Amid George Floyd Protests, a Critical Question: Can the Feds Fix American Policing?

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Police hold a perimeter near the White House during a George Floyd protest on May 31, 2020 in Washington, DC. (Photo by Alex Wong/Getty Images)

Police hold a perimeter near the White House during a George Floyd protest on May 31, 2020 in Washington, DC. (Photo by Alex Wong/Getty Images)

September 16, 2020

As millions of people rallied in the streets this summer demanding an end to police violence in the wake of the death of George Floyd in Minneapolis and other civilians across the United States, more than a dozen cities were quietly working on their own police reform processes — in conference rooms and court hearings.

This reform process is the only federal tool that exists to force systemic change in police departments. Part of a broader 1994-era law, it allows the U.S. Department of Justice to initiate binding reform within police departments to address patterns of civil rights violations, such as excessive force or unconstitutional stops and searches.

For eight years under President Barack Obama — 2008 to 2016 — the DOJ used this power to open 25 new investigations into law enforcement agencies, all but a few of which ended in commitments to carry out reforms. Many of those were court-enforced agreements known as consent decrees.

The Trump administration has taken the opposite view, declaring that consent decrees are ineffective and could even make cities less safe. The Trump DOJ has opened only one new investigation, in Springfield, Mass., and unsuccessfully attempted to end pending reforms in Chicago and Baltimore.

But the agreements put in place under the Obama administration have continued, albeit at a grindingly slow pace. A FRONTLINE investigation found that metrics the DOJ uses to measure police reform, such as use-of-force incidents and citizen complaints, were often unavailable. Cities including Baltimore and Ferguson, Mo. — flashpoints in America’s policing crisis — still do not fully track demographic information on stops and arrests, leaving monitors unable to say whether discriminatory policing practices have ended. Such incremental change is no longer enough for groups of activists across the country, who have begun calling to defund police departments or abolish them entirely.

Vanita Gupta, who led the DOJ’s Civil Rights Division under Obama and oversaw a fresh wave of federal investigations, acknowledged that consent decrees are not a magic bullet but part of a nationwide surge toward reform.

“They’re not perfect,” Gupta told FRONTLINE in an interview for Policing the Police 2020. “Under no stretch of the imagination do they accomplish everything that one would hope. There’s backsliding that happens, there’s all kinds of outside factors that come in to take place but, for now, it is the most robust tool that exists, and there is no equivalent to the Justice Department being able to do it.”

Long Road to Reform

Reform agreements emerged under the 1994 Violent Crime Control and Law Enforcement Act, following the historic police beating of Rodney King in Los Angeles. The tool, now standard, represented a watershed moment for American law enforcement.

In 1997, Pittsburgh became the first city to sign such a decree, after a DOJ investigation found a pattern or practice of excessive force, false arrests, as well as improper searches and seizures. The agreement focused on changing the department as a whole rather than trimming bad apples from the force.

Samuel Walker, now an emeritus criminal justice professor at the University of Nebraska at Omaha, vividly recalls the day his office phone rang, more than 20 years ago, while the Pittsburgh decree was still being negotiated. A lawyer for the local office of the American Civil Liberties Union wanted Walker’s expert opinion on the document and promised to fax over a draft.

When Walker read the pages, he said he realized the game had changed. “The Justice Department program was an unprecedented event in the history of the police — in the history of the Justice Department,” he said.

In the years since Pittsburgh, Walker has watched the number of new settlements ebb and flow as the administrations changed, from George W. Bush, who was less likely to pursue binding consent decrees, to Barack Obama, who used the power aggressively. Once in office, President Donald Trump swiftly reversed course.

Pulling Back

In 2017, Trump’s newly minted Attorney General Jeff Sessions told a group of state law enforcement officials that the government would “pull back” on federal civil rights lawsuits against police departments. “I have made clear that this Department of Justice will not sign consent decrees that will cost lives by handcuffing the police rather than handcuffing the criminals,” he said in an April address.

A few months later, Trump told an audience of police chiefs that their officers should not be “too nice” when taking suspects into custody. Sessions’ last official act as attorney general was to sign a memo instructing DOJ attorneys to limit the use of consent decrees to reform police departments.

The Justice Department also made efforts to back out of two pending agreements.

In Chicago, the DOJ had identified a pattern of unconstitutional use of force by police in an investigation launched in 2015, after an officer fatally shot 17-year-old Laquan McDonald in the back. The city and the DOJ under Obama had publicly agreed to enter a consent decree, but Sessions’ DOJ declined to pursue it. Ultimately, Illinois Attorney General Lisa Madigan stepped in, signing a consent decree with the Chicago police that would be overseen by the state, rather than federal authorities.

Read more about the Chicago Police Department

In Baltimore, the Obama DOJ and the city negotiated and signed a consent decree in 2015, hammered out in the wake of an investigation into unconstitutional policing over the in-custody death of Freddie Gray. In 2017, Sessions’ DOJ asked federal judge James K. Bredar to delay approving the deal, saying the agreement would make Baltimore a “less safe city.”

Bredar rejected the DOJ’s argument and signed off on the decree. “The government’s recent motion can best be interpreted as a request for an additional opportunity to consider whether it wants the court to enter the decree at all, or at least the current version of it,” Bredar said, and added: “It would be extraordinary for the court to permit one side to unilaterally amend an agreement already jointly reached and signed.”

The DOJ has since worked to fully implement the agreement, according to a person involved in overseeing Baltimore’s consent decree who was not authorized to speak to the press.

The Justice Department and former attorney general Sessions declined repeated requests for an interview with FRONTLINE. The DOJ pointed instead to statements by the current attorney general, William Barr, who said in June that he does not believe law enforcement is “systemically racist.” “I think that there are instances of bad cops,” Barr said. “And I think we have to be careful about automatically assuming that the actions of an individual necessarily mean that their organization is rotten.”

Read more about the Baltimore Police Department

Weeks after the Baltimore decree was signed, federal authorities indicted seven members of the police department’s elite Gun Trace Task Force for running an elaborate robbery and extortion ring. One police commissioner was fired, and his replacement was indicted less than three months later for tax evasion. The decree appeared to languish under the city’s former mayor, Catherine Pugh, who resigned in 2019 amid her own corruption scandal, Baltimore City Council President Brandon Scott told FRONTLINE.

“When we start out with leadership that is haphazardly committed to it, things will fall by the wayside,” said Scott, who is now the city’s Democratic nominee for mayor. “There wasn’t communication with the community, with the police department, with anybody.”

Scott said new city leadership has since taken charge of the consent decree and is moving forward with its reforms. Still, Scott said he anticipated it would be a lengthy process. The police department faces a steep climb to regain public trust. A Morgan State University survey released in April found that only one person out of 620 respondents agreed that Baltimore police treat residents with respect. The Baltimore Police Department did not respond to FRONTLINE’s interview request.

But civil rights advocates’ greatest fear — a sweeping effort by the Trump DOJ to directly obstruct existing reform agreements — has not come to pass, according to interviews with community leaders, public officials and monitors of police departments under federal supervision.

“It’s an unequivocal, absolute no,” said Natashia Tidwell, the federal monitor for the Ferguson Police Department, which entered into a consent decree with the DOJ after an investigation in the wake of the 2014 police killing of Michael Brown. “There has been to my eye no change in commitment from the DOJ lawyers to the Ferguson decree process.”

In a few instances, local officials did take Sessions’ memo as license to push back against reforms, including in Ferguson. City Attorney Apollo Carey suggested in a court hearing that Ferguson might not be required to comply with some provisions of its consent decree.

“I will say we would disagree slightly with the Department of Justice’s position that this memorandum, you know, has no implications at all on current consent decrees,” Carey said, although he added that Ferguson was “absolutely” committed to the consent decree overall. He did not respond to a request for a comment. Ferguson city and police officials also did not respond to FRONTLINE’s interview requests.

Read more about Ferguson's consent decree

At the Los Angeles County Sheriff’s Department, which is still working through a 2015 settlement, co-monitors Joseph Brann and Angela Wolf said they noticed a change in the department’s attitude under Trump. “One-hundred percent we felt it,” Wolf said. “The department discussed it openly: ‘This is no longer a priority for the federal government. We’ll make some phone calls and get the DOJ to back off.’ I don’t think it changed the work, to be honest with you, we just kind of keep on keeping on, but there’s a different level of comment being made.”

Read more about the Los Angeles County Sheriff’s Department

The LASD agreement is based on a DOJ investigation into unconstitutional policing, specifically by the department’s Palmdale and Lancaster stations. In their June 2020 report, Brann and Wolf said police managers provided “the minimum of support” and “little of the necessary leadership.” It concluded: “There are several areas where this approach has proven deeply inadequate.”  

“I wish I could say we could see the finish line clearly,” Brann told FRONTLINE. “It is so dependent upon the organization and whether or not they really are truly embracing the change, the need for change.”

New Era of Reform

Consent decrees can be complex, time consuming and difficult to assess. But proponents can point to a number of cities where data shows that reforms have had a major impact.

In 2011, a Justice Department investigation found a litany of unconstitutional policing practices in New Orleans: excessive force, unlawful searches and/or seizures, and discriminatory policing, including failures to provide police services to particular neighborhoods. The city and the DOJ entered into a consent decree in 2012 requiring reforms to the use of force, interrogation practices, sexual assault investigations, stop and search procedures, academy training, transparency and accountability.

In the eight years since, the department has become far more transparent, publicly reporting detailed information on its uses of force, stops, searches and arrests, according to the federal monitor. It has overhauled its training, community engagement efforts and internal investigation policies. And the numbers show results: Uses of force declined nearly 50 percent from 2016 through 2019, according to city data.

“I would say for our veteran [police officers], the majority of them actually welcome the changes, especially during our inservice training,” New Orleans Police Deputy Superintendent Otha Sandifer told FRONTLINE in an interview. “They themselves knew that the old way of policing wasn’t accomplishing our goals, as far as meeting our community needs.”

Read more about police reform in New Orleans

After nearly a decade of work on a 2012 consent decree, the Seattle Police Department saw excessive-force cases drop, and officers improve in documenting and analyzing force incidents, according to Merrick Bobb, the independent monitor. “No matter how we measured it, they had made significant progress,” he told FRONTLINE. Moreover, public approval for the city’s police department had increased.

In May, Seattle filed a joint motion with the Justice Department to end its commitments under the consent decree, although the city later withdrew the motion following weeks of protests that led to clashes between police and demonstrators and renewed scrutiny and criticism of the police.

Read more about the Seattle Police Department

National unrest in the wake of George Floyd’s death has also unsettled agreements in cities such as Portland, where the independent monitor plans to write a report reviewing the police response to protests, which could knock the department out of compliance.

“We recognize that there are people, various stakeholders, who feel at this point in time that the Portland Police Bureau is no longer in compliance with the settlement agreement and is engaging in some unconstitutional behaviors,” said Dennis Rosenbaum, a professor emeritus of criminology, law and justice at the University of Illinois at Chicago, who leads the independent compliance team overseeing Portland’s agreement. “Whether that’s true or not we will assess in our next report and if they’re out of compliance, I’m not afraid to say so.”

Read more about the agreement in Portland

Meanwhile in Newark, New Jersey, which remains under a 2016 reform agreement to address unconstitutional policing, this summer’s protests have played out with relative calm. There, the mayor and have marched alongside demonstrators. City officials told FRONTLINE in Policing the Police 2020 that they credit the consent decree, at least in part, with building enough trust between the community and its police force to prevent protests in Newark from escalating to the level of violence seen in other cities.

Read more about police reform in Newark

Still, for some, reform has come too slowly. Nationwide protests have led to calls not only for reform but, in some places, to defund or reduce and redirect funding currently allotted to the police.

Dayvon Love, a community activist who has organized to reform Baltimore’s police department for years, said the consent decree in his city has not done enough to end abusive policing. Maryland state law still makes it difficult to fire officers who violate civil rights, he said, and reforms do not address activists’ demands to defund the police.

“Part of the limitation of the consent decree is, in order to fulfill it, it does require more investment in law enforcement,” Love said in an interview. “It does not presuppose a reimagining of law enforcement.”

Explore Obama-era reform agreements

Meridian, Miss.

East Haven Police Department

Cleveland Division of Police

Seattle Police Department

Newark Police Department

Chicago Police Department

Los Angeles Sheriff’s Department-Antelope Valley

Albuquerque Police Department

Portland Police Bureau

—With reporting by Anya Bourg, James Jacoby, Karen Pinchin, Priyanka Boghani, and Serena Chow 

 

This story has been updated.


Zoe Todd

Zoe Todd, Abrams Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowships

Twitter:

@ZoeHTodd

Dan Glaun, Abrams Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowships

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