Biden administration rushes to wrap up police investigations

Officials at the Department of Justice have been in a mad dash over the last few months to tie up the Biden administration’s 12 investigations into local police departments before President-elect Donald Trump takes office on Monday.

Since November, the DOJ has released reports about police departments in Trenton, N.J., Memphis, Tenn., Antioch, Calif., and Oklahoma City, documenting excessive force, unconstitutional practices, civil rights abuses, and discrimination against individuals with behavioral health problems.

Once the DOJ completes an investigation into a city’s police department, the two parties may negotiate what’s known as a consent decree—a court-ordered reform plan overseen by a federal judge, who often appoints a third-party monitor to keep track of changes. On Jan. 6, after months of negotiations, Minneapolis agreed to enter into a consent decree with the DOJ following an investigation after George Floyd’s death. In Louisville, Ky., city officials in December consented to federal oversight of the Louisville Metro Police Department.

Proponents of the decrees argue they are essential tools to compel lasting reforms at police departments that often lack accountability. Critics characterize the court-ordered recipes for reform as unwarranted government intervention that, rather than holding police and elected city officials accountable, absolves them of responsibility by placing the impetus for change in the hands of a federal judge.

Almost five years ago, Louisville Metro police fatally shot Breonna Taylor, a 26-year-old emergency room technician, while they were executing a no-knock warrant on her apartment as a part of a drug investigation involving her ex-boyfriend. Taylor’s name became a rallying cry against police violence across the United States, and a jury convicted former Louisville Metro police officer Brett Hankison of violating her civil rights when he shot into her apartment. The Louisville police landed in more hot water for its use of force against street protesters decrying Taylor’s death.

A DOJ investigation into Louisville Metro’s policing practices accused the department of conducting searches based on invalid warrants, unlawfully executing search warrants without knocking, and using excessive force, including neck restraints. The report also alleged the department’s policing practices discriminated against black people and violate the free speech rights of residents who criticize police. The DOJ wrapped up its investigation in March 2023 but didn’t finish negotiating the 240-page consent decree with Louisville city officials until December 2024. The five-year consent decree still won’t go into effect until a federal judge approves it.

On Monday, U.S. District Judge Benjamin Beaton, who will oversee the consent decree if it moves forward, presided over a fairness hearing to ensure the reform roadmap is fair, adequate, and reasonable. Several interested parties, including the American Civil Liberties Union and the Heritage Foundation, presented their perspectives on the oversight plan.

Sitting before the packed courtroom, Beaton questioned whether a court-ordered consent decree is really necessary—or helpful—as opposed to a traditional settlement, since the DOJ and the city of Louisville agree on the terms of the reforms and city officials have already begun changing questionable policies. He also warned that court-ordering reform could diminish accountability since the buck would then stop with him instead of elected city officials.

But Paul Killebrew, the attorney representing the DOJ’s Civil Rights Division, said the consent decree “lays out an orderly process for the review and approval” of department policies.

Toward the middle of the hourslong hearing, Judge Beaton asked whether it was pure “happenstance” that the negotiations had come to a close weeks before the incoming administration assumed power.

Samuel Dewey, outside counsel for the Heritage Foundation’s oversight project, argued at Monday’s hearing. In an interview with WORLD later that day, he argued that “part of the intent of this consent decree is to tie the hands of the Trump administration.” He said that the Biden administration is “deliberately seeking a consent decree and trying to rush it through now because they know that there’s a high likelihood ... that the second Trump Department of Justice is just going to shut this thing down.”

In a friend-of-the-court brief, the Heritage Foundation asserted the proposed decree is being “rushed through” in “an end run around the more than 77 million voters who cast their ballots for President Trump.”

Congress created consent decrees through a 1994 omnibus bill aimed at fighting crime. In 1997, the city of Pittsburgh agreed to federal oversight of their police department and entered the first consent decree, which lasted until 2002. Since then, the DOJ has overseen 19 decrees, with Democratic administrations historically more apt to pursue them than their Republican counterparts. Former President Barack Obama’s DOJ entered into 15, ProPublica reported, while former President George W. Bush only instituted three. Trump entered into none during his first administration. Trump’s former Attorney General Jeff Sessions even released a memo requiring the DOJ to obtain special authorization before entering into a decree.

President Joe Biden’s DOJ is currently enforcing 15 consent decrees and has opened 12 investigations into police departments since January 2021.

Even if Trump’s second administration takes a critical view of consent decrees, it’s difficult to stop the court from enforcing a reform plan once an agreement has been approved by a federal judge. In the final days of the Obama administration, the DOJ negotiated a consent decree with the Baltimore Police Department after the federal agency investigation found officers routinely violated federal anti-discrimination laws. Despite the first Trump administration’s opposition to the court-ordered plan, that consent decree is still ongoing.

Seven consent decrees have lasted a decade or longer, according to a Law Enforcement Legal Defense Fund report. Peter Moskos, a professor at John Jay College of Criminal Justice, said consent decrees tend to drag on, in part, because the third-party monitors hired to help a department implement the decree don’t have any incentive to do so efficiently.

And while in some cases, consent decrees may be targeting widespread problems within a police department, Moskos noted many of the DOJ’s pattern and practice investigations read like a “template” and aren’t transparent about the scope of the data backing their findings.

During Monday’s hearing in Louisville, Judge Beaton lambasted Killebrew, the DOJ’s representative, for the agency’s reluctance to release the data sets backing their allegations of the agency’s alleged excessive use of force, both lethal and nonlethal. Killebrew argued the agency must “maintain leverage” if the case goes to trial and pointed Beaton back to examples within the DOJ’s investigative report.

“It is just beyond comprehension that after four years of investigating and negotiating, that there would be some hidden set of information,” Beaton retorted. “If the Justice Department won’t even give me a ballpark of the number of incidents over what period of time, I don't know how I can conclude as a matter of law and announce to the public that these reforms are a reasonable solution to plausibly alleged legal violations.”

In their briefing opposing Louisville’s consent decree, the Heritage Foundation pointed to high crime rates in cities operating consent decrees. Jason Johnson, president of Law Enforcement Legal Defense Fund, filed a declaration in support of Heritage’s brief. He also co-authored an August 2023 report which drew on FBI data to highlight violent crime rises following consent decrees in New Orleans, Cleveland, Seattle, and Albuquerque, N.M. “Excessive red tape” often prevents officers from fighting crime and lowers morale, the report argued.

Rather than immediately resorting to consent decrees, the report continued, the DOJ could use a nonbinding technical assistance letter to warn departments of misconduct and outline remedies while leaving the responsibility for reform in the hands of elected officials at the city level. In more extreme cases, the federal government could issue a legally binding memorandum of agreement, which carries the threat of litigation but is less onerous than a consent decree.

Back in Louisville, Judge Beaton has not indicated when he will issue a ruling on whether the consent decree will move forward.

Dewey, lawyer for the Heritage Foundation, told WORLD his organization also plans to file a friend-of-the-court brief opposing the proposed consent decree in Minneapolis.