Policing Scandals Threaten to Overwhelm Justice Dept.

By Adam Lerner, Politico

08 May 15

A few dozen lawyers are tasked with rooting out rogue police forces throughout the nation.

he woes of the nation’s 18,000 state and local law enforcement agencies have been placed on the shoulders of around 50 lawyers.

These Justice Department lawyers, housed within the agency’s Civil Rights Division, for the past 20 years have represented an aggressive option for the federal government to step in and force rogue law enforcement bodies to clean up their acts.

But a series of headline-grabbing incidents in which unarmed black men have died after encounters with police has thrust this unit of lawyers into the forefront. And in a move that could set a precedent for police scandal responses, Baltimore Mayor Stephanie Rawlings-Blake this week proactively sought out such a probe as part of the solution to her city’s policing crisis sparked by the death of 25-year-old Freddie Gray.

Even before the series of deaths at the hands of police — which President Barack Obama said “come up, it seems, like once a week now” — this Special Litigation Section was clamoring for more resources.

In its 2014 budget request, made before the protests in Ferguson, Mo., the Justice Department said it was already flooded with requests for the lawyers to conduct “pattern or practice” investigations into police units suspected of widespread abuse. “On at least a weekly basis, the Division is contacted by community groups, public officials or, in some cases, police leaders asking SPL to open a pattern or practice investigation. Preliminary reviews of these matters have identified very serious concerns that would benefit from the Division’s intervention,” the agency said.

Now, with intense media and political focus on policing issues, the division is ill-equipped to serve as the go-to response for scandal-hit law enforcement departments across the country.

“The president really needs to address the resource issue,” said William Yeomans, a former assistant attorney general who now teaches at American University Law School, who praised the mayor’s decision.

He pointed out that the investigation into the 53-officer Ferguson Police Department, released in March, took significant attention from dozens of Justice Department officials. Baltimore, for comparison, has approximately 3,000 officers.

The section, which began its police oversight in 1994, is tasked with more than just pattern-or-practice investigations of police forces. It also probes civil rights abuses in the nation’s thousands of jails and prisons, public reproductive health-care clinics, and in other public institutions. The DOJ has said attorneys in the section only spend a third of their time on police misconduct.

Since taking office, the Obama administration has opened 21 investigations into police departments of various sizes — from Los Angeles and New Orleans to Missoula, Montana, and Beacon, New York.

Such probes can result in legally binding agreements or lawsuits that force reforms in department policy. In its first five years, the Obama-era section secured double the number of agreements of the last five years of the Bush administration.

But the investigations are incredibly labor-intensive, demanding numerous visits to the city and the attention of large numbers of employees. The Justice Department’s 2014 budget request said that each investigation requires, on average, 1,900 hours of attorney time in its first year, a number that would likely increase in a large city such as Baltimore.

Also, the section’s lawyers do not have subpoena power, which can make it challenging to get all the documents they need.

The DOJ, perhaps recognizing how significant a commitment an investigation in Baltimore would be, didn’t immediately agree to launch a pattern-and-practice investigation. A separate part of the Civil Rights Division, focused on criminal investigations, has already launched a more narrow probe into the circumstances around Gray’s death, and on Thursday the Maryland delegation of lawmakers sent a letter asking for the pattern-or-practice investigation.

Attorney General Loretta Lynch told a Senate panel on Thursday that the Justice Department is “in the process of considering” Rawlings-Blake’s request, and is expected to announce an investigation as early as Friday.

The DOJ did not respond to a request for comment about the resources of the Special Litigation Section.

Rawlings-Blake’s move to call for an investigation into patterns of abuse in her city, though not entirely unprecedented, has until now been quite uncommon. One notable other example is Charles Ramsey, who called for the DOJ to investigate the police forces of Philadelphia and Washington, D.C., when he led those departments.

But many experts believe that with so many cities plagued by unrest, other mayors and top police officials could follow suit, stretching the section even thinner.

Samuel Walker, a criminologist and the author of “Presidents and Civil Liberties from Wilson to Obama,” said that Obama should seek to expand the office’s size and powers.

“There are many police departments where there are patterns of abuses of citizens’ rights in violation of the constitution,” he said. “It would be very valuable for the Special Litigation Section to be expanded and for it to be granted subpoena power.”

Whether there is political will for such an expansion is unclear.

For the administration to significantly ramp up the section’s operations, it would need a Republican Congress to endow it with a larger budget and further powers.

Such a change doesn’t seem likely any time soon. Prominent Republicans cautioned the Justice Department against launching an investigation immediately, saying that granting such large-scale probes to mayors possibly seeking political cover would begin a dangerous precedent.

Bradley Schlozman, who ran the Civil Rights Division under George W. Bush, called Mayor Rawlings-Blake’s move a “surrender” to the federal government. Though he declined to say whether or not an investigation in Baltimore was warranted without viewing the facts on the ground, he warned that “you can’t necessarily extrapolate a pattern or practice of misconduct from isolated incidents,” even if they result in widespread protests.

“If you simply indulge a request without ensuring that the proper legal standards have been satisfied, then the department has been politicized,” said Schlozman. He advised that police forces turn first to non-profits and other consultants and view the Department of Justice as a last resort.

Robert Driscoll, a former Deputy Assistant Attorney General in the second Bush administration, also cautioned against mixing politics and policing.

“They should make clear if they’re doing it that they’re doing it based on the facts and not because the mayor requested it,” he said, adding that “local police forces resent consent decrees” since unions and police leadership typically want to organize reforms themselves without federal mandate.

Driscoll said that the special litigation section currently has the capacity to conduct targeted investigations of “several large places at once.” He said 30 to 40 attorneys should be sufficient, so long as the investigations focus on specific practices, like use of K-9s or so-called rough-rides, that are allegedly being abused and don’t pour through every aspect of a police force.

The Justice Department has few other tools besides the Special Litigation Section’s investigations to pursue systemic reforms in police departments.

In 2011, the Obama administration added a new program in the Community Oriented Policing Services office for law enforcement agencies actively seeking reform. But the program has no legally-binding authority and relies on the consent of local leaders who may be reluctant to agree to major overhauls that could include their firing.

To date it has only launched efforts in six cities, one of which was Baltimore last year.

And Yeomans said reviews by the COPS office are no substitute for the patterns or practice investigations, which carry real legal consequences.

“This is the best stick that the Department of Justice has,” Yeomans said. ”Without an effective stick, all of the carrots — federal government collaborative programs [for police reform] — will be less effective.”