Investigations

The news caught the city off guard. 

In September, six months after Louisville Metro Police killed 26-year-old Breonna Taylor, Mayor Greg Fischer announced the city had reached a historic $12 million settlement with Taylor’s family that included several policing reforms.

Misconduct settlements often take years to negotiate, and they rarely include promises of reform. This one — the largest sum paid for police misconduct in Louisville history — had materialized within a matter of months, before Kentucky Attorney General Daniel Cameron had even completed the investigation into Taylor’s death.

Some wondered: Why the haste? Had the city settled prematurely, or paid too much?

Compared to one alternative, though, the Taylor settlement might have saved the city big: tens of millions of dollars, years of continued bad press, and an even more dire bout of soul-searching.

That’s because the city has to answer to more than just Louisville residents. Over the city’s shoulder looms the federal government.

Federal interventions into local police departments sometimes follow high-profile police killings, and they can be expensive and arduous. Under President Donald Trump and his attorneys general, the U.S. Department of Justice has all but abandoned interventions against police misconduct. His appointees have criticized consent decrees as heavy-handed federal interventions into local matters.

That is widely expected to change under President-elect Joe Biden, who could relaunch investigations into police departments and revive one of the most powerful tools for curbing police misconduct: consent decrees.

Interviews with reform experts, former police chiefs, and attorneys who have worked at the Department of Justice suggest Biden is likely to resume investigations into police departments and return to more aggressive interventions.

Locally, though, the reforms and other measures already undertaken in Louisville might signal to the federal government that Louisville is serious about self-reform, and that federal resources are better spent elsewhere.

“They have the capacity to come up with the best solutions locally,” said Mark Muir, who was Missoula Police chief in Missoula, Montana, when the city was investigated by DOJ over how police handled cases of sexual assault. “They should be proactive locally and not sit back and wait for the federal government to fix this issue, or even to investigate these issues.”

Just as federal intervention in Louisville is not guaranteed, local effort alone might not be enough to stave off federal mediation.

Louisville Metro Police did not respond to a request for comment about this story. But city leaders have announced several measures since LMPD officers killed Taylor: the $12 million settlement with the Taylor family. The firing of longtime police Chief Steve Conrad. A “top-to-bottom” review of LMPD conducted by a private firm. The passage of “Breonna’s Law” banning no-knock warrants in the city. Policing reforms such as requiring the chief’s permission before using tear gas, as they did against protesters this summer without that high-level approval, and a supervisor’s approval for a search warrant.

Are the changes enough?

How Feds Look Into Police Misconduct

After Los Angeles police brutally beat Rodney King, Congress passed the Violent Crime Control and Law Enforcement Act in 1994. The law empowered the U.S. Department of Justice to investigate police agencies and sue the ones found to violate civil rights. 

To avoid costly litigation and damaging publicity, cities often negotiate reform agreements, such as a memorandum of agreement or a consent decree. Under a consent decree, a city or department agrees to enumerated changes and to have their progress overseen by a federal judge and an independent monitor.

Since 1994, the U.S. Department of Justice has opened some 70 investigations into whether police department protocols are “part of a pattern or practice of unconstitutional conduct,” resulting in 41 reform agreements with law enforcement agencies. Twenty of those agreements were consent decrees. 

The first consent decree with a local law enforcement agency came out of Pittsburgh in 1997, under Attorney General Janet Reno. Others have followed in large cities such as Los Angeles and Seattle as well as in smaller towns like East Haven, Conn., and Ferguson, Mo., after the police killing of Michael Brown in 2014.

The consent decree begins with the “pattern-or-practice” investigation by the Civil Rights Division of the U.S. Department of Justice, which focuses on broad, systemic problems within police departments. 

A well-publicized incident like Taylor’s death “can be what gets a department on the radar of the Civil Rights Division,” said Lynda Garcia, a former attorney within the Civil Rights Division.

However, she added, an investigation requires more than a single incident. “So it wouldn’t be the killing of Breonna Taylor alone. It would be, have there been other incidents that indicate there might be a pattern of constitutional violation?” said Garcia, who is now the policing campaign director at The Leadership Conference on Civil and Human Rights.

Louisville police have shot and killed 20 people since 2015. Although an investigation showed that National Guardsmen fired the fatal shot that killed David McAtee, Louisville officers also shot at the barbecue chef as huge protests against Taylor’s death continued a few miles away. The department has also been accused of using excessive force against protesters, including in a class action lawsuit filed by the ACLU and NAACP. 

LMPD is also embroiled in a scandal involving the sexual abuse of minors over which two officers pled guilty to federal charges and a third had charges pending. LMPD also deleted at least 738,000 records about the affair and tried to cover it up, according to the Courier-Journal.

“We’re talking about civil rights violations, sexual assault allegations, corruption that exists within the police department—it needs to be investigated, and really it needs to be dismantled,” said State Rep. Attica Scott, a Louisville Democrat. 

Scott has championed a statewide “Breonna’s Law” that would ban no-knock warrants, require drug and alcohol testing for police officers after a fatal police shooting and mandate the use of body cameras during search warrants and most other interactions with the public. 

“I wouldn’t be surprised if Fischer and his administration thought the settlement with their so-called reforms would shut down the movement for justice for Breonna Taylor,” Scott added. 

A variety of national figures have demanded a pattern-or-practice investigation into LMPD, including Vice President-elect Kamala Harris, Democrats on the House Judiciary Committee and the U.S. Commission on Civil Rights. A June letter to Attorney General William Barr calling for an investigation was signed by 220 organizations, including the ACLU and the NAACP.

Over the summer Louisville hired Chicago-based consulting firm Hillard Heintze to conduct a “top-to-bottom” review of LMPD. The review is ongoing. 

Jean Porter, spokesperson for Mayor Fischer, denied that the settlement with Taylor’s family was intended to pre-empt federal involvement in Louisville and said the city is “pursuing reform on many fronts because it is the right thing to do for our city and our police department.”

David James, Metro Council’s president and a former LMPD detective, said he welcomes a possible pattern-or-practice investigation. “The city and the department should invite such a review with open arms,” he said.

Consent Decrees Under Microscope

Consent decrees have won praise from some advocates of police reform, who say they’re a necessary tool for protecting civil rights and curbing unacceptable behavior in police departments.

They’ve also been criticized by some researchers and civil libertarians who think they’re expensive, time-consuming, and drastic federal interventions into local governance. Others think they don’t go far enough to address systemic issues of accountability.   

Consent decrees have been subject to only infrequent academic research. One study of data from over 900 departments between 2000 and 2016 found that consent decrees with court-appointed monitoring were linked to a 29% reduction in officer-related fatalities. Another study found evidence that consent decrees reduce civil rights violations.

Still, given the length and magnitude of the interventions, it can be difficult to determine if changes are due to the effects of the decree, national trends, or some other variable.

One of the most prominent consent decrees came out of the Los Angeles Police Department after widespread corruption was found in an anti-gang unit, including planting false evidence, baseless beatings and shootings, perjury, and even bank robbery. The 2001 consent decree was supposed to last five years, but the decree wasn’t lifted until 2013. Its total cost was estimated to be around $300 million.

Still, the results were considered promising, and Los Angeles is generally heralded as a success story. A 2009 study from researchers at the Harvard Kennedy School found higher public satisfaction with the police, including among every racial group, and a dropoff in the frequency of use of force. 

Results elsewhere are mixed, including in New Orleans, where a a pattern-or-practice investigation found the New Orleans Police Department was “largely indifferent to widespread violations of law and policy by its officers,” including the excessive use of force, discriminatory policing against Black and LGBT residents, and “systemic deficiencies” in handling domestic violence cases. The decree began in 2013 and remains ongoing. 

Over the last seven years, the city has paid more than $55 million to make and monitor reforms, according to Mayor LaToya Cantrell. Federal and local officials have praised police progress under the decree. 

Yet an audit from this summer found “serious shortcomings.” Several officers were caught on body cameras appearing to coordinate a story to justify the unconstitutional search of a man on New Year’s 2019. Earlier that year, several officers from a now-suspended police task force engaged in an unauthorized pursuit that left three people dead and four officers fired. 

Matthew Nesvet, a researcher and police reform expert, spent a year working as a consent decree auditor in New Orleans. As the “eyes and ears” for the judge and the community, monitors provide day-to-day technical advice and management of new policies and practices. 

Nesvet criticized changes under the New Orleans consent decree for creating an illusion of reform. He said the “early intervention” software New Orleans police implemented — similar to the early warning system for officers that LMPD has announced repeatedly, but never implemented — measured whether “individual members of a unit behave alike but not necessarily ethically.” In other words, departments can come to normalize violence so long as the level of violence isn’t an outlier.

Nesvet also decried a “police reform industrial complex” in which monitoring is big business, including large salaries that are shouldered by local taxpayers. Because monitors are often national firms without local ties, they have a financial incentive not to target police leadership or go after bolder structural reforms, critics claim. The result is a “revolving door” for monitors who go on to bid on contracts at the next city with a consent decree, according to Nesvet. 

Muir, the former police chief in Missoula, urges Louisville to lean into local reforms. He thought the DOJ investigation into his department was “one-sided” and costly to the community, and locals could do better “if they will shoulder that burden early and shoulder it in good-faith.”

Nesvet thinks local, independent police monitors would be more accountable to the community.

“When you outsource the work of government to for-profit operators, you have to ask who those people are accountable to and what kind of outcomes they’re trying to produce,” Nesvet said.

Local Problems, Local Solutions?

Although the DOJ typically publishes its findings from a pattern-or-practice investigation, consent decrees are often criticized for a lack of transparency in the negotiation process. Communities and their leaders sometimes feel hamstrung when unelected lawyers target their agencies, generating critical publicity and pressure to hammer out a reform agreement behind closed doors.

Geoffrey Alpert, a professor of criminal justice at the University of South Carolina, said he doesn’t expect a wave of consent decrees under the Biden administration.

“The consent decree issue is so expensive, so long-term, and broad-based that I think we’re going to see a lot more focused reform,” Alpert said.

Others want the federal government to back off the heavy hand of consent decrees and return to technical assistance letters, in which the DOJ recommends — but does not require — policy reforms. Such letters were popular in the administration of President George W. Bush, and they’re closer to the belief espoused by former Attorney General Sessions that “it is not the responsibility of the federal government to manage non-federal law enforcement agencies.”

But Christy Lopez, a professor at Georgetown Law who worked as a lawyer in the Civil Rights Division from 2010 to 2017, called it an “abdication of their enforcement responsibility” for the DOJ to avoid these kinds of enforcements.

“The reason the Civil Rights Division exists and the reason we have the federal government doing this work is that we have a history in this country of state and local governments not protecting the rights of their constituents against police abuse, especially African Americans and other constituents of color,” Lopez said.

The consent decree approach is not going to fix policing, Lopez said. 

“It is one intervention, and I believe in some instances it may be absolutely necessary.”

Federal intervention might be necessary when self-reform fails. Some Louisvillians have a wait-and-see approach to changes in LMPD. Others are more skeptical the reforms will work.

Ricky Jones, professor and chair of the University of Louisville’s Pan-African Studies department, called the reforms announced by Fischer in September “minimal” measures that have been tried elsewhere without success.

“When you understand the history of policing in America and the way police departments have functioned and continue to function with minority communities,” Jones said, “there is a culture there that’s so deep-rooted, I’m not sure that political officials or even police know how to change that culture. 

“Either they don’t want to change those cultures, or they don’t know how,” Jones added. “Because we’re seeing the same behaviors manifest again and again.”

Contact Graham Ambrose at @gambrose@kycir.org.