‘What is a consent decree?’ and other questions about the DOJ's Louisville investigation answered
With the United States Department of Justice finding that Louisville police routinely violated residents’ civil rights, local leaders have agreed to work with federal officials on a court-enforced plan for reform.
Louisville officials started implementing some policy changes in recent years, following high-profile traffic stops and killings by police. The agreement with the DOJ could produce more changes.
The investigation into LMPD, known as a “pattern or practice” investigation, was initiated after the police killing of Breonna Taylor, a 26-year-old black woman who was shot in the hallway of her apartment during a botched raid in March 2020. Taylor’s death fueled months of racial justice protests in Louisville and elsewhere.
LPM News’ Roberto Roldan spoke with Georgetown Law School’s Christy Lopez about DOJ investigations and the consent decrees they often result in. Lopez led the DOJ’s Civil Rights Division’s investigations of police departments and other law enforcement agencies between 2010 and 2017.
Roldan’s interview with Lopez was conducted before the release of the DOJ’s report. This interview was edited for clarity and length.
Can you explain the basics of what a ‘pattern or practice’ investigation is and how the Department of Justice conducts them?
You're talking decades of practices and experiences that people in that community know, but the DOJ has to very quickly learn. So in order to do that, they will usually ask for information, documents, video footage. We'll talk a lot with community members, advocacy groups, police officers, police leaders. The goal of that is not only to determine whether there is, in fact, a pattern or a practice of misconduct, constitutional violations, but what the nature and the scope of that pattern is. Because a lot of what you're doing during the investigation is not only trying to establish liability, right, but also those first steps at, what I like to say, kind of diagnosing the cure. Like, what do we need to fix this problem?
What would be a pattern or practice that they could identify as something that would be potentially problematic?
It needs to be a pattern or practice of [violating] people's legal rights. Often it will be a violation of the Fourth Amendment, a pattern of enforcement violations such as a pattern of unreasonable uses of force. Here [in Louisville], they're looking at all types of force, including force on individuals with behavioral health disabilities, individuals engaged in activities protected by the First Amendment, so during protests and things like that, and persons in mental health crisis. They’re also looking at discriminatory policing and unreasonable searches and seizures. This is one of the broadest investigations that I've seen from DOJ.
Louisville officials have agreed to work with the DOJ to develop what’s called a consent decree. Can you explain what a consent decree is and how that legal mechanism is used to affect police reform?
A consent decree is really just a form of a court order that was negotiated by the parties. So, there can be a trial where the parties dispute liability and, at the end, the judge or the jury decides for one side or the other. This sort of takes a different approach in that the parties agree that instead of going to court and having a trial, we're going to go straight to remedy and we're going to negotiate an agreement to decide what it will take to settle this case. And those negotiations generally take months. You try to come up with an agreement that is going to end the pattern of practice of constitutional violations or federal statutory rights. There will be language in there, not always but generally speaking, there's language in there that the court will have ongoing oversight through the course of the agreement.
What mechanisms are in place for both the federal government and for residents here in Louisville to ensure that, once we have a consent decree, the city and the police department are meeting those expectations for reform?
That's one of the trickiest bits about this approach to police reform. Because basically, you have an agreement that says you're supposed to do these however many, usually hundreds of, things.
If those things aren’t done, the plaintiffs, in this case the Department of Justice, can bring a motion to show why the defendants should be held in contempt. And the court can exercise its contempt power to hold someone in contempt. Rarely do things in a consent decree get to that stage. Usually, you just sort of have to say, ‘Hey, you’re really not doing what you’re supposed to be doing. We're telling the judge that.’ And everyone can look around corners and see where that will lead, and they'll try to fix that.
Obviously, the political situation at DOJ can really change how that operates. You know, the DOJ can be a bit of a fair weather friend for communities, given those shifts in the political winds.
Who’s involved in facilitating the consent decree?
Consent decrees really do involve an agreement between two parties, the plaintiffs and the defendants. They don't generally bring in third parties. Sometimes third parties can be given the ability to intervene, and then they will have a say in bringing contempt motions, seeking to modify the terms of agreement. Unfortunately, from my perspective, those entities tend to be the ones that are seen as having a legal property right, like police unions. And the problem with that is that, generally speaking, police unions want to get involved to undermine or water down the agreement. And community groups, unfortunately, even though it's their bodies and their lives who are being impacted by policing, are not seen by the law as having the same level of right to intervene into the agreement.
Where have the federal government and the DOJ used consent decrees before?
There have been consent decrees in places from New Orleans, Los Angeles County, LAPD, to Ferguson, Newark, Seattle, Portland, East Haven, Connecticut, all over the country. They've done consent decrees in departments large and small. Remember, they've also completed investigations that resulted in memoranda of agreement. That's something that they used to do. But one of the things that the George W. Bush years taught us is what a fair weather friend the federal government can be. And so during the Barack Obama years, we tended to seek consent decrees, because that gives the court itself more of a stake in implementing the agreement. And that really proved useful, really essential when Donald Trump came into office and completely shut down the entire program.
Has there been any analysis or do we have any understanding of how successful consent decrees have been in ending by violations of constitutional rights?
As you might imagine, it's extremely difficult to show causation between a consent decree and any change you see on the ground. You will have some people say that consent decrees have resulted in higher crime rates and de-policing. There have been a couple studies that have looked at decreases in lawsuits, decreases in complaints and done surveys to see increases in community confidence. And all of those things seem to seem to point to better outcomes after there's a consent decree.
How long do consent decrees generally last? We had someone from New Orleans come and speak to our Metro Council, and it sounded like that one has been going on for over a decade.
We entered into the consent decree there in May 2012. And it's still ongoing, actually. It’’s one of the longest running consent decrees. I think that part of the issue is that monitors, especially judges, get really invested in this process. And they don't want the consent decree to end until policing is fixed. If, like me, you believe that consent decrees can't fix policing on their own, then the consent decree will last forever. So, you either have these continue to go on and on or everyone sort of just declares victory and goes home, even though they're really not satisfied with how policing is.
What I really encourage everybody, including people at DOJ, to do is to set some more realistic expectations, outcomes and milestones for what the consent decree should try to do. And then be able to demonstrate those. And then move on recognizing that there's still plenty of work to be done for policing in that community, but you can show through these metrics that you have reduced policing harm, people's rights are being violated less, people have had forced used against them less, you know, people have more confidence in their police department. You can do all those things while still recognizing that policing is not fixed.
What would you say if you were talking to a community that is just at the front end of one of these consent decrees? What would you tell that community about what to expect in the coming years?
What communities need to understand is that the filing of the consent decree is the beginning of the work, not the end of the work. Certainly at the DOJ, you know, we used to have these massive investigation teams, and then we entered the consent decree and they'd send everybody on their way. I'm like, ‘No, no, no we still need those people, because now's when the work begins to make sure that all of these changes are actually implemented.’
I think there's an important role for the community to play in that. Community members should educate themselves or work with people who can help them get educated on what does this consent decree require? How do we not rely entirely on the monitor? I mean, get the monitor to do work for you, but make sure that you know whether the city is doing the things that it said it would do. And what are the things this consent decree doesn't cover? What are the things that we need to keep on working on outside of this consent decree? Because you can't just sit down and say, ‘Oh, good, the monitor, the judge and DOJ are gonna enter into this consent decree and then everything will be better.’ No, unless you're involved, they're not going to implement the consent decree, or they're gonna implement the consent decree as watered down by the union and the police because no one else is paying attention. So, you have to make sure that you are paying attention and you keep everyone on their toes and strengthen the consent decree at every step possible. You have to be really involved in making sure that nobody's allowed to use the consent decree as an excuse to not do the broader work of public safety transformation that really needs to happen in order to have the kind of policing that we want.