Why You Should be Concerned About the U.S. Department of Justice Consent Decrees
by Lou Reiter, Co-Director LLRMI
©2010 Lou Reiter, Co-Director, Legal & Liability Risk Management Institute (LLRMI.COM)
In 1994, tucked into the Crime Bill, was an innocuous two paragraph Section 14141. It was an outgrowth of the clamor after the Rodney King incident. In essence it allowed the U.S. Department of Justice to begin an investigation and, if warranted and necessary, instigate a civil lawsuit against a local law enforcement agency when it determined that the agency was engaged in widespread civil rights violations.
In 1997, the U.S. Department of Justice, Civil Rights Division, Special Litigation Section, entered into Federal Court monitored Consent Decrees with the Police Departments of Steubenville, OH. (50 persons), and Pittsburgh, PA (1100 persons).
I was the consultant for the D.O.J. in the investigation of the Pittsburgh P.D. It was primarily focused on use of force, field stops and searches, and investigation of citizens’ complaints. Much of the specific inquiry which I conducted was based on an audit of over 100 citizen complaints over a 5 year period. Since that time I’ve been a consultant for the D.O.J. investigations of Buffalo, Charleston, WV, New Orleans, NYPD, and Columbus, OH, and for the cities of Cincinnati and Schenectady, NY.
Since those first two investigations and decrees in 1977, the D.O.J. has investigated and entered into many additional agreements with local police agencies. Some of these are consent decrees, while the more common current vehicle for remediation is called memorandums of agreement or technical assistance agreements. The investigations are normally undertaken after the D.O.J. is requested to look at an agency by the local U.S. Attorney, an advocacy group such as NAACP or ACLU, a group of civil plaintiff attorneys, the Chief of Police, or an elected political leader, usually the Mayor. D.O.J. will ask the police agency to voluntarily provide it with a vast amount of documentation. If the D.O.J. finds that there is evidence of Constitutional violations in their opinion, the investigation will then broaden and encompass hiring, training, supervision, policy/procedure development, and nearly the entire realm of police service. An outside monitor will be selected and paid for by the involved agency. Most of these agreements are for a period of either 3 or 5 years. To request closure, the agency usually must meet the specified criteria goals for a period of 2 years.
Pittsburgh Police Department was allowed to be removed from its Consent Decree after 5 years. An interesting development, however, was that the City was kept under the Consent Decree as it did not meet the criteria in its investigation of citizen complaints which was under the control of the City Solicitor. It is still under Court supervision.
Many of the agencies under these agreements have indicated that they benefitted from them. Most were able to get equipment that was not provided by the funding body prior to the agreement. All have received more training than they had before the agreement. Some have received assistance from the D.O.J. in obtaining necessary funding for some of the required changes.
It’s important to understand what triggered the involvement of D.O.J. Some were from historical conflicts with minority communities. Some were due to repeated allegations of racial profiling stops. Others concerned a controversial shooting or in-custody death or allegations of improper uses of force. That’s why they are somewhat different in content. One area which is relatively consistent in content is the methods for investigating citizen complaints. Some of the current agencies under such agreements are: Buffalo; Cincinnati; Washington, D.C.; Montgomery County MD.; New Jersey State Police; and the Los Angeles Police Department. There are several other agencies under these types of agreements which are local in nature, rather than with the Department of Justice, such as Philadelphia, Oakland, CA, and Highland Park, IL.
The significance of this process and the resulting agreements is that they really have established another basis for determining what acceptable police work is and what can be used to establish a generally accepted police practice. From these investigations, the U.S. Department of Justice has developed what it refers to as “Best Practices.” Generally accepted police practices include those that have been associated with civil litigation, and thereby create a measure for the Court and Jury to use in determining whether police actions are liable. Along with case law, additional sources used to reference reasonable and generally accepted police practices include I.A.C.P. Model Policies, C.A.L.E.A. Standards, individual State accreditation standards, State mandated policies and training, and authoritative texts and journals.
It would be prudent for any police agency to consider these decrees and agreements in determining its level of professionalism, reasonableness of police service and potential for liability. The specific agreements and “Best Practices” can be found at www.usdoj.gov/crt/split/police.htm.
SEE RELATED ARTICLES:
Qualified Immunity Rules for Civil Rights Lawsuits Brought Against Law Enforcement Officers (2009)
Supervisory Liability In Civil Rights Claims - Ashcroft v. Iqbal (2009
Common Questions about Law Enforcement Administrative Investigations (2006)
Overview of Police Liability (2006)