Office of the Attorney General at the U.S. Department of Justice in Washington, D.C. June 6, 2020.Washington, D.C. June 6, 2020 Credit: Diego M. Radzinschi / ALM

In 2010, Roy Austin returned to his roots as a federal prosecutor, taking a leadership role at the U.S. Justice Department with oversight of the civil rights division's criminal cases.

After prosecuting hate crimes and police brutality cases years earlier, Austin relished the opportunity to supervise the division's criminal section—the cases that, "as a baby attorney, I did and loved," he said. He was less familiar with a separate team under his guise: the civil rights division's special litigation section.

Austin would quickly become acquainted. The section came to figure prominently in his tenure, as the Justice Department looked beyond prosecutions targeting instances of officer misconduct and took steps to more broadly enact reforms at police departments across the country.

"The transformation for me was: I'm a line attorney, I'm a criminal prosecutor, my thing was, 'Let's go in and criminally prosecute the bad guys.' Then I realized everyone keeps using the bad apple analogy. When everyone dismisses the conduct as that of bad apples, you never take a look at whether it's a more serious issue," said Austin, now a partner at Harris, Wiltshire & Grannis in Washington.

"The impact of broad policy changes is often greater than the individual prosecution," he added.

The civil rights division's special litigation section would spearhead reform agreements with New Orleans and a number of other cities—with Cleveland following the fatal shooting of 12-year-old Tamir Rice; with Ferguson, Missouri, following the slaying of Michael Brown; with Baltimore following the death of Freddie Gray in police custody—turning repeatedly to the consent decree as a powerful tool to address police abuses.

As thousands have poured into the streets nationwide to protest the death of George Floyd in police custody, the Trump administration has come under a renewed glare for shelving a powerful accountability tool and curtailing the Justice Department's ability to enter into similar consent decrees in the future.

Attorney General Jeff Sessions announces the Trump administration is ending the Deferred Action for Childhood Arrivals program. Credit: Diego M. Radzinschi /NLJ

In one of his final moves before stepping down, former U.S. Attorney General Jeff Sessions signed a memorandum ordering department lawyers to lay out evidence of misconduct beyond unconstitutional behavior and requiring consent decrees to have a firm sunset date, rather than expiring only once a department has demonstrated improvement. Sessions also required the sign-off of political appointees for future agreements.

Those moves, combined with rhetoric in which Trump has called on police to "dominate" the streets amid the unrest, have sent a message that the federal government is not only disengaging from the project of reform but also "encouraging police departments to engage in bad behavior," said Jonathan Smith, who served from 2010 to 2015 as chief of the civil rights division's special litigation section.

Smith, now executive director of the Washington Lawyers' Committee for Civil Rights and Urban Affairs, said the Justice Department under Trump's presidency has "taken off the table one of the most useful tools to ensure police departments comply with the Constitution."

"It was not only leaving the field. It was taking the other side. That has encouraged departments across the country and discouraged departments that undertook the project under the administration," Smith said.

Indeed, from the earliest days of the Trump administration, the Justice Department moved to undermine or otherwise scuttle Obama-era consent decrees. Shortly after his confirmation as attorney general, Sessions ordered a review of reform agreements with dozens of troubled police departments nationwide, foreshadowing the full-scale retreat from consent decrees.

In late 2017, Sessions lamented a legacy Obama-era consent decree the Justice Department hashed out with the city of Baltimore.

"This decree was negotiated during a rushed process by the previous administration and signed only days before they left office," Sessions said at the time. "While the Department of Justice continues to fully support police reform in Baltimore, I have grave concerns that some provisions of this decree will reduce the lawful powers of the police department and result in a less safe city."

Sessions' successor, U.S. Attorney General William Barr, has done little to change course. In December, he cautioned that communities could risk losing law enforcement protection over criticism of their police forces.

"They have to start showing, more than they do, the respect and support that law enforcement deserves," Barr said at an awards ceremony for policing. "And if communities don't give that support and respect, they may find themselves without the police protection they need."

In an appearance Sunday on the CBS program "Face the Nation," Barr said he does not believe racism is a systemic problem in policing. Barr last month in a public statement condemned the killing of Floyd in the custody of Minneapolis police and vowed a federal investigation, saying he is confident justice will be served.

In early 2017, the Justice Department sought a three-month delay on the approval of a consent decree reached with Baltimore in the waning days of the Obama administration. A federal judge in Maryland said he interpreted the request as a bid by the Justice Department to determine "whether it wants the court to enter the decree at all, or at least the current version of it." U.S. District Judge James Bredar approved the consent decree nonetheless, ruling it "would be extraordinary for the court to permit one side to unilaterally amend an agreement already jointly reached and signed."

In January 2017, a day after reaching a consent decree with Baltimore, the Justice Department issued a so-called findings letter to Chicago spelling out a host of failings by the city's police department. The Justice Department launched its investigation into Chicago's police department after dashcam video showed a white officer shooting a black teenager who appeared to be turning away. The officer, Jason Van Dyke, was later found guilty of second-degree murder in the 2014 killing of 17-year-old Laquan McDonald.

Under Sessions, who disavowed the federal government's role overseeing police departments, the Justice Department did not proceed toward negotiating a consent decree with Chicago. The Illinois state attorney general reached an agreement with Chicago last year requiring the city's police department to overhaul its practices.

On Sunday, a veto-proof majority of Minneapolis' city council said it planned to dismantle the police department in response to Floyd's death, signaling the latest local effort to address misconduct.

But, in interviews, former Justice Department officials said there is no replacement for the federal government playing a role in pressing for broad reforms within police departments. Beyond its bounty of resources, the Justice Department brings an outside perspective, the former officials said.

With state attorneys general, Smith said there is an "independence problem," because their offices often work closely with local police departments on cases.

"There's a real advantage to having the United States come from outside to bring credibility to that process and to remove political influence," he said.

The Justice Department's consent decrees with cities also have the fortification that comes with falling under the purview of federal judges, he said, insulating them from political pressure, as the Baltimore agreement demonstrated. The agreements also serve as a national model, former Justice Department officials said, sending a broader message about what the federal government sees as proper, constitutional policing.

To ensure that police departments operate within constitutional bounds, Austin said "the United States as a government has no more powerful tool to do that than consent decrees."

"For those to have been diminished to the point of extinction by the current administration leaves police departments largely with no one looking at them but themselves. And so all of the gains I felt we had made during the Obama administration, with a realization that there was still much work to be done, we as a country have not taken two steps back but a giant leap backwards," he said.

"It's going to take a lot of time to rebuild that."

 

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