Legislative Policy Trends
In 1985, the U.S. Supreme Court in Tennessee v. Garner struck down a Tennessee statute that allowed police officers to “use all necessary means to effect the arrest” of a person fleeing or forcibly resisting arrest. The court held that deadly force may not be used unless it is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”
In striking down the Tennessee statute, the court rejected the common-law rule allowing the use of whatever force was necessary to arrest a fleeing felon. The court’s opinion found that, at the time, 19 states had codified the common-law rule; an additional four states retained the rule without a relevant statutory provision. The court recognized the varied rules adopted by the states indicated a long-term movement away from the common-law rule, with the policies imposed by police agencies themselves being more restrictive than most statutory standards.
Since this initial recognition of the role state legislatures play in regulating force, lawmakers have provided further guidance for officers. Between 2014 and April 2020, at least 22 states enacted more than 40 laws addressing use of force by law enforcement officers. Laws in this timeframe required data collection and reporting of use-of-force incidents, created more independent investigation systems for use-of-force incidents, expanded use-of-force standards at the state and local levels, restricted neck restraints and required new training.
Many of these same themes have been addressed in the last year. At least 24 states and Washington, D.C. enacted legislation limiting the use of neck restraints. Going beyond this initial response, at least 16 states addressed state level standards for use of force. Of these, nine—Colorado, Connecticut, Illinois, Maryland, Massachusetts, Oregon, Vermont, Virginia and Washington—significantly expanded statutory use-of-force standards, creating more comprehensive statewide approaches.
Utah took a different approach requiring that a more comprehensive state standard be adopted by the Utah Peace Officer Standards and Training Council and that the standard be reviewed annually.
New in 2020 and 2021, states created affirmative statutory duties for officers to intervene in, and report on, instances of excessive force or other violations of an individual’s rights. At least 18 states created a statutory duty to intervene and at least 17 states created a duty to report or document incidents. Kentucky added failure to intervene to the state’s definition of professional nonfeasance. Florida and Nebraska required each law enforcement agency in the state to adopt policies requiring officers to intervene.
Some of these new duties come with protections against retaliation or discipline for intervening and require discipline, termination or decertification for failing to act.
At least eight states—Colorado, Florida, Illinois, Maryland, New York, Nevada, Virginia, Washington—and Washington, D.C. crafted new legal duties requiring officers to provide medical assistance or aid to individuals.
Oversight of police actions, especially related to use-of-force investigations, has until recently been handled either by the U.S. Justice Department or local governments. Standards and training boards provide some oversight and investigatory capacity. However, the focus is primarily on investigation of reasons for officer decertification.
In the last year, states expanded or created more independent and transparent investigation mechanisms. Colorado, Illinois, Massachusetts, Nevada and Virginia empowered their attorneys general to investigate and pursue civil pattern and practice suits. Usually, these lawsuits are pursued by the U.S. Department of Justice, but the new state authorizations have the similar objective to investigate systemic police misconduct rather than specific instances or situations.
At least 12 states—California, Colorado, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New York, Utah and Washington—authorized or required state officials or agencies to investigate, audit or prosecute incidents or specific misconduct.
New enactments have also expanded the role of community members in oversight of law enforcement. Maryland, South Dakota and Vermont now require members of the public to sit on oversight boards. The South Dakota law defined members as those who have never served as a certified law enforcement officer. The Vermont law delineated that public membership on the state board include at least one mental health crisis worker, one with lived experience with a mental health condition or psychiatric disability and two selected from nominations submitted by the NAACP.
State-Level Investigations Enactments
In 2020 and 2021, at least 12 states authorized or required state officials or agencies to investigate, audit or prosecute incidents or specific misconduct by law enforcement officers.
Authorized state prosecutors to investigate officer-involved shootings resulting in the death of an unarmed person, including cases where there is reasonable dispute over whether the person was armed. Reports produced by state prosecutors are required to be publicly released. The Peace Officer Standards Accountability Division is created to convene public hearings that review investigations conducted by law enforcement agencies of serious misconduct to determine if there are grounds for suspension or revocation of certification. Agencies must report to the division complaints, charges, allegations or investigations that could result in decertification or suspension.
Authorized the attorney general to enforce Peace Officer Standards and Training (POST) requirements through civil action or to pursue criminal action when there is a willful or wanton violation of POST requirements.
Created and appropriated funds for an inspector general office to investigate all instances of deadly force.
Required the Law Enforcement Training and Standards Board to investigate any misconduct reported through an anonymous complaint notwithstanding collective bargaining agreements or existing provisions in state law.
Authorized the attorney general to criminally prosecute officer-involved death cases, even if intervention is not requested by local officials.
Required the attorney general to investigate use of deadly force within 180 days of the incident and submit findings to a panel. Any delays beyond the 180-day deadline requires notice to the panel, a summary of why the investigation is delayed and an anticipated completion date.
Created the Independent Investigation Unit within the Office of the Attorney General. For alleged or potential civilian deaths involving a police officer, the unit must be notified by an agency as soon as the incident is known.
Established the Division of Police Standards within the newly created Peace Officer Standards and Training Commission to investigate misconduct and provide disciplinary recommendations. Law enforcement agencies are required to report instances of misconduct within two business days of receiving a complaint and on the outcomes of any related investigation. Collective bargaining agreements cannot limit the ability of agency heads to recommend discipline to the commission.
Required the creation of an independent use-of-force investigations unit within the Bureau of Criminal Apprehension.
Established the Office of Special Investigation within the Department of Law to investigate and prosecute any alleged criminal offenses committed by an officer.
Required the chief medical examiner to investigate deaths directly resulting from the actions of a law enforcement officer and criminalizes providing false information to the medical examiner.
Authorized the state auditor to conduct a compliance audit for any deadly force investigation. The auditor must determine if the actions of the law enforcement agency, investigative body and the prosecutor’s office comply with state law. The Office of Independent Investigations was created within the executive branch to investigate potential criminal conduct arising from police use of force, including custodial injuries and other officer-involved incidents.
Prior to 2015, at least two states—North Carolina and Oregon—required collection of data for all cases where deadly force is used.
Following the death of Michael Brown, states passed laws to increase transparency and promote public access to data. By May of 2020, at least 21 states enacted laws and were collecting use-of-force data.
Since May of 2020, 25 states have enacted 37 bills related to data collection and transparency.
Seven states—Arizona, Colorado, Connecticut, Minnesota, Nevada, Washington and Wisconsin—required public-facing databases for use-of-force information. A handful of other states required posting public reports or analysis of use-of-force data.
States have instituted data collection for both internal use and statewide reporting. Tennessee directed each law enforcement agency, starting in 2022, to establish a reporting system that allows for review and analysis of use-of-force incidents. The systems must be designed in a way that helps agencies identify trends, improve officer training and safety, collect data and provide timely and accurate information.
The law also requires each agency to report monthly to the Tennessee Bureau of Investigation information that is consistent with the requirements, definitions and methods of the Federal Bureau of Investigation's National Use of Force Data Collection. An annual report to the legislature must include statewide and countywide aggregate data but cannot include any personally identifying information. The bureau is required to make the report publicly available on its website.
Maryland mandated all agencies in the state to establish a confidential and nonpunitive early intervention system to identify police officers who are at risk of engaging in excessive force. The systems must provide officers with training, behavioral health interventions, reassignments or other appropriate response to reduce risk of excessive force.
States reinforced existing laws on collection of data for traffic stops. Virginia expanded the required data to include all investigatory motor vehicle stops and stop-and-frisk situations that are based on reasonable suspicion and for investigatory detentions that do not result in an arrest or summons. Vermont conditioned state grant funding on compliance with existing requirements for reporting demographic and other information related to stops.
Certification and Decertification
Police certification requirements are regulated in two ways, through state statute or promulgation of rules into state administrative code. Usually, rulemaking is carried out by a police officer standards and training board or other equivalent entity. Boards also issue certifications, investigate possible bad actors and revoke certifications for misconduct or noncompliance.
Since May of 2020, at least 32 states have enacted 67 bills related to police certification and decertification. The majority of these bills expanded grounds for officer decertification or increased the transparency of officer decertification records.
Defining Certification and Decertification
Certification of police officers functions similar to a medical license for a doctor or a law license for an attorney. It is a legally required document provided by a government agency that certifies a basic minimum standard of training and competence has been met and allows the individual to perform the duties of the profession while maintaining basic public health, safety and consumer protection.
Decertification is the process of revoking an officer’s license for failure to meet established standards and conduct. Once decertified, it is illegal to perform the duties of the profession, banning individuals from working as a law enforcement officer in the state.
Twelve states—California, Colorado, Connecticut, Illinois, Indiana, Iowa, Kentucky, New Mexico, Oregon, Utah, Virginia and Washington—addressed when a state agency can or must revoke an officer's certification. At least nine states—Colorado, Delaware, Illinois, Indiana, Massachusetts, Nebraska, North Carolina, Oregon and Washington—required creation of public means of sharing decertification or disciplinary information. New York repealed existing confidentiality requirements, increasing public access to records.
A handful of states authorized law enforcement agencies to share records without allowing for public access. For example, a Virginia law will now require law enforcement agencies to disclose certain information between agencies, such as performance issues and prior discipline. An officer cannot be hired until that information has been obtained from all previous employing agencies in the state. The law includes mandatory reporting of misconduct or dismissal to the appropriate state agency within 48 hours and empowers the agency to initiate decertification proceedings.
Vermont took a similar approach by adding a waiver for new officers in order to allow disclosure of performance information between agencies. The law prohibited hiring officers who refuse to sign the waiver. Agencies with current collective bargaining agreements are exempt until the agreements expire. The disclosures are not public and must be kept confidential.
Hawaii empowered the standards board to revoke certification for misconduct or failing to meet standards. Police chiefs are required to disclose to the legislature the identity of a police officer upon discharge or suspension.
Laws addressing certification requirements have expanded the amount or kind of evaluations needed to qualify for certification. A new California law will require an existing evaluation be expanded to include a screen for various kinds of bias, in addition to physical, emotional or mental conditions that might adversely affect an officer’s ability to perform their duties. Virginia added a psychological examination following a conditional offer of employment.
Maryland now requires officers to submit to a mental health screening every two years as a requirement for renewal of certification. And Connecticut added a behavioral health assessment every five years as a requirement of continued employment.
Officer training was among the most common issues addressed by enacted legislation. Since May of 2020, at least 33 states and Washington, D.C. have enacted 65 pieces of legislation.
New laws cover a disparate array of training topics. Arkansas addressed an officer’s duty to intervene and Colorado instituted training on a new use-of-force law. California added training for investigations conducted on Indian lands and Kansas specified training on missing and murdered indigenous women. Crowd control management training was addressed by the Connecticut legislature, “response to resistance” in South Dakota and in Utah, training was added for domestic violence and lethality assessments.
More common training topics included crisis intervention, mental health, de-escalation, bias reduction, implicit bias and interactions with specified populations, such as individuals with autism. States also prohibited certain types of training, most frequently training on the use of neck restraints.
At least seven states—Arizona, Indiana, Iowa, Nebraska, Tennessee, Utah, and Virginia—enacted legislation related to de-escalation training. Indiana required the state training board to incorporate de-escalation training into various mandatory training programs.
In Iowa, training guidelines must now be developed with input from the state civil rights commission, groups that have an interest and expertise in the field of cultural awareness and diversity, and advocacy organizations that specialize in biased law enforcement actions.
Until recently, sheriffs generally have not been required to meet the same training and certification standards as police.7 Legislation is starting to percolate. In 2020, the Pennsylvania legislature established the Sheriff and Deputy Sheriff Education and Training Board and set training requirements.
In Illinois, existing conditions to run for sheriff included U.S. citizenship, county residency for at least one year and no felony convictions. Legislation in 2020 expanded these conditions to include successful completion of a law enforcement basic training course.
Officer Safety and Wellbeing
Law enforcement officers encounter incredibly stressful situations on a daily basis. They are often called upon to adapt quickly, responding to mental health emergencies, traffic accidents, medical emergencies, violent crimes, property crimes, threats to public safety and myriad other situations that result in members of the public seeking assistance. States are increasingly looking for ways to address and improve the safety and wellbeing of law enforcement.
Since May 2020, 22 states passed 40 pieces of legislation. These new laws provided funding for and generally expanded resources and support for law enforcement officers, including connecting them with mental health resources and peer support services.
Arizona and Arkansas created critical incident debriefing and traumatic event counseling for officers. Indiana and North Dakota established peer support services and critical incident stress management services for officers. Utah required the Division of Substance Abuse and Mental Health to administer a grant program that will provide mental health resources for first responders.
Maryland created an employee assistance program that provides officers with access to confidential mental health services and counseling. An officer is permitted to use the services for any issues stemming from personal or work-related concerns, including stress, finances, family problems, and office conflicts. The program will provide voluntary counseling services if an officer is involved in a fatal incident. Counseling was mandated for officers who are seriously injured in an incident, involved in a shooting, or any use of force resulting in a fatality or serious injury.
The South Dakota legislature granted money for the creation, establishment and development of a first responder peer support program and a first responder critical incident stress management program within the state. The training for these programs must be like those developed by the International Critical Incident Stress Foundation.
Prior to 2020, only one state, South Carolina, required widespread adoption of body-worn cameras. Since May of 2020, at least six additional states—Colorado, Connecticut, Illinois, Maryland, New Jersey and New Mexico—have mandated statewide body camera adoption. The New Jersey and South Carolina laws make implementation of body-camera programs contingent on funding from the legislature. New Jersey appropriated funding in 2020.
Connecticut’s 2020 law authorized bonds of up to $4 million for a new grant program to fund related equipment and service purchases by municipalities. The grants can cover 30% to 50% of equipment costs as well as costs for digital storage for up to one year.
State mandates generally apply to all law enforcement officers who are interacting with the public. But they typically exclude officers working in courtrooms or other secure areas or confidential settings, nor do they apply to administrators or civilian staff.
New York and Vermont adopted mandates for use by state law enforcement agencies, joining California and Nevada who had previous requirements. Kentucky enacted a unique law requiring their use during the execution of most no-knock warrants.
Civil Rights Claims and Limitations on Immunity
Four states—Colorado, Connecticut, Massachusetts and New Mexico—have created civil causes of action to provide recourse for individuals whose rights are violated by law enforcement officers. All four states have also limited the immunity provisions available to officers.
In 2020, Colorado became the first state to statutorily limit the use of qualified immunity as a defense in law enforcement-related civil rights cases at the state level. The new law does not eliminate the federal doctrine of qualified immunity. Instead it creates a state civil action for deprivation of rights by a law enforcement officer that is an analog to a federal 42 U.S.C. § 1983 civil rights claim. The law specified that qualified immunity cannot be used as a defense to the new state action, creating a state path to recovery distinct from federal law where qualified immunity could still apply.
Connecticut created a state civil cause of action for people to seek recourse when an officer deprives them, or a class of individuals, of the equal protection or privileges and immunities of state law. The law eliminated governmental immunity as a defense but does not explicitly address qualified immunity.
Massachusetts established a state right to bias-free professional policing under the Massachusetts Civil Rights Act. Actions that result in decertification of an officer constitute a prima facie violation of a person’s rights. The law limited immunity for officers who are decertified because of the same conduct.
New Mexico took a broader approach, enacting the New Mexico Civil Rights Act which provides an avenue of enforcement for the rights, privileges and immunities secured by the state constitution. The New Mexico law, unlike the other states, applies to public bodies or persons acting on behalf of a public body, not just law enforcement.
Other Notable Legislation
Maryland repealed the state’s law enforcement officer bill of rights (LEOBOR). Currently, 21 other states have codified some version of a law enforcement bill of rights. LEOBOR laws generally contain statutory due process procedures and protections for officers under investigation for misconduct.
The former Maryland law prohibited investigation of complaints alleging police brutality unless the complaint was sworn before an official authorized to administer oaths, limited the timeframe to 90 days for filing some complaints, prohibited questioning an officer for at least 10 days after an incident and allowed officers to expunge formal complaints from their record in addition to other protections. New accountability measures and discipline policies were established in place of the repealed provisions.
“No-knock” search warrants allow officers to enter a building unannounced and without identifying themselves provided they’ve shown that knocking and announcing themselves would result in a dangerous situation or allow for the destruction of evidence. Prior to 2020, at least 15 states regulated the use of these warrants in statue or rule. The death of Breonna Taylor in Louisville, Ky., in 2020 contributed to new legislative interest. Thirteen states—Colorado, Connecticut, Illinois, Kentucky, Louisiana, Maine, Massachusetts, Maryland, Minnesota, Nevada, Tennessee, Virginia and Washington—passed laws regulating the use of these warrants, required body cameras when carrying out the warrants or prohibited them altogether.
New York created a statutory right to record law enforcement-related activities. The law broadly covers individuals not in custody, but specifies that a person under arrest or in custody does not forfeit their right to have recordings, property and equipment maintained and returned to them. A private right of action is created to address claims of unlawful interference in recording.