DOJ Updates Force Policy, Creates Affirmative Duty To Intervene When Officers Violate Rights

from the small-steps-towards-addressing-big-problems dept

A little more than a week ago, the Department of Justice updated its policy regarding CFAA (Computer Fraud and Abuse Act) prosecutions. For years, the DOJ had been complicit in the punishment of security researchers for doing their jobs, reasoning that unauthorized access was the only criminal element it needed to satisfy. The guidance — which had not been completely updated for years — reversed this course, affirmatively stating the DOJ would no longer seek prosecution of good faith security research efforts, making it a bit less dangerous to be a security researcher.

Unfortunately, there are caveats. First of all, it’s a policy update, not a codification of practices. The law still remains abusable should subsequent Attorneys General feel this is the path the DOJ should take in the future. It also does nothing to prevent private parties from suing researchers under the CFAA, although it does increase the risk the DOJ will file briefs siding with the defendants.

It’s a good step forward, though, no matter how limited or temporary it may turn out to be following the next regime change. In that same vein of cautious optimism, the DOJ has updated its use-of-force policy for the first time in 18 years, replacing the 2004 guidance with something that better reflects the standards the DOJ, under AG Merrick Garland, is attempting to instill in law enforcement agencies all over the nation.

Perhaps the biggest change in the new use-of-force policy is this: federal officers are no longer allowed to turn a blind eye to misconduct. The updated policy [PDF] gives officers responsibilities they’ve never had before, making an implicit assumption explicit.

Officers will be trained in, and must recognize and act upon, the affirmative duty to intervene to prevent or stop, as appropriate, any officer from engaging in excessive force or any other use of force that violates the Constitution, other federal laws, or Department policies on the reasonable use of force.

This is what we expect from law enforcement officers. This isn’t what they expect of themselves. And there’s nothing in settled law that imposes this duty. The DOJ is imposing this — via policy — on the federal officers it oversees, which includes those working for the DEA, FBI, ATF, US Marshals Service, and the Federal Bureau of Prisons.

That’s a lot of coverage. But, at this point, it’s only worth the bits it’s printed with. The DOJ will need to enforce it. And it will need to do more than hand out wrist slaps over dead bodies or broken limbs. And it will need to try to keep this policy on the books even after Garland exits the AG office. It’s unclear how the DOJ will handle this moving forward, but hopefully the man they answer to — Merrick Garland — will continue to make it clear federal policing is in need of fixing as much as local law enforcement agencies are.

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Comments on “DOJ Updates Force Policy, Creates Affirmative Duty To Intervene When Officers Violate Rights”

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Ehud Gavron (profile) says:

Old man yelling at clouds

The Department of Justice has nothing to do with securing justice. They are part of an LEO enforcement network that ends up enforcing unjust laws. It’s not quite their fault because Congress writes the laws (when they are actually writing laws, and crossing the aisle, or whatever lies they spew in press conferences.) “Lawmakers” should make laws, not grift off the revolving door, insider trading, laws for lobbyi$t$’ ca$h, etc.

The “Justices” on the SCOTUS don’t mete out justice. We have gone from SCOTUS making decisions that resolve court splits, expound on legal rulings, laws and precedents, and aid in the understanding of the law. But then they just condemned a guy to die because who cares if his lawyers sucked… he has nowhere to appeal. If we take this down the Roe draft rabbit-hole, “If the Constitution didn’t mention it, it doesn’t count.”

Take a look at Article IV, Section 2 of the COTUS. It talks about hunting down those who “…flee from justice.” I’m not sure people fleeing a corrupt unappealable system of lying LEOs, Brady violating prosecutors, and SCOTUS idiots living in the 1700s is actually “fleeing justice” – maybe “fleeing injustice.”

But hey, they’ve created a policy. Unlike the magic $40B that just materialized without “a budget hearing” or “reconcilliation” or “must pass bill” it just happened.

Amount of money allocated to ensure honest LEOs: 0
Amount of money allocated to ensure justice is served: 0
Amount of money allocated to LEOs without oversight: Priceless?

Anonymous Coward says:

Ffss? Yer onher, ther wuz jus legal people doin legal things, all legal like, of course! Wat u mad?

Originally written as sarcasm, but seriously why not? After (checks notes) over 150 years, what’s changed at the DOJ? Is there anybody alive not personally responsible?

“The road to hell is paved with good intentions.”

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