What Ses­sions doesn’t get about polic­ing cops

Fer­gu­son in­ves­ti­ga­tor Jonathan Smith says fed­eral probes make of­fi­cers and com­mu­ni­ties safer

The Washington Post Sunday - - OUTLOOK - out­look@wash­post.com Jonathan Smith is the ex­ec­u­tive di­rec­tor of the Wash­ing­ton Lawyers’ Com­mit­tee for Civil Rights and Ur­ban Af­fairs. He is a for­mer chief of the spe­cial lit­i­ga­tion sec­tion of the Jus­tice Depart­ment’s civil rights di­vi­sion.

Michael Brown’s death on the streets of Fer­gu­son, Mo., on Aug. 9, 2014, changed the na­tional con­ver­sa­tion about polic­ing and race. Po­lice abuse be­came daily front-page news; the Black Lives Mat­ter move­ment was born; race and in­equal­ity turned into main­stream po­lit­i­cal is­sues. Un­der­lin­ing much of the dis­cus­sion after Brown’s shoot­ing was a March 2015 re­port by the Jus­tice Depart­ment’s civil rights di­vi­sion that de­tailed how the Fer­gu­son po­lice depart­ment and mu­nic­i­pal court had de­stroyed the lives of thou­sands of African Amer­i­can res­i­dents. Sta­tis­tics, data anal­y­sis and scores of star­tling sto­ries filled the re­port. One man was tased after he pulled away from an of­fi­cer dur­ing his pedes­trian stop; a woman went to jail be­cause she was un­able to pay a park­ing fine.

At­tor­ney Gen­eral Jeff Ses­sions, though, has an­nounced that he in­tends to “pull back” from in­ves­ti­gat­ing civil rights vi­o­la­tions by po­lice. In­stead, his Jus­tice Depart­ment will fo­cus on im­prov­ing po­lice morale and on fed­er­al­iz­ing more pros­e­cu­tions to en­sure that peo­ple con­victed of crimes serve longer sen­tences. Ses­sions as­serts that th­ese steps are nec­es­sary to ad­dress what he says is a cri­sis in vi­o­lent crime. The in­ves­ti­ga­tions of Fer­gu­son and, later, of Chicago? With­out hav­ing read them, Ses­sions dis­missed the re­ports as “pretty anec­do­tal.”

The at­tor­ney gen­eral is wrong on the facts: Crime is at his­toric lows, ma­jor cities are safer than they’ve been in decades, and vi­o­lent crime rates are half of what they were in the early 1990s. And he is wrong on the pol­icy, as well. Tol­er­at­ing wide­spread civil rights vi­o­la­tions by po­lice and giv­ing up the Jus­tice Depart­ment’s power to in­ves­ti­gate mis­con­duct will sim­ply make mat­ters worse and won’t help ad­dress the se­ri­ous pub­lic safety is­sues that some com­mu­ni­ties re­ally are suf­fer­ing through. I know be­cause I helped write the re­ports, and I have seen the ef­fect they have on com­mu­ni­ties.

I was a mem­ber of the team that in­ves­ti­gated the Fer­gu­son Po­lice Depart­ment and more than 20 oth­ers. Since I left the Jus­tice Depart­ment in 2015, the di­vi­sion has com­pleted ad­di­tional in­ves­ti­ga­tions of Chicago and Bal­ti­more. In each in­ves­ti­ga­tion, we re­viewed hun­dreds of thou­sands of pages of doc­u­ments; in­ter­viewed po­lice and gov­ern­ment of­fi­cials at all lev­els; met with hun­dreds of res­i­dents; and re­lied on the ex­per­tise of po­lice ex­ec­u­tives, who served as con­sul­tants. We took great pains to talk to those who felt that their rights had been vi­o­lated, as well as peo­ple who be­lieved that po­lice prac­tices were ap­pro­pri­ate.

We worked hard to make the re­ports read­able and to speak to the en­tire com­muni- ty. The find­ings were de­signed to cre­ate a com­mon set of facts that would serve as a ba­sis for an ef­fec­tive rem­edy and fa­cil­i­tate rec­on­cil­i­a­tion. The point was not to em­bar­rass in­di­vid­ual of­fi­cers but to build trust and con­fi­dence be­tween po­lice and their com­mu­ni­ties. Of­ten, the re­sults of th­ese in­ves­ti­ga­tions were the first step in heal­ing the breach be­tween po­lice and the com­mu­ni­ties of color they serve.

Many in­ves­ti­ga­tions re­sult in a court or­der called a con­sent de­cree, which re­quires a city to cor­rect po­lice be­hav­ior by en­sur­ing that proper poli­cies, train­ing, su­per­vi­sion and ac­count­abil­ity mea­sures are in place so that vi­o­la­tions are not re­peated. Such de­crees are sub­ject to lengthy ne­go­ti­a­tions and re­view by a fed­eral judge to de­ter­mine if they are “fair, rea­son­able and ad­e­quate.” Th­ese re­ports and the re­sult­ing agree­ments for re­form have made a dra­matic dif­fer­ence.

In New Or­leans, con­sent de­cree re­forms im­ple­mented in 2013 led to a 28 per­cent drop in Taser use from 2014 to 2015; bites from po­lice dogs de­clined by 10 per­cent in the same pe­riod. The po­lice depart­ment has made a “re­mark­able turn­around,” ac­cord­ing to the court mon­i­tor, in its han­dling of sex­ual as­sault and do­mes­tic vi­o­lence cases, in­clud­ing new poli­cies that DOJ lawyers de­scribed as a model for the na­tion. The mon­i­tor also saw sig­nif­i­cant im­prove­ment in the civil­ian com­plaint process, lead­ing to in­creased use by res­i­dents.

In East Haven, Conn., sev­eral of­fi­cers from a po­lice depart­ment rife with racial bias were con­victed of fed­eral civil rights vi­o­la­tions. Fol­low­ing a civil rights in­ves­ti­ga­tion, the court or­dered a con­sent de­cree man­dat­ing re­form of poli­cies, train­ing, su­per­vi­sion, hir­ing prac­tices and of­fi­cer dis­ci­pline. Af­ter­ward, the court mon­i­tor noted that bi­ased polic­ing had fallen dra­mat­i­cally, and re­la­tions be­tween po­lice and the Latino com­mu­nity had im­proved. One com­mu­nity mem­ber de­scribed the change: “It’s a dif­fer­ent world now.”

In Seat­tle, com­mu­nity trust of the po­lice has in­creased since im­ple­men­ta­tion of a 2012 con­sent de­cree re­gard­ing the use of force. As part of the de­cree, the mon­i­tor con­ducted an­nual com­mu­nity per­cep­tion sur­veys. In 2013, 9 per­cent of African Amer­i­cans and Lati­nos re­ported be­ing vic­tims of ex­ces­sive force, and 47 per­cent of res­i­dents ap­proved of the han­dling of traf­fic stops. By 2016, those num­bers were 1 per­cent and 65 per­cent, re­spec­tively.

Fol­low­ing a 2003 con­sent de­cree to ad­dress ex­ces­sive-force prac­tices in Detroit, fa­tal of­fi­cer-in­volved shoot­ings dropped dra­mat­i­cally. In the five years be­fore the Jus­tice Depart­ment’s in­ves­ti­ga­tion, 47 peo­ple died in po­lice shoot­ings. Be­tween 2009 and 2014, that num­ber fell to 17. Use of chem­i­cal spray went from 460 in­ci­dents in 2000 to about 50 per year by 2014. And use of force de­creased from 873 in­ci­dents in 2010 to 473 in 2013, just be­fore the de­cree ended.

Fed­eral in­ves­ti­ga­tions don’t lead only to con­crete re­forms. Just as im­por­tant, they pro­vide an of­fi­cial ac­knowl­edg­ment of how com­mu­ni­ties of color ex­pe­ri­ence po­lice mis­treat­ment, which is es­sen­tial for rec­on­cil­i­a­tion. The re­port on Chicago this year re­vealed that the coverup of Laquan McDon­ald’s shoot­ing was not an aber­ra­tion but part of a deeply in­grained cul­ture. In Bal­ti­more, tens of thou­sands of black res­i­dents were stopped — some­times as fre­quently as 30 times over a five-year pe­riod — with­out prob­a­ble cause, and only 3.7 per­cent of pedes­trian stops re­sulted in an ar­rest or a ci­ta­tion. Po­lice of­fi­cers in Bal­ti­more were told to “lock up all the black hood­ies,” a mas­sive in­ter­fer­ence with in­di­vid­ual lib­erty that did noth­ing to solve crime and cre­ated re­sent­ment and mis­trust be­tween the po­lice and com­mu­ni­ties.

In Fer­gu­son, our re­port de­tailed what hap­pens when a po­lice depart­ment and court place rev­enue above pub­lic safety and tar­get the African Amer­i­can com­mu­nity for ex­ces­sive en­force­ment, for the sole pur­pose of drain­ing their wal­lets. As we showed in our re­ports on Ne­wark, Cleve­land, Al­bu­querque, Seat­tle, Mi­ami and else­where, th­ese prob­lems are wide­spread and na­tional in scope.

To cre­ate pub­lic safety, com­mu­ni­ties and po­lice must work to­gether, and that is only pos­si­ble if res­i­dents have con­fi­dence that they’ll be treated fairly, within the law and with re­spect. In far too many places, vic­tims are more afraid of the po­lice than of the peo­ple who vic­tim­ized them. If a do­mes­tic vi­o­lence vic­tim won’t call 911 for fear that her abuser or a by­stander will end up dead; if a wit­ness to a shoot­ing won’t talk to the po­lice be­cause there is no trust; if the fa­ther of a child with men­tal ill­ness is afraid of what the po­lice will do to his daugh­ter if he calls for help, ev­ery­one in the com­mu­nity is less safe. When a po­lice of­fi­cer walks down the street in a neigh­bor­hood where sys­temic abuse has eroded con­fi­dence, she is less safe and less ef­fec­tive. Only through re­forms like those re­sult­ing from a civil rights in­ves­ti­ga­tion can trust be re­stored.

Ar­gu­ing against DOJ in­ter­ven­tion, Ses­sions claims that it’s “dis­re­spect­ful [to po­lice] for the feds to go in and try to take it over.” The prob­lem in polic­ing is not bad po­lice of­fi­cers. All but a few of­fi­cers are ded­i­cated and hon­or­able pub­lic ser­vants. But po­lice do what they have been taught to do, within the cul­ture of their in­sti­tu­tions. This is a sys­tems prob­lem, not an in­di­vid­ual of­fi­cer prob­lem, and our in­ves­ti­ga­tions tar­get sys­tems. Ses­sions would be well served to re­call that the Con­sti­tu­tion is the most fun­da­men­tal law in our democ­racy. The rou­tine vi­o­la­tion of ba­sic rights by law en­force­ment of­fi­cers is a pub­lic safety cri­sis and one that the Jus­tice Depart­ment is in the strong­est po­si­tion to ad­dress.


Black Lives Mat­ter de­mon­stra­tors march in Wash­ing­ton last sum­mer. At­tor­ney Gen­eral Jeff Ses­sions has an­nounced that he wants to “pull back” from fed­eral civil rights in­ves­ti­ga­tions of po­lice de­part­ments, say­ing they’re “dis­re­spect­ful” to lo­cal po­lice.

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