Biden returns to pattern and practice of probing police

In January, a woman in Phoenix, Ariz., heard someone calling for help outside her home. Geneva Patterson went outside and saw two police officers hitting a homeless man camped in an alley. She filmed the incident and sent the video to state Rep. Diego Rodriguez, who demanded answers from the mayor and police chief.

Police said they received reports of a suspicious person and found the man had several warrants out for his arrest. They said he resisted arrest, and so they used strikes and a stun gun to subdue him. This incident was not the first to cast the Phoenix Police Department in a negative light. Earlier this year, a local news station investigated the department’s response to protests in 2017 and reported accusations that officers glorified the use of violence against protesters. The report also detailed how officials planned to charge protesters with operating as a street gang, a decision critics said was an abuse of the law.

On Aug. 5, U.S. Attorney General Merrick Garland announced that the Justice Department was opening a “pattern or practice investigation” into the Phoenix Police Department. Garland said the DOJ would investigate five areas: excessive use of force, discriminatory practices, retaliation against protesters, violations of the Americans with Disabilities Act, and violations of the rights of homeless people. “These investigations aim to promote transparency and accountability,” Garland said. “This increases public trust, which in turn increases public safety.”

Police departments operate under the authority of cities or counties, but if a department is suspected of repeatedly violating civilians’ rights, the Justice Department can send attorneys to investigate. They review documents, interview officers, and listen to community members’ stories of their experiences with the police. If the investigators uncover a pattern or practice of unconstitutional policing, the Justice Department will demand reforms. That usually means going to court for a consent decree—a legally binding agreement—and court-appointed monitors to supervise the progress. The whole process takes years.

Garland has opened three pattern or practice investigations so far. Under President Barack Obama, who at one time nominated Garland for a seat on the Supreme Court, the Justice Department entered 15 consent decrees with police departments, including that of Ferguson, Mo., after the high-profile shooting of Michael Brown in 2014. When President Donald Trump took office, Attorney General Jeff Sessions revised the rules for such investigations, requiring a high-ranking Justice Department official to approve the consent decrees and streamlining the heavily bureaucratic process. (Garland later rescinded the changes.) Trump’s DOJ withdrew from a consent decree that was being finalized with law enforcement in Chicago. It opened one new pattern or practice investigation into allegations of excessive force, racist language, and other misconduct by police in Springfield, Mass.

Now the Biden administration is returning to Obama’s strategy. In April, the attorney general announced a pattern or practice investigation into the city of Minneapolis and its police department following the murder conviction of former officer Derek Chauvin in the death of George Floyd.

“Yesterday’s verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis,” said Garland at the time. One week later, he announced another investigation into the Louisville, Ky., Metro Police Department, which came under scrutiny last year after officers shot and killed Breonna Taylor in her apartment while serving a search warrant in a drug case. Taylor’s boyfriend was present at the time and shot and injured an officer.

Derek Cohen, vice president of policy at the Texas Public Policy Foundation, said Biden has not officially specified his priorities for police reforms, but he has given some hints. During his campaign, Biden promised to create a national police oversight commission, though he has since backed off the idea. His administration supports the Senate’s George Floyd Justice in Policing Act, which Cohen described as “over-prescriptive and will have difficulty being applied in all states.” He said legal remedies for both one-off and persistent civil rights violations already exist. “Consent decrees seek to establish best, or at the very least, better, practices, but tend to establish ceilings rather than floors of officer conduct,” Cohen said.

Heather Mac Donald, a fellow at the Manhattan Institute and author of The War on Cops, said these investigations “were intended to overcome local resistance to necessary police reform. There is little evidence at this point of a critical mass of police departments that are indifferent to constitutional norms of policing.” She added that the likely outcome is “unnecessary paperwork and draconian deadlines for submitting that paperwork and years of costly and nitpicking oversight.”