What If They Passed a Law to Reform Police Misconduct and the DOJ Ignored It?

What if, a long time ago, the federal
government noticed many of the problematic and abusive police
practices about which we complain today—practices including
excessive force, discriminatory harassment, false arrest, coercive
sexual conduct, and unlawful stops. In response, the federal
government passed a law to rein in such abuses, and assigned the
Justice Department to keep police departments around the country on
the straight and narrow. Then everybody patted themselves on the
back and…business as usual

That’s what Stephen Rushin, a law professor at the University of
Illinois, says happened with Law Enforcement Misconduct Statute
42
U.S.C. § 14141, passed in 1994. This law, according to the
Department of Justice:

allows us to review the practices of law enforcement agencies
that may be violating people’s federal rights. If a law enforcement
agency receives federal funding, we can also use the
anti-discrimination provisions of the Omnibus Crime Control and
Safe Streets Act of 1968, and Title VI of the Civil Rights Act of
1964,,,

The problems addressed in our cases include use of excessive
force; unlawful stops, searches, or arrests; and discriminatory
policing. We have looked at bias based on race, ethnicity, national
origin, gender, and sexual-orientation. We have also addressed
unlawful responses to individuals who observe, record, or object to
police actions.

But a funny thing happened on the way to enforcing the
law—basically, it wasn’t. In “Federal
Enforcement of Police Reform” a paper published in the
Fordham Law Review few weeks ago, Rushin argues that the
law has been used in some high-profile cases in Cincinnati, Los
Angeles, New Orleans, Pittsburgh, Seattle and Washington, D.C., but
that’s just a tiny subset of possible applications.

“Historically, the federal government has only initiated an
average of three formal investigations under Section 14141 per
year,”
he says. “And the DOJ has only pursued full-scale reform
against an average of about one department per year. There are
around 18,000 police departments in the U.S.”

So scale is part of it; Rushin thinks the Justice Department
just doesn’t have the resources to monitor all the law enforcement
agencies in the country. He suggests giving private parties “a
limited equitable right of action to initiate structural police
reform”—basically, the ability to sue police departments into
changing their ways (individuals who bring such suits now must
demonstrate the department was “deliberately indifferent in its
failure to train or supervise an employee.”)

Rushin also sees a lack of internal will at the Justice
Department to go after abusive police departments, Internal
policies and leadership often deemphasize police misconduct as a
priority. And he sees top-down political pressures having an
impact, too.

“Fighting police misconduct at the federal level is politically
contentious. As my evidence shows, during the Clinton
administration and Obama administration, the DOJ took on an
aggressive posture in fighting police misconduct. During the second
half of the Bush administration, they were generally uninterested
in using the statute.”

Anybody subject to the tender ministrations of federal law
enforcement agencies in recent years might wonder how much of a
priority reining in the ranks is for the current administration or
was during the Clinton years. But perhaps that’s a battle that
needs to be fought separately from reform of state and local
agencies.

Aside from allowing for private litigation, Rushin’s solutions
are a litte vague: greater transparency and “alternative routes to
increase the number of structural police reform cases.” How those
alternative routes would be shielded from the political pressures
that have hobbbled the 1994 law is anybody’s guess.

Because, for sure, the once much-ballyhooed 20-year-old effort
to address police misconduct
doesn’t seem to have had all that much impact at all.