When US Attorney Holder announced the findings of an investigation into the Cleveland Police Department’s use (and abuse) of force, one of the things he emphasized was that the Department was not alone in being investigated for its practices. As he put it,
“We are currently enforcing no fewer than 15 agreements with law enforcement agencies – including eight consent decrees – to correct unconstitutional policing practices. And we have seen, many times over, that this model can work. Reform is underway in New Orleans; Seattle; Albuquerque; Portland, Oregon; East Haven Connecticut; Puerto Rico; and Warren, Ohio.”
Since his statement and the report came out, Cleveland has been in a protracted state of navel-gazing. There have been protests, and protests of protests. The mayor has come under fire, and people have called for Safety Director McGrath’s resignation.
So, what happened in these other cities? What did the police do, exactly, to deserve investigation and censorship? What happened to the police departments, and how did the police react? Did any officers get fired? And, is everything in these departments all fixed?
There have been a lot of departments that have been investigated by the Department of Justice (DOJ) since 1994, when the Violent Crime Control and Law Enforcement Act gave the DOJ’s Civil Rights Division the authority to investigate law enforcement agencies. Departments have committed different violations and, in the face of DOJ investigations, have reacted in different ways. Here are the stories of a few of them, including Los Angeles, Pittsburgh and Austin - and an idea of where the Cleveland Police Department could be headed.
In the late 1990s and early part of the 2000s, Los Angeles police officers were found guilty of unprovoked shootings, beatings, planting false evidence, framing suspects, rapes, stealing and dealing drugs, robbing banks, and possibly the murder of Christopher Wallace - AKA The Notorious B.I.G.
This was known as the Rampart Scandal, and it has cost the City of Los Angeles at least $125 million in lawsuit settlements (so far). The DOJ investigated the department and found the violations listed above; they subsequently entered into an expansive consent decree with Los Angeles to implement changes in the police department. Because so many of the actions of police officers broke criminal laws, many of them were arrested and sent to jail; some were merely fired by the department. The city was left to implement the consent decree, which applied to nine major areas:
Management and supervisory measures to promote Civil Rights Integrity;
Critical incident procedures, documentation, investigation and review;
Management of Gang Units;
Management of Confidential Informants;
Program development for response to persons with mental illness;
Operations of the Police Commission and Inspector General; and,
Community outreach and public information.
PBS provided this summary of what the LAPD was tasked with doing in response to their violations:
“…the L.A.P.D. is required to develop a computerized database which would contain information on police officers including: all uses of lethal and non-lethal force; all officer-involved shooting incidents and firearms discharges; all incidents in which a complaint has been filed against the officer; and all arrest reports and citations made by the officers, including motor vehicle and pedestrian stops. In addition, the database would contain information about those persons detailed by the officer -- including demographic information such as race, ethnicity, gender, and age. The consent decree requires that supervisors must review all information in the database about officers under their command on a regular basis, in order to assess whether any officer or group of officers is engaging in at-risk behavior. Using information from this database, the L.A.P.D. must perform regular audits to be reported quarterly to the Police Commission and Inspector General. The audits must include random samples of: warrant applications; arrest, booking, and charging reports; use-of-force reports; motor vehicle and pedestrian stops; use-of-force investigations; and complaint investigations. Audits of L.A.P.D. reports must entail: at a minimum, a review for completeness of the information contained and an authenticity review to include an examination for 'canned' language, inconsistent information, lack of articulation of the legal basis for the applicable action or other indicia that the information in the document is not authentic or correct.
“The consent decree also establishes procedural reforms of annual personnel performance evaluations, use of force investigations, search and arrest procedures, use of confidential informants and investigations of civilian complaints. It enacts new protocol for those officers assigned to anti-gang units, including limited tours of duty. To enhance community outreach efforts, the consent decree calls for annual public meetings between the L.A.P.D. and citizens in each of the city's 18 geographic areas.”
Originally supposed to last five years, the consent decree was renewed by courts because the LAPD was slow and reluctant to make changes. However, after a turnover of nearly two-thirds of the officers, and changes in administration, the decree ended in 2013.
The first police department that the DOJ investigated was in Pittsburgh, in 1997. The police allegedly used excessive use of force, false arrests, improper searches and seizures, and failed to discipline or supervise officers. After a year-long investigation, the DOJ and Pittsburgh agreed to a Consent Decree that required, among other things, that the police department create an “early warning system” to track officer actions and identify potential problem officers, squads, zones, shifts or special units; develop a use of force policy that complies with laws and professional standards; conduct strip searches in a way that doesn’t violate laws and professional standards; and require reports and documentation whenever an officer made a traffic stop, used force, performed warrentless or body cavity searches, or seized property. The city had to audit and review uses of force, searches, seizure of property, and review any potential race bias - including the use of racial epithets - by all officers. The city also had to come up with a plan to address all of these situations in a way that fixed any potential problems and complied with applicable laws, as well as come up with a way to address, investigate and track complaints against the police department.
So, what happened? Pittsburgh delivered.
Because it was the first department to be investigated, the DOJ and the police department experimented with what worked and what didn’t. One important result was that in 1999, Pittsburgh created a “Performance Assessment Review System” (PARS) that became a model for other departments throughout the country, and which continues as part of changes made to police department practices.
In 2004, the NAACP and the Texas Civil Rights Project sued the Austin Police, alleging civil rights violations - including unnecessary and excessive use of force. In Austin there were 2.4 instances of use of force for every 1,000 people; in Cincinnati, where there were established use-of-force problems, there were .4 instances per 1,000 people. Austin also had, at the time, 11 recent deaths at the hands of police; one of the dead was caucasian, while the rest were black or hispanic.
The DOJ opened an investigation in 2007 and, in 2008, sent Austin a letter with recommendations for implementing changes that would help it conform to the law. Austin’s response to the letter was, according to the Police Executive Research Forum, so proactive that “no formal agreement was needed in Austin by the time DOJ investigators wrapped up their work there in May 2011.” Austin implemented all of the proposed changes from the DOJ and, in the end, an official from the U.S. Department of Justice's Civil Rights Division wrote that, "because we do not find reasonable cause to believe that APD has engaged in a pattern, or practice that violated the Constitution or laws of the United States, we have closed our investigation."
Different cities handle DOJ investigations in different ways, but they end up conforming to the DOJ's demands in one way or another.
In 2013, the Police Executive Research Forum (PERF) issued a document titled: “Civil Rights Investigations of Local Police: Lessons Learned.” In it, they stated that many police departments wonder how they can avoid investigations by the DOJ. That, they argue, is the wrong question to be asking; instead, they need to do as Jonathan Smith, DOJ Civil Rights Division Chief, advises, and try to conform police practices to meet the standards of the constitution and applicable federal and local laws.
How should police departments ever know what they need to do to conform to these laws? As professor Sam Walker of the University of Nebraska said in the PERF report, “No police department should be in a position where it can be sued by the Justice Department, because the past cases make clear what is expected of them.” All they really need to do is look at what other departments do that violates the law, look at what the courts and the DOJ says would allow them to follow the law, and then make changes so that they conform to the law.
If an investigation occurs - as it did with the Cleveland Police Department - there have options on how to respond. One option is to challenge any reform or change. Doing so doesn’t have a good track record. First, the DOJ has the ability to sue a department and a city to force them to change their ways, and cities usually try to avoid these sorts of protracted lawsuits - especially against the Attorney General. Courts are also willing to do what it takes to enforce changes; when the Los Angeles Police Department decided to resist changes through the first five years of their consent decree, a judge actually extended the decree to get them to conform. The DOJ has made it abundantly clear in other cases that they will do what it takes to make sure that police departments conform to the constitution; they don’t just go away when the time is up.
The second option is to wait to see what the DOJ will demand, then conform to whatever consent decree is negotiated. After numerous investigations, the DOJ is now very good at outlining exactly what police departments have to do in order to conform to constitutional requirements, and they can be very demanding and specific of police departments. This allows police to continue to operate for a period of time in a way that the DOJ might find objectionable, but, in the end, the police will still have to implement changes.
Finally, the police departments can change themselves, without DOJ intervention. In other words, they can look at what other departments have done in order to conform to the constitution and proactively implement the changes necessary to conform to the constitution. As Austin found out, changes that are inevitable can be made before they’re mandated, and, once police are compliant with the law and the constitution, the DOJ and courts will cease their oversight of the department.
Will this require that police be fired, or that chiefs lose their jobs? Not necessarily. In fact, if the changes are actually made, oftentimes police and chiefs can stay in their positions, secure in the knowledge that they are doing things better - and constitutionally. Some chiefs have actually seen DOJ investigations as positive ways to force changes in the police department that they were not able to force by themselves.
As detailed above, all paths tend to end up in the same place: police departments with a history of violating the law and the constitution end up making changes. Many police departments find that not only does this lead to lawful police behavior, it also leads to a better environment between police and citizens, and helps police do their jobs better.
Copyright © 2014 Andrew Samtoy; available under the Creative Commons Attribution-NonCommercial-ShareAlike License.
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