Five years ago, a white police officer in Ferguson, Missouri, shot a young Black man, Michael Brown, and decades of frustration over racially biased and unconstitutional policing exploded in the streets as the world watched.
In the months and years that followed, the Obama administration helped draw national attention to the utility of federal investigations into patterns of unconstitutional conduct by police departments. But now the Trump administration has all but abandoned that work. The Justice Department has backed away from its mandate to rein in systemic police abuse and deserted even those police departments that asked the feds for help.
The Justice Department’s Civil Rights Division, which is charged with investigating and litigating any unconstitutional “pattern or practice of conduct by law enforcement officers,” virtually halted new investigations. Political appointees of President Donald Trump tried to sabotage one reform agreement in Baltimore and block another in Chicago.
It has taken a toll inside the Justice Department. HuffPost’s interviews and research indicate that roughly a third of the thinly staffed group that investigates police practices at the Civil Rights Division’s Special Litigation Section have departed since Trump’s election. The Trump administration has shrunk the size of the unit and has no plans to replace those who left.
Supporters of DOJ-led police reform see an irony in an administration that came into office on a “law and order” platform abandoning its duty to enforce the law against police. The administration’s retreat from systemic police reform is “yet another example of it shirking its duty to the rule of law,” says former Civil Rights Division official Chiraag Bains.
“I’m not sure there are many more bodies of work that are so clearly about rule of law at their core,” Bains said. “Talk about law and order: What higher law is there than the Constitution of the United States? That’s what these cases are about.”
A Justice Department official said in a statement that the agency “is committed to protecting the civil and constitutional rights of all individuals, and understands the important role the Department plays in helping communities and police departments as they seek to achieve the same goal while fighting violent crime and protecting public safety.” Attorney General William Barr, the statement said, “is committed to holding any officer responsible who violates the law without restraining the ability of good police officers trying to do their part in reducing violent crimes.”
Under a provision of federal law codified in 1994 in the wake of rioting in Los Angeles, which was sparked by the acquittal of officers filmed beating motorist Rodney King, the Justice Department can investigate and sue over widespread police misconduct. The investigations can highlight racism within a department’s culture, flag broken internal affairs systems that fail to hold officers accountable for misconduct and identify practices that systematically squash constitutional rights. The Ferguson report, released seven months after Brown’s death, did all three. One distinguishing feature of the Ferguson report was its focus on the conspiracy between the city’s part-time municipal prosecutors, judges, police force and bureaucracy to implement a policing-for-profit scheme to implement a regressive tax on Ferguson residents and visitors.
After such an investigation, most cities reach a consent decree agreement to reform their ways and bring their behavior back in line with the U.S. Constitution and avoid a lengthy legal battle.
Under the Obama administration, there was also a softer approach available. But the Trump administration effectively killed a program run by the Justice Department’s Office of Community Oriented Policing Services (COPS) that took a non-litigative approach to police reform by partnering with police departments that voluntarily subjected themselves to review. That’s left more than a dozen communities like North Charleston, South Carolina ― where former officer Michael Slager murdered Walter Scott in 2015 ― feeling abandoned.
The North Charleston report was near completion when the Trump administration suspended the program, and the government has refused to make the report or any notes public, despite requests from city officials and Sen. Tim Scott (R-S.C.), the nation’s foremost Black Republican.
“This administration came in, and they just decided that they were going to throw all the data away. All of that wealth of information, all of that experience ― throw all of that away,” says former U.S. Attorney Bill Nettles, who announced the collaborative reform initiative with North Charleston after Scott’s death. “It’s just a staggering lost opportunity. It was a huge setback not to have the COPS report.”
Shaundra Scott, a civil rights attorney in South Carolina, said a report from the COPS office would have shown the community that action was being taken after video showed the officer fatally shot the unarmed man in the back as he fled.
“Taking that step would have shown that the government was behind us in trying to tackle this problem and enable the police department to see where the weaknesses are and then empower them with resources so we could all work together,” Shaundra Scott said. “I think there are groups that keep the fight going and keep pushing, but after a while, I think the community is just over it, and it’s like there’s nothing that’s going to be done.”
The architect of the Justice Department’s retreat from police reform was former Attorney General Jeff Sessions, who subscribed to the “bad apples” view of police misconduct and made his opposition to pattern-or-practice investigations clear. At his confirmation hearing, he claimed the lawsuits undermined respect for police officers, saying it was ”difficult″ for law enforcement to be “told that your police department is systematically failing to serve the people of the state or the city.” While conceding that he hadn’t actually read the Justice Department’s in-depth investigations, he asserted days after he took office that DOJ’s reports were “pretty anecdotal and not so scientifically based.”
Sessions initiated a review of the Justice Department’s policing work early on in the Trump administration, which led to the virtual death of the collaborative reform initiative. Then, hours before his forced resignation took effect last November, Sessions signed a memo that all but eliminated the use of consent decrees to bring about systemic change to local law enforcement agencies by imposing extremely strict limits on their use in pattern-or-practice investigations.
Inside the Civil Rights Division, the consternation that began after Trump’s election continued as the political appointees took their places and clamped down on efforts to police the police. Their actions spurred a number of departures. At its peak, the police practice unit had 29 spots. About a dozen employees have left, bringing the number of employees into the teens, and the Trump administration has shrunk down the cap on the unit to 21 spots. A number of contract employees have also departed. For context, the United States has roughly 15,000 police departments, and DOJ had 18 ongoing reform agreements, five open investigations and a case in litigation at the end of the Obama administration.
“The election was really disheartening to folks who cared about civil rights, and particularly those of us who were working in regulation of law enforcement, given a lot of the rhetoric that had been said during the campaign that generally was dismissive of efforts to hold police departments accountable,” said a former Justice Department employee speaking on the condition of anonymity.
“We had a very good sense of the extent of the problem and what we thought were the kinds of reforms that were necessary, and then have folks come in who know virtually nothing,” the former DOJ employee said. “It sucks a lot, as I’m sure you could imagine.”
But the political folks overseeing civil rights work “weren’t competent enough” to halt progress in the early days of the administration, the person said. They wrongly “assumed that the Baltimore Police Department was going to jump at the opportunity to get out of a decree.” Baltimore stuck with the agreement they reached during the Obama administration, and a federal judge approved the consent decree over the administration’s objections.
Chicago was a different story. Although the Justice Department managed to push out the report on Chicago policing seven days before Trump’s inauguration, an agreement wasn’t finalized, and the Trump administration backed away. To top it off, DOJ later took the unusual step of moving to block a reform agreement negotiated between city officials and the state of Illinois.
Over time, as political appointees reviewed DOJ’s police oversight portfolio and new investigations halted, the police practice group’s workload “slowed down to a snail’s pace,” the person said.
“That was one of the hardest parts about it. It was really boring,” the person said. “I know that’s personal, and that’s like, ‘Oh, you’re gonna complain about not having anything to do and collecting a paycheck,’ but the reality is there just wasn’t that much to do.”
Another former official disputed the notion that there wasn’t a lot of work and said a shrinking staff of individuals dedicated themselves to maintaining the ongoing consent decrees.
“There were a number of folks who just felt they could still make a difference and wanted to protect the work that they had personally put a lot of blood, sweat and tears into,” the former official said.
“The perception outside was that it just shut down, and everyone went to the office and twiddled their thumbs, which isn’t true,” the person said. “I think people were working twice as hard to make up for the staff that left and frankly to prove to the communities that they were still there and still doing good work.”
“The good news part of the story is that the consent decrees that were initiated under the last administration have proved durable,” said former Civil Rights Division official Jonathan Smith. “They’ve had problems, but they’ve proved durable. There are really terrific career staff working within the departments to make sure the promise of those agreements take place.”
The former DOJ employee said they stayed on as long as they did out of loyalty to the residents of the cities they’d worked with.
“I didn’t want those to fall apart if I completely abandoned them,” the former employee said. “I think there are a number of folks who feel they can still do good work and want to sustain good work, and know that we need people with the values of folks who were hired under the Obama administration to keep doing that work from the inside, even when they’re met with skepticism.”
But that person worried about “brain drain” in the section, a problem that will be exacerbated if Trump wins reelection and the Civil Rights Division’s policing portfolio remains frozen. “It takes a lot of time to rebuild that institutional knowledge.”
Monique Dixon, a top official at the NAACP Legal Defense and Education Fund, agreed that there’s going to need to be a “period of trust-building” if a Democratic administration takes office in 2021. “There’s going to need to be an assurance from the Department of Justice that they are, in fact, renewing their commitment to protecting civil rights.”
Dixon said that local lawyers and advocates have had to take up the cause because of the Justice Department’s retreat from police reform. Dixon said her organization and other civil rights advocates have also had to dedicate resources to monitoring the implementation of consent decrees to make sure the Justice Department is fulfilling its duties.
“It’s really causing civil rights organizations and local advocates to shift more and more resources to monitoring policing reform efforts that the federal government has abandoned,” Dixon said.
“It’s an abandonment of the congressional mandate,” said Bains, the former Civil Rights Division official. “It is harmful for communities around the country. Specifically ― especially ― communities of color. I think the consequences are quite dire.”
Christy Lopez, the former deputy chief of the Special Litigation Section who pioneered the Justice Department’s approach to police misconduct and led the teams that investigated policing in Ferguson and Chicago, said staffing shortages make it difficult for career employees to put pressure on political appointees to open new policing investigations.
“People tell me, ‘I know we haven’t opened anything, but who would work on it if we did?’” Lopez said. “It disincentivizes people from within the department from even clamoring to open new cases because they don’t know how they would do them if they don’t have the staff.”
Pressuring Trump administration officials to open investigations might be “tilting at windmills,” she said, but creating a paper trail could be beneficial. “I have told people that if I were there, my strategy would be that every time there’s a good case, write it up and send it up,” Lopez said.
There’s only been one pattern-or-practice investigation made public since Trump’s inauguration: a narrow investigation into narcotics detectives in Springfield, Massachusetts. A total of 14 current or former Springfield officers were indicted in March for beating four Black men and covering up their actions, while two current and former officers were separately indicted for beating two Latino juveniles. One of the officers allegedly spit on a juvenile and said, “Welcome to the white man’s world.” DOJ’s Springfield pattern-or-practice investigation went public in the spring of 2018, and its current status is unclear.
Despite the Trump administration’s aversion to pattern-or-practice probes, some of the criminal civil rights cases brought by the Justice Department highlight the absurdity of the “bad apples” approach to police reform.
Four St. Louis officers were indicted on federal civil rights charges last year for beating up a Black undercover officer and engaging in a cover-up. The Black officer, who was conducting surveillance on a 2017 protest, said his white colleagues ”beat the fuck out of him like Rodney King.” Police in the St. Louis region routinely used excessive force and unlawfully arrested demonstrators in the wake of the Ferguson unrest, and the criminal case against four officers clearly has systemic implications. It’s evident that a large number of St. Louis officers engaged in misconduct that night under the supervision of their leadership, and a federal judge ruled in a civil case that officers “exercised their discretion in an arbitrary and retaliatory fashion to punish protesters for voicing criticism of police.”
Text messages exchanged by the officers ― in which they brag about their ability to beat protesters with impunity ― speak to a broader culture of brutality and retaliation against protected expression. “it’s gonna be a lot of fun beating the hell out of these shitheads once the sun goes down and nobody can tell us apart!!!” one officer wrote.
The St. Louis Metropolitan Police Department’s handling of the protests that night cry out for a broad probe of their culture and practices. But the lack of a systemic investigation allows police officials to maintain the fiction that the four officers were outliers rather than among many assailants who were unlucky enough to have brutalized a colleague rather than a civilian.
“I am WAY more alright with what u and I did than what the others did!” one officer texted. “Wasn’t just us,” another responded. “If it was a protester it wouldn’t be a problem at all.”