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'Policing the Police' Makes a Comeback

By Richard Dahl on May 04, 2021

On April 21, Attorney General Merrick Garland announced that the Justice Department will begin an investigation of the Minneapolis Police Department for unlawful practices.

Five days later, he said DOJ would be doing the same with the Louisville Police Department.

If this sounds like the DOJ has suddenly become unusually activist by swooping in to launch critical examinations of local police departments, think again. Over the last 25 years, the DOJ has investigated dozens of police departments. If the Minneapolis and Louisville announcements sound surprising, it's probably just because we haven't seen them for a while because the Trump administration put a halt to them.

They're called “pattern and practice" investigations, and they've been available to DOJ since 1994, when Congress passed a law enabling them. The first time it was used was 1996, when DOJ began investigating the Pittsburgh Police Bureau. As of 2017 (just before the practice was shut down by the Trump administration), DOJ had conducted 70 of them, resulting in 41 consent decrees.

Identifying Troubled Police Departments

As its name suggests, pattern and practice investigations study the behavior patterns of police departments beset by troubled relationships with the people they supposedly serve. The investigations look at police practices that might be responsible for the problems.

In Minneapolis, the murder of George Floyd by police officer Derek Chauvin drew global attention to a police department that arguably fit that category. Just two days after Floyd's death, the New York Times ran a detailed article about the Minneapolis Police Department's tense history with people of color. Using Police Department data as its source, the Times reported that Blacks “are more likely to be pulled over, arrested, and have force used against them than white residents" even though Blacks comprise only about 20% of the city's population. And between 2009 and 2019, Black people accounted for more than 60% of the victims in Minneapolis Police shootings.

The story in Louisville is similar. The Louisville Metro Police Department has had strained relations with residents, mostly in Black neighborhoods, and the situation came to a head last year with the killing of a Black woman, Breonna Taylor, in her own home during a botched drug raid.

Announcing the DOJ investigation on April 26, Garland said the agency will examine whether the LMPD “engages in a pattern or practice of using unreasonable force, including with respect to people involved in peaceful expressive activities."

Garland said the investigation will also look at “unconstitutional stops, searches, and seizures," as well as whether the department “engages in discriminatory conduct on the basis of race."

In January, an independent consulting firm examined the Louisville police department concluded in January that its relationship with many communities, but especially primarily Black ones, is “deeply strained."

“Many of Louisville's communities of color do not trust the police force due to generations of problematic relations," the report said. “Additionally, many LMPD officers are unsure they want to be part of the Department and are considering leaving policing altogether."

How DOJ Investigations Work

While the Floyd and Taylor killings by police are clear examples of misconduct, they are not enough to warrant an investigation by DOJ. The agency says the purpose of pattern and practice investigations is to focus on “systemic" misconduct.

These investigations are a first step in what could lead to a consent decree. If it finds a pattern or practice of misconduct, DOJ issues a public report and negotiates an agreement with local law enforcement to resolve DOJ's findings with a consent decree overseen by a federal court and overseen by an independent body. If the court finds, over time, that the law enforcement agency has accomplished the requirements of the consent decree, the case is lifted.

While it might sound great that the feds can bring about reform in troubled local police agencies, the record is spotty. As the Washington Post and the PBS series “Frontline" discovered in a 2015 examination of consent decrees, while some departments improved in some specific ways, but measured by “use of force" statistics, not much changed. Also, officer morale mostly plummeted.

One doesn't need to look any further than the Oakland Police Department in California to find a prime example of a department that just can't change. The Oakland PD has been under a consent decree since 2003 and has shelled out $16 million in taxpayer money to an independent monitoring team assigned by the federal government with no end in sight. (A 2017 movie documentary, “The Force," provides an excellent in-depth look at how the Oakland PD operates – and fails to operate – under this decree.)

But some, like East Haven, Connecticut, do work. The key, apparently, is to strive for collaborative arrangements with significant local buy-in instead of simply ordering compliance. East Haven completed a five-year consent decree with dramatic changes reversing “a long legacy of discrimination and vaulting the department into the ranks of the most progressive in Connecticut," according to the Washington Post.

Looking to the Future

President Biden has signaled that he wants greater federal oversight when local police departments behave in ways that lose the public trust, and Garland is clearly of like mind.

It's hard to change the way police departments operate – even when consent decrees loom over them. And it sounds like DOJ might need to tweak consent decrees themselves to make them more collaborative.

But, at least in Minneapolis and Louisville, it also sounds like a pattern and practice investigation is at least a good first step.

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