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Standards for Certification on Safe Policing for Safe Communities: Does Your Policy Meet New Federal Requirements?

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Laura J. Genovich and Ashley A. Poindexter
Foster Swift Municipal Law News
December 15, 2020

Police BadgeEarlier this year, President Trump signed Executive Order No. 13929 limiting Department of Justice (DOJ) discretionary grant funding to only those law enforcement agencies that have sought or are in the process of seeking appropriate credentials regarding the use of force from approved independent credentialing bodies. The goal of the order is to encourage the consistent improvement of law enforcement policies and procedures to ensure transparent, safe, and accountable delivery of services to the public.

Certification and Credentialing

Following the President’s order, DOJ discretionary grants will only be allocated to state, local, and university or college law enforcement agencies that are in the process of seeking or have already obtained certifications stating that the agencies meet certain mandatory and discretionary standards set by the Attorney General.

Mandatory Standards

To be certified, the credentialing body must determine that the law enforcement agency maintains use of force policies that:

  1. adhere to all applicable federal, state, and local laws; and
  2. prohibit the use of choke holds or any other physical maneuver or technique that restricts an individual’s ability to breathe for the purpose of incapacitation except in situations where the use of deadly force is legally permitted.

Once the credentialing body has confirmed that these mandatory standards have been met, it includes the applying agency in its database of certified law enforcement agencies. Starting in 2021, the credentialing bodies will provide the names of each certified agency to the Director of the COPS office or the Director’s delegate by January 31. Each certified agency will then be qualified to receive U.S. DOJ discretionary grants for up to 36 months from the date of its most recent certification or the lifecycle of any discretionary grant awarded.

Discretionary Standards

The order also includes several safe policing principles to help agencies continue to self-assess their own policies and training on the use of force and de-escalation techniques, performance management tools, and community engagement. The credentialing bodies have been asked to at least consider whether the applying agency incorporates those safe policing principles within its policies and procedures. These recommended principles contain the maintenance of policies and procedures regarding:

  1. the use of force against individuals who fail to comply with lawful commands;
  2. the termination of force when the subject is fully in law enforcement’s control;
  3. the duty and obligation of officers to intervene to prevent or stop the known and apparent use of force by another officer;
  4. training protocols that meet or exceed any applicable state laws to become and remain in good standing as law enforcement officers, including training on use of force policies and procedures, de-escalation techniques, and related legal updates;
  5. when it is appropriate for an officer to provide medical care to an individual consistent with the officer’s training;
  6. the encouragement of personnel to identify themselves as law enforcement officers and to give verbal warning of their intent to use deadly force when circumstances permit and it is reasonably practical to do so;
  7. shooting at or from a moving vehicle;
  8. the use of warning shots; and
  9. the use and execution of no-knock warrants.

The order also recommends that agencies:

  1. make an effort to regularly conduct internal audits of their policies, procedures, and training protocols, as well as officer safety and wellness programs or initiatives;
  2. maintain, if possible, human resource policies and procedures that aid in the development of human capital and protect due process for officers;
  3. strive to identify and provide remediation opportunities to law enforcement personnel who are becoming, or likely to become, at risk of violating the agency’s use of force or any other policy or procedure;
  4. maintain policies, procedures, and training protocols that encourage the hiring, retaining, and promotion of the best available candidates for positions based on the accepted standards of objectivity and merit; and
  5. enact community engagement plans that address the particular needs of the community they serve.

Municipalities with law enforcement agencies should have their policies reviewed by legal counsel to ensure compliance with this order. Foster Swift's municipal attorneys can assist with this review and with updating policies as needed. Please feel free to contact us with any questions.

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