Critical Eye on Cops Tests Garland’s Police Reform Commitment

Courtesy of Bloomberg Law
May 6, 2021

Attorney General Merrick Garland’s decision to launch Justice Department investigations into the police departments in Louisville, Ky., and Minneapolis should just be the first step, civil rights advocates say, in what will be a sweeping and extended look into policing practices across the country.

Garland’s move marked a reversal from the Trump administration, which largely shelved pattern or practice investigations into allegations of systemic police civil rights abuses, and also reduced the use of consent decrees, court-ordered agreements between local law enforcement and the DOJ to improve practices.

But Garland’s decision has also brought new pressure on the DOJ, with activists calling on the agency to quickly expand its investigations to other cities where residents have complained of police practices. How Garland manages those requests and expectations, and marshals the department’s resources will be one of the toughest tests he faces as attorney general and a marker of the Biden administration’s commitment to police reform, DOJ watchers said.

The initial probe announcements were “more like signals than noise in terms of what could be coming,” said Damon Hewitt, acting president and executive director of the Lawyers’ Committee for Civil Rights Under Law.

“It must be kept up. It cannot be a flash in the pan. It must be kept up over years and frankly, across multiple administrations, for it to really take hold.”

Columbus Seeks Probe
The cities where DOJ announced in April that it would investigate police practices saw killings that galvanized protests across the country: Minneapolis, where former police officer Derek Chauvin was convicted for the murder of George Floyd, and Louisville, where Breonna Taylor, a 26-year-old Black woman, was killed during a botched raid.

The DOJ Civil Rights Division will look into police practices including the use of force and allegations of discriminatory policing, according to the agency.

There are already calls for other police departments to also undergo DOJ scrutiny, including in the case of Columbus, Ohio, from city officials themselves.

Columbus Mayor Andrew Ginther sent a letter dated April 27 asking DOJ to investigate its police force, following the fatal shooting of 16-year-old Ma’Khia Bryant by an officer on April 20. Bryant’s death was the third police killing in Columbus in 2021.

The letter invited the agency to “engage in a review of Columbus police operations, identifying any and all racial biases in policing efforts, and offering findings and coordinated solutions for reform.”

More than 30 Ohio advocacy groups, including the American Civil Liberties Union of Ohio, NAACP Columbus, and Columbus Urban League, sent their own letter April 29 to the DOJ, raising allegations of excessive force against Black residents and “militaristic” tactics against protesters, including an incident in which Black officials, including Rep. Joyce Beatty (D-Ohio), were pepper sprayed.

Columbus City Council President Shannon Hardin mirrored those calls for an outside look at the city’s police.

“A Department of Justice investigation is just the start. We need to continue advancing reform and rethink what safety means in this city,” Hardin, who spearheaded a successful 2020 ballot measure (Issue 2) to create a police review board, said in a statement.

DOJ didn’t respond to requests for comment.

The National Association of Police Organizations didn’t respond by deadline to requests for comment.

Complicated Decisions
“There’s not a requirement that the Division has to take action in response to every allegation or request to investigate,” said Becky Monroe, the senior director of the Leadership Conference’s Fighting Hate & Bias program, and a former DOJ attorney in the Obama administration.

In deciding whether to open an investigation, Monroe said, a crucial consideration is whether there is evidence of an actual a pattern of police misconduct, as opposed to a single incident.

“Oftentimes, it can be frustrating for people because there will be an egregious example and yet if they don’t have enough evidence of a pattern of practice, they may not be able to open an investigation,” she said.

But she added that troublesome incidents may reveal long-standing issues. “If there’s something that egregious and usually, if you look, you will find the practice.”

Also important are the groups making complaints about misconduct, from affected community members, advocacy groups, lawyers, and even police officers, who can help investigators sift through potential violations. Cases where local officials sound the alarm can grab the attention of DOJ investigators.

“In some cases, they receive a request to investigate from local government officials, which is interesting, because when you think about a pattern or practice investigation, here’s the target of it,” Monroe said.

More Requests
Advocates say DOJ can expect similar pressure to open police investigations in other cities, and that Garland will have to make difficult decisions as he handles those requests.

The Leadership Conference called on the DOJ to conduct a pattern or practice investigation into various Glynn County, Ga., criminal justice agencies, following the 2020 killing of Ahmaud Arbery, Monroe said.

Arbery, a Black man, was pursued by three white men and killed. Local officials initially declined to pursue charges. After video of his death went viral, state and federal officials reviewed the case. In April, a federal grand jury charged the three men with federal hate crimes and attempted kidnapping.

“There were serious concerns about how that investigation was conducted, so we called for an investigation of both the district attorneys and the Glynn County Police Department in Georgia, for systemic constitutional abuses,” said Monroe. “There are, unfortunately, many jurisdictions around the country where [the DOJ] should be looking.”

DOJ Resources
To handle these new demands, Garland has sought additional support for DOJ efforts to investigate and improve policing.

On Tuesday, he testified before Congress on the DOJ budget request. The proposal includes $1.2 billion—an increase of $304 million—for “programs that support community-oriented policing and addressing systemic inequities.” The budget also seeks $209 million for the department’s Civil Rights Division, which conducts pattern-or-practice investigations, a $33 million increase.

Advocates want the DOJ to funnel resources into alternatives to policing, according to Somil Trivedi, a senior staff attorney at the American Civil Liberties Union’s Criminal Law Reform Project.

“DOJ should focus more on investing in community solutions and alternatives to policing and prosecution that prevent interactions between police and the community in the first place, rather than hoping that police will somehow engage in those interactions differently, when we’ve seen no proof of that,” Trivedi said.

Where the DOJ moves next may be hard to pinpoint, but there are various factors that they could consider when deciding where the agency can make a difference, said Hewitt. This includes departments with police chiefs who support changes but face obstacles from police unions, and smaller departments that lack the resources to make changes themselves.

“There’s a typology of the kind of places where DOJ intervention could make a difference,” he said. “My view is this: What’s more intimidating? What’s more expensive? What do we value more? Those interventions or taking somebody’s life.”

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Meghashyam Mali at mmali@bloombergindustry.com; Andrew Childers at achilders@bloomberglaw.com