The U.S. Justice Department is back in the business of policing local police.
After a four-year hiatus under President Donald Trump, the federal government will once again investigate local law enforcement agencies for systemic constitutional violations, U.S. Attorney General Merrick Garland announced last month. First in the queue are the police departments of Minneapolis and Louisville, Kentucky.
Both cities were at the heart of the Black Lives Matter protests last summer, which called for changes to law enforcement practices and justice for the killings of two unarmed Black people by police—Breonna Taylor in Louisville and George Floyd in Minneapolis.
The federal investigations and possible court orders to follow could take years to complete. Local police departments under federal oversight complain about the immense strain on resources and personnel it takes to meet court-approved benchmarks for accountability, training and amended use-of-force policies. Community activists sometimes feel federal oversight does not do enough to fix systemic issues.
But federal interventions have led to major innovations in modern policing and at times renewed trust in law enforcement in communities that were traditionally the target of discriminatory and excessive force.
Interviews with former Justice Department officials, lawyers in charge of monitoring the progress of the local police departments, and current and former law enforcement officials suggest that while federal oversight cannot solve every issue in local policing, it can spur significant changes that would not have been possible without it.
“I never once in my time there saw DOJ launch one of these investigations unless they had determined there was a long history [of abuses] and the agency has either been unable or unwilling to fix those problems,” said Christy Lopez, a former federal attorney who led the Department of Justice team that investigated the Ferguson Police Department after an officer shot and killed Michael Brown in 2014.
She also led federal investigations of local police in Chicago, Los Angeles and New Orleans, as well as in Newark, New Jersey, and Missoula, Montana.
“The government has a responsibility to protect people,” continued Lopez, who now co-leads Georgetown Law’s Program on Innovative Policing. “When you have state actors routinely violating people’s rights, of course you need a system for someone else to step in and protect those rights, vindicate those rights.”
Garland announced the federal investigation of the Minneapolis police a day after a jury found former police officer Derek Chauvin guilty of murdering Floyd. Garland said the probe will focus on the department’s use of excessive force and its mistreatment of people of color and those with behavioral health issues. Minneapolis Police Chief Medaria Arradondo said his department will cooperate with federal investigators.
“The challenges we face are deeply woven into our history; they did not arise today or last year,” Garland said. “Building trust between community and law enforcement will take time and effort by all of us, but we undertake this task with determination and urgency, knowing that change cannot wait.”
A Renewed Oversight Mandate
Three years after the horrific beating of Rodney King by Los Angeles police officers, Congress enacted a law in 1994 that gave the Justice Department authority to investigate local police departments to see whether there is a “pattern or practice” of unconstitutionality or civil rights abuses.
The measure allowed the federal government to look beyond individual officers to root out systemic issues in local law enforcement agencies. The first investigation took place in 1997, examining the Pittsburgh Police Department.
If these investigations find a trend of police misconduct that violates the U.S. Constitution, the federal government can negotiate a court-approved agreement with the local police department, called a consent decree, which ensures certain changes are made to the department’s practices, policies and oversight.
“There are cases across the United States where you find the police department is so lost or far removed from the Constitution of the United States that a federal intervention of that magnitude is not just necessary but required,” said Alex del Carmen, a professor of criminology and an associate dean at Tarleton State University in Texas. He also served on the federal monitoring teams for consent decrees in New Orleans and Puerto Rico.
Enforced by a judge and overseen by a court-approved monitor, consent decrees can take years to complete. The Oakland Police Department has been under a consent decree since 2003.
Over the past three decades, the Justice Department has conducted more than 70 investigations of local police departments. The Obama administration, for example, conducted 25 investigations and entered into 14 consent decrees.
These are robust investigations and agreements, said Jonathan M. Smith, who served as chief of the Special Litigation Section of the Civil Rights Division of the Justice Department from 2010 to 2015. But they fall short of the wholesale changes that many are calling for as part of the Black Lives Matter movement.
“Our work was both essential and important, but it was limited in the scope of the kinds of things we’re talking about now, like reimagining public safety,” said Smith, who is now the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
The investigations all but stopped when Trump was elected president. In 2018, then-Attorney General Jeff Sessions issued an order limiting the Justice Department’s ability to investigate and oversee the nation’s 18,000 local police departments, saying it wasn’t the federal government’s responsibility to oversee local policing. He also said the probes hurt police morale.
The Trump administration did not enter into a single consent decree.
But that approach changed last month, when Garland rescinded Sessions’ order.
Launching an Investigation
During the Obama administration, soon after announcing an inquiry, Justice Department attorneys would head to the jurisdiction under investigation to meet with the chief of police, command staff, police unions and community leaders to explain the scope of the investigation. It’s unclear whether the Biden administration will follow the same process, especially given the pandemic.
In past investigations, federal officials spent thousands of hours in the community, conducting interviews and comparing their findings with what they saw in police records.
They met with religious leaders; mental health workers; prosecutors and defenders; jailers and the incarcerated; and neighborhood associations.
The federal attorneys often had to manage expectations in the communities. At times, people would have immediate needs, such as a family member in jail, and there wasn’t much the attorneys could do to help them.
Investigators reviewed tens of thousands of pages—everything from emails to official police policies and procedures to civilian complaints to use-of-force records. They also reviewed body camera and dashcam footage of incidents, interviewed officers and accompanied them on ride-alongs, and observed training.
There can be tension between the police departments under investigation and the federal attorneys instructing them on what amounts to a constitutional violation, said Sharon Brett, one of the lead attorneys for the Obama administration’s investigation of the Chicago Police Department. She also worked on consent decrees for Cincinnati; Seattle; Ferguson, Missouri, and other cities.
When Brett would sit down with officers during the investigation, she recalled, the first question she would get is whether she had ever been a police officer or served in the military.
“There’s a sense among the rank-and-file that, you don’t know what I’m dealing with if you’ve never been here,” said Brett, who now is the legal director at the American Civil Liberties Union of Kansas. “Law enforcement does not like people coming in who have no law enforcement experience and telling them how to do their job correctly.”
At Major Cities Chiefs Association conferences, former chief Dennis Nowicki would often hear police chiefs from around the country express concerns about the Justice Department coming in and doing an investigation, troubled by the prospect of having people with no policing background run the probes.
When Nowicki retired as chief of police for the Charlotte-Mecklenburg Police Department in 1999, he wanted to be that law enforcement voice during federal investigations. He served as a use-of-force expert for Justice Department consent decrees in Cincinnati, Detroit, the District of Columbia, Los Angeles and New Orleans, as well as in Tulsa, Oklahoma, and the U.S. Virgin Islands. He also served on a handful of federal monitoring teams.
“If you at least know a little bit about law enforcement, you know what questions to ask, know how to get an honest answer,” he said.
Once they complete an investigation, Justice Department attorneys write up a report that outlines their findings, compares their observations with the law and offers a series of solutions. If an investigation concludes in six to nine months, that’s fast, Smith said.
The Consent Decree
If the Justice Department finds that there have been constitutional violations, federal officials will sit down with a judge and the jurisdiction to negotiate a court-enforceable consent decree agreement.
Consent decrees outline needed changes to use-of-force policies, officer training, transparency and community engagement. Police departments must comply with those measures for several years before the jurisdiction is released from federal oversight.
Police departments sometimes resist the probes. The Ferguson, Missouri, City Council initially rejected the 2016 consent decree because of what leaders said would be heavy costs. The Justice Department sued the city the next day. The city signed onto the 127-page consent decree a month later.
Once the parties agree, a judge appoints a federal monitor who tracks and issues public reports on the jurisdiction’s progress. The first year of a consent decree can be difficult, said del Carmen, as the police department slowly accepts the work ahead and its lack of autonomy.
What makes a successful consent decree is a forward-thinking police chief, an open-minded and dedicated monitor, and an active judge, said Jonathan Aronie, the federal monitor overseeing the New Orleans Police Department’s consent decree.
New Orleans, which has been under a consent decree since 2012, created a peer-intervention training program during its consent decree that has become a national model used in more than 100 police departments.
In Newark, New Jersey, which has been under a consent decree since 2016, officers did not fire a single shot in 2020, nor did they have to settle any police brutality cases.
“They should stop thinking of a consent decree as a punishment,” Aronie said. “They should think of it as an opportunity.”
The review process is lengthy and complex. There are hundreds of general orders in every department that deal with issues ranging from how to handcuff to what use of force is acceptable in certain situations. If the department decides to change a policy, it requires the approval of the federal monitor and the Department of Justice.
Before Nicolle Barton became the consent decree coordinator in September 2019, the Ferguson Police Department did not have a dedicated person on staff to manage compliance for three years. Instead, the task often fell to the chief of police or other department leaders, who had to handle it in addition to their regular duties.
The department also had to contend with high turnover after the consent decree was issued, Barton said, but those officers who remained were dedicated to making the department better. That includes Chief Jason Armstrong, she said, who joined the department in 2019.
“A lot of people call it the Cadillac of consent decrees,” she said. “It’s very comprehensive for such a small municipality, and not a lot of resources to get it done. Our officers are really taxed.”
So far, the department has new use-of-force and body camera policies in place. The department is also working with a software company to develop a new data-entry system for use-of-force instances. Before, the department filed those by hand and stuck them in manila folders.
Recordkeeping is often a shortcoming of police departments, said Ben Horwitz, who served as the New Orleans Police Department’s first director of analytics. Under the consent decree, he built a modern data-entry system that helped the department better understand how officers were interacting with the public. It allowed the department to view its performance in real-time and gave the public a look at policing.
Often, data is captured in silos, on paper, unaggregated, offering scant insight into a department.
“You can’t do that captured on paper,” said Horwitz, co-found of AH Datalytics, which builds data software for police departments. “You can’t do that captured in a narrative.”
Community engagement and new training were slowed because of the pandemic, but Ferguson’s federal monitor in February commended the department for its continued dedication to the consent decree, saying it has made “steady progress.”
When the Justice Department officially outlines the civil rights violations of a police department, it can be validating for members of the community who have tried to shed light on those issues for decades, said Mary Howell, a New Orleans civil rights lawyer. “You’re no longer dealing with denial,” she said.
While changes to policing, forced through a consent decree, are essential to improving local law enforcement, activists say residents should be given the ability to exercise additional oversight. If there is no community oversight, independent of internal police investigations, there will be backsliding at the department, Howell said.
“It’s an uneven process. You’ve got decades, if not generations, of culture that you’re trying to change and it’s not going to change quickly.”