This is a guest post by Thomas M. Larned. This post is the second entry in a two-part series regarding efforts to reform policing practices in response to a growing divide between police officers and the communities that they protect and serve.
President Obama’s Task Force on 21st Century Policing concluded that “the mindset guiding police officers should be that of a ‘guardian,’ not a warrior.” The Department of Justice has encouraged municipalities throughout the country to conduct self-assessments of their police departments and implement reforms and best practices. (Photo: Jason Getz/ajc.com)
Despite the fact that crime rates are down and significant advances in professionalizing police departments have been achieved, the mistrust of police officers continues to escalate, much of which can be traced to the loss of the public’s trust in the investigations of police-involved deaths. In fact, in a recent poll by YouGov, less than half of Caucasian Americans and only 19 percent of African Americans trusted the justice system to properly investigate police-involved deaths. In evaluating these results Stephen Rushin, an assistant professor of law at the University of Alabama, wrote, “Where the public has trust, it will sanction law enforcement with legitimacy; and when it does so, it is signaling that the public’s moral values of right and wrong are aligned with those of its police agencies. Conversely, legitimacy crumbles when civilians are treated unfairly and the public is left with the conclusion that police agencies are not accountable.”
In part one of this series, I discussed practices being implemented by many police departments in order to gain the trust of communities. Acknowledging that the culture of an organization will always prevail over its policies when the two are not aligned, the U.S. Department of Justice (DOJ) has expanded the use of a two-pronged prod to encourage police reform. The first approach is the Collaborative Reform Review, used in circumstances where municipalities have voluntarily accepted reviews of use of force accountability systems. The second approach is the use of court enforceable consent decrees, entered into with the city after a DOJ investigation has found a pattern or practice of constitutional violations.
The advantage to a city that proactively engages in a Collaborative Reform Review is that the DOJ assigns a team of technical advisors to assist the city in identifying areas in need of improvement and mentors the department throughout the transformation process. Importantly, the review is paid for by the DOJ. The Las Vegas Metropolitan Police Department (LVMPD) identified three key factors in the success of its recently completed collaborative reform review: first, a recognition of the need for change; second, an objective to reduce instances of use of force; and third, an appreciation for the sanctity of human life. The LVMPD also reported that its seven-member Use of Force Review Board, which includes three civilians, contributes to the accountability process by providing officers, team members and supervisors with timely feedback and retraining. This is especially important to the process of learning lessons and best practices in instances where an officer’s use of poor tactics contributed to the escalation of a use of force incident. Previously, use of force inquiries ended once a determination was made that the officer’s actions were legally justifiable.
In circumstances where repeated questions regarding use of force accountability systems have surfaced, the DOJ is empowered under 42 U.S.C. § 14141 to seek injunctive relief to end the misconduct and force reforms of policies and procedures that resulted in or allowed the misconduct. DOJ Civil Rights Division Assistant Attorney General Vanita Gupta advised attendees at the last month’s Police Executive Research Forum (PERF) Re-Engineering Police Use of Force conference that an important factor in determining whether to initiate a pattern or practice investigation is whether a police department has implemented community policing strategies and incorporated self-correcting mechanisms into its accountability systems. She added that it is not important that officers can articulate rules, but they must be able to correctly apply the rules and the rules must be consistently enforced by the department.
In the wake of last month’s violent protests, DOJ terminated its Collaborative Reform Review of the Baltimore Police Department and initiated a pattern or practice investigation. In announcing the decision, U.S. Attorney General (AG) Loretta Lynch explained that a core condition precedent to a Collaborative Reform Review is a partnership between the police department, municipal leaders and members of the community. Describing the relationship between police and the citizens of Baltimore as “frayed,” Lynch determined that a formal investigation was required in order to obtain a court enforceable consent decree with the city. Similarly, the City of Cleveland entered into a consent decree with the DOJ on May 26 after an investigation found a pattern or practice of constitutional violations.
Although there is substantial room for negotiation in a consent decree, the DOJ has far greater leverage regarding the method and manner in which change is imposed on a police department. Additionally, the appointment of an independent monitor to supervise the process comes with an expensive price tag, which is paid for by the city and typically lasts for a minimum of five years. Lynch acknowledged that the DOJ does not have sufficient resources to implement reforms for every police department in the country. As a result, she encouraged municipalities throughout the country to conduct self-assessments and implement reforms and best practices identified by the DOJ in existing publications.
About the Author: Thomas M. Larned is Of Counsel at Roetzel & Andress, where he focuses his practice on white-collar litigation and corporate compliance matters. Prior to joining Roetzel, he spent 29 years directing complex criminal investigations for the FBI and Massachusetts Public Defender, as well as conducting comprehensive inspections of FBI Field Offices, ensuring compliance with FBI policies and the U.S. Attorney General’s Guidelines. He served as the FBI Legal Attaché in Iraq and Canada, where he oversaw all FBI operations. He earned his law degree from Suffolk University Law School and his undergraduate degree from Northeastern University. He can be reached at firstname.lastname@example.org or 202-697-4892.