Some States Step In to Fill Federal Void on Police Consent Decrees

On a July afternoon six years ago, then-U.S. Attorney General Eric Holder and then-New Orleans Mayor Mitch Landrieu stood together in historic Gallier Hall and announced a sweeping proposal to remake the troubled New Orleans Police Department.

It was just one of many announcements by the Obama-era Justice Department, with federal officials and local officials laying out court-enforced agreements to require a wide variety of changes at police departments facing widespread findings of police brutality and misconduct, particularly against black and Latino residents.

The scene on Friday in Chicago looked much the same: officials presented to the public a 232-page proposed police reform plan that, if approved, will be overseen by a federal judge and monitoring team. But the players at the podium during that announcement were different in one crucial detail. Mayor Rahm Emanuel and his police commissioner worked out the deal not with the federal government, but Illinois Attorney General Lisa Madigan.

"Today is neither the beginning nor the end of the work that needs to be done to reduce crime and have safer communities in Chicago,” Madigan said. “It is however a significant milestone on what will be a long journey that I have every hope and belief all Chicagoans wish to take.”

The announcement was celebrated by advocates who see these kind of agreements—called “consent decrees”—as a potentially effective tool in forcing changes at police departments. But they also saw it as a new way forward that could be replicated in other states, given that Trump administration officials are avowedly skeptical of federal intervention in local law enforcement.

“It is a roadmap and beacon for people who really do care and are unhappy with how DOJ has been AWOL on protecting people from police abuse. This gives states and people something to focus on,” said Christy Lopez, a former Justice Department civil rights lawyer who during most of the Obama administration led the division that investigated law enforcement agencies and crafted consent decrees.

Samuel Walker, a police accountability expert based at the University of Nebraska, called the development “extremely important,” noting this is happening now not just in Chicago, but also in San Francisco. Earlier this year, California Attorney General Xavier Becerra announced he would oversee an agreement to require changes in that city’s police department, which had been crafted under a different DOJ program that didn’t involve court supervision. U.S. Attorney General Jeff Sessions in September 2017 announced he was cutting back that program, calling it a necessary “course correction.”

“So we have two very high profile, big-state situations where state attorneys general are stepping forward,” Walker said. “That really fills in a gap and state AGs have been missing in action all these years.”

New Authority

The U.S. Department of Justice got the authority to intervene in local law enforcement with the 1994 crime bill, which allowed the agency to conduct “pattern or practice” investigations of systemic problems at police departments, typically stemming from accusations of excessive force. The law saw its initial tests in the Clinton years, resulting in court-enforced agreements in cities like Pittsburgh, Cincinnati and Los Angeles that revamped training, tracked stops of residents, imposed different use-of-force policies, and created new systems to identify bad officers. But in the following years, during the Bush administration, the Justice Department largely stepped away from investigating police agencies.

Civil probes of police departments came back in force during the Obama years. Not long after the New Orleans investigation was released in 2011, the Justice Department revealed it had 17 other ongoing cases. That was before excessive force by police officers became a national rallying cry with the Black Lives Matter movement, propelled forward by the 2014 shooting of Michael Brown in Ferguson, Missouri, and the death the next year of Freddie Gray in Baltimore, Maryland. In both cities, as well as several others that made headlines during that time, the Obama DOJ conducted civil probes of of the police departments and entered into decrees overseen by federal judges that are still ongoing.

The Trump administration from the start made clear that investigating police departments was not something they were interested in, with Sessions instead saying he was concerned Obama policies had undermined police morale. In his first speech on the job, Sessions told state attorneys general that he would pull back on a strategy he thought was wrongheaded. “We need, so far as we can, in my view, help police departments get better, not diminish their effectiveness,” said Sessions, according to The New York Times.  

A couple months later, Sessions announced a review of existing consent decrees in a memo posted online by The Washington Post, which underscored the AG’s philosophy that “it is not the responsibility of the federal government to manage non-federal law enforcement agencies.”

“Local control and local accountability are effective local policing,” the memo read. Since then, the federal consent decrees already under court supervision have remained so, but Lopez said she knew of just one probe begun under the Trump DOJ: an investigation of a unit at the Springfield, Massachusetts, police department.

A Justice Department spokesperson declined to comment on the Illinois development. 

For Jim Pasco, executive director of the national Fraternal Order of Police, decrees aren’t always an effective way to build positive relationships. “In troubled cities, they tend to divide the citizenry and police,” he said.

But Pasco said the idea of having states move forward with these kind of decrees makes less sense than federally brokered agreements. Giving the DOJ authority in this area created “one set of rules for the entire country,” Pasco said.

The Fraternal Order of Police’s local in Chicago, which has a collective bargaining agreement with the city, has vowed to fight the proposed decree there, seeking to intervene in the federal court case. In a statement, local president Kevin Graham called it “legally invalid,” while predicting it would waste hundreds of millions of taxpayer dollars.

Chicago and Elsewhere?

Almost a year ago, Madigan filed a lawsuit in federal court to work out a deal with the mayor’s office and Chicago Police Department for a court supervised agreement after it became clear the Trump administration wasn’t going to participate. The basis for the suit: a scathing evaluation of Chicago’s police released by the Justice Department at the very end of the Obama administration. Officers too often used unreasonable force, including shooting at suspects who posed no immediate threat, and subsequent investigations failed to properly examine those incidents and discipline officers, the report found.

The Justice Department also raised concerns about the way the problems they identified disproportionately affected black and Latino residents. “CPD’s pattern or practice of unreasonable force and systemic deficiencies fall heaviest on the predominantly black and Latino neighborhoods on the South and West Sides of Chicago, which are also experiencing higher crime,” the authors wrote. The report itself was prompted by the 2014 shooting of Laquan McDonald by Officer Jason Van Dyke. Dash camera video released a year later of the white officer shooting the black teenager 16 times as he walked away holding a knife set off protests throughout the city. Van Dyke, who is currently suspended, is set to go on trial on a murder charge this fall. 

Like in other cities, the proposed decree focuses on changing how officers use force when they deal with civilians, as well as how it is later investigated. More day-to-day interactions between police and civilians would be tracked, more training would be mandated, more internal probes would be required. Some of the training would target how officers interact with black, Latino, LGBTQ and other communities.

A monitor would be put in place to evaluate the department’s progress, reporting back to the federal judge. If other cities are a guide, the decree will likely be in place for years and implementing all these changes could be expensive.

Consent decree proponents said the Chicago experience could be something that other states should examine. In California, there is already a law that gives the state AG similar authority to the federal Justice Department, Lopez said. It was used in Riverside, California in 2001, when a decree was worked out with that police department.

But in places where there isn’t such explicit authority, activists and citizens could lobby legislatures to give the AG this new role and then put pressure on that office to use it, Lopez said.

Stephen Rushin, a professor at Loyola University School of Law in Chicago who has studied consent decrees, said it’s not clear that in Illinois that the AG’s office has the ability under state law to move forward with this action. That is a moot point in this case because the city of Chicago isn’t fighting the state’s standing, he said.

“If this is an actual approach that courts are going to be receptive to, you have a strong option that all AG offices need to take a serious look at this,” he said.

Attorneys general in other states have moved forward with this kind of actions in the past, Rushin said, pointing to a case in New York state and others in Pennsylvania where the state stepped in to deal with certain departments.

Rushin said that while he supports decrees it remains to be seen exactly how effect they will prove over the long term in creating lasting reforms. He noted that questions have been raised in recent years about whether some of the big-city departments that have exited the process, such as Cincinnati and Pittsburgh, saw true culture changes. David Harris, a University of Pittsburgh law professor who closely tracked the consent decree in that city, told the New York Times last year that recent developments showed it “did not stick.”

But Lopez, who helped finish the Chicago investigation for the Obama administration before leaving the department to teach at Georgetown Law School, said while consent decrees can’t fix everything in a department, she sees them as an essential strategy. In New Orleans, where a decree is still in force under a federal judge, Lopez said she has observed key changes.

The DOJ civil investigation in New Orleans came after criminal investigations into Hurricane Katrina-era police shootings, which exposed deep problems at the department, including that officers attempted to cover up one incident. But while the Justice Department’s findings in New Orleans emphasized that officers too often used excessive force without justification, the report identified a range of issues, from profoundly flawed sexual assault and domestic violence investigations to a broken system for off-duty gigs worked by officers.

The city entered into a decree in 2012 and has been slowly working through its requirements. An April evaluation by the monitors who regularly check in with the federal judge overseeing the agreement found “significant progress,” but said more work still needs to be done, The New Orleans Advocate reported.

Lopez said on a recent trip back to the city she went to a second line with Mary Howell, a well-known civil rights attorney. Over and over, as Howell introduced her around, Lopez said when people would describe bad experiences with police, the incidents would tend to be well in the past. 

Recent surveys showed greater trust in the police and a sense that the department has improved under court supervision. “If you just go and talk to people, you can see how they have different experiences with police with these consent decrees,” Lopez said. “I do think they have shown their worth.”