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Amy Sherman
By Amy Sherman May 24, 2021

Under Biden, Justice Department resumes investigations of police agencies

A year after George Floyd's death, the Justice Department has resumed investigations into police agencies and reinstated the use of a federal tool designed to force agencies to make changes. Both changes represent significant movement toward fulfilling President Joe Biden's promise to expand the department's power to investigate law enforcement misconduct. 

The Justice Department in April opened investigations, known as pattern-or-practice investigations, into law enforcement agencies in Louisville and Minneapolis. Attorney General Merrick Garland announced the investigation into Minneapolis police a day after a jury found former police officer Derek Chauvin guilty of murder and manslaughter in the May 25, 2020, death of Floyd, 46, who was Black.

"Building trust between community and law enforcement will take time and effort by all of us, but we undertake this task with determination and urgency, knowing that change cannot wait," Garland said.

The investigation into offices in Louisville follows the March 13, 2020, death of Breonna Taylor, a Black woman who was shot to death by police serving a no-knock warrant in her apartment. A grand jury declined to bring charges against the officers involved.

The investigations were scarcely used under the Trump administration. The deaths of Taylor and Floyd fueled a renewed movement for racial justice and police reform nationwide stretching from city halls to the 2020 presidential race.

The Minneapolis investigation will assess all types of force used by police officers and whether the agency engages in discriminatory policing. Federal investigators will review the department's policies and systems of accountability, including how it handles complaints and discipline.

In Kentucky, investigators will similarly look into the policies and record of the Louisville/Jefferson County Metro Government and the Louisville Metro Police Department. The Louisville investigation will include examining whether police conduct unreasonable stops, searches, seizures, and arrests, including in executing search warrants.

Congress in 1994 gave the U.S. attorney general the authority to investigate and litigate cases of police patterns or practices that violate constitutional or federal rights. This happened after a video of the 1991 beating of Rodney King by Los Angeles police officers fueled public outrage and the subsequent 1992 riots and protests over police officers acquitted on state criminal charges.

These types of investigations examine broader behavior to determine whether there's misconduct within a department. The Justice Department under Obama opened 25 investigations into law enforcement agencies. During Trump's administration, such investigations were rare. In mid-2020 we asked the Trump Justice Department how many pattern or practice investigations the agency had launched, and we didn't get a response. The Lawfareblog found that under Trump the department opened one such investigation into the Springfield, Mass., police department's narcotics unit.

Additional steps that expand Justice Department power

The willingness to launch pattern-or-practice investigations isn't the only way the Biden administration has taken a more forceful into law enforcement practices.

Garland in April also reversed a Trump-era order that aimed to limit the use of federal consent decrees prosecutors used in investigations of police departments. Trump's first attorney general, Jeff Sessions, argued that it was not the federal government's responsibility to manage non-federal law enforcement and that consent decrees got in the way of day-to-day police operations.

Under Biden, the Justice Department has indicated it will resume consent decrees. When the department identifies a violation of law, it generally seeks a resolution that avoids litigation in the form of a settlement agreement or consent decree. A consent decree is overseen by an independent monitor who assesses whether the department has implemented remedies. 

For example, in 2016 the Justice Department entered a consent decree with the city of Ferguson, Mo., after a Justice Department identified a pattern or practice of unlawful stops and arrests; violations of the right to observe and record police activity; excessive force; and discriminatory policing. The investigation involved the police department in the St. Louis suburb where 18-year-old Michael Brown was fatally shot by a white police officer in August 2014

Biden's discretionary budget proposal, released in April, includes additional money for the Justice Department's civil rights division. The proposal doesn't expressly mention pattern-or-practice investigations, but it states that the money would be used for police reform. Biden's budget proposal is a starting point for negotiations with Congress.

Biden also supports the George Floyd Justice in Policing Act, which passed the House in 2020 but hasn't reached a vote in the Senate. Lawmakers from both parties have been in negotiations over conflicting ideas about police reform. The legislation would give the Justice Department subpoena power in pattern-or-practice investigations.

Our ruling 

Biden promised to give the Justice Department expanded power to address systemic misconduct in police and prosecutorial agencies. The pattern or practice investigations and consent decrees are not new powers, but they appeared to be largely dormant under Trump. The Justice Department announced that it has resumed using these tools, but it could take years until we see the outcome.

There are other moving parts that overlap with the department's work to investigate police misconduct, such as congressional efforts at police reform and Biden's budget plan. 

For now, we rate this promise In the Works. 

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