The Badge

THE

BADGE

THE SET UP O

ne of the most significant pieces of civil rights legislation passed in the closing decades of the 20th century is also one of the most overlooked.

The 1994 Violent Crime Control and Law Enforcement Act, passed following the savage 1991 beating of African American motorist Rodney King by four LAPD officers and the catastrophic Los Angeles Riots a year later, gave the Civil Rights Division of the U.S. Department of Justice an extraordinary mandate.

One of the law’s provisions empowered the government to sue police agencies anywhere in the country if they exhibited a “pattern and practice” of using excessive force and/or violating people’s civil rights—and compel them, under what’s known as a “consent decree,” to change those practices.

Since the law came into effect 20 years ago, two things have become apparent: how resistant many police departments remain to fundamental reform; and how critical, therefore, the consent decree has been—first, in forcing police departments to jettison their often brutal racist, and unaccountable warrior-cop cultures; and second, in transforming them into organizations committed to policing constitutionally and with legitimacy among the populations they serve.

Currently about 20 cities have entered into consent decrees or “memos of understanding” with the Department of Justice (DOJ), usually under threat of civil rights lawsuits filed by the DOJ if they refused.

The departments and police agencies vary widely: they have included Pittsburgh, Los Angeles, Cincinnati, Oakland, New Orleans, Portland, Oregon, Cleveland, New York City, Detroit, the New Jersey State Police, the Virgin Islands PD, and, most recently, departments in Seattle, Albuquerque, NM and Newark, NJ. The importance of these consent decrees can’t be overstated.

Achieving transformational change in rogue police cultures is a very difficult task. In some cases, it has taken more than a decade.

One hurdle is getting cops to understand there’s something wrong in the way they had been operating. Many consider their work-cultures to be consistent with their self-image as upholders of law and order in the community.

Another hurdle: while police officers and their thinking is far more diverse than 20 years-ago, old, bad habits are nevertheless still being passed down from one cop generation to another. They die hard. And police of a certain generation don’t like change, particularly liberal reform that they perceive only makes their jobs harder and more complex, and that holds them more accountable for their actions.

Third, big-city police departments rarely investigate and monitor themselves impartially especially when the abuse is systemic. Many street cops are loyal first and foremost to each other. Solidarity matters more to them than some abstract constitutional principle.

And far too often in investigating police abuse, chiefs have put not “embarrassing the department” ahead of finding and revealing the truth about institutionalized abuse.

PART ONE In Los Angeles, following the King beating and the riots, two police chiefs charged with reforming the LAPD failed miserably without a consent decree. And eight years were wasted in the reform process before a reform-minded chief—William Bratton—was finally brought in from outside the department. With the critical assistance of a consent decree mandated by yet another LAPD scandal, Bratton was finally able to transform its culture.

And in New Orleans and New York City, Mayors Mitch Landrieu and Michael Bloomberg, respectively, unsuccessfully appealed their court-ordered consent degrees. Landrieu argued that the consent decrees for both the city’s police department and its local prison system were too costly; and Bloomberg claimed the NYPD’s stopquestion-and-frisk policy was both necessary and constitutional.

In short, resistance to consent decrees is one of the best arguments for their effectiveness. They provide a crucial, best-practices blueprint for policing constitutionally—one with detailed and specific cultural change goals and metrics to be met, often under the demanding, watchful eye of an outside federal monitor and a federal judge with the power to insure their compliance.

Most importantly, as Samuel Walker, emeritus professor of criminal justice at the University of Nebraska recently told the New York Times, the provisions of the consent decrees have “defined a set of best practices, conditions for effective and constitutional policing, that are now well known throughout the country.” Consent decrees by themselves, are not panaceas.

It also takes a police chief with the strength of character, physical energy, sense of urgency, political skills, and conceptual ability to

overcome the forces of reaction & inertia within a hostile department to see a consent decree through to the end.

Reform chiefs, therefore need to put highly competent believers in reform in charge of developing and implementing a compliance plan, while building a strong political constituency for reform.

In the end, what consent decrees do is force change. That’s what they ultimately did with fiercely resistant police departments in Pittsburg, Cincinnati and Los Angeles, and what they will ultimately do in Oakland and New Orleans, even if it takes another decade.

Because, as any good cop knows, sometimes force is necessary.

The Consent Decree is intended to promote police integrity within the Department and prevent conduct that deprives individuals of their rights, privileges, or immunities protected by the Constitution of the United States. The Consent Decree places emphasis on the following nine major areas: • • • • • • • • •

Mgt and supervisory measures to promote Civil Rights Integrity; Critical incident procedures, documentation, investigation & review; Management of Gang Units; Management of Confidential Informants; Program development for response to persons with mental illness; Training; Integrity Audits; Operations of the Police Commission and Inspector General; and, Community outreach and public information.

PART TWO THE MOST POWERFUL WEAPON FOR POLICE REFORM IS BACK On the heels of Derek Chauvin’s murder conviction, Attorney General Merrick Garland announced that the Justice Department is launching a “pattern or practice” investigation into the Minneapolis Police Department. Pattern or practice probes are often a precursor to court enforced reform agreements between the DOJ and local law enforcement agencies, which require them to comply with a list of goals before federal oversight can be lifted.

A court-appointed monitor, usually a DOJ attorney in its civil rights division, is responsible for overseeing the goals and evaluating the department’s progress. President Joe Biden campaigned on a promise to revive pattern-or-practice investigations – as well as subsequent reform agreements – after the Trump administration suspended the program in 2017.

It’s often said that reform agreements, at their core, are an attempt to change the culture of a department, a task some critics on the left say is impossible without radically changing the fundamental nature of policing.

Congress first gave the Justice Department the power to enter reform agreements in the 1994 crime bill drafted by Biden following civic unrest in Los Angeles two years earlier over the LAPD beating of Rodney King. Many police accountability experts say the reform agreements–both consent decrees and settlement agreements– are the most effective way to achieve long-term police reform.

Following the discovery and disclosure of the Rampart Area Corruption Incident by the Los Angeles Police Department, the United States Department of Justice notified the City of Los Angeles that it intended to file a civil suit alleging that the Department was engaging in a pattern or practice of excessive force, false arrests and unreasonable searches and seizures.

Whenever the DOJ has reasonable cause to believe such violations have occurred, they may obtain a court order to eliminate the pattern or practice. On that basis, the DOJ has entered into consent decrees with other law enforcement agencies throughout the United States including the Pittsburgh, Pennsylvania Police Department; Steubenville, Ohio Police Department; and the New Jersey State Police.

A consent decree is an agreement between involved parties submitted in writing to a court. Once approved by the judge, it becomes legally binding.

In making these allegations, the DOJ recognized that the overwhelming majority of Los Angeles police officers perform their difficult jobs in a lawful manner.

The City denied the allegations in the DOJ complaint and entered into negotiations with DOJ. However, to avoid potentially divisive and costly litigation and to promote the best available practices and procedures for the Department, the City entered into the Civil Rights Consent Decree.

The Consent Decree will last a minimum of five years during which the Department must demonstrate substantial compliance with the Decree’s provisions.

PART THREE DOES LEGAL REGULATION OF THE POLICE IMPACT CRIME? When Attorney General Jeff Sessions took office in February, one of his first steps was to order a review of federal consent decrees entered in Justice Department lawsuits against local police departments.

Consent decrees are a tool the Justice Department and the courts use to reform departments seen as violating citizens’ civil rights through assorted police misconduct. Sessions wants to know whether federal intervention is really the most effective approach.

try to gauge the effectiveness of consent decrees by measuring the number of civil rights suits filed before and after a consent decree was entered, which could reflect whether police are behaving better, and thus incurring less costly litigation. In general, jurisdictions under consent decrees see fewer civil rights suits, the study found.

The average number of civil rights suits filed per year dropped anywhere from 23% to 36% after a federal intervention, although the authors acknowledged other reasons could also cause the drops.

But even before Sessions ordered his review last month, researchers at the University of Texas-Dallas had set out to answer the question Consent decrees are expensive, with costs estimated at $10 million empirically by looking at this: Does a consent decree result in fewer or more in cities such as Baltimore and New Orleans for new training and monitoring to reduce police misconduct. But in a cost-benefit civil rights lawsuits against a police department? analysis, the costs of retraining a police department may be less The answer is yes, although the researchers quickly add there could than the multimillion- dollar settlements paid out to families of be many reasons why the number of lawsuits fell, and so the “consent those killed in police shootings. decree process may contribute to a modest reduction” in civil rights Last month, Sessions ordered a review of decrees already in place suits. and those pending to ensure they do not work against a primary goal of fighting crime. Sessions has often criticized the effectiveness The researchers looked at 23 police departments that agreed to of consent decrees and has vowed in recent speeches, and this consent decrees between 1990 and 2013, including Los Angeles, Washington, D.C., Detroit, New Orleans, Cleveland as well as suburban op-ed in USA Today, to more strongly support law enforcement. departments such as Montgomery and Prince George’s counties in But part of the Justice Department’s mission statement is to protect Maryland. The study found the average maximum reduction in the risk for litigation can be as much as 36%, usually while the consent the rights of all citizens; “to ensure fair and impartial administration decree is in effect, but that lawsuits start to trend back up once the of justice for all Americans,” the statement reads. decree lifts.

Though many have argued that the federal government shouldn’t The study found larger jurisdictions attracted higher percentages of be meddling in local or state police affairs, that’s [the DOJ’s] job. lawsuits, and that other variables in a city or county can affect why To not do that means that it’s shirking its duty. civil rights lawsuits are filed. The study was the first of its kind to