Whether the Trump administration unravels this federal civil rights enforcement program 30 years in the making may depend on the judges who oversee them.
Last month, the Trump administration took another significant step toward dismantling the federal framework for addressing police misconduct. On May 21, the Justice Department announced it was walking away from police investigations and pending consent decrees in cities across the country.
In cities with binding court agreements already in place, backing out could prove more difficult than dismissing ongoing investigations or pending consent decrees. A key test of the administration’s ability to walk away from its enforcement responsibilities in those jurisdictions could happen before the end of next week, when the Justice Department is expected to seek termination of existing court-ordered police reform agreements, as Trump essentially directed in his “unleashing law enforcement” executive order.
Whether the Trump administration succeeds in rapidly unraveling a federal civil rights enforcement program 30 years in the making may depend on the judges who oversee these reform agreements—and whether they ensure that someone is in the courtroom to advocate for the crucial work of preventing patterns of unlawful police abuse.
Since the mid-1990s, Congress has empowered the Justice Department’s Civil Rights Division to investigate law enforcement agencies alleged to have a “pattern” or “practice” of violating federal rights. When that investigation shows those allegations are true, the Civil Rights Division can either sue the jurisdiction or negotiate a settlement designed to eliminate the violations. Most of these jurisdictions opt to settle, and most of these settlements take the form of consent decrees, negotiated by the parties and filed in court, at which point they become enforceable court orders.
As I and many others have written, consent decrees are far from perfect, and compelling an institution to change its ways will never be easy or complete. But the federal government has an obligation to act when the police repeatedly violate people’s rights, and the pattern and practice work is an essential part of this enforcement. It goes beyond the naïve and dangerous “bad apple” narrative of police misconduct, and works to prevent tragic incidents for communities and police officers alike by requiring better training, policy guidance, and internal accountability, rather than waiting until after tragedy strikes to (maybe) prosecute and imprison an officer for what are often agency-wide failings.
Four days before the fifth anniversary of George Floyd’s murder, the Justice Department dismissed pending decrees involving Minneapolis, Minnesota, and Louisville, Kentucky. The Division’s Louisville investigation, which followed the police killing of Breonna Taylor, and the Minneapolis investigation, which arose out of George Floyd’s murder, both showed that the practices that led to those killings were not aberrant. That same day, the Justice Department “retracted” the Division’s reports finding widespread constitutional violations in six additional police departments, including Memphis, Tennessee.
Now the Justice Department appears poised to go significantly further and ask judges to dismiss some or all of the consent decrees that are currently being implemented in over a dozen jurisdictions across the country. As with other assertions of executive power in the Trump administration, it will be up to judges to scrutinize the administration’s purported justifications for these dismissals, especially given that the requests may rely on misinformation. Assistant Attorney General Harmeet Dhillon, for example, said in dismissing the Louisville and Minneapolis cases that consent decrees are based on faulty legal arguments. Dhillon did not specify any arguments, but she stated in an interview with Tucker Carlson that the Americans with Disabilities Act (ADA) does not impose requirements for how police respond to 911 calls, even though federal courts have held that sending police officers instead of mental health professionals to respond to persons in mental health crisis can violate the ADA. Administration officials also claim that consent decrees cause crime, even though the data shows that crime rates decline in cities with consent decrees, compared with cities that don’t have them.
Fortunately, judges have broad authority to ensure that consent decrees are dismissed only as consistent with law, and not just because an administration says so. Exercising this authority now is important to discourage further politicization of federal police oversight, and more broadly for the rule of law.
While the extent of the Trump administration’s rejection of the pattern and practice work is unprecedented, there is a clear history of judges looking critically at Justice Department assertions regarding police consent decree terminations. In 2006, a federal judge declined to grant a joint request from the Justice Department and the city of Los Angeles to terminate significant portions of the Los Angeles Police Department consent decree. The court recognized that once a consent decree is entered, it becomes an order of the court, and the court has both the duty and the authority to ensure adherence to that order. In a bench ruling, the judge stated that he had “real questions about why the department wants to, in my view walk away, from part of this Decree,” and found that, because the consent decree provisions in question had not been fully implemented, termination was premature. The judge instead extended the decree.
Similarly, in this moment, judges should not allow the Justice Department to end these court orders simply because the Trump administration wants to. If the Justice Department abandons its role in these cases, as expected, judges can appoint “friends of the court,” called “amicus curiae,” to help them evaluate the Justice Department’s assertions. Federal Judge Dale Ho recently did this when the United States dropped its criminal case against New York City Mayor Eric Adams. As Judge Ho wrote in his opinion appointing an amicus, “Normally, courts are aided in their decision-making through our system of adversarial testing, which can be particularly helpful in cases presenting unusual fact patterns or in cases of great public importance.” Where “nominal adversaries” become aligned in their positions, Ho noted, courts have the authority to appoint an amicus to assist their decision-making. As Ho also noted, the Supreme Court and other federal courts regularly appoint amici to argue cases where the government no longer opposes the position taken by its adversary.
Appointing amici is just as vital in the police consent decree context as it was in the Adams case. The current Justice Department has repeatedly made clear that it now views the decrees it negotiated previously as worse than useless, with Dhillon, as head of the Civil Rights Division, going so far as to call the city officials who negotiated them “corrupt.” If the Justice Department moves to dismiss consent decrees, those judges should appoint amici to ensure that the adversarial process, on which our legal system is based, serves its purpose in ensuring the courts hear a full and fair airing of the arguments on each side.
Finally, if a judge determines that a consent decree should continue, despite the Justice Department’s move to terminate, the judge should allow intervention, as is provided for by federal court rules, by parties who will work diligently to implement the consent decree, even where such intervention was previously denied.
The Justice Department’s Civil Rights Division may be abandoning its mission to protect against systematic civil rights violations by police, but the courts can be a bulwark that mitigates the harm of this effort. They need only exercise their existing broad authority to ensure a full hearing of the arguments for why court-ordered police reform is as important as ever.
– Christy Lopez is a Professor from Practice at Georgetown Law School, where she teaches courses on criminal procedure and policing. From 2010 to 2017, she served as a Deputy Chief in the Special Litigation Section of the Civil Rights Division of the U.S. Department of Justice. Published courtesy of Lawfare.
