Connecting state and local government leaders
In the absence of federal civil rights investigations into the conduct of local police departments, some states may begin to implement their own consent decree programs.
The state of Minnesota will conduct a civil rights investigation into the daily practices of the Minneapolis Police Department, officials announced this week as protests continued to rage across the country over the death of George Floyd.
Floyd, a 46-year-old black man, died nine days ago after a white police officer kneeled on his neck while others held down his back and legs. The death, the latest in a string of killings by Minneapolis-area police officers to capture national attention, has inspired protests in cities across the country and widespread calls to radically reshape police departments, including slashing their budgets.
All of the four officers at the scene have been fired, while within days charges were filed against Derek Chauvin, the officer who pinned Floyd down with his knee. Minnesota Attorney General Keith Ellison on Wednesday increased the charge against Chauvin to second-degree murder, while also charging the three other officers with aiding and abetting murder.
But police critics in Minneapolis and elsewhere have pointed out that criminal charges against individual officers don’t change what they describe as a pattern of police discrimination and hostility against the city’s black residents, particularly as it relates to excessive use of force.
In announcing the new probe, Gov. Tim Walz acknowledged this disconnect. “We know that deeply seated issues exist," he said. "And the reason I know it is we saw the casual nature of the erasing of George Floyd’s life and humanity. We also know by the reaction of the community. They expected nothing to happen, and the reason is because nothing did happen for so many times.”
Minnesota’s Human Rights Commissioner Rebecca Lucero will lead the investigation into the department and said that the state hopes to use the findings as the foundation for a court-enforced consent decree with the city. A consent decree is an official agreement between a local police force and a state or federal oversight office to use independent monitors to ensure that specific policy or procedural changes are made. These changes often include training requirements, steps to stop police officers from overly using force, and the creation of new reporting procedures for interactions officers have with civilians.
The kind of “patterns and practice” investigations that Minnesota plans for the Minneapolis police department are usually undertaken by the U.S. Department of Justice. The DOJ in the Clinton administration began the first of these probes in cities that had widespread and long-running histories of police misconduct and brutality, leading to consent decrees in places like Pittsburgh, Detroit, and Cincinnati. These systemic examinations of local police were largely abandoned during President George W. Bush’s tenure, but then revived during the Obama administration, which made them a major Justice Department priority. The Obama DOJ entered into 14 consent decrees with departments across the country, including in cities like Ferguson, Missouri and Baltimore, Maryland, where high-profile deaths of black men in encounters with police resulted in days of protests and unrest.
But Trump administration officials frequently criticized federal consent decrees, which former Attorney General Jeff Sessions had long considered a “dangerous” mechanism for the federal government to meddle in local police agencies. Before he resigned from office, Sessions established policies severely curtailing their use.
In the void of federal action, some state attorneys general have assumed the task instead. Illinois pioneered a state-led consent decree process with Chicago following a U.S. Justice Department investigation that found a history of racial discrimination and use of excessive force by police. California has also engaged in a “collaborative reform program” that doesn’t include court supervision with the San Francisco police department. In both these processes, state and local leaders worked collaboratively with community groups to set priorities.
The process in Minneapolis could shape up to be much the same. City leaders say they fully support the investigation into the police department, which will focus on police policies and practices over the past ten years. Mayor Jacob Frey said that he believes the investigation will push reforms that for years have been “thwarted by police union protections and laws that severely limit accountability among police departments.”
The Minneapolis Police Department did not return a request for comment, nor did the Minneapolis Police Federation, the union that represents officers in the city. The Minneapolis union is working to reinstate the four police officers involved in Floyd’s death, who they say were “terminated without due process.”
Police unions have been vocal critics of consent decrees in other cities, where consent decrees have come under fire in part because of their hefty price tags, not only for the reforms that are enacted but also the expensive monitoring process. And unions aren’t the only ones with concerns. City leaders have also wrestled with the critiques of some activists who say that consent decrees aren’t forceful enough to enact deep change. They also point out issues with long-term enforcement and monitoring after a consent decree ends. In Pittsburgh, the first city that entered into a consent decree in 1997, observers say that the changes “did not stick.”
Cameron McLay, the city’s police chief from 2014 to 2016, told The Washington Post in 2015 that reforms depend on the people in charge. “You can gain compliance with policies and get people to stop engaging in dysfunctional behavior,” he said, “but unless you change the way people feel about their job and start holding themselves responsible . . . the accountability will last only as long as I do.”
Sam Walker, a professor at the University of Nebraska who has written about institutionalizing changes from consent decrees, said that sustaining reforms is a “fundamental issue” in policing, but that there are “significant positive examples” from the consent decree process. Recent results from some cities have shown that consent decrees can result in reform in some areas. One academic study of 23 police departments found that the average number of civil rights suits filed against the police per year dropped from 23% to 36% after a consent decree was established.
“Done right it can work,” Walker said. “It’s a matter of the political initiative to pick up the ball and run with it.”
Walker said that other states “can and should” follow the examples set by Illinois, California, and Minnesota. The advantage of doing consent decrees at the state level, he said, is that it “multiplies the number of players by fifty.” Instead of one unit at the U.S. Justice Department, now investigations can be led by state attorneys general or other agencies staffed with people who know the “lay of the land.”
The process would likely start by civil liberties groups pressuring the state attorney general to initiate an investigation, he said. All state constitutions have broad language that give attorneys general the power to investigate police departments, but state legislatures could also pass statutes similar to the 1994 federal law that gave the government the power to sue police departments that exhibit a “pattern and practice” of using excessive force, because doing so would further insulate an attorney general investigation from legal challenges.
States don’t have to reinvent the wheel, either, Walker said. Most consent decrees have similar text that can be lifted and tweaked for other places. The bigger issue is one of resources. As protesters call for major changes in multiple, possibly even dozens, of police departments throughout a state, attorneys general will have “tough decisions” to make about priorities.
“Focus on the department within the largest city or the one with the worst reputation,” Walker advised. “Do it and do it well. It sends a message to all the others that they might be next.”
Emma Coleman is the assistant editor for Route Fifty.
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