As part of the Violent Crime Control and Law Enforcement Act of 1994, the U.S. attorney general has the power to initiate structural reform litigation against local police departments engaged in a pattern or practice of unconstitutional behavior. The law has since served as the basis for the Department of Justice to reform numerous large police departments in cities across the country, including Cincinnati, Los Angeles, New Orleans, Pittsburgh, Seattle and Washington, D.C.
Law professor Stephen Rushin is an expert in criminal law who has published research on structural police reform. His forthcoming book, titled “The Answer to Police Misconduct,” will be published by Cambridge Press in 2016.
In an interview with News Bureau business and law editor Phil Ciciora, Rushin discusses whether structural police reform litigation should be initiated in Ferguson, Missouri.
Is the situation in Ferguson ripe for federal intervention?
For 20 years, the DOJ has had the authority under a little-known statute, 42 U.S.C. Section 14141, to intervene in local police departments when they are engaged in a so-called “pattern or practice” of unconstitutional behavior. Right now, the DOJ is almost certainly interested in what’s happening in Ferguson, as concerns over the alleged use of deadly force in an unwarranted situation might be indicative of a broader pattern of misconduct.
But it’s not just the apparent use of excessive force by the local police in Ferguson that may worry the DOJ. The Ferguson police have also shown an apparent inability to manage protests. I have little doubt that the DOJ is currently evaluating whether the Ferguson police are engaged in a pattern of misconduct. What that means in practice is that the DOJ may soon begin investigating the Ferguson police department under Section 14141.
If the DOJ finds that pattern or practice of misconduct in Ferguson, what can it do?
The DOJ has a couple of options. If an investigation reveals that the law enforcement in Ferguson are engaged in a pattern or practice of misconduct, the DOJ could begin negotiations with the municipality in the hopes of coming to a settlement. In doing so, the DOJ may propose a package of reforms that the local police could implement to avoid this sort of systemic misconduct in the future. This may include training requirements and various oversight measures. If such a settlement negotiation is unsuccessful, the DOJ could conversely initiate a lawsuit in federal court under Section 14141, alleging that the Ferguson department is engaged in a pattern or practice of misconduct. The DOJ could then ask the federal court to force the Ferguson police to adopt ameliorative reforms.
You’ve published research on police reform investigations initiated by the Justice Department. How often do they occur?
They are very rare. On average, the DOJ formally investigates around three police departments each year – out of around 18,000 local law enforcement agencies. And only around one of these cases each year leads to full-scale structural reform litigation.
Nonetheless, I think the case in Ferguson is particularly ripe for DOJ investigation because it’s received so much national attention. In my research, I found that a highly visible incident of alleged misconduct, like the recent events in Ferguson, can push the DOJ into action. Time will tell whether the DOJ decides to investigate Ferguson for a Section 14141 violation.
What’s the typical timeline for reform?
Structural reform litigation is long and expensive. In some cases, it can take over a decade to complete. The purpose of this sort of litigation is to change the organizational culture of a police department. That is no easy task. It takes significant policy changes, coupled with extensive outside monitoring and support from organizational leadership. If the DOJ decides to initiate structural reform litigation in Ferguson, no one should expect a quick fix. But empirical research suggests that structural reform litigation is the single-best regulatory method for combating systemic misconduct in American police departments.
Among the inescapable images from the Ferguson situation are police officers dressed in camouflage with high-powered rifles. What does this say about the militarization of America’s police forces? Have we gotten too far away from “protect and serve”?
The militarization of American law enforcement is deeply troubling. But let’s remember – much of this militarization is due in part to federal grants and subsidization. As seen in the Ferguson incident, serious questions remain about whether some local law enforcement agencies need this gear, or are even capable of using it responsibly.
