by Paul Butler
The Wilson Report found that Officer Wilson’s shooting of Brown did not meet the Justice Department standard for criminal prosecution because Wilson had reasonably perceived a threat from Brown.94 The Wilson Report stated, “While Brown did not use a gun on Wilson at the SUV, his aggressive actions would have given Wilson reason to at least question whether he might be armed, as would his subsequent forward advance and reach toward his waistband. This is especially so in light of the rapidly-evolving nature of the incident. Wilson did not have time to determine whether Brown had a gun and was not required to risk being shot himself in order to make a more definitive assessment.”95
The Wilson Report carefully cites case law that allows an armed police officer to kill an unarmed suspect in self-defense.96 It discounts the credibility of witnesses who said that Michael Brown was shot despite having his hands up in surrender.97
But the Wilson Report also suggests that even if Officer Wilson had shot Michael Brown while Brown’s hands were in the air, Officer Wilson’s shooting Brown could still be reasonable.98 The report states, “The Eighth Circuit Court of Appeals’ decision in Loch v. City of Litchfield is dispositive on this point. There, an officer shot a suspect eight times as he advanced toward the officer. Although the suspect’s ‘arms were raised above his head or extended at his sides,’ the Court of Appeals held that a reasonable officer could have perceived the suspect’s forward advance in the face of the officer’s commands to stop as resistance and a threat.”99
The Wilson Report also discounts the claim that Wilson should have used non-deadly force against Brown:
Under the law, Wilson has a strong argument that he was justified in firing his weapon at Brown as he continued to advance toward him and refuse commands to stop, and the law does not require Wilson to wait until Brown was close enough to physically assault Wilson. Even if, with hind-sight, Wilson could have done something other than shoot Brown, the Fourth Amendment does not second-guess a law enforcement officer’s decision on how to respond to an advancing threat. The law gives great deference to officers for their necessarily split-second judgments, especially in incidents such as this one that unfold over a span of less than two minutes.100
In sum, the Ferguson Report described the Ferguson police department as a racist organization that consistently used excessive violence against African Americans. The Wilson Report, by contrast, found that a white officer of the Ferguson Police Department acted legally when he shot an unarmed African American man.101
There is no direct contradiction between these two reports. It is possible that even in a prejudiced and brutal police department a shooting of an unarmed African American man could be justified. What is revealing, however, is the different focus of the two reports. The Ferguson Report uses data and stories to present a troubling case of a police department that has targeted black people.102 The Wilson Report relies on law to suggest that Officer Wilson’s act of killing an unarmed black man was not illegal.103 These two reports, read together, demonstrate a problematic reality. It is possible for police to selectively invoke their powers against African American residents and, at the same time, act consistently with the law. This resonates with the critical race theory ideas about race. Those ideas gain even more credibility based on the settlement reached between Ferguson and the Department of Justice. In March 2016 the United States Department of Justice and the City of Ferguson entered into a consent decree regarding the allegations in the Ferguson Report. After the Ferguson consent degree was approved, Vanita Gupta, the head of the U.S. Justice Department’s Civil Rights division, said that the city had taken “an important step towards guaranteeing all of its citizens the protections of our Constitution.”104
In reality, however, the consent decree provides Ferguson residents far more protection than does the Constitution. It reads as an implicit critique of the cases in which the Supreme Court has blessed the cops with super powers. The following examples are illustrative.
In Whren v. United States, the super power to racially profile case discussed in chapter 2, the Supreme Court held that the Fourth Amendment does not prohibit the police from making pretextual stops. The Ferguson consent decree bars pretextual stops other than in limited circumstances.105
In Atwater v. Lago Vista, the super power to arrest case discussed in chapter 2, the Supreme Court stated that the police can arrest for minor offenses, even if the offenses themselves do not carry jail time. The Ferguson consent decree limits the offenses for which people can be arrested.106
In Pennsylvania v. Mimms, the Supreme Court granted the police the power, during a traffic stop, to automatically order the driver out of the car.107 The Ferguson consent decree, on the other hand, requires an “articulable basis” in order for police to command the driver to leave the car.108
The Supreme Court has never required any showing of suspicion for the police to seek consent to a search.109 The Ferguson decree prohibits officers from seeking consent for a search unless they have reasonable suspicion.110
In Schneckloth v. Bustamonte111 and United States v. Drayton112 the Supreme Court ruled that suspects do not have to be informed that they have the right to refuse consent. The Ferguson decree requires that officers inform suspects of this right.113
In sum, the consent decree prohibits the Ferguson police from exercising the scope of the super powers that the Supreme Court has granted them. In order to try to prevent the Ferguson police from treating African American residents unfairly, the police department’s constitutional powers have to be curtailed. Not only is the Constitution, as interpreted by the Supreme Court, insufficient to protect black people from police abuse, it actually aids and abets the police abusers.
Even if the changes provided for in the consent decree are implemented, the question remains, will they be enough? Or will the Ferguson police find ways to backslide? The Department of Justice, during the Obama administration, increased its oversight of police, but it has never done an evidence-based analysis to see whether they make a difference. Next I take a look at the data.
FEDERAL TAKEOVER OF LOCAL POLICE DEPARTMENTS: DOES IT WORK?
As we have seen, critical race theory also suggests the possibility of interventions that improve racial justice. Could federal oversight of local police departments be one of those interventions?
I focus on Department of Justice investigations because they are probably the most sought-after legal remedy for complaints about the police. High-profile cases of allegations of police misconduct almost always elicit calls for the federal government to intervene. When the federal government acts, these investigations are the action it undertakes. I also focus on these cases because they provide a limited set of data that lends itself to analysis more than some other kinds of remedies. There have been a total of sixty-seven Department of Justice investigations since the first one in 1995 and just sixteen cases in which the department imposed its strongest oversight.114
As part of the Violent Crime Control and Law Enforcement Act of 1994, Congress included a provision that made it illegal for police departments to engage in “a pattern or practice” of unconstitutional conduct.115 This statute allows the Department of Justice to “seek injunctive or equitable relief to force police agencies to accept reforms aimed at curbing misconduct.”116 The Department of Justice selects its cases by monitoring existing civil litigation, media reports, and research studies that indicate widespread misconduct within a police department.117 The department then engages in a preliminary inquiry, followed by a formal investigation.118 Figure 16 shows cases from 2000 to 2013.
This investigation has the potential to lead to a negotiated settlement in the form of a consent decree; there is also the possibility of an appointed monitor to supervise the department’s implementation of required reforms.119 Incredibly, the Department of Justice has never done a quantitative analysis of whether its interventions in local police departments are successful.120 The Washington Post looked at available data about use of force after D
epartment of Justice interventions. It found that use of force decreased in half of the departments, and stayed the same or increased in the other half.121
FIGURE 16: VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT CASES, 2000–2013
Although DOJ conducted hundreds of preliminary inquiries between 2000 and 2013, only nineteen consent decrees were entered into, and only nine monitors were appointed to supervise local agencies’ required reforms.
Source: Stephen Rushin, “Federal Enforcement of Police Reform,” Fordham Law Review Fol 82, page 3190, 2014, fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_82/No_6/Rushin_May.pdf.
The investigation of Los Angeles is often presented as a success story. In the aftermath of high-profile incidents of police brutality, Los Angeles entered into a consent decree with the Department of Justice. A study conducted from 2002 to 2008 (the consent decree was lifted in 2009) revealed lower crime and fewer use-of-force incidents.122 Both property crimes (down 53 percent) and violent crimes (down 48 percent) decreased in Los Angeles more than in several adjacent communities.123
During this time the level of law enforcement increased. Stops increased by 49 percent from 2002 to 2008.124 Pedestrian stops nearly doubled, and motor vehicle stops increased almost 40 percent.125 Still, there was a dramatic increase in the proportion of stops resulting in arrests, suggesting that police officers “stopped people for good reasons and were willing to have the District Attorney scrutinize those reasons.”126
An extensive survey of Los Angeles residents conducted after the decree found: “Public satisfaction is up, with 83 percent of residents saying the LAPD is doing a good or excellent job.”127 The number of satisfied residents includes more than two-thirds of Hispanic and African American residents.128
Over the course of the consent decree period, “the incidence of categorical force used against Blacks and Hispanics decreased more than such force used against Whites.”129 At the same time, black residents remained a disproportionate percentage of individuals arrested and injured in the course of a use-of-force incident.130
Pittsburgh also reformed its police department in compliance with a federal consent decree. As in Los Angeles, crime decreased (although crime decreased across many cities during the 1990s). In Pittsburgh, between 1994 and 2000, arrests decreased by more than 40 percent.131 Moreover, the proportion of African Americans among those arrested for serious crimes declined.132 A survey of Pittsburgh residents “showed that public opinion of the police has improved in a number of respects, although improvements are generally larger among whites than among blacks.”133
Cincinnati too is often cited as one of the success stories of the pattern and practice approach. A recent report on the Cincinnati reform effort indicates: “Between 1999 and 2014, Cincinnati saw a 69 percent reduction in police use-of-force incidents, a 42 percent reduction in citizen complaints, and a 56 percent reduction in citizen injuries during encounters with police. . . . Violent crimes dropped from a high of 4,137 in the year after the riots, to 2,352 last year. Misdemeanor arrests dropped from 41,708 in 2000 to 17,913 [in 2014].”134 Because of the consent decree, “CPD officers . . . chose to use less harmful methods of force to make arrests.”135 There is also evidence that police–community relations improved over the course of the implementation of the consent decree.136 At the same time, these results were not easy to achieve. It took years “to get police to actually buy into the reforms,” and “the federal government had to apply constant pressure, reminding all parties about the need to stay vigilant about reform.”137 Moreover, “Cincinnati is not completely free of police shootings or citizen complaints. In 2014, police officers shot and killed three people––all black males.”138 Community activists assert that there is still substantial distrust between police and the black community in Cincinnati.139
The investigations are very expensive. The Los Angeles investigation is estimated at $300 million.140 The difficulty of achieving meaningful reform raises doubts about whether this success is sustainable and can be reproduced in other cities. For example, because the Department of Justice investigates only a few departments per year, it may be difficult for pattern and practice investigations to produce large-scale change.141 Even in cities where there have been reduced disparities in arrests and use-of-force incidents, institutionalizing reform has been a challenge.142 As seen in Figure 17, the level of interest in the Justice Department in bringing these cases varies depending on whether there is a Democrat or Republican in the White House.
While focusing on use-of-force policies and community engagement strategies is important, federal investigations do not directly address issues like overcriminalization, prosecutorial discretion, and sentencing disparities.
To summarize, federal investigations work, some of the time, to reduce police violence and to improve community perceptions about the police. They are expensive, and the benefits may be only short term. But, in the jurisdictions where the federal intervention is successful, fewer people are killed or beat up by the police, and that is a good thing.
Reform does not, however, do the work of transformation. It does not bring about the kind of change that the radical critics are seeking.
The point I am making about reform is unremarkable to critical theorists.143 For example, Kimberlé Crenshaw has made a similar observation about anti-discrimination law, noting that it “has largely succeeded in eliminating the symbolic manifestations of racial oppression, but has allowed the perpetuation of material subordination of Blacks.”144
FIGURE 17: NUMBER OF OPEN CONSENT DECREES, BY ADMINISTRATION
The Department of Justice’s willingness to bring these cases varies depending on whether there is a Democrat or Republican in the White House.
Source: “A ‘Pattern or Practice’ of Violence in America,” Bloomberg, https://www.bloomberg.com/graphics/2015-doj-and-police-violence.
Because the law is not neutral or objective but actually perpetuates white supremacy, seeking change through liberal legal reform will result in “ephemeral” victories and “substantial” risks.145 In addition, reforms are often inadequate because reformers often underestimate the pervasiveness of racism and other biases ingrained in the law.
REFORM VERSUS TRANSFORMATION
The fact that pattern and practice investigations may work somewhat, sometimes is a reason that they should be encouraged, because working “somewhat, sometimes” in this context means that the police kill and hurt fewer people.
Crisis 3, the police–community relations articulation, is addressed, in an imperfect, possibly short-term, and very expensive way, by the U.S. Justice Department’s interventions in local police departments. Reformers should continue to press for these investigations, fully aware of their shortcomings. The work they do is both essential and stopgap. They prevent some people from being beaten and killed by the police. But they will not resolve Crisis 4 problems identified by the movement for black lives. Pattern or practice investigations, and other liberal reforms, will not bring about the extreme change in American criminal justice necessary to end over-policing, mass incarceration, and the vast racial disparities.
Indeed, in some instances, reform gets in the way of change because it placates and takes energy and focus away from the actual transformative work. Recall, for example, that in Los Angeles, after the Justice Department intervention, more than two-thirds of the black and Latino citizens felt that the police are doing a good or excellent job.146 Recall also the statistics that suggest that huge racial inequities continue to exist, in a city that is 10 percent African American.147
BLACKS IN LOS ANGELES (AFTER THE FEDS)
•10 percent of population
•22 percent of stops
•31 percent of arrests
•34 percent of “categorical” use of force
•43 percent of injury reports in “takedowns”
In essence, the Chokehold remains in full effect in the City of Angels—even after a $300 million federal intervention
.148 People of color remain disproportionately the victims of police violence. In this sense the LAPD is not doing good or excellent work for the black and Latino citizens they are supposed to serve and protect. But the federal intervention makes the minority residents feel better about what the police are doing.
A related dynamic occurred in Prince George’s County, Maryland. After the Department of Justice intervention, the number of complaints about use of force decreased. At the same time, however, the use of force by the police actually increased. In other words, the police used force more and yet received fewer complaints about it.149
Reform has a pacification effect. It calms the natives even when they should not be calm.150 “False consciousness” is the term some theorists have used to describe the tendency of liberal reforms to “dupe those at the bottom of the social and economic hierarchy” with promises of “equality, fairness, and neutrality.”151
In the context of civil rights and anti-discrimination law, Kimberlé Crenshaw warned that the “limited gains” of civil rights legislation could “hamper efforts of African Americans to name their reality and to remain capable of engaging in collective action in the future.”152 Even though civil rights laws passed in the 1960s succeeded in breaking down some formal barriers, subtle and invidious forms of discrimination persisted. Moreover, the perception of progress may have mollified communities of color and sapped the energy needed for a continued push for substantive equality.
A newsletter from the Department of Justice’s Community Oriented Policing’s office, in an article entitled “The Case for Procedural Justice: Fairness as a Crime Prevention Tool,” describes the work of the leading procedural justice scholar: “Professor Tom Tyler of Yale Law School, [has] identified several critical dimensions of procedural fairness: (1) voice (the perception that your side of the story has been heard); (2) respect (perception that system players treat you with dignity and respect); (3) neutrality (perception that the decision-making process is unbiased and trustworthy); (4) understanding (comprehension of the process and how decisions are made); and (5) helpfulness (perception that system players are interested in your personal situation to the extent that the law allows).”153