A new Justice Department

The Justice Department under AG Merrick Garland is taking an aggressive approach to monitoring civil rights abuses committed by police departments across the country, announcing numerous investigations into high profile police killings and those responsible.

Pattern or practice

A pattern or practice investigation, as described by the DOJ, is a “process…to reform serious patterns and practices of excessive force, biased policing and other unconstitutional practices by law enforcement.” The Civil Rights Division begins by conducting an “investigation to bring to light any persistent patterns of misconduct within a given police department” and “assesses whether any systemic deficiencies contribute to misconduct or enable it to persist.” The division interviews community members, police officers, and local officials.

If the investigation concludes that “there is reasonable cause to believe that there is a pattern or practice of conduct in violation of the Constitution or federal law,” the DOJ can pursue one of two paths to create a legally-binding reform plan for the police department in question:

1. Negotiation with the involved parties to create a “consent decree,” where the police departments agree to reform their practices.
2. Go to court to compel reforms.

The use of pattern or practice investigations and federal civil rights investigations saw an abrupt decline when Trump took office. Then-Attorney General Jeff Sessions tried to back out of a previously-ordered consent decree in Baltimore, ordered the DOJ to review all such agreements to prioritize “officer safety” over reform, and issued a memo that made it more difficult to enact consent decrees. AG William Barr kept almost all of Sessions’ changes.

• “What happened to the lone police department investigation started by Trump’s DOJ?” NBC News, 2020.
• “Trump’s Justice Department is investigating 60% fewer civil rights cases than Obama’s,” Vice News, 2019.

Do consent decrees work?

Do consent decrees work? Depends on who you ask. Advocates often point to the case of Newark’s police department, which entered into an agreement with the DOJ in 2016. The jurisdiction went all of 2020 without a single shot fired by officers. Research reviewed by the Washington Post indicates at least some metrics of police brutality are improved through federally-mandated reform:

There is strong evidence that consent decrees work. According to one study, departments that went through consent decrees saw an average of 25 percent fewer police shootings in the first year of implementation. In Detroit, police shootings dropped from 47 in the five years before the consent decree to 17 in the five years after. From 2011 to 2019, serious use of force declined 63 percent in Seattle, which entered a consent decree in 2012. Most decrees have data collection and analysis requirements, so the community can see whether force, misconduct and racial disparities are decreasing. They are not a complete solution, but they make a difference.

On the other hand, one-time consent decree auditor Matthew Nesvet wrote in The Appeal that his experience in New Orleans taught him that consent decrees are biased towards police from the start:

I watched as police officials and the third-party contractors overseeing court-ordered changes worked together to obstruct real change. I observed how selective metrics, scapegoating low-level officers to deflect blame from high-ranking officials, suppressing unfavorable audit reports, coaching officers scheduled to undergo third-party audits, and ignoring obvious conflicts of interest and wrongdoing by officials allowed misconduct to remain unchecked.

[The audit manager] made it clear to me on my first day that compliance staff and the police we audited were “all on the same team.” “That’s important to know,” he added. Indeed, our performance evaluations—on which I received the highest possible score—measured us on whether we got along with police in the precincts we audited.

The reality, however, may be more difficult to capture. The University of Pennsylvania:

Unfortunately, there is limited research on the effect of consent decrees on police morale, officer behavior, or crime…[The evidence] is largely descriptive – meaning that we can only observe crime, arrests, and reports of satisfaction with the police before and after consent decrees are put into place. We do not have an adequate comparison group of agencies that could have been placed under a decree but were not…

What is clear, however, is that consent decrees by their very design place a number of mandatory reforms on police agencies, typically requiring new training of officers, hiring criteria, promotion criteria, internal review of officers, and even different forms of outside scrutiny, such as more extensive auditing of data collected by police departments. These changes typically upgrade police department standards. Whether these changes lead to improvements in police service deliver is an open question.

First investigations

Minneapolis

The day after former officer Derek Chauvin was convicted of murder in the death of George Floyd, AG Merrick Garland announced that the DOJ is opening an investigation of the Minneapolis Police Department:

“The Justice Department has opened a civil investigation to determine whether the Minneapolis Police Department engages in a pattern or practice of unconstitutional or unlawful policing…Yesterday’s verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis.”

“I have been involved in the legal system in one way or another for most of my adult life. I know that justice is sometimes slow, sometimes elusive and sometimes never comes. The Department of Justice will be unwavering in its pursuit of equal justice under law.” (Video)

Garland’s DOJ is also running a separate civil rights investigation into officer Derek Chauvin, including the death of George Floyd and a previous instance in which Chauvin knelt on a suspect’s neck. In the weeks leading up to Chauvin’s trial, the DOJ collected evidence to indict the former officer on federal police brutality charges – with a plan to arrest him at the courthouse if the trial did not result in a conviction. Now, federal prosecutors reportedly intend to ask a grand jury to indict Chauvin and the three other former officers involved in the case on charges of civil rights violations.

BREAKING: THE FEDERAL GRAND JURY HAS INDICTED ALL FOUR OFFICERS

Louisville

Less than a week after the Minneapolis announcement, Garland opene a second pattern or practice investigation into the Louisville Police Department, spurred by the killing of Breonna Taylor over a year ago:

“The investigation will assess whether LMPD engages in a pattern or practice of using unreasonable force, including with respect to people involved in peaceful, expressive activities. It will determine whether LMPD engages in unconstitutional stops, searches, and seizures, as well as whether the department unlawfully executes search warrants on private homes. It will also assess whether LMPD engages in discriminatory conduct on the basis of race or fails to provide public services that comply with the Americans With Disability Act.” (Video)

Pasquotank County

The FBI confirmed last week that it has opened a civil rights investigation into the killing of Andrew Brown Jr., a Black man who died after police shot him during an arrest in North Carolina. The Pasquotank County sheriff has kept details of the shooting under wraps and a judge declined to release body camera footage to the public for at least 30 days. The New York Times:

Just before 8:30 a.m. on April 21, deputies with the Pasquotank Sheriff’s Office, dressed in tactical gear, drove down a residential street and arrived at a home in Elizabeth City, video footage shows. Moments later, several shots were fired at Mr. Brown… A 20-second snippet of the shooting from a deputy’s body camera was released to Mr. Brown’s family and their lawyer, who called it an “execution.” A private autopsy, paid for by his family, showed that he was hit by five bullets and killed by a shot to the head.

The family’s lawyer said that Mr. Brown was sitting inside his car, hands “firmly on the wheel,” when gunshots were fired. He did not appear to be holding a weapon, and was driving away as the police continued to shoot. But the local prosecutor said the footage showed that Mr. Brown was trying to escape and that his car struck deputies, who then began shooting.

Columbus

The Democratic Mayor of Columbus, Ohio, Andrew Ginther and City Attorney Zach Klein requested the Justice Department investigate the city’s police department following the fatal shooting of 16-year-old Ma’Khia Bryant on April 20.

The two leaders wrote to the DOJ Office of Community Oriented Policing Services seeking a “review of Columbus police operations, identifying any and all racial biases in policing efforts, and offering findings and coordinated solutions for reform.” They say that “ despite steadfast efforts to advance change, the City has been met with fierce opposition from leadership within the Columbus Division of Police,” and the “entire institution of policing in Columbus” needs “reforming”.

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Related

“Sheriff’s deputy boasted to extremists about beating Black man, called it ‘sweet stress relief,’ feds say,” WaPo

In texts with a group that called itself “Shadow Moses,” a Georgia sheriff’s deputy boasted about beating a Black man during an arrest, threatened to falsely charge Black people with felonies so that they could not vote and advocated for killing politicians and others he viewed as political enemies, the FBI said in court documents.

“Atlanta police officer fired after fatally shooting Rayshard Brooks has been reinstated,” ABC News

“3 Men Indicted On Federal Hate Crime Charges In Ahmaud Arbery Killing,” NPR

“Georgia Sheriff Faces Civil Rights Charges Over Use of Restraint Chairs,” New York Times