The Obama DOJ had a plan to hold police accountable for abuses. The Trump DOJ has undermined it
Barack Obama; Donald Trump
Barack Obama and Donald Trump photo illustration by Salon / Getty Images
It was recorded on tape. A Seattle police officer jumped into the back seat of a patrol car. The black woman held inside had been combative, but she already had her hands cuffed behind her back. Still, the officer hit her in the face and broke an eye socket bone.
The Seattle Police Department fired the officer for excessive violence, but in November 2018 the police officer's union attorney persuaded an arbitrator to overturn the dismissal.
The impact of the incident went beyond the officer. The entire Seattle Police Department agreed with the Obama administration's Department of Justice because the officers had a pattern of abuse similar to the incident in the patrol car. This agreement, known as the Approval Decree, forced the ministry under strict federal oversight until it reformed itself. The Seattle Police Department had already made a number of changes, including ending the unconstitutional stop-and-frisk and improving training.
The inability to easily fire the officer due to the police car incident put the city's progress in question. If the department couldn't even get rid of officials it believed should be fired, its disciplinary system may have violated the settlement agreement, the judge in charge of overseeing the consent decree said. The court-appointed independent observer for the consent decree agreed.
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Instead, President Donald Trump's Justice Department took an unusual stance in court: it argued that the city's disciplinary system was as fine as it was.
District Judge James Robart was shocked. In one file he accused the federal government of reversing its position on the "inadequacy of the old accountability system" and of doing so "for reasons of political expediency".
In Seattle and in jurisdictions across the country, the Trump administration's Department of Justice has withdrawn to monitor police. It has not signed a single new consent decree with a law enforcement agency suspected of systemic abuse of constitutional rights. It just announced the completion of an investigation into such abuses.
But the withdrawal goes deeper. The Justice Department has also undermined existing agreements between the federal government and abusive police forces across the country, according to interviews with court-appointed observers and former Justice Department officials.
The Obama Justice Department has closed 15 consent decrees with law enforcement agencies, of three in the Bush Justice Department. The settlement agreements, which come about after a complaint by the federal government for unconstitutional policing, force the police authorities to repair themselves under the strict observation of lawyers from the Justice Department and an external independent court monitor.
The Justice Department was still overseeing all of these agreements when Trump entered the Oval Office in 2017. Proponents of increased oversight feared that Trump's Justice Department would attempt to withdraw it entirely. This was done in Chicago just before an agreement was to be made and attempted in Baltimore. But instead of completely breaking away from those already in full swing, it has managed to enforce them and avoid negative attention and the wrath of uncooperative judges, according to court-appointed observers and former Justice Department attorneys.
The Department of Justice has taken a similar approach to Seattle in places like Cleveland, Los Angeles County and Newark, New Jersey. Federal government lawyers did not press for reforms, refused to publicly endorse frustrated observers, and did not press local police forces to meet the requirements they agreed to.
The Justice Department declined to comment on the story.
As excessive police violence and killings have resulted in one of the largest social justice movements the country has ever seen, the Trump administration has taken on police forces and attacked protesters as lawless and violent. Trump has adopted the mantle of "law and order" as the centerpiece of his campaign. And senior Trump officials, including then Attorney General Jeff Sessions, have questioned whether the federal government should play an active role in law enforcement reform.
"If the city knows you're not going to litigate because the Justice Department chief says they don't believe in consent orders, then they know you're not going to get authority and they're calling your bluff," he told Sharon Brett. a former DOJ attorney who worked on investigations and consent enforcement during the Obama and Trump reigns.
Those involved in these cases said lawyers from the Justice Department's civil rights division are acting cautiously and trying not to attract the attention and anger of politically appointed chiefs in Washington. The cold has resulted in an exodus of attorneys from the unit that has been enforcing the Consent Ordinance since the Trump administration began. (The DOJ would not provide ProPublica with any personnel numbers.)
Court-appointed observers charged with monitoring the progress of the local police force have noticed the postponement.
"You would never know that you are involved in the informed consent process," said a monitor, asking for anonymity so as not to upset the Justice Department. "I've never seen DOJ attorneys so passive."
Consent ordinances are a relatively new tool for reforming troubled police forces.
This was made possible by the Clinton administration's Crime Act of 1994, which has also become radioactive as a contribution to over-liability among proponents of criminal reform. A provision of the law empowered the Justice Department to sue cities and counties for unconstitutional practices by their police and prosecutors.
The process begins with Justice Department civil rights attorneys opening what is known as a "sample or practice" investigation against a police agency or other law enforcement agency. They investigate whether residents' rights are being violated - either through excessive violence, racially biased stops, unjustified arrests, or other wrongdoing. Occasionally, the Department of Justice will sue these local jurisdictions or, in the most serious cases, issue consent orders.
These agreements require local jurisdictions to work with the Justice Department for years to compile a list of reforms and prove to a judge that those reforms work. The court-appointed observers, usually an expert on police practices or a former law enforcement officer, examine how well the police are implementing the changes in a series of public reports. If the local authority refuses to take the necessary steps or is too slow, this can be sanctioned by the judge in the case. The sanctions can include fines or even jail sentences for an obstructive police chief or other city official.
The process can be invasive and burdensome for local jurisdictions, particularly those with financial difficulties. Ferguson, Missouri, signed a decree of approval with the Obama administration's Department of Justice in 2016 following the shooting of Michael Brown, the unarmed black teenager whose death sparked nationwide protests. The community has struggled to hire experts in data analysis and other areas required by the agreement.
However, experts believe the process is one of the most effective at saving wayward police force.
"It's a golden opportunity. You can sort things out institutionally," said Peter Harvey, former New Jersey attorney general and currently the court-appointed Newark informed consent monitor. "Once you fix it organically, that culture persists."
One approval decree that is widely viewed as a success is the 2001 agreement with the Los Angeles Police Department. Complaints about racist and brutal policing went back decades and sparked riots, such as after the Rodney King beatings in 1991, and major scandals, including when Rampart Anti-Gang Division officials were found to be planting evidence rather than unprovoked shootings carried out.
Los Angeles federal oversight lasted an endless 12 years, which complained locally, but in the end, even longtime LAPD veterans praised the result. In 2013, Chef Charlie Beck attributed the consent decree, "This is a department that I am proud to hand over to my children." A Harvard study of the reforms found that police reduced incidents of severe violence and increased public satisfaction with the violence to 83%.
From the outset, the Trump administration has been hostile to such reform efforts. Trump's first attorney general, Sessions, set the tone when he said the investigation "undermines respect for police officers and creates the impression that the entire department is not doing its job in accordance with fairness and fairness." He pulled out of an assent decree in Chicago, leaving it to the Attorney General to pick it up, and tried to get out of an arrangement in Baltimore that a federal judge blocked. Shortly before his resignation in 2018, Sessions posted a memo requiring the approval of all new high-level consent decrees and raised the standard that staff lawyers had to meet before opening a new investigation.
In Los Angeles County, the Department of Justice reached a settlement agreement with the sheriff's department in 2015 after it was discovered that police officers assigned to the desert towns on the northern outskirts of the county were discriminating against black and Latino residents.
According to the complaint filed by the Justice Department in court, ordinary MPs stopped and searched black residents at higher rates, despite finding that they were half as likely to have contraband as white residents. Even people who posed no obvious danger - including domestic violence victims and minor traffic offenders - were routinely detained in the back of patrol cars. The agency's MPs assisted affordable housing inspectors with searches that intimidated black residents and evicted them from their homes.
The members of the department did not do much to hide their prejudices. During a tour with federal investigators, a sheriff's supervisor noticed that any newly arrived black residents in the area were current or former gang members. A sheriff's captain suggested that affordable residents provide shelter for the relatives of "South Central" gang members - a neighborhood on the other side of the county with a large percentage of black residents.
Five years after the settlement agreement began, the agency hasn't revamped its data collection system to track interactions with the public and determine if people of color are still being disproportionately stopped or harassed. This is one of the major reforms that the agency has approved with the judiciary department.
"It's fundamental," said Joseph Brann, co-chair of the team responsible for overseeing the agreement.
Both chairmen, Brann and Angela Wolf, said the sheriff's department had opposed an expensive solution. The settlement agreement only applied to part of the sheriff's jurisdiction, but a revision would require the sheriff to change how he collects data agency-wide.
In 2018, they pressured the sheriff's officials to act. Her answer was, "We'll make a few calls, we'll see," Wolf told ProPublica.
The observers took this as sheriff officials who suggested they call Justice Department regulators to try to circumvent the requirement.
"It wasn't a major threat," said Wolf. "But it was an 'um, we'll see if you're right about that.'"
The staff lawyers are determined to push the deal through, but "we feel like senior managers are sometimes working against the mission," said Wolf. "We know there were times when sheriff officials called senior officials in the DOJ," she said, adding, "We know that some level of influence has been offered."
And the department still hasn't revised their system. The Sheriff's Department did not answer questions from ProPublica.
The monitors' concerns extend beyond the data problem. During the settlement agreement, the sheriff's officers ignored requests to make agreed changes to their policy of use of force for a year and a half. Only recently did the office start working on the monitor again. However, to date there is still no approved new directive.
Cleveland issued a consenting decree in 2015 after the Justice Department found its officials used excessive force against local residents, shooting at people who were not an imminent threat, and carelessly using weapons, including hitting people on the head. Cleveland police also used tasers and pepper spray on people who were already handcuffed, sometimes not because of a threat they currently posed but to punish them for previous remarks. Officials investigating their colleagues' shootings admitted that their aim was to "put the accused in the best possible light".
In the letter of approval with the Justice Department, Cleveland agreed that a judge would have the final say on a body cam policy. The city, with the support of the police union, suggested that officers not have to wear body cameras in the moonlight.
For example, if police officers were working as security guards at a Cavaliers game and were paid by a private entity, they did not have to wear cameras even though they were armed, wearing their uniforms and acting as police officers. The police union was determined not to get involved. When the city attempted a voluntary pilot program to encourage moonlight officers to wear cameras, the union distributed a letter instructing its members that "UNION OFFICIAL POLICY is for anything to do with work from" Volunteering "foreseen."
The monitor contradicted the fading out of the moonlight.
"A system in which one set of rules applies to civil servants who work on a city shift while a different set of rules applies to civil servants who work for a private employer creates confusion, not trust, in the community," argued Matthew Barge, who Observers in Cleveland, in court.
The judge assigned to the case also signaled that he agreed, "If you're a cop and monitor whether it's a bar or a restaurant or whatever, people see you as a cop." He expressed concern that the officials "were not encouraged but discouraged to volunteer".
However, at a hearing in June 2017, the Justice Department did not give the monitor its strong support. The attorney told the judge that the DOJ was "hopeful" that "officers will see that using cameras for outside work will be beneficial rather than burdensome".
The Justice Department, she added, "looks forward to hearing about the progress of the pilot program as the months progressed." However, at this point the pilot program had no volunteers and was inoperable.
Today, moonlit Cleveland police officers do their jobs without body cameras.
The Newark Justice Department attorneys took a similar approach.
The city signed a consent decree with the federal government in 2016. The Justice Department had claimed that a whopping 75% of the pedestrian stops made by the Newark Police Department had no legitimate basis. Although only about half of the city's residents are black, they accounted for about 80% of the layovers and arrests.
Last year, while the consent decree was still in place, a Newark police officer repeatedly shot a moving car despite his partner saying, "Relax! Relax, brother!" He killed the driver, a black man, and seriously injured the passenger. The officer shot three times in a row during a brief chase while the suspect's car was in motion, which was discouraged by the danger innocent bystanders could run into. The shooting was viewed as particularly ruthless as the suspect's windows were heavily tinted.
The case monitor repeatedly asked for video footage of the shooting to assess whether the department's use of force policy needed revision. It has been rejected repeatedly.
"The response from the city and the Newark Police Department to the refusal to provide the requested information was against the letter and spirit of the consent decree," the Monitor wrote in a report. He didn't get the footage until later, after it aired on the local news.
The monitor could have used the Justice Department's help. But federal prosecutors never spoke.
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"Not a word from DOJ," said someone involved in the case. "No email, no phone call, nothing."
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