Special Report: How U.S. Justice Department disarmed its police reform effort

[October 03, 2020]  By John Shiffman and Brad Heath

WASHINGTON (Reuters) - In 2017, a white St. Louis policeman was acquitted of murdering a Black man. The verdict sparked days of protests and clashes with police. Before shifts that week, two officers texted colleagues, expressing excitement.

“Let’s whoop some ass,” officer Christopher Myers wrote, according to texts obtained by federal agents. Later, he added: “The bosses are being a little more lenient with the use of force by us.”

“The more the merrier!!!” officer Dustin Boone wrote. “It’s going to be fun beating the hell out of these shitheads once the sun goes down and nobody can tell us apart … Just fuck people up when they don’t act right!”

On the third night of protests, the two officers confronted a middle-aged Black protester named Luther Hall. Hall later told authorities his hands were raised when someone grabbed him from behind and slammed him into the ground face first. Then, Hall said, he was struck by police batons and boots. He required spinal surgery and for weeks struggled to eat through a bruised jaw.

The alleged beating was not captured on video. But the accuser made an excellent witness: Hall was an undercover cop, posing as a demonstrator.

The alleged misconduct by police at the 2017 clashes triggered criminal charges against these and other officers. Myers and Boone have pleaded not guilty to criminal civil-rights violations.

For many residents the charges were not enough. They also called for a sweeping review of racial and other problems within the St. Louis department, a so-called “pattern or practice” investigation, a powerful federal tool to address systematic police abuses. The probes enable the Justice Department to sue a police force and compel it to clean up abusive practices.

The U.S. Attorney in St. Louis, Jeff Jensen, got involved, according to a government lawyer familiar with the matter, reaching out to fellow officials appointed by U.S. President Donald Trump in Washington to push for a pattern or practice case. Such cases are investigated by a special civil rights unit in Washington.

“He was shut down pretty hard,” the lawyer recalled. “He got the message pretty quick: We weren’t going to be doing these kinds of cases.”

Jensen declined to comment for this story. Lawyers for Boone and Myers didn’t reply to requests for comment.

The decision was part of a broader retreat by the Justice Department from policing America’s police. In nearly four years, Trump officials have opened just one police pattern or practice case, official records show, compared to at least 20 opened during the eight years of the Obama administration.

The Justice Department's civil rights division “has a strong record of upholding the civil rights of all Americans,” spokeswoman Ali Kjergaard said. “We fully support police reform and have aggressively prosecuted police officers who violate civil rights.”

SESSIONS SPURNS ‘AN EXTREME REMEDY’

The result is that at a time when the United States is facing another public reckoning over civil rights abuses by police, the Justice Department unit charged with handling such problems has remained largely sidelined.

“There are 18,000 police departments in the country and they are all doing well?” said Cynthia Deitle, former chief of the Federal Bureau of Investigation’s civil rights unit under presidents Bush and Obama. “No one needs an overseer? Nobody needs to be checked? Everybody’s fine? That just can’t be true.”

The story of how Trump officials disarmed the primary federal program designed to address police abuse is based on interviews with 25 current and former government lawyers, including the man who changed the policy, former Attorney General Jeff Sessions. He was replaced by Trump in 2019 with William Barr, who has expressed skepticism that systemic racism is a problem among police.

Sessions told Reuters he limited - but did not end - pattern or practice investigations, because federal oversight of local police is “an extreme remedy” that “shouldn’t be used willy nilly.”

Behind the scenes, two people involved said, Sessions aides tried to marshal evidence to back this hands-off approach. Sessions believed that police reform agreements don’t work or worse, backfire, inadvertently driving spikes in crime.

The evidence, which included statistical and consultant reviews, did not confirm Sessions’s theories, people who participated said. A consultant the Trump Administration hired to review existing pattern or practice cases told Reuters that he found them largely effective and appropriate, and recommended that this work continue.

A Justice Department official in Washington did not respond to requests for comment.

ROOTS IN RODNEY KING

Congress granted the Justice Department the authority to review a police department’s civil rights records in 1994, in response to the beating of motorist Rodney King and the riots that followed the acquittal of Los Angeles officers charged with assaulting him.

Since then, the Justice Department has conducted 70 investigations and won court-ordered settlements known as “consent decrees” after 21 of them. Another 20 ended with binding settlements promising reforms. The investigations have exposed excessive force, racial discrimination and other unconstitutional acts by police.

Cases are investigated and enforced by lawyers in the Justice Department’s elite “special litigation section.” Typically, the process takes years and compels police to spend tens of millions of dollars on training, equipment and oversight. Usually, a federal judge appoints a special monitor to oversee these changes.

Sessions, previously the U.S. Senate Judiciary Committee’s top Republican, set about to change the policy when Trump tapped him as attorney general in 2017. The primary problem, he said in a recent interview, is not the police, but violent crime.

“One of the most radical, unjustifiable policies I’ve observed in my whole adult life is this attack on police,” Sessions said. “You have to be careful before you start savaging police departments. Recruiting will go down. People will retire early. Good officers will leave, and then you get caught in a negative spiral that leads to dangerous, dangerous outcomes.”

Sessions said he was especially troubled by a consent decree that called for Baltimore police to stop abusing city residents, a document created in the Obama Administration’s final days. Sessions sought to scale back the decree, calling it too broad and restrictive. A federal judge said it was too late, and the decree went into effect.

A court-appointed monitoring team said in a report Wednesday that although Baltimore had overhauled many of the policies faulted by investigators, “these reforms have not yet translated into widespread changes in officer conduct,” and that the city’s recordkeeping was too shoddy to know whether it was working.

The Baltimore case set a tone going forward, Sessions said. He vowed never to enter such broad and open-ended deals again.

A CONSULTANT’S UNEXPECTED ADVICE

Sessions also ordered a review of all existing consent decrees. His order was made public but did not disclose details. Officials briefed said the department began an internal statistical analysis and hired a former big-city police chief to review every consent decree.

Justice officials declined to make the 2017 statistical findings public. But a government official familiar with them said they were inconclusive: Crime rose in some cities following an announcement that a police department was under investigation, but usually returned to normal levels once publicity subsided.

The Justice Department said in a separate review the same year that outside studies “provide strong evidence” that its cases “succeeded in bringing about more effective constitutional policing.” Another review, prepared for the National Bureau of Economic Research, found that murders and overall crime tend to fall after the department announces a pattern or practice case. The exception is when the investigations come in the tense wake of high-profile episodes of deadly force against Black people.

The Sessions statistical project was abandoned, a government official said, after it became clear that “there’s no way to do a data-driven analysis” that compares police departments of different sizes and cultures.

Next, the Trump administration tapped outside advice. It hired former Phoenix police chief Jack Harris to review every active consent decree and monitor report, in all more than 10,000 pages of detail. In the end, Harris did not find major problems with the Obama-era decrees, he told Reuters.

“In the vast majority of cases that the Justice Department looked at, clearly the police department needed to change the way it was doing business, and the consent decree was the appropriate way to force change,” Harris said.

Of consent decrees he added: “For the most part, they work. They’re not perfect. They can cost a lot of money to a community but they will bring your department into the modern era.”

Harris did suggest tweaks to several decrees that he found too burdensome on police. For example, he said, requiring Albuquerque police to send a supervisor to the scene of every police use of force, no matter how small, created administrative duties that cut into time fighting crime. The consent decree was altered to address this.

Among Harris’s other recommendations: calling for lie-detector tests to weed out racist or violence-prone police recruits and an end to rules that let police purge officer discipline reports every few years, a practice he said makes it harder to identify and fire bad cops. Harris said he didn’t know what Trump officials did with this advice.

Former U.S. Attorney General Jeff Sessions speaks after results are announced for his candidacy in the Republican Party U.S. Senate primary in Mobile, Alabama, U.S., March 3, 2020. REUTERS/Elijah Nouvelage/File Photo

“SUMMER CASES ARE RINGING ALARM BELLS”

Sessions and his aides were troubled by other probes, too.

Days before Trump took office, the Justice Department delivered a blistering investigation of Chicago’s police force. It found that officers routinely used excessive force against minorities. In one case, it said an officer beat and tasered a 16-year-old girl who had broken a rule against using a cellphone in school.

Often, the next thing the Justice Department would do is file a civil lawsuit against the local police force that could lead to court-ordered reforms. Instead, after Trump took office, Justice demurred.

Sessions acknowledged that “Chicago had a pattern of abuse that justified a lawsuit to protect our constitutional liberties.” But he also said that he was reluctant to impose restrictive limits on the police.

Months passed. Illinois’ attorney general took the city to court instead, filing a lawsuit in August 2017 to fix the problems federal investigators had identified. After Chicago and the state proposed their own consent decree, the Justice Department objected. It urged a court not to enact the decree, saying the deal would make it harder to battle “an alarming and unprecedented surge in violent crime and homicide.”

Ultimately, the city signed a consent decree with the state. Harris, the consultant, told Reuters he wrote a memo endorsing a draft of the state’s decree with minor revisions, which said: “I have found the improvements that are required, changes mandated by the various consent decrees to be positive directions for a department to improve performance and utilize policing best practices.” A judge approved the state’s decree in 2019.

The Justice Department continued to refrain from new investigations as nationwide protests broke out against police violence this year after the death of George Floyd under a cop’s knee in Minneapolis. A document obtained under the Freedom of Information Act shows that as of mid-September, the department has opened no new pattern or practice investigations against any police forces this year.

“The summer cases are ringing alarm bells,” said former Justice Department special litigation attorney Puneet Cheema, now at the NAACP Legal Defense Fund. “One could look at the lack of response to the events of the summer and say, where is the Department of Justice?”

“SOME MONSTERS WITHIN OUR POLICE”

In St. Louis, Black officers have complained for years about the behavior of some white colleagues. The Ethical Society of Police, a local association of mostly Black cops, issued a 112-page report in 2016 detailing alleged abuses and racism. An update this year alleged little had changed.

“Black officers being called the N-word and monkeys, women being called the C-word,” said Heather Taylor, a recently retired homicide detective who as president of the organization compiled the reports. “A lot of times, officers are viewed as heroes. Sometimes we are heroes. But sometimes we are complete monsters, and we have some monsters within our police department.”

St. Louis police spokesman Keith Barrett said the department takes misconduct allegations seriously and refers internal affairs cases to state and federal prosecutors. “We hold ourselves to the high standards the community we serve demands,” he said.

Tensions between police and protesters spiked after the September 2017 acquittal of the white St. Louis officer accused of homicide. At one point, video shows, police herded protesters into an area where they could not escape and then attacked some, a tactic known as “kettling.” The clashes led to more than a dozen civil rights lawsuits, alleging police brutality.

One suit was filed by Hall, the undercover cop, who declined to comment for this story. According to an FBI affidavit, Hall told superiors that fellow officers “beat the fuck out of him like Rodney King.”

Federal authorities gathered video and interviewed scores of people, lawyers and witnesses said. They filed just one criminal case - against five St. Louis police officers related to the attack on the undercover officer.

Five white officers were charged, including Boone and Myers, the two officers who sent the text messages about beating protesters. They pleaded not guilty to charges of violating Hall’s civil rights and conspiracy to obstruct the investigation. A third officer pleaded guilty to making a false statement, and a fourth pleaded guilty to using excessive force; they await sentencing. Trial for Boone, Myers and a fifth officer, who pleaded not guilty to lying to the FBI, has been delayed by the COVID-19 pandemic.

Current and former government lawyers say federal officials in St. Louis and Washington did weigh a potential pattern or practice investigation against the St. Louis force in 2017. The officials considered possible evidence of systematic problems in the department, including statements signaling potential bias and other misconduct; the shifting of a police camera mounted on a street pole away from the scene, seconds before officers advanced on protesters; and a federal judge’s finding that police illegally used chemical agents against nonviolent protesters.

In Washington, career attorneys told Reuters they conducted an initial review but decided not to recommend a full investigation, partly because they felt Trump appointees wouldn’t approve it and because officials were already monitoring a consent decree in neighboring Ferguson, Missouri.

In St. Louis, local U.S. Attorney Jeff Jensen phoned NAACP Legal Defense & Education Fund president Sherrilyn Ifill, who had asked for the sweeping review. Jensen told her he would look into the matter, a lawyer familiar with the conversation said. Ifill declined to comment.

Jensen also emailed senior Justice officials in Washington, asking them to consider a full probe, according to a government lawyer involved. But Jensen did not pursue the matter further once Trump officials rebuffed him, the government lawyer said.

THE TRUMP ERA’S ONE CASE

The Bush administration opened at least 14 police pattern-or-practice cases. The Obama team opened at least 20, according to the department’s list of its cases. Trump officials have brought just one of their own, against police in Springfield, Massachusetts.

That case was opened in 2018, lawyers involved said, after it was framed by career lawyers to appeal to Sessions: The case would be limited to a tiny drug unit in a mid-sized department so allegedly violent and corrupt that their actions were ruining cases against nefarious drug dealers.

“That was the pitch to Sessions:‘This is a unit so bad that they can’t effectively fight crime,’” a government lawyer said. “It was a smart pitch and it was also true.”

Sessions confirmed he approved the Springfield probe, finding it to be properly focused.

The results were made public more than two years later, in July 2020, long after Sessions was succeeded by Barr. The investigation found that Springfield drug detectives routinely used violence, abusing residents’ constitutional rights. Detectives “repeatedly punch individuals in the face unnecessarily, in part because they escalate encounters with civilians too quickly.”

Mayor Domenic Sarno said in September that Springfield was “working together” with the Justice Department to fortify oversight of the police force, add body cameras and change certain policies. So far, the government has not sought an enforceable consent decree.

The Justice Department continues to hold back. In July, after protesters and police clashed, Seattle forbade its officers from using pepper spray, tear gas and projectile launchers on crowds. Ordinarily, cities are free to restrict the weapons their officers use.

This time, Seattle was blocked - by the Justice Department.

The reason: Seattle's police department is operating under a 2012 consent decree imposed after the Justice Department found officers were using "unnecessary, excessive force." As is typical, the decree gives Justice the authority to object whenever Seattle changes its use-of-force rules. Such provisions are normally used to prevent backsliding. The Justice Department, now run by Barr, invoked the decree to nix Seattle's tighter weapons rules.

A federal judge temporarily put Seattle’s new rules on hold. A spokesman for the city declined to comment on the case.

“The consent decree was intended to be a tool the community could use to reform police departments,” said Brandy Grant, executive director of Seattle’s Community Police Commission, a city body that monitors the police. “Now we’re worried they could be weaponized to block reforms.”

(Reported by John Shiffman and Brad Heath in Washington. Additional reporting by Valerie Volcovici. Edited by Michael Williams.)

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