Is DHS Really Going To Stop Using Chokeholds; Limit No-Knock Warrants; Respect Human Life?

According to a recent DHS press release, President Biden’s “Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety” has forced the Department of Homeland Security (DHS) to reconsider how they treat Americans and immigrants.

Today, Secretary of Homeland Security Alejandro N. Mayorkas announced updates to the DHS’s Use of Force Policy as required by President Biden’s Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety to meet or exceed the Department of Justice guidance on use of force. This policy was crafted as a result of discussions with stakeholders across the Department as well as major national labor organizations to ensure the safety of law enforcement personnel and the communities we serve. This is the first update of the Department’s Use-of-Force policies since 2018.

To put that into perspective, America has had numerous police brutality protests since DHS last updated its use-of-force policies. In 2020, the George Floyd protests began and more recently the Tyre Nichols protests which are still on-going, have Americans screaming for police reform. While DHS has continued its business as usual approach to police violence.

The status quo for America’s first responders is as it has always been: to shower them with platitudes while claiming to respect Americans rights.

“At the beginning of the Biden-Harris Administration, I announced the first Law Enforcement Coordination Council at DHS, designed to improve the ways we listen to and support our law enforcement agents and officers, the largest force in the federal government. Through the Council, law enforcement leaders from across the Department carefully crafted these updates to ensure we are living up to our values. Law enforcement agents and officers have profound responsibilities in their noble profession. We are grateful for the sacrifices they make every day and are confident that, working together, we can build safer and fairer processes to enforce our laws,” Secretary of Homeland Security Alejandro N. Mayorkas said.

Since President Biden took office in 2021, all DHS and the U.S. Customs and Border Patrol have done is criticize the administration for its immigration policies.

From acting Homeland Security Secretary Chad Wolf, to the U.S. Customs and Border Patrol union blaming Biden for creating a ‘chaotic mess’, to Border patrol agents being upset by the White House's ‘Black Resistance’ flyers, the attacks on immigration reform keep coming. (To read about DHS hiring a private law firm in anticipation of Secretary Mayorkas’s impeachment click here.)

DHS has, for all appearances, told its LEOs to stop killing suicidal people, stop using chokeholds, and limit the use of no-knock warrants. Which is a good thing, right?

But has DHS really changed their use-of-force policy?

In 2020, the DHS Reform Act said LEOs who use chokeholds would be subject to a disciplinary review which could result in termination. This years’ Update to the Department Policy on the Use of Force shows DHS hasn’t really changed their policy that much.

• Clear use of force standards including prohibitions on the use of deadly force against a person whose actions are only a threat to themselves or property,

• Updated requirements to collect and report use of force data,

• Prohibitions on the use of chokeholds and carotid restraints unless deadly force is otherwise authorized,

• Limitations on the use of no-knock entries,

• Provision of wellness resources for law enforcement officers involved in use of force incidents, and

• Changes to law enforcement training in key areas including deadly force, less than lethal force, de-escalation techniques, the duty to intervene, and implicit bias and profiling.

Clear use-of-force standards against killing a person who is only a threat to themselves is legalese for not immediately killing a suicidal person on sight. Leave it to the feds to change how LEOs describe a suicidal person.

The update to DHS’s use-of-force policy lists “Respect for Human Life” at or near the very top of the update, which is ironic given their track record of treating human beings [immigrants] like they are worthless.

[I]n the dog pound, they treat you like you are worthless, like you are not a human. ... If we laid down and didn't get up quickly they would kick us with their feet, and they told us that we gave birth to rats, and when we were eating if crumbs would fall they would say we look like rats.

DHS claims their updated use-of-force policy means LEOs will now treat human beings [immigrants] with “honor, integrity and respect for human life.”

All DHS personnel have been entrusted with a critical mission: “With honor and integrity, we will safeguard the American people, our homeland, and our values.” In keeping with this mission, respect for human life and the communities we serve shall continue to guide DHS LEOs in the performance of their duties.

DHS also claims to ban chokeholds. But under the “Use of Safe Tactics” section an LEO can justify using them under certain instances.

Chokeholds and carotid restraints are prohibited unless deadly force is
authorized. Chokeholds and carotid restraints must not be used as a means to control non-compliant subjects or persons resisting arrest.

DHS LEOs are permitted to use force that is objectively reasonable in light of the totality of the circumstances. DHS LEOs do not have a duty to retreat to avoid the reasonable use of force, nor are they required to wait for an attack before using reasonable force to stop a threat.

LEOs can claim protesters are resisting arrest for failing to clear an area quickly enough or for refusing to talk to them. Which according to DHS would be probable cause to justify using a chokehold.

The “Exigent Circumstances” section (Page 4) basically allows LEO’s to use any technique [chokeholds] in light of exigent circumstances.

In an exigent situation, for self-defense or the defense of another, DHS LEOs are authorized to use any available object or technique in a manner that is objectively reasonable in light of the circumstances.

When it comes to limiting use-of-force or no-knock warrants DHS’s “Warnings” section provides LEOs with even more loopholes.

When feasible, prior to the application of force, a DHS LEO must attempt to identify themselves and issue a verbal warning to comply with the LEOs instructions. In the event that a LEO issues such a warning, where feasible, the LEO should afford the subject a reasonable opportunity to voluntarily comply before applying force.

According to the “Deadly Force” section (page 17), LEOs who unholster their weapons or point a gun at someone for resisting arrest “does not constitute a use of deadly force.”

The “Limiting the Use of No-Knock Warrants” section shows that DHS is not really interested in changing their use-of force policy either.

LEOs are supposed to seek a warrant first, but even that has a loophole.

Once judicial authorization is obtained, LEOs 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.

If the LEO did not anticipate the need for a no-knock entry when applying for the warrant, the LEO may conduct a no-knock entry only if exigent circumstances arise at the scene such that knocking and announcing the LEOs presence would create an imminent threat of physical violence to the LEO or another person.

So all an LEO needs to do is claim that their lives were in danger or someone inside might destroy evidence and just like that, a no-knock is justified.

The “Warning Shots And Disabling Fire” section allows LEOs to fire ‘disabling shots at moving boats and cars.’ Which DHS considers “less-lethal.”

Maritime Law Enforcement Operations: Authorized USCG, CBP, and ICE personnel, when conducting maritime law enforcement operations, may discharge firearms to disable moving vessels or other maritime conveyances. Such disabling fire is classified as less-lethal force.

Only authorized LEOS are supposed to fire at moving vehicles except airplanes which is apparently the only time DHS considers an LEOs actions to be deadly force.

Authorized and appropriately trained DHS LEOs assigned to assist USSS in exercising these responsibilities, may discharge firearms to disable moving vehicles, vessels, and other conveyances, and such disabling fire is classified as less-lethal force—EXCEPT: Aircraft in Flight.

If an LEO is ever accused of using a chokehold or pointing their gun at peaceful protesters a ‘use of force review council or a committee to perform internal analysis is convened to judge things from their perspective’.

DHS is also setting up a Law Enforcement Coordination Council (LECC) where executives can discuss what they have learned from LEO use-of-force trends!

LECC members will be responsible for reporting on use of force-related trends, developments, and lessons learned within their respective Components. The LECC will be structured with subcommittees addressing areas of law enforcement policy, training, administration. Additional subcommittees may be established as needed.

A couple of things that stuck out in DHS’s new use-of-force policy is how they paint LEOs in glowing terms despite evidence to the contrary and how easy they make it for LEOs to take advantage of exigent clauses that negate any meaningful reforms.

A disturbing trend seems to be sweeping through law enforcement as LEOs refer to homeless people as the unhoused or unsheltered and have begun calling suicidal people “a person whose actions are only a threat to themselves.”

History has shown that dehumanizing people or mistreating people of color makes it easier for LEOs to justify using violent actions.

“This is happening on a scale that is unacceptable and it indicates that this is not about a few bad apples,” Rebecca Epstein, executive director of the Georgetown Law Center on Poverty and Inequality said. “But it’s a systemic problem that is rooted in racism, rooted in developmentally inappropriate approaches to children that needs to be fixed.”

Americans deserve actual police reform from the largest police force in the government and law enforcement as a whole. Introducing exigent clauses that allow LEOs to continue their business-as-usual approach to policing is a disservice to everyone.

Claiming to respect human life while doing everything in your power to mistreat immigrants and people of color cannot and should not be tolerated by a free society. We deserve more from our LEOs.