Last week, a day after local police in Texas threatened to Taser parents instead of going into Robb Elementary School to stop a mass murderer from killing their children, President Joe Biden signed an executive order on police reform. The order came two years after a police officer in Minnesota crushed the life out of George Floyd in broad daylight, and many months after Senators Joe Manchin and Kyrsten Sinema joined every Republican in the Senate to protect their precious filibuster and kill the George Floyd Justice in Policing Act.
The executive order is, to put it kindly, pathetic, but that is not entirely Biden’s fault. It only applies to federal law enforcement, because those are the people under Biden’s direct control. It bans things like choke holds and no-knock warrants and mandates body cameras, but again only for the federal officials Biden has the power to order around. It restores the Obama era ban on the transfer of military equipment to local police (a ban that, as we’ve already seen, will be rescinded the moment a Republican is back in the White House). But it doesn’t get creative or aggressive with local law enforcement. Jeff Sessions famously threatened to pull funding from local police in so-called sanctuary cities if they didn’t comply with his federal immigration mandates. Biden’s executive order does not make the same move: It stays squarely within the bounds of presidential power.
The reality of policing in America is that most of it happens at the state and local level. I am not particularly worried about being pulled over by the FBI for driving while Black, as I am neither a multistate serial killer nor likely to be mistaken for one. I’m not particularly worried about the Department of Justice’s execution of search warrants, as I am not a cult religious leader in Texas. I’m just a Black man who doesn’t want to be murdered in broad daylight for a moving violation. Biden’s executive order does functionally nothing to increase my chance of survival or that of my Black sons.
It’s worth remembering how we got here. Black people, and a host of concerned allies, protested throughout the summer of 2020 after video of the lynching of Floyd was played on television. Those protests represented the largest and longest sustained civil uprising in this country since the civil rights movement. Biden, as the Democratic nominee, rode the wave of those protests throughout the summer and promised action and reforms if elected. Black folks rewarded him with overwhelming support in the general election. Meanwhile, Black people in Georgia handed Democrats a slim majority in the Senate, even as allegedly well-meaning whites failed to hold up their end of the bargain and rejected well-funded Democratic candidates in Iowa, Maine, and North Carolina.
A president turning the main policy ask from his most reliable constituency into a puddle-deep executive order two summers later would be viewed as a massive failure… if that constituency were anybody other than Black people in this country. But we know how it works in America. Black folks agitate, organize, march, sweat, and bleed for a thing, and white elected officials worry about how it’s all going to play to the white supremacist audience over at Fox. Black people risked additional police brutality to protest police brutality, and the president we elected to deliver police reform declared in his State of the freaking Union: “Fund them. Fund them. Fund them. With training.”
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And yet, the gridlocked machinations of the Senate have essentially given Biden a mulligan on this signature failure. Even the most ardent police reform advocates, and the loudest voices for strong use of executive power, have to acknowledge that, without Congress, Biden’s ability to change the behavior of local police is limited. Our constitutional system, created by and for white men with specific carve-outs that allowed individual states to maintain chattel slavery at their discretion, explicitly reserves “the police power” to the states. As long as white state governments want their police to viciously hunt black and brown bodies—and many white state governments do want that—there’s little Biden can do on his own authority.
Given that limitation, all Biden’s executive order could do was set an example. All police reform advocates could really hope for was that Biden would set a tone, and frame the issue correctly.
Instead, even in this functionally performative executive order that will secure the safety of virtually no one who voted for him, Biden caved to the police unions.
We can see that by comparing this final order to the draft executive order that was leaked back in January. In that first version, Biden called for use of deadly force only as a “last resort” when there is “no reasonable alternative” to prevent “imminent and serious” injury or death. The necessity for that restriction on force should be self-evident. Cops should only shoot when they have no other alternative and only shoot to prevent themselves or others from dying.
But if you think that’s a reasonable standard that shouldn’t be controversial, then you don’t think like a cop. Police unions complained about the language, arguing that a “no reasonable alternative” standard would lead to second-guessing of cops who kill people.
And Biden folded. In the final order, the use of deadly force language was changed to “when necessary” and “when the officer has a reasonable belief” that deadly force will prevent injury or death.
That watered-down language is pretty much the same standard we have now. Cops can shoot people to death when they think it’s necessary. It doesn’t have to be their “last” resort; they don’t have to exhaust other, de-escalation alternatives. Cops are literally authorized to shoot first and ask questions later, so long as other police officers view that shooting as “reasonable” under the circumstances.
In short, Biden contemplated putting an actual restriction on when cops can shoot Black people in his performative order that will only affect law enforcement that doesn’t regularly shoot Black people—and then backed off because the law enforcement that does regularly shoot Black people, who weren’t even covered by the order, threw a hissy fit.
This order is like a wealthy person who makes a big show of giving out turkeys on Thanksgiving (while privately voting for whichever politicians give him the biggest tax breaks)—but before they hand over the turkey, they rub it in dirt so that the recipients of the generosity still know they’re poor.
There is nothing in Biden’s executive order that will stop law enforcement, at any level, from shooting unarmed Black people. There’s nothing in Biden’s executive order that even tries to make that stop. If a local cop or a state trooper or an FBI agent or a guy from the Space Force shoots me tomorrow, I promise you they will claim it was “necessary,” even if the only thing I’m holding is my Afro pick. No matter how many Black people protest or organize or advocate or vote, white politicians have decided police brutality is a cost Black people must bear.
