must ensure that:
Existing procedures are updated. A police department's existing procedures, including when force is allowed, must be updated to include reference to the implemented database. This will ensure that events are entered as part of the process and protect the department itself from liability should an officer not report.
New procedures to manage reporting. How can an officer report an event, and where will they do so? Guidance should be provided to officers.
Compliance monitoring. Reconciling the database to reports submitted, reviewing camera footage, and remediating non-compliance will need to be tracked and reported on its own. This will ensure that the department improves where needed (see Section 2 paragraph a).
How can this be done?
Law enforcement agencies must consider whether they are equipped to review all of these aspects. Setting the governance is complicated and should the public not be satisfied they could see additional request for reporting. It is in everyone's best interest to have transparent and efficient policing procedures.
Chayim Messer Consulting is available to all law enforcement agencies globally to review their governance, map their procedures, and make recommendations to improve their internal governance.