Some Chiefs Chafing as Justice Department Keeps Closer Eye on Policing
Mayor John Engen, left, of Missoula, Mont., and the police chief, Mark Muir, second from left, listened last year as Thomas E. Perez, an assistant attorney general, described a federal investigation into the city’s handling of sexual assault cases.
KURT WILSON / MISSOULIAN
By ERICA GOODE
July 27, 2013
When Justice Department officials announced the results of a two-year investigation into civil rights violations at the Miami Police Department this month, it was the 11th time in two years that the federal government had put a local law enforcement agency on notice that it must change its ways or face a federal lawsuit.
Cities from New Orleans and Seattle to Missoula, Mont., and East Haven, Conn., are grappling with similar federally mandated changes after investigations into their police departments. In Miami, the Justice Department found a pattern of the use of excessive force — in an eight-month period in 2011, eight young black men were shot and killed by the police. This month, the Justice Department announced a sweeping settlement forcing Puerto Rico to change 11 areas of policing, including the use of excessive force, searches, stops and the handling of domestic violence. It was, the department said, “among the most extensive agreements ever obtained.”
Civil rights violations by police departments have been subject to investigation by the federal government since 1994, when Congress passed the Violent Crime Control and Law Enforcement Act. But federal intervention has become far more common and much broader in scope under the Obama administration, a development proudly highlighted on the Justice Department’s Web site.
During Mr. Obama’s first term, the department initiated 15 investigations into troubled law enforcement agencies, almost twice the number carried out in the last four years of the Bush administration. While early investigations focused narrowly on the use of excessive force and racial profiling, recent inquiries have taken on a host of other issues, including the treatment of the mentally ill, the handling of sexual assault cases and unconscious bias of officers.
Last year, the department extended its purview further, announcing its intention to investigate a district attorney’s office over the handling of sexual assault cases. The Missoula County attorney, Fred Van Valkenburg, has so far declined to cooperate, arguing that under state law, the Justice Department has no standing to investigate his office.
“In my mind, these people have never run into somebody who told them ‘no,’ ” Mr. Van Valkenburg told an audience at a City Club Missoula luncheon in June. The National District Attorneys Association has sent a letter objecting to the investigation to Attorney General Eric H. Holder Jr.
Civil rights lawyers and criminal justice experts have hailed the Justice Department’s increased activism.
“Justice Department litigation has really set a national standard,” said Samuel Walker, emeritus professor of criminal justice at the University of Nebraska, Omaha, and the author of “The New World of Police Accountability.” He said the investigations — and the resulting settlements, known as consent decrees — send a message to police departments that “there are some minimal things you have to do to be professional, and here are the things you need to do in order to achieve that.”
And some police officials whose departments have been the target of Justice Department investigators say the consent decree that resulted was beneficial. “I think they’re extremely effective,” said Robert McNeilly, a former chief of the Pittsburgh Police Department, the first agency to enter into a consent decree after the 1994 law was passed. To comply with the decree, the department increased accountability and increased training. Among other things, it instituted an early warning system to identify officers who were at high risk of using excessive force.
But the federal intervention has also caused frustration among some police chiefs, who say the government should work to find a cheaper and more efficient process. Consent decrees, they say, can drag on for years and impose huge cost burdens on cities that are least able to afford them.
In Detroit, which declared bankruptcy on July 18, a consent decree imposed to correct a range of serious problems including the use of excessive force, false arrest, illegal detention and failures in investigation and training is in its 11th year. In New Orleans, city officials asked the Justice Department to come in but are now contesting the consent decree, saying its measures are too expensive to carry out.
“We don’t disagree with the objectives at all,” said Chuck Wexler, the executive director of the Police Executive Research Forum, an organization based in Washington that conducts research on policing and recently issued a report on federal civil rights investigations into police departments. “What we find issue with is the mechanics of the process.”
In addition to cost, the issues addressed in the forum’s report included concerns that standards for compliance set by the Justice Department were sometimes unreasonably high, 95 percent in some instances; that the process was often adversarial rather than collaborative; and that there was a lack of measures to tell whether the federal intervention was effective.
Some police chiefs also complained that the Justice Department, in its eagerness to promote best practices in new areas, in some cases investigated police departments that, their chiefs argued, were not clearly in violation of constitutional standards.
In Montana, federal investigators found that the Missoula Police Department “discriminates against women in its response to sexual assault,” according to the letter of findings issued by the Justice Department. But Mark Muir, Missoula’s police chief, contended that the government had offered no objective evidence that his department had met the criteria for discrimination set by the courts, or even that Missoula’s record in handling sexual assault cases was worse than that of other comparable cities.
“I’ve got to tell you, Missoula, Montana, is not one of the worst of the worst in any respect,” Chief Muir said. But, he said, once a police department has been singled out by the Justice Department, “they pay a huge price in terms of their reputation and their effectiveness in the community.”
In some cases, consent decrees can also make it more difficult for departments to focus on fighting crime, some chiefs said. William J. Bratton, who as chief of the Los Angeles Police Department from 2002 to 2009 steered it through seven years of a 13-year consent decree, says he has no doubt that in some cases intervention by the Justice Department is necessary.
“The state of American policing is not where it should be,” Mr. Bratton said. But, he continued, “there is a tension, and it is felt by police chiefs, between the constitutional policing that we’re obligated to provide to operate within the law and the obligation to provide public safety in terms of controlling crime and disorder.”
The Los Angeles department has won praise for its transformation into a model police agency under the consent decree, which was entered into after the Justice Department found pervasive corruption in the Rampart community division. But other cities, with fewer resources and inconsistent leadership, might not fare as well, Mr. Bratton said.
He and other police chiefs also expressed concern about the monitors who oversee the enforcement of settlements, noting that monitoring has in itself become a kind of cottage industry. Monitors, either individuals or firms, who submit proposals and are chosen by a federal judge, are paid as long as a consent decree continues, amounting to sums that can run into the millions of dollars. As a result, critics say, they have little incentive to bring the process to a speedy close.
Sheryl Robinson Wood, a lawyer appointed in 2003 to oversee Detroit’s compliance with its consent decree, resigned in 2009 after it was disclosed that she was having an affair with the mayor at the time, Kwame M. Kilpatrick. The city sued to recover the $10 million it had paid Ms. Robinson Wood and her employers, Kroll International and two law firms. At the time of her resignation, the Police Department was only in 36 percent compliance with the decree.
Roy L. Austin Jr., the deputy assistant attorney general who supervises the special litigation office in the Justice Department’s civil rights division, said the costs of civil lawsuits are also high to cities. The Justice Department, he said, does not take a one-size-fits-all approach to its investigations, and takes into consideration how effective a department is in solving its own problems.
But, he said, “You have departments that are so troubled that to sit back and wait, based on our experience, for them to address what are enormous problems is going to leave people with their rights violated for a long time before those problems are addressed.”
Mr. Wexler and others, however, said that for agencies with specific problems whose leaders are eager to make changes, a more collaborative approach might be cheaper and just as effective.
One such method was tried in Las Vegas last year after a series of local newspaper articles on officer-involved shootings over 20 years by the Las Vegas Metropolitan Police Department. The agency entered into a voluntary agreement with the Justice Department’s Community Oriented Policing Services Office, which offers technical assistance to police departments but has no enforcement power. The Police Department is putting in place the recommendations of the resulting 154-page report.
Still, said Dr. Walker, of the University of Nebraska, so many federal investigations have now been conducted that no American police department really has an excuse for engaging in practices that violate civil rights.
“In the year 2013, no police department should be in a position where it can be sued by the Justice Department,” he said. “The past records indicate what problems they need to be aware of and what to do about such problems if they have them.”
Do a good job and we will send you tanks….to use against…..the “right” people!!!