Following Nationwide Police Brutality Protests, DOJ Steps Up To Issue Incremental Updates To Its Chokehold/No-Knock Warrant Policies

from the goodish-news,-everyone! dept

The Department of Justice is the nominal leader of US law enforcement, even if it really only has direct control of federal officers. That being said, it would have been nice to see the DOJ take the lead on law enforcement issues, rather than gently coast into the police reform driveway late in the proverbial night to add itself to the bottom of the list of reform efforts springing up all over the nation in response to, you guessed it, violence committed by police officers.

Chokeholds have been controversial for forever, but even more so in recent years, as police officers across the nation have killed people they were just supposed to be arresting, using techniques most police departments claim (often after the fact) they've banned for years. The DOJ has never banned chokeholds previously, and it's apparently not going to start now.

The new guidance [PDF] doesn't seem like much of an improvement over the old guidance, which was released more than 17 years ago. The old one said that the DOJ has had a "long-standing policy" that limits use of deadly force to situations where officers have a "reasonable belief" the arrestee "poses an imminent danger of death or serious physical injury to the officer or to another person." This is the same standard that governs almost all use of force by officers all over the nation and it really hasn't stopped them from deploying deadly force unreasonably in situations that could have benefitted from de-escalation and restraint.

The revamped guidance doesn't change much, if anything, about the threat calculus officers must perform before deciding to kill someone by choking them to death.

Given the inherent dangerousness of chokeholds and carotid restraints, and based on feedback from our law enforcement components on these techniques, Department law enforcement agents and correctional officers are hereby prohibited from using a chokehold or a carotid restraint unless that standard of necessity for use of deadly force is satisfied. Accordingly, Department law enforcement components will revise their policies to reflect this guidance prohibiting the use of chokeholds or carotid restraints by Department law enforcement agents and correctional officers, including federal task force officers, unless deadly force is authorized.

It's unclear how deadly force will be "authorized" in mid-arrest, but those are the new rules, which will be buttressed by that old law enforcement standby that's done almost nothing to eliminate excessive force deployments: additional training.

The DOJ also has thoughts about no-knock warrants. These have been portrayed as a necessary abridgement of knock-and-announce warrant service protocol that is supposed to prevent targets from escaping, evidence from being destroyed, and, most importantly, officers from being killed. In practice, however, no-knock warrants have needlessly escalated violence during warrant service, giving officers the excuse they need to greet anything unexpected (and it's all unexpected when you go crashing through someone's door) with a hail of bullets. It also provokes residents to open fire on officers, often mistaking them for criminals attempting to break into their homes.

The DOJ's new guidance basically reiterates what it has always said: that federal officers need compelling reasons to seek no-knock warrants. But the reasons aren't all that compelling, seeing as they're the standard reasons plenty of cops have boilerplated into warrant requests along with claims about danger to officers or evidence destruction no court can possibly verify. In most cases, their requests are approved and officers head off to engage in literal death and destruction with the nominal blessing of whatever magistrate the affidavit was handed to.

Here are the new stipulations the DOJ imaginatively calls "limits."

First, an agent may seek judicial authorization to conduct a "no knock" entry only if that agent has reasonable grounds to believe at the time the warrant is sought that knocking and announcing the agent' s presence would create an imminent threat of physical violence to the agent and/or another person. Prior to seeking judicial authorization for a "no knock" entry, an agent must first obtain approval from both the Criminal Chief Of The relevant U.S. Attorney's Office (or a Deputy Chief in a Main Justice litigating component) and an Assistant Special Agent in Charge or Chief Deputy Marshal in the district. Once judicial authorization is obtained, agents may proceed without "knocking and announcing" their presence unless they learn of facts that negate the circumstances that justified this exception to the "knock and announce" rule.

There are a couple of good things in here, despite the expected deference to officers and their "reasonable grounds to believe." The fact that officers must now seek internal approval before passing on the boilerplate to a magistrate judge might deter officers from compiling deficient affidavits or think twice about not portraying normal warrant service as the federal cop equivalent of rushing the trenches. And it's nice touch that federal cops are asked to dial back the no-knock bum rush if information comes to light indicating the planned warrant service won't be as threatening as previously believed, but it's hard to believe any officer is going to switch back to knock-and-announce when they already have judicial (and supervisory) permission to go in guns blazing.

The new policy also gives officers an opportunity to bypass internal controls and judicial permission.

Second, if an agent did not anticipate the need for a "no knock" entry at the time the warrant was sought, the agent may conduct a "no knock" entry only if exigent circumstances arise at the scene such that knocking and announcing the agent's presence would create an imminent threat of physical violence to the agent and/or another person.

So, if federal officers don't get the warrant they want, they can change it on the fly. The DOJ only asks that they justify the switcheroo after the fact by speaking to higher-ups like the Special Agent in Charge and provide written notice of the at-the-doorstep-audible to the US Attorney's office and/or "relevant Assistant Attorney General."

Here's the better policy change: no-knocks are for officer safety only. No more setting toddlers on fire just because officers think someone inside might be trying to flush a few kilos down the toilet.

Because this policy limits "no knock" entries to instances where there is an imminent threat of physical violence, it is narrower than what is permitted by law - for example, agents must "knock and announce" even when they have reason to believe that doing so could result in the destruction of evidence. In setting the policy this way, the Department is limiting the use of higher-risk "no knock" entries to only those instances where physical safety is at stake at the time of entry.

There is an exception, of course. And for the stupidest, laziest, most predictable reason.

Should an exceptional circumstance arise (e.g., in a national security matter) where no imminent threat of physical violence is present but an agent believes the evidence is so significant, and the risk of its destruction so pronounced, that a "no knock" entry is warranted, judicial authorization for a "no knock" warrant can be sought…

There's a better caveat attached to that. This exception would have to be pre-approved by the US Attorney's office, so it doesn't fall under the exigent circumstances exception listed above.

The good news is the DOJ is thinking about these issues and attempting to address them. The bad news is this barely addresses anything. At best, it prevents federal officers from engaging in violent raids of people's homes solely because they think some evidence might be destroyed. At worst, the changes are so incremental officers arriving via time machine from George W. Bush's first term wouldn't feel particularly out of place. If this is the example the DOJ is setting for local law enforcement agencies around the nation, they'll be more than happy to go back to (deadly) business as usual.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: chokeholds, doj, guidance, no knock warrants, police, police brutality