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Federal Oversight of Local Policing: A Growing Trend

12/22/14

By: Peter Munk

Controversial uses of force by police in Ferguson, MO, Staten Island, NY, and Cleveland, OH have been among the most talked-about events of 2014.  In addition to what these uses of force say about the relationship between local police and the communities they serve, the deaths of Michael Brown, Eric Garner, and Tamir Rice have also shone a spotlight on federal oversight of local law enforcement agencies. It is widely publicized that the United States Department of Justice has opened federal investigations into the police departments of Ferguson, Staten Island, and Cleveland.  The question less frequently asked, however, is what legal authority DOJ has to investigate the actions and practices of local police.

One important source of authority is 42 U.S.C. § 14141, which prohibits police departments from engaging in a “pattern or practice” of unconstitutional conduct.  The act grants the Attorney General authority to institute a civil action to “obtain appropriate equitable or declaratory relief to eliminate the pattern or practice” if the Attorney General has a “reasonable cause to believe” that a “pattern or practice” of unconstitutional conduct exists.  Since the passage of § 14141, the Attorney General has brought “pattern and practice” actions in New Orleans, Pittsburgh, Los Angeles, Cincinnati, and many other major US cities.  And such investigations are occurring with increasing frequency: Current Attorney General Eric Holder recently boasted that DOJ’s Civil Rights Division has instituted over twice as many “pattern or practice” investigations in the past five years than were opened in the five years before that.  The DOJ has settled nearly all of the cases through extrajudicial negotiations, usually at great cost to the city subject to the investigation.

The Los Angeles Police Department, for example, which was the subject of a “pattern or practice” lawsuit and consent decree beginning in the early 2000’s and ending just last year, paid an estimated $40 million to comply with DOJ’s directives in the first year, and $50 million every year thereafter.

Given the high costs associated with a federal investigation, law enforcement agencies across the country would be wise to proactively examine their practices and procedures and root out elements that could land them crossways with the federal government.