When 250 Ferguson residents met with the Justice Department last week, many of them made it abundantly clear that they wanted the government to arrest and indict Officer Darren Wilson and to investigate St. Louis County Prosecuting Attorney Bob McCulloch.
Over grumbles from the audience, Justice Department lawyers politely explained they could promise none of these things.
Christy Lopez, deputy chief of the Special Litigation Section of the Justice Department, told the crowd that criminal civil rights cases are “very difficult to prosecute…. There can be an officer who violates a lot of policies and violated state law but did not violate federal law.”
What the Justice Department lawyers could and did offer, however, was an approach that could result in fundamental changes in police behavior and the way police interact with citizens. What they offered was the prospect of an enforceable legal agreement to force a change in the pattern or practice of policing -- or how police work.
A change in policing can be much more powerful than a criminal prosecution, says John Eck, a criminology professor at the University of Cincinnati. He has worked on Cincinnati’s police reforms over the past decade.
“You see this in Ferguson where there is this horrific incident and immediately finger-pointing goes toward the officer involved and the behavior of the citizen victim….
“The human feeling to want vengeance when one is wronged is deep and biological, but even if that person is prosecuted and sentenced, unless they address the underlying police strategy, there are going to be more dead African-American youths. That is what the public has to understand.”
After Rodney King
The frustrations with holding Los Angeles police accountable for the beating of Rodney King led to passage of Section 14141 of the Violent Crime and Law Enforcement Control Act of 1994.
The law empowers the Justice Department to sue law enforcement agencies where it finds a “pattern or practice” of unconstitutional police behavior.
From one standpoint, the law is laughably inadequate for the scope of the problem, lawyers say. The Justice Department has brought an average of three cases a year over the past 20 years, which is about 0.02 percent of the 18,000 police and sheriffs departments in the country.
On the other hand, the number of pattern or practice suits has grown rapidly under Attorney General Eric Holder. His department has pursued 20 cases since 2009.
Moreover, over its life, the law had led to changes in some of the nation’s biggest cities – Pittsburgh, Cincinnati, Detroit, Los Angeles, Oakland, New Orleans and Washington, D.C.
Most evaluations of the impact of the pattern or practice cases are positive. The use of deadly force is down, rogue police officers are identified and weeded out, and citizen review boards give citizens greater confidence that police will be held accountable.
But there also is a tendency for cities to slide back if they do not achieve a real change in police culture or if a new generation of police commanders does not buy into the changes.
Pittsburgh is an example of regression. In 1997 it was the first city that the Justice Department targeted with the new law. An independent study in 1995 found substantial progress despite opposition from the rank-and-file officers who bridled at the ability of career criminals to file anonymous complaints.
But a new mayor removed the police chief who had supported police reform. Under a subsequent chief, Nate Harper, the department slid backward, according to various accounts. Harper himself ended up pleading guilty to federal tax fraud charges.
David Harris, a national expert on policing at Pitt Law School, says that that the pattern or practice case in Pittsburgh “made this a markedly improved department….more responsive to complaints.” But he added that it did not change many aspects of the police culture.
The police union, police commanders and city officials complain every year about the strong citizen review process that includes investigators with subpoena powers, he said. Harris thinks the review process is highly effective.
In addition, a system for identifying police officers who are violating police policies seems to have fallen out of use, Harris said.
This illustrates that “the biggest problem with pattern or practice cases is sustaining them,” Harris said. “Pattern or practice is the best tool out there because it deals with systemic change,” he said in an interview. “But it still has shortcomings because you have to have someone who keeps after it.”
Cincinnati’s decade of progress
The last decade’s experience in Cincinnati has been more promising, partly because the Justice Department’s pattern or practice case was just one element of a broader effort to change police policy, police culture and the relationship between the police the community.
Police reform began in Cincinnati in much the same way as it is beginning in Ferguson – the 2001 shooting death of Timothy Thomas, a 19-year-old African American.
The shooting followed a series of police shootings of African-American suspects and led to several days of riots in the Over-the-Rhine section of the city.
Even before Thomas was killed, civil rights lawyer Alphonse Gerhardstein had filed a civil rights lawsuit against the city alleging unconstitutional police practices targeting African Americans. That lawsuit became a crucial element of police reform because it led to the “collaborative agreement” setting out detailed changes in policing policy.
The requirements of the consent decree from the Justice Department were linked to the court order enforcing the collaborative agreement with the authority of a federal judge behind them.
Eck, the policing expert in Cincinnati, said it was important that police reform involved not just a change in policies but also policing strategy that put the police officers front and center in solving crime in the community. "This helped to bring about buy-in from the police,” Eck said.
Gerhardstein said in an interview that he thinks “Ferguson is in a good place to learn” from police reform around the country but cautioned, “I know they are getting flooded with quick fixes. It is very important they take the time to listen to their community members to hear what they are frustrated by.”
It doesn’t work, he added, to just “have a crisis and then elected officials say we will fix this crisis and fire this guy and it's done.”
Adds Eck, “We’ve been at it well over 13 years and we still haven’t got it right although we’re a lot better. There still are meetings where people raise their voices.
“The Justice Department suit is important but unless there are people in Ferguson who are going to do this and hold the city council and police chief accountable, it is not enough. They need to take ownership….they can’t see the Justice Department as the lone ranger.”
Elements of police reform
The Justice Department’s pattern or practice cases usually result in consent decrees that run for five years and have similar provisions from city to city. These common provisions call for:
- Change in deadly force policies to reduce the instances of deadly force;
- Early warning procedures to identify officers with frequent complaints filed against them or who frequently violate department rules;
- Civilian review boards to give civilian investigators subpoena powers to investigate and discipline officers;
- Increased mental health services to help officers confronted by mentally ill people;
- Prompt disclosure to community leaders of both a police shooting of a civilian and the officer’s name, unlike the delay that followed Wilson’s shooting of Brown.
- Video cameras on squad cars or officers.
- Court monitors to ensure follow-up.
Differences in Ferguson
The Justice Department’s pattern or practice investigation in Ferguson is different in important ways from past suits it has pursued across the country.
The most important differences are:
- Ferguson is a small town instead of a big city;
- One of the chief complaints is about how municipal courts function in north St. Louis County. Municipal courts are not really a police matter.
Thomas Harvey, executive director of ArchCity Defenders, said Friday that Justice Department investigators have asked him detailed questions about how municipal courts handle bench warrants and other petty charges.
Before the Ferguson shooting, Harvey’s group reported that municipal court practices can result in poor residents being locked up because of multiple bench warrants for failing to appear in court.
Harvey said that the government investigators were surprised to get complaints about an unusual practice that is followed by St. Louis area police departments but by few other departments around the country. It is the practice of issuing a “wanted” for a person wanted for questioning about a crime.
In other words, the police issue a “wanted” without probable cause to believe the person being sought has been involved in the crime. When a person with a "wanted" on file is stopped for a traffic violation, the "wanted" shows up and the person is taken to the police department that issued the wanted. Officers try to question the person without a lawyer present, Harvey said.
Another unusual practice involving municipal courts directly involves police officers, Harvey said. That is setting bond in traffic cases.
Normally, setting bond is a job for a judge. But police often negotiate the amount of the bond in the Ferguson police holdover, Harvey said. This is another area of inquiry for the Justice Department.
Harris, a police expert, said that the actions of municipal courts that do not involve police officers directly might be beyond the reach of the Justice Department’s pattern or practice suit. The law authorizing those investigations is limited to law enforcement officials, which would not include municipal court officials.
The Justice Department lawyers who visited Ferguson earlier this week were mindful that Ferguson’s small size could limit the impact of their investigation.
They assured Ferguson residents that other nearby police departments could be added to the investigation. In any event, the eventual agreement with Ferguson will send the message to neighboring police departments to “be on notice,” the lawyers said.
The other uncertainty about the Ferguson investigation is last week’s decision by Holder to resign. But Harris said that he does not expect Holder’s departure to alter the Ferguson probe.
“It won’t affect the Ferguson case because it is so much in the public eye. Any attorney general in the Obama administration is going to pursue it.”
Holder’s success in rebuilding the Civil Rights Division is one of his main achievements, Harris said. That strong division is equipped with or without Holder to pursue a major enforcement action in Ferguson, he said