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Friday, April 07, 2017

DOJ, civil rights, and police reform (Updated)

Last Friday, Attorney General Sessions issued a memorandum enumerating a series of principles regarding law enforcement and the relation between the federal government and local law enforcement; these include local control and responsibility for local law enforcement, promotion of public respect for police work, and the idea that the "misdeeds of individual bad actors" should not impugn law enforcement as a whole. The memo than calls for review of all DOJ activities to ensure compliance with those principles.

This almost certainly means we will not see new § 14141 actions or investigations being pursued against local agencies. Sessions (and Trump) rarely, if ever, sees police as being at fault in anything, and any misconduct that occurs is a product of a single bad actor, not systemic or institutional problems. It probably means ongoing cases in which a consent decree has not been approved, as in Chicago and Baltimore, will be abandoned or altered. (Chicago Mayor Rahm Emanuel has said the city will move forward with reforms, even absent a consent decree). It will be more difficult to undo existing consent decrees; because these reflect final judgments, the court must approve and oversee any changes, regardless of DOJ having changed its mind or policies.

This offers a nice reminder of the relationship between governmental and private enforcement of civil rights and the special role of private enforcement--the change of administration brings changes in enforcement priorities. Private enforcement (through "private attorneys general") provides a constant baseline of enforcement that can pick up the slack, however much slack there is, depending on the administration.

Update: District Judge James Bredar approved the consent decree, declining DOJ's request for a 30-day delay so DOJ could reassess the deal, stating that the case no longer was in a phase in which one side can unilaterally reconsider or amend an agreement and that the court did not need further time to consider the terms of the judgment. On a different procedural point, the NAACP is seeking to intervene, obviously concerned that DOJ is no longer committed to ensuring compliance or enforcing the decree.

Posted by Howard Wasserman on April 7, 2017 at 09:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


Unlike other actions by the new administration, this seems to go beyond rollbacks of Obama-era policies/actions. Even the Ashcroft DOJ was willing to use its § 14141 enforcement power as a check on local police excesses (as evidenced by a 2002 MOU between the DOJ and Cincinnati in 2002; there may be others, but this is the one I can think of off-hand).

Also, this isn't the only place where the DOJ is de-emphasizing criminal justice/law enforcement reform. As Erin Murphy (NYU) pointed out in a tweetstorm earlier this week, the DOJ is poised to kill the Commission on Forensic Science, which has recently been an important voice in improving forensic science in the courts.

Posted by: Donald Caster | Apr 4, 2017 6:20:37 PM

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