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| Virginia Bruner |
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| Christina Egan |
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| Ayana Brown |
On March 28, Deputy Attorney General Lisa Monaco announced the proposed DOJ budget for fiscal year 2023 to include $3.5 billion for civil rights. The trend in new pattern or practice investigations is likely to continue as part of the Biden administration's prioritization of racial equity, criminal justice reform and prosecution of hate crimes.[1]
In weighing whether to open a costly and time-intensive investigation into one of the over 18,000 law enforcement agencies in the U.S., the DOJ will continue to weigh heavily reports of unlawful use of force, unlawful stops and racial discrimination.[2] In the face of a reinvigorated Civil Rights Division, police departments have more incentive than ever to be proactive in their reforms.
Pattern or Practice Investigations
The Civil Rights Division's authority to investigate law enforcement departments stems from a 1994 federal law that empowered the federal government to investigate any "pattern or practice of conduct by law enforcement officers" that "deprives persons of rights, privileges or immunities secured or protected by the Constitution or laws of the United States."
From 2012 to 2017, the DOJ opened 11 new pattern or practice investigations, and negotiated 19 new reform agreements.[3] During former President Donald Trump's administration, the DOJ opened one pattern or practice investigation involving police departments, which concluded in July 2020 without any consent decree or civil settlement.
Since April 2021, the DOJ has announced four new pattern or practice investigations into police departments, signaling a renewed emphasis on federal oversight and enforcement.
Reform Agreements
If the Civil Rights Division substantiates findings of systemic misconduct, the cases typically resolve with reform agreements, which are either out-of-court resolutions commonly referred to as settlement agreements, or court-approved settlement agreements known as consent decrees.
Consent decrees are overseen by a federal court and an independent monitor, who is appointed by the court. Police departments can remain under a consent decree for more than a decade.
The use of consent decrees also halted under the Trump administration. In April 2021, Attorney General Merrick Garland rescinded the prior administration's guidance disfavoring use of consent decrees, and has released additional principles for consent decrees and monitors and recommended actions designed to minimize their cost to jurisdictions, while reiterating support for their use.
State Attorney General Investigations
Against the backdrop of summer 2020 protests of law enforcement, combined with the drop-off in federal investigations, states passed legislation to expand their ability to bring civil charges against law enforcement departments.
Colorado, Illinois, Nevada and Virginia recently passed laws authorizing their attorneys general to investigate government agencies for engaging in a pattern or practice of law that violates state or federal constitutions or laws. California became the first state to pass such a law in 2000, opening four investigations since that time.
Looking Ahead
In light of the demonstrated rebirth of federal investigations, and the advent of new state authority to conduct similar investigations, law enforcement departments — and other government-funded agencies — need to be proactive in instituting reforms.
Even where the DOJ closes an investigation without making a formal finding, that comes at the end of a time- and resource-intensive process. States and localities need to be proactive in performing internal reviews, and updating their policies and practices before coming under scrutiny.
These reviews should consider the following areas, among others:
- Review and update law enforcement training requirements, including training that incorporates the concept of impartial policing, procedural justice, de-escalation training, conflict management and cultural competency training. For example, the Chicago Police Department began a rollout of procedural justice training in January 2012, continuing through March 2016 as part of the city of Chicago's 2017 consent decree with the Illinois Attorney General's Office.
- Increase community engagement and transparency to authentically build a relationship with the community. Consent decrees often seek to increase trust between the community and the police department. Departments should look to strengthen engagement with community leaders, and review policies and procedures surrounding access to public information.
- Develop programs for response to persons with mental illness and initiatives that bolster social services, such as creating and engaging multidisciplinary crisis intervention teams. For example, in August 2020, the city of New Haven announced the launching of a mobile community crisis response team, which would have the city's 911 call center dispatch specially trained social workers and health care experts to calls for service that are related to behavioral and mental health issues.
- Enhance support services for officers through robust employee wellness programs. This includes increasing mental health services, peer support teams, in-service trainings and other wellness initiatives.
- Update policies surrounding the use of body-worn cameras. The DOJ has been particularly focused on the use of body-worn cameras. Monaco recently announced that next year's proposed budget includes $106 million for an initiative to expand the use of body-worn cameras among task force officers, to include federal agents.[4]
Many investigations begin with citizen complaints or media attention. The agency's considered response to allegations of misconduct, backed by a record of attention to reform and best practices, is critical.
Virginia M. Bruner is counsel, Christina M. Egan is a partner and Ayana D. Brown is an associate at McGuireWoods LLP.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] The Biden-Harris Administration Immediate Priorities | The White House (whitehouse.gov/priorities).
https://www.whitehouse.gov/priorities/.
[2] The Civil Rights Division's Pattern and Practice Police Reform Work: 1994-Present | Civil Rights Division | Department of Justice. https://www.justice.gov/crt/file/922421/download.
[3] The Civil Rights Division's Pattern and Practice Police Reform Work: 1994-Present | Civil Rights Division | Department of Justice. https://www.justice.gov/crt/file/922421/download.
[4] Deputy Attorney General Lisa O. Monaco Delivers Remarks on the Fiscal Year 2023 Funding Request | OPA | Department of Justice; https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-delivers-remarks-fiscal-year-2023-funding-request. Justice Department to Provide Funding for Body-Worn Cameras to Small, Rural and Tribal Law Enforcement Agencies | OPA | Department of Justice; https://www.justice.gov/opa/pr/justice-department-provide-funding-body-worn-cameras-small-rural-and-tribal-law-enforcement. Department of Justice Announces the Use of Body-Worn Cameras on Federal Task Forces | OPA | Department of Justice (October 2020); http://portal.mwllp.dom/administration/hr/Documents/Active_138381113_4_2022%20Holidays.DOC?web=1. Department Of Justice Announces Pilot Program for Use of Body-Worn Cameras by Federally Deputized Task Force Officers | OPA | Department of Justice (October 2019); https://www.justice.gov/opa/pr/department-justice-announces-pilot-program-use-body-worn-cameras-federally-deputized-task.