Responding to the (Dual) Policing Crisis in Ferguson

CHRISTY E. LOPEZ

The United States Department of Justice (DOJ) has the ability to investigate law enforcement agencies and demand civil relief to eliminate of patterns or practices of misconduct, pursuant to 34 United States Code § 12601 (formerly 42 United States Code § 14141).

Introduction

In August 2014, the St. Louis suburb of Ferguson, Missouri, began to flash across screens as a city in crisis. Michael Brown Jr., an unarmed eighteen- year-old African American Ferguson resident, had been shot and killed by a white Ferguson police officer named Darren Wilson. People rose up in response to the killing, and there were peaceful and nonpeaceful protests, with some significant property damage. The response of law enforcement to the protests was viewed by much of the nation to be disproportionate and unnecessarily forceful, inflaming tensions rather than promoting peace and protecting people. For some, the law enforcement response—which included the use of canines and tactical vehicles and placing snipers on rooftops—was disturbingly reminiscent of law enforcement brutality during the civil rights movement of the 1960s or the quelling of protests in dictatorial nations.¹ This crisis continued for weeks, with renewed large-scale protests—and more property damage—occurring later in response to announcements that a St.

But DOJ's criminal investigation of Darren Wilson was only part of the department's response to the crisis in Ferguson. DOJ's broader response in­cluded a pattern-or-practice investigation of the entire Ferguson Police De­partment (FPD), which DOJ's Civil Rights Division² opened in September 2014. It is this broader response by DOJ that is the topic of this chapter.

The pattern-or-practice investigation of the FPD focused on whether there was systemic law enforcement misconduct by the police department. In early spring 2015, DOJ issued a 102-page documentation of the Civil Rights Divi­sion's findings regarding unconstitutional conduct by the Ferguson Police De­partment (the “Ferguson Report” or the “Findings Report”)³. The Ferguson Report made clear that underneath the widely visible crisis following Michael Brown's killing was a deeper crisis manifested, in part, in longstanding, sys­temic, and unlawful conduct by the FPD. The report showed how this deeper crisis had created a “powder keg,” in the words of United States Attorney Gen­eral Eric Holder, that ignited when Darren Wilson shot Mike Brown and his body was left on the street in the August sun for several hours. Or, as put by law professor and Ferguson activist Justin Hansford, the Report was affirma­tion that, indeed, “water is wet.”

Although the news that the policing crisis in Ferguson during the sum­mer of 2014 was rooted in something much deeper was utterly unsurprising to some, it came as a disturbing revelation to many. The Ferguson Report was thus able to serve not only as the basis of a broad federal consent decree (approved in April 2016) requiring extensive changes to Ferguson's police de­partment and municipal court system but also as a catalyst for reckoning and change in police departments and court systems nationwide.

This chapter uses DOJ's work in Ferguson as a case study to explore the proper role for DOJ more broadly in addressing the policing crisis in the United States in the twenty-first century. I argue that it is helpful to this as­sessment to think of this policing crisis as a dual crisis in which one crisis is acute, the other chronic. The acute policing crisis involves a city—or cities—in turmoil after a tragic use of state violence, as was the case in Ferguson dur­ing the summer of 2014 and as has been the case many times since then, from Baltimore to Minneapolis and beyond. The chronic policing crisis is extraordinarily complex and entrenched. The chronic policing crisis is inextri­cably interwoven with our history as a country. It involves police conduct that is lawful as well as unlawful and implicates actors and practices far beyond the police department or even policing. The chronic crisis of policing exists whether or not it is simultaneously accompanied by an acute policing crisis.

As discussed below, DOJ's pattern-or-practice investigation was largely in­stigated by the acute crisis that existed in Ferguson. But that investigation also provided DOJ the opportunity to address—incompletely but with significant impact—the chronic crisis of policing not only in Ferguson but in the United States more broadly. This is often the case, as it should be. That is to say, while a DOJ law enforcement misconduct investigation is often prompted by an acute crisis, and the investigation may help ameliorate some of the effects of that crisis, addressing the acute crisis is not and should not be the intent or focus of a DOJ law enforcement misconduct investigation. Nor should DOJ seek, or be expected, to address the chronic policing crisis in its entirety. Rather, the work of a DOJ law enforcement misconduct investigation is to address a relatively narrow aspect of that chronic crisis: unlawful patterns or practices of policing. At the same time, if we conceptualize a policing crisis as a dual crisis and recognize the complexity of the chronic aspect of that crisis in particular, we can explore ways that DOJ's work can and should impact the policing crisis beyond its focus on patterns of illegality.

This chapter first describes how DOJ went about addressing the acute and chronic crisis of policing in Ferguson through its law enforcement miscon­duct investigation and then explores what we might learn from this effort about how DOJ should conduct such investigations in the future. The hope is that this exploration might allow all of us—not only lawyers within DOJ or in civil rights and social justice organizations but also community organizers, police reform and abolition activists, and other criminal justice stakeholders interested in meaningful changes to policing—to learn how to more effec­tively work together, or at least alongside each other, toward goals that we largely share.

DOJ and the Crisis in Ferguson: 2014-2015⁴

Midday on Saturday, August 9, 2014, after a brief altercation that began when Ferguson Police Department officer Darren Wilson profanely⁵ confronted Michael Brown and a friend because they were walking in the street of a residential neighborhood, Wilson shot and killed Michael Brown. Crowds gathered as Michael's body laid on Canfield Drive for hours in the hot August sun. There was word that Brown had been surrendering, with his “hands up,” when shot. There was no dispute that the eighteen-year-old African American was unarmed. As evening fell, a fleet of police SUVs descended on Canfield Drive. Officers wearing black gloves and bulletproof vests and bringing long guns, police dogs, and pepper spray jumped out of the SUVs. This militaris­tic intrusion into the grieving neighborhood confirmed for some that police either did not understand or did not care how painful Mike Brown's death was.⁶ By early Sunday morning large groups of protesters began gathering outside the Ferguson Police Department.

Peaceful and nonpeaceful protests and direct action that would ebb and flow for more than a year had begun.'l here were incidents of violence and property damage. Perhaps most notable among the first few days was when “armed vandals,” in the words of the reporter Wesley Lowrey, “took advantage of raging protests to break into the QuikTrip petrol station” a block away from where Michael Brown was killed. “Before long,” Lowrey wrote, “the store was ablaze.”⁷

News cameras rolled as the St. Louis County Police Department came into Ferguson with armored vehicles and SWAT officers who trained their guns on peacefully protesting crowds. Police used tear gas and rubber bullets against marching protesters. Snipers were placed on rooftops, and police canines were deployed alongside their handlers. Scores of arrests were made—more than 150 in the first week or so.

On Tuesday, August 12, President Barack Obama made a statement ac­knowledging concerns about the killing while urging a peaceful response. Both the Department of Justice and the FBI announced they would investi­gate the shooting for possible federal civil rights violations. Attorney General Eric Holder expressed concern about the equipment and tactics used by local police to handle protests, and Missouri governor Jay Nixon announced that the Missouri State Highway Patrol would take over security operations in Ferguson. The governor then declared a state of emergency, requiring Fergu­son residents to stay in their homes between midnight and 5 a.m. The ACLU immediately released a statement expressing civil liberties concerns with the curfew. The next day, the governor rescinded the curfew and, later, ordered in the National Guard.

In the first few days, protests in Ferguson and elsewhere in St. Louis County were, by most accounts, organic and unorganized, which contributed to their unpredictability. Soon, they became more structured, as local activists and organizers went into action. Direct action—from vigils, to picketing the Ferguson Police Department, to blocking traffic on Interstate 70—took place.

Civil rights lawyers were on the ground in Ferguson virtually from the outset of the protests. Some had been there for years. ArchCity Defenders released a white paper, based on its work representing clients in municipal courts across St. Louis County, documenting the long history of abusive fines and fees in municipalities including Ferguson and how this abuse was dis­proportionately borne by people living in poverty and by African Americans.

In response to the protests, the National Lawyers Guild deployed nearly a hundred legal observers to monitor police conduct during demonstrations. Some of these legal observers were arrested. The Lawyers Guild, along with others, hosted Know Your Rights training sessions and built coalitions of law­yers, students, movement organizers, and others. On August 14, the ACLU of Missouri filed a lawsuit challenging as unconstitutional the police policy of ordering members of the media and public not to record the police acting in their official duty on public streets and sidewalks. On August 18, the ACLU of Missouri filed another First Amendment lawsuit, moving for a temporary restraining order to stop police from requiring people to keep moving on sidewalks and thoroughfares in Ferguson unless gathered in a designated pro­test area. The temporary restraining order against the “five-second rule” was denied, but a later motion for preliminary injunction, issued after the court heard evidence on the motion, was granted. This injunction was signed later by a federal judge as a permanent order.⁸ Similarly, after an initial agreement to resolve the August lawsuit filed by the ACLU for the right to record police proved ineffective, the ACLU moved for a preliminary injunction in Novem­ber. A federal district judge granted three court orders against the Missouri State Highway Patrol, the county of St. Louis, and the city of Ferguson.

On August 18, Attorney General Eric Holder traveled to Ferguson, ac­companied by attorneys from DOJ's Civil Rights Division. During this trip, Holder met with community members but not with Ferguson police officers. Before his trip, Holder had issued a statement condemning “unequivocally” violence by protesters and announcing that DOJ had deployed officials from the Community Relations Service (CRS) to Ferguson. CRS operates pursuant to a statutory mandate to help resolve tensions that arise because of allega­tions of discriminatory practices.⁹ Prior to his trip, Holder also published an op-ed in the St. Louis Post-Dispatch in which he wrote: “We understand the need for an independent investigation, and we hope that the independence and thoroughness of our investigation will bring some measure of calm to the tensions in Ferguson.” The Attorney General was speaking of the criminal investigation led by the FBI and the Civil Rights Division's Criminal Section into whether Darren Wilson violated Mike Brown's federal civil rights. Upon returning from his trip to Ferguson, Holder announced that DOJ's Com­munity Oriented Policing Service (COPS) Office would send representatives to Ferguson to continue providing technical assistance on crowd-control techniques and facilitating communication between law enforcement and communities.

On August 20, the ACLU of Missouri faxed a letter to the superintendent of the Missouri State Highway Patrol, asking him to identify and remove the police officer who pointed an assault weapon at individuals and threatened to kill them and then, when asked to identify himself, responded with profanity. The Highway Patrol responded the same day that the officer, identified as a St. Ann police officer, had been removed from duty in Ferguson. Also, on August 20 a grand jury in St. Louis began investigating whether Darren Wilson had violated any state criminal laws.¹⁰

In the midst of this turmoil, DOJ announced, on September 4, that it would investigate the Ferguson Police Department to determine whether it was systematically violating the law. This investigation was brought pursuant to the “law enforcement misconduct” provision of the Violent Crime Control and Law Enforcement Act of 1994. This statute authorizes the United States Attorney General to bring a civil action for equitable and declaratory relief to “eliminate” any “pattern or practice of conduct by law enforcement offi­cers” that violates the United States Constitution or other federal law.11 DOJ delegated this statutory authority to the Civil Rights Division, which in turn delegated it to the division's Special Litigation Section. The day before the an­nouncement, two federal officials from the Special Litigation Section traveled to Ferguson to meet with city leadership privately to inform them that an investigation was likely. By the time the officials (of whom I was one) had set foot back in Washington, news of the impending investigation was out. The Washington Post reported that the launch of the Ferguson pattern-or-practice investigation “will represent the Obama administration's most aggressive step to address the Ferguson shooting, which set off days of often-violent clashes between police and demonstrators in the streets of the St. Louis suburb.” Cit­ing federal officials speaking on the condition of anonymity, the Post reported that the probe would “look not only at Ferguson but also at other police de­partments in St. Louis County.”¹² While the Civil Rights Division pattern- or-practice investigation included only Ferguson, this statement underscores DOJ's sensitivity from the outset that the problem was not just in that one city. At the same time it initiated its Ferguson investigation, DOJ's COPS Office also launched the “Collaborative Reform Initiative” with the St. Louis County Police Department, and, as part of its separate “Critical Response Initiative,” the COPS Office conducted an after-action assessment of the regional police response to the Ferguson protests.

The Civil Rights Division's pattern-or-practice investigation of Fergu­son was exhaustive. As documented in the official Findings Report, over the course of six months, the Civil Rights Division investigation team, with the assistance of policing and statistical experts, spent more than a hundred person-days on the ground in Ferguson, plus countless hours off site review­ing and analyzing documents and information. The onsite team interviewed city, court, and police officials, more than half of Ferguson's sworn officers, and dozens of people charged with municipal offenses; met with community groups, advocates, and neighborhood associations; and conducted hundreds of in-person and telephone interviews of people who lived in Ferguson or who had interacted with the Ferguson police and court system. The team par­ticipated in police ride-alongs, observed court sessions, and spent days with police and court officials painstakingly poring through drawers of court and policing records to establish peoples' experience with the Ferguson police and court system. Offsite, the team reviewed more than 35,000 pages of police re­cords, including incident reports, investigations, and policies, plus thousands of emails and other electronic materials provided by the police department. The team analyzed FPD's data on stops, searches, citations, and arrests, as well as data collected by the municipal court.

Unstated in the Findings Report is the unprecedented backdrop against which this investigation took place. The Civil Rights Division's investigative team, which consisted of four attorneys, an investigator, a paralegal, several retained policing and statistical experts, and an intern, was operating in a crisis climate unlike the setting for any previous pattern-or-practice investigation. Initial site visits and community meetings were beset by confusion among community groups about who this new “DOJ” group was, even as DOJ's Com­munity Relations Service was reluctant to share information about the groups with whom they had been meeting prior to the Civil Rights Division's arrival. As a result, while community members and activists often assumed everyone from DOJ was working together, these groups often knew more about what each DOJ component was doing than the components knew about each other. This led to frustration among the various DOJ components on the ground, an inability to fully leverage the work of the entire department, and skepticism among local groups and activists about whether DOJ had a clue.

Tensions and media scrutiny remained high throughout the investigation, complicating the usual investigative work of gaining information and insights from community members, police, and other stakeholders. At one of the first large community meetings, a gathering of 300-plus people at St. Louis Com­munity College's Florissant Valley campus, team members balanced the trans­parency concerns of the dozen or so TV cameras and other media outlets in attendance with the need to allow the one-on-one exchange of information among persons directly impacted by Ferguson policing and members of the DOJ investigative team. The team explicitly affirmed the importance of a free press in a democracy to the media representatives present while at the same time advising them they would not be allowed to intrude on conversations between community members and the DOJ investigative team.

The investigative team had to contend with local interpretations of media statements made by DOJ and other federal officials. In late October, for exam­ple, Attorney General Holder called for “wholesale change” in the FPD dur­ing a talk in Washington. This statement, alongside the stressors of policing protests for months (and a healthy dose of entitlement), doomed any possibil­ity of collaboration and support that sometimes occurs in DOJ's pattern-or- practice investigations. It culminated with vitriolic outbursts from Ferguson police officers during a meeting between those officers and members of DOJ's investigative team in early November. Officers angrily told DOJ lawyers that DOJ had “prejudged” the FPD and that the investigation was a political sham fueled by media bias.

Civil Rights Division lawyers and other members of the team also sought to balance the demands of the investigation itself with interim events that required immediate attention. The day prior to the large community meeting at the community college, the Civil Rights Division sent a letter to Ferguson police chief Tom Jackson asking him to address immediately the failure of the city's officers to wear their identification nameplates while policing protests. It was our view that this practice was exacerbating tension at ongoing protests. At the community group meeting in Florissant we became aware of another concerning practice: officers wearing “I am Darren Wilson” bracelets while policing protests. Community members told the investigative team they had seen officers, some of whom had black tape over their nameplates, the previ­ous day, and they showed the team pictures of the bracelets. These bracelets were apparently worn in response to the “I am Mike Brown” mantra that had become widespread among protesters and activists. The officers' expression echoed the false equivalency of “blue lives matters” to “black lives matter,” and even worse it inflamed tensions by insinuating approval for, and pos­sibly a desire to replicate, Wilson's shooting of Mike Brown. The team wrote another letter to Chief Jackson on September 26, confirming a conversation with him in which he committed to ensuring officers would no longer wear those bracelets. The letter noted: “These bracelets reinforce the very ‘us versus them' mentality that many residents of Ferguson believe exists.” The team co­ordinated with the CRS and COPS, and COPS secured a commitment from the county police that their officers also would not wear these bracelets. We noted at the end of the letter that we would publicly release both the bracelet and the nameplate letters “due to the strong interest in this issue”¹³

On other occasions during the investigation, as part of their investigative fact-finding, DOJ investigative team members would observe interactions between police and protesters. At times, the police appeared to be violating protesters' First Amendment rights. The National Lawyers Guild had legal observers on site, and the ACLU had several related lawsuits already pending in federal court. Nonetheless, it exasperated protesters that the DOJ team did nothing in immediate response to the apparently unlawful conduct of Fergu­son police officers.

As night fell in St. Louis on November 24, the Monday before Thanks­giving, St. Louis County prosecutor Robert P. McCulloch announced that a grand jury had decided not to indict Darren Wilson on any criminal charges. Protests, property destruction, and violence began almost immediately. Many businesses in Ferguson were burned, and the windows of others were smashed. A few people threw bottles and rocks at police carrying riot shields, and several police cars were burned. Protesters blocked Interstate 44 in St. Louis. Heavily armed and militarized police in Ferguson deployed tear gas. Gunfire, including automatic gunfire, was reported, and flights to nearby St. Louis International airport were suspended. Approximately thirty peo­ple were arrested. St. Louis County chief of police Jon Belmar stated that he “didn't foresee an evening like this.” The violence following the grand jury's decision not to indict Wilson for shooting Mike Brown dwarfed the weeks of unrest that had occurred after the shooting itself. Across the country, other protests took place. The grand jury's announcement in St. Louis occurred the day after the sickening killing of twelve-year-old Tamir Rice by a police officer in Cleveland. A little more than a week after the announcement in St. Louis, a grand jury in Staten Island declined to indict Daniel Pantaleo for killing Eric Garner less than a month before Michael Brown was killed. Thousands of people again took to the streets across the country.

Several months later, on March 4, 2015, DOJ released two reports. The first was its report documenting the Civil Rights Division's criminal investigation of Darren Wilson. The report by the division's Criminal Section concluded that the evidence did not establish that Wilson violated any applicable federal criminal civil rights statutes and that DOJ would not seek to prosecute him. The second report released was the 102-page Findings Report regarding un­constitutional conduct by the Ferguson Police Department. The report found that the FPD engaged in a pattern or practice of conduct that violated the First, Fourth, and Fourteenth Amendments of the Constitution. More specifically, DOJ found that the FPD had engaged in a pattern or practice of conducting stops without reasonable suspicion and of making arrests without probable cause in violation of the Fourth Amendment; interfering with the right to free expression in violation of the First Amendment; and using unreasonable force in violation of the Fourth Amendment. DOJ found also that the Fergu­son Municipal Court had a pattern or practice of focusing on revenue over public safety, leading to court practices that violated the Fourteenth Amend­ment's due process and equal protection requirements. The Findings Report documented how Ferguson's court practices exacerbated the harm of the city's unconstitutional police practices and imposed particular hardship on its most vulnerable residents, especially those living in or near poverty. Using statisti­cal evidence and illustrative examples, the report showed how minor offenses generated crippling debts, resulting in jail time because of an inability to pay as well as the loss of driver's licenses, employment, and housing.

The Ferguson Report also documented DOJ's finding of a pattern or practice of racial bias in both the FPD and the municipal court. Again using statistical evidence and illustrative examples, the investigation showed how the harms of Ferguson's police and court practices were borne disproportionately by African Americans and that this disproportionate impact was avoidable. The Fergu­son Report further set out how these harmful disparities in Ferguson's court and police practices were due, at least in part, to intentional discrimination, as demonstrated by direct evidence of racial bias and stereotyping about African Americans by certain Ferguson police and municipal court officials. DOJ's Fer­guson Report also affirmed and expanded upon what the ArchCity Defenders white paper had documented about St. Louis's municipal court system.

The immediate response to the release of these reports was mixed. In Fer­guson, the announcement that DOJ would not prosecute Darren Wilson was met with renewed protests, and the turmoil continued. As for the Ferguson Report, concerns among the DOJ team conducting the pattern-or-practice investigation that the import of their findings would be buried underneath the news that Darren Wilson would not be federally prosecuted proved un­founded. News that DOJ had found that broadly abusive and sometimes bru­tal police conduct permeated the FPD, and that this conduct was fueled both by racial animus and a desire to raise revenue for the city through fines and fees disproportionately imposed on Ferguson's black residents, reverberated across the country and around the globe.

Perhaps the most direct impact of the Findings Report was to demonstrate the appropriateness of broad, court-ordered reform to eliminate the pattern of unlawful police conduct documented. A public accounting of what DOJ found proved invaluable when, after nearly a year of negotiations to reach an agreement and several public hearings on the consent decree, the Ferguson City Council voted not to approve the decree. United States Attorney General Loretta Lynch, who, as noted in the New York Times, had a “reputation for delivering impassive and guarded public remarks,” was “as animated as she has been in nearly a year as attorney general” in announcing DOJ's decision to immediately file suit against the city to remedy the patterns of unlawful conduct set out in the Ferguson Report. “The City of Ferguson had a real opportunity here to step forward, and instead they've turned backwards,” she said. “They've chosen to live in the past.”¹⁴ After several weeks of contested litigation, the city reconsidered and unanimously voted to accept the con­sent decree that it had originally negotiated with DOJ. “This is Mike Brown's legacy,” Michael Brown Sr. said. The image of Michael Brown Jr.'s father grip­ping hands with Ferguson mayor Tony Knowles in the moments after the vote brought home this point even more than the words?⁵ As detailed below, as this book goes to print, that consent decree is being implemented.

Learning from Ferguson: DOJ and Policing's Dual Crisis

Ferguson was of course neither the first nor the last city to find itself thrust, in an instant, into the center of a crisis caused by a police killing. Just a few weeks after the release of the Ferguson Report, Baltimore found itself in simi­lar upheaval when Freddie Gray, a twenty-five-year-old African American Baltimore resident, sustained fatal injuries to his neck and spine while in transport inside a police van after being arrested by police officers. Gray's death became a flashpoint in the city as Brown's death had been in Fergu- son.1⁶ The reasons for the public reaction are complex but, like Brown's death, are also illustrated by the way Gray died. Baltimore police chose to chase Freddie Gray on foot because he had run away. When police caught up with and searched Freddie, they arrested him for having an illegal knife clipped to the inside of his pants pocket. (The knife would turn out to be legal.) DOJ responded in Baltimore largely as it had in Ferguson: launching a pattern-or- practice investigation that culminated in a consent decree that currently is being implemented.

More recently, the police killing of George Floyd in Minneapolis, during his arrest for allegedly passing a counterfeit $20 bill, ignited protests not only in Minneapolis but across the country and around the world. The scope and impact of the protests in response to George Floyd's death is unprec­edented. On one day alone—June 6, 2020—more than half a million people protested in nearly 550 different locations in the United States.¹⁷ These pro­tests have been widely accompanied by demands to “defund” or “abolish” the police, and, in their wake, polls have found that 95 percent of Americans now believe that we need police reform—a percentage of Americans calling for change that would have been unimaginable a week before Floyd's killing and that is astonishing in a nation as polarized as the United States in the spring and summer of 2020?⁸ In contrast to both this broad public sentiment and DOJ's work during the Obama administration, DOJ has taken no action in Minneapolis and more generally has been hostile to pattern-or-practice investigations throughout the Trump administration.

There is little doubt that we have not yet seen the last of acute policing crises like those prompted by police killings in Ferguson, Baltimore, and Min­neapolis. It is also likely that DOJ will one day return to enforcing the Law Enforcement Misconduct Statute (34 U.S.C. § 12601)1⁹ and that, when it does, some of these investigations will be in cities undergoing a policing crisis. The question is how effective DOJ's response will be, particularly after such a long hiatus.

Organizers, activists, and movement lawyers learned much from their work in Ferguson and elsewhere, and they began documenting much of that learning almost immediately. That intentional effort helped transform Fer­guson from a moment to a movement, as the demands and protests follow­ing Floyd's death dramatically underscore.²⁰ DOJ's investigation, Findings Report, and consent decree were part of what happened in Ferguson, but there have been few holistic efforts to learn from DOJ's work there and even less documentation of that learning. This is unfortunate, because there were lessons learned that, if applied in the future, can not only improve the effec­tiveness and efficiency of DOJ's response but also bolster broader efforts to reshape policing and community safety. This chapter is an attempt to correct, at least partially, this omission. This section will first describe what I call a “dual crisis” in policing in the United States in the twenty-first century. It will then assess the tools the DOJ has to respond to this dual crisis—one acute and the other chronic—and conclude with an examination of the proper role for the DOJ in responding to the dual crisis.

The Dual Crisis

To learn from DOJ's response to the crisis in Ferguson, it is useful to concep­tualize policing crises like the one in that city as a dual crisis: one acute and one chronic. When we set DOJ's work against the backdrop of each of these crises, we can better understand the unique value and significant limitations of DOJ law enforcement misconduct investigations and better assess their effectiveness.

An acute policing crisis occurs when: (1) the operations of a jurisdiction, usually a city, are significantly and visibly disrupted by (2) large-scale pro­tests, peaceable or otherwise, and/or the state response to those protests, and (3) the protests are a response to an act of state violence, usually deadly and whether legally justified or not. Several DOJ federal pattern-or-practice police investigations have been preceded by acute policing crises.²¹

While not always the case (at least theoretically), an acute policing crisis generally can be thought of as a conflagration of the chronic crisis of policing that is discussed below. The incident sparking the acute crisis galvanizes a community into immediate reaction and protest, but that incident—and the responsive community outrage—have roots in the chronic crisis. Although part of the chronic crisis, the acute crisis presents different challenges and opportunities for addressing harmful policing than does the chronic crisis. For this reason, it is useful to analyze the acute crisis separately.

The chronic crisis of policing is so longstanding and intertwined with American history that it may seem odd to consider it a crisis.22 But a “crisis” is defined as “a time of intense difficulty, trouble or danger.” Although the difficulty, trouble, and danger that some communities and individuals expe­rience at the hands of the police have become normalized, they nonetheless have been, and remain, intense. Policing as it has been practiced in the United States carries with it a severe—even existential—daily threat for many people in many places?³ And even where the impacts of policing are less extreme, policing outcomes have long been grossly disparate among different cohorts within the population, creating large groups of de facto second-class citizens in the United States?⁴ Many people and communities in the United States have been experiencing a crisis in the policing they experience for decades, even centuries. The chronic crisis of policing and the criminal justice system has been explored by scholars, policy makers, and activists for decades, with a resurgence that began after Ferguson and gathered more steam after George Floyd's killing?⁵ Yet, others deny that a chronic crisis in policing even exists.

One aspect of the chronic policing crisis is systemic unlawful conduct by law enforcement within a particular law enforcement agency. When unlawful conduct is closer to being the norm than an aberration, it can be thought of as systemic. Legally, it is sometimes called a “pattern or practice” of unlaw­ful conduct” or an unlawful “custom or policy.” This systemic misconduct is generally tolerated, or even facilitated and condoned, by the agency's culture. It can persist for decades, to the point where it is hard to remember that polic­ing can be any different. It is this aspect of the policing crisis that DOJ has the most explicit authority to address through the law enforcement misconduct statute.

However, systemic police misconduct is only one aspect of the chronic cri­sis of policing. The chronic crisis stems also from conduct that is lawful and in accord with the rules. The chronic policing crisis is in fact caused largely by policing that furthers formal and arguably agreed-upon policing goals, even though that policing causes substantial and unnecessary harm.²⁶ This as­pect of the chronic crisis of policing is perpetuated by United States Supreme Court holdings, legislation passed by duly elected leaders, and the informal norms that we tolerate and sometimes condone. One set of examples of how the chronic crisis is driven by legal rules and norms is the web of policing rules established by Supreme Court decisions. Many holdings contribute to a system of expansive police power in which police can significantly limit an individual's liberty in ways that have little connection to public safety or even seem to defy reason. For example, the Court has held that a police officer may unilaterally send someone to jail for an infraction that would not be punish­able by jail even if the person were convicted of that offense. The Court has also held that a police officer may seek “consent” to search without advis­ing individuals that they have the right to refuse consent and despite social science demonstrating that meaningful consent in the police/public interac­tion does not occur. The Court has also steadily degraded its consideration of officer use of force to the point where a police officer may constitutionally use force—including deadly force—even where it was clearly avoidable and otherwise unnecessary.

Relatedly, another dimension of the chronic crisis of policing is that, while it is reinforced by policing, its origins lay outside it. Legislators, prosecutors, and other actors in the criminal legal system incentivize and sometimes re­quire harmful and unjust policing?⁷ The role that nonpolice actors, like pros­ecutors and judges, play not only in perpetuating injustice throughout the criminal justice system but also specifically in incentivizing and tolerating police abuse has only recently broken through to the mainstream conscious­ness. And it has been accompanied by the election of a wave of “progressive prosecutors,” like Kim Foxx in Chicago and Wesley Bell (a Ferguson City Council person and negotiator of the DOJ consent decree) in St. Louis, who often base their campaigns in large part on their predecessors' response to alleged police abuse.

Most fundamentally, the chronic crisis of policing stems from our nation's history of condoning economic and racial inequality, as well as the stories we tell ourselves about why this inequality is acceptable.²⁸ This topic is far too great to even begin to adequately address in this chapter. Suffice it to say that it is not a coincidence that the policing rules created by the Supreme Court cases described above—perpetuated by the criminal justice system more broadly and tolerated throughout our history—disproportionately harm people of color and people living in poverty?⁹

As this brief description of the chronic crisis underscores, the dual polic­ing crisis is too broad and multifaceted to be fully addressed by any one actor or intervention.³⁰ No player—even a player with the power and resources of DOJ—can fully address the entire problem. To be most effective at resolving this dual crisis, we must determine the nature of the tools each actor brings to the project, and we must have some understanding of the challenges and opportunities presented by the various aspects of the crisis. If we can do that (however imperfectly), we can do a better job at matching each actor's strengths to the project of dismantling the policing crisis. In the context of DOJ's work in Ferguson, this requires us to understand the tools DOJ brings to this work as well as the challenges and opportunities presented by the po­licing crisis as it has played out in that city. Once we do this we can begin to evaluate DOJ's work in Ferguson and use that experience to inform how DOJ should address the dual crisis of policing in the future.

The next section describes the origin and nature of the primary tool DOJ has available to address the dual policing crisis.

DOJ’s “Pattern-or-Practice” Authority

DOJ is a massive organization with significant power and resources. With more than ten thousand attorneys, it is sometimes referred to as the world's largest law office,³¹ but it is really much more than that. For one thing, unlike any private law office, it has the coercive power of the state behind it. The Civil Rights Division was created in 1957, and it was expanded in 1964 so that the power of DOJ could be wielded to protect the rights of individuals, especially when local and state governments fail to do so.32 Given the power of DOJ and its Civil Rights Division, it was not surprising that, from the out­set of the division's Special Litigation Section's work in Ferguson, there were unrealistic expectations about how the investigation would address the acute crisis even while conducting the pattern-or-practice investigation. Some hoped that the very fact that a Civil Rights Division team was on the ground would decrease tensions in the city. Some were hopeful that the release of a findings report would help Ferguson move beyond disruptive protests. Still others hoped that DOJ's intervention would more fundamentally “fix” polic­ing in Ferguson and throughout the region.

Perhaps if there had been broader understanding of the tool the DOJ was using in Ferguson—the law enforcement misconduct statute—it would have been clear from the outset that the Civil Rights Division's pattern-or-practice work would have only ancillary impact on the acute crisis and that its real work would be to powerfully (albeit only partially) address the chronic crisis of policing.³³

Gaining an understanding of this tool starts with a look at its history. DOJ's law enforcement misconduct statute is most directly the result of the beating of Rodney King by officers of the Los Angeles Police Department (LAPD) and the aftermath of that incident of unjustified state violence. In March 1991, Rodney King, a twenty-five-year-old African American man, was beaten for several minutes with batons, blows, and kicks by several LAPD officers fol­lowing a high-speed chase. The beating was captured on video by bystander George Holliday who, after failing to find anyone at LAPD interested in the footage, provided it to a local television station, at which point, as we would say today, it went viral. Four officers prosecuted for the beating by the Los Angeles District Attorney's office were acquitted, sparking riots in Los Ange­les that were deadly and caused a significant amount of property damage. The Criminal Section of the DOJ's Civil Rights Division then prosecuted the same four officers for violations of federal criminal civil rights statutes. A federal jury indicted two of the officers and acquitted two others.

As prosecutions of individual officers were under way, the Christopher Commission, established by Los Angeles mayor Tom Bradley to conduct a “full and fair examination of the operation of the LAPD including its recruit­ment and training practices, internal disciplinary system, and citizen com­plaint system,” released a report documenting broad, entrenched patterns of officer misconduct within the LAPD—patterns that revealed a clear connec­tion between the LAPD's institutional failings and the brutal behavior of of­ficers like those indicted for beating Rodney King/⁴

The aftermath of Rodney King's beating highlighted both the difficulty of holding individual officers accountable for even egregious misconduct and created a better understanding of the complex dynamics surrounding police abuse. The prosecutions of the officers helped clarify the inadequacy of the criminal justice system either to prevent instances of abuse or to fully remedy them. The analysis provided by the Christopher Commission's report helped the nation better understand the link between systemic deficiencies and egre­gious instances of abuse. And the broad public outrage underscored that the conduct of officers in one law enforcement agency can impact interactions between police and the public in cities and towns large and small across the country.³⁵ The Christopher Commission's report also helped to explain the link between an acute policing crisis and some of its chronic crisis roots, in­cluding the failure of the criminal justice system to hold officers accountable as well as the tendency of policing systems to facilitate, rather than to prevent, police abuse.

The Rodney King incident exposed a lack of any enforcement mechanism giving the federal government the legal authority to address systemic police misconduct at the state and local levels either before or after the occurrence of a socially cataclysmic event. The federal government was limited instead to seeking to criminally prosecute individual officers after the fact—that is, to address one aspect of the crisis.

In response to the Rodney King incident, the United States Congress in­cluded the “law enforcement misconduct” provision in the Violent Crime Control and Law Enforcement Act of 1994. As described above, this statutory provision authorized DOJ to take action to “eliminate” any “pattern or prac­tice of conduct by law enforcement officers” that violates the Constitution or other federal law. Thus, though born of an acute crisis, the law enforcement misconduct provision giving rise to DOJ's pattern-or-practice investigations in Ferguson and elsewhere is focused on addressing the chronic crisis of po­licing—or at least the portion of the chronic crisis that stems from systemic law enforcement misconduct.

Below, I discuss the extent to which this statute allows DOJ to effectively address the chronic crisis of policing. But Ferguson also provides an oppor­tunity to look at the impact that DOJ's pattern-or-practice investigations can have on the acute crisis and vice versa. Understanding the relationship be­tween DOJ's pattern-or-practice investigations and the acute crisis is impor­tant because it helps us more fairly evaluate DOJ's efforts overall and because understanding this relationship will help us make DOJ's pattern-or-practice work more effective. Thus, before turning to how DOJ's law enforcement mis­conduct investigations impact the chronic crisis, I explore the challenges and opportunities that acute crises create for DOJ's pattern-or-practice work.

DOJ and Ferguson’s Acute Crisis

Conducting a DOJ pattern-or-practice investigation is generally less compli­cated in the absence of an ongoing acute crisis. But DOJ investigations will continue to occur in the midst of an acute crisis, for reasons that are described below. Further, as explained below, this is not a bad thing, as DOJ's police reform efforts conducted in the midst of an acute crisis can have greater impact.

A CATALYST FOR DOJ INTERVENTION

It would be inappropriate for the Department of Justice to initiate a pattern- or-practice investigation of a police department based solely on an acute crisis. As noted above, DOJ's authority to conduct law enforcement mis­conduct investigations stems from an act that authorizes the United States Attorney General to bring a civil action for equitable and declaratory relief to “eliminate” any “pattern or practice of conduct by law enforcement officers” that violates the Constitution or other federal law. Neither public protest—no matter how widespread—nor the incident that precipitated that protest—no matter how egregious—is a “pattern” or a “practice” requiring broad federal intervention. Thus, in Ferguson, as in every case, DOJ did not launch an investigation without first conducting a preliminary inquiry and determin­ing that there were indications of systemic law enforcement misconduct.³⁶

But it would be equally inappropriate for DOJ to ignore an acute polic­ing crisis in determining when and where to initiate one of its relatively in­frequent investigations. There are 18,000 law enforcement agencies in the United States, and DOJ has conducted fewer than seventy law enforcement misconduct investigations. There is no agreed-upon way to systematically select which law enforcement agencies should be subject to DOJ's enforce­ment attention. As Ferguson underscores, an acute crisis has often proven to be symptomatic of a pattern or practice of unlawful police conduct that is causing the precise harm the federal law enforcement misconduct statute was meant to eliminate. It would be (as during the Trump administration) troubling to see DOJ showing no interest in fulfilling its responsibility to in­vestigating whether individuals' rights are being routinely violated in any of the communities in the throes of an acute policing crisis, particularly because acute crises often signal systemic misconduct in these communities' law en­forcement agencies.

Unearthing information

An acute crisis can enhance the depth and value of DOJ's investigative fact­finding and consent decree remedies. Just as an earthquake or landslide can expose the ground underlying the landscape, enhancing our understanding of how things came to be as they are, the upheaval caused by an acute cri­sis can reveal facts and dynamics that can allow us to better understand the nature or causes of a particular pattern or practice of policing harm. If we act quickly, before the ground is again changed or re-covered, we can gain insights that transform our understanding not only of the particular law enforcement agency being investigated but also of the nature of policing and its interactions with communities across the country and over time. A pat­tern or practice investigation puts the Civil Rights Division in the right place at the right time to make unique use of these insights. In Ferguson, hun­dreds of people spoke with DOJ about their experiences with the Ferguson police. This was extraordinary in light of how small Ferguson (21,000 people) and its police department (fifty officers) were yet completely unsurprising in light of the intense worldwide focus on this small city. In the first days and weeks of the Ferguson protests, advocates released reports documenting troubling practices, and journalists wrote innumerable articles documenting their own investigative findings about misconduct within the Ferguson Police Department and providing information about persons who had been recently harmed.³⁷ An acute crisis is certainly not necessary for advocates and journal­ists to compile this depth of information, and they often do surface such facts to no avail. But much of this information would not have been available to DOJ except for the attention brought to Ferguson by the acute crisis.

CREATING A CLIMATE FOR GREATER IMPACT

In addition to being a catalyst for a DOJ law enforcement misconduct inves­tigation and helping to unearth information, an acute crisis also can create a climate in which a DOJ investigation can have a greater impact. An acute policing crisis can bring to the forefront the “fierce urgency of now.”³⁸ Orga­nizing and protests can awaken a broader portion of the public to the harm and injustice of police abuses, or at least make clear that these concerns can no longer be ignored. Too often, as Ferguson demonstrated, it seems that it is not the unnecessary police violence but the outraged public response that succeeds at gripping broad public attention. As Wes Lowrey wrote: “[I]t was the destruction of the QuikTrip, not the police shooting of Mike Brown, that brought the national media's focus to Ferguson.... [E]ven the breaking of a young black body left on public display... didn't catch the attention of the national media. It was the community's enraged response—broken windows and shattered storefronts—that drew the eyes of the nation.” Once drawn to Ferguson, it was the police response to the protests (which, despite some significant property damage, were overwhelmingly nonviolent) that caused many to begin to wonder whether law enforcement in a town they had never heard of was as broken as it appeared to be and what that said about law enforcement elsewhere.

Whether because of interest convergence, moral enlightenment, or despera­tion, once this awakening happens, the climate has the potential to become more receptive to a deeper look at policing and the dynamics that drive it. There is political momentum for change that did not previously exist. In Ferguson, changing this political momentum was particularly difficult and remains far from complete to this day. The acute crisis did seem to contribute to the city council and mayor being more motivated to address longstanding law enforce­ment deficiencies. Similarly, new openness to change was evident in St. Louis County more broadly. This motivation, for many actors, doubtless stemmed from a desire to save one's own job; to prevent municipal insolvency; or to quell public unrest. Sometimes this political momentum for change has an arguably more noble font. Police executives or others in a law enforcement agency or government may have long known of the need for, and may have been seek­ing changes in, policing, but until the acute crisis the political momentum for significant change was not there. As one Chicago policing unit exasperated by that city's policing put it to a DOJ attorney, they “popped the champagne” when they heard DOJ had opened a pattern-or-practice investigation.

An acute crisis can force a conversation and bring key stakeholders to the table with a more serious mind-set than they had been able to muster previously. Officials may be willing to address more seriously the concerns of politically marginalized constituents and also be more willing to develop meaningful legislative or policy solutions to longstanding harms.

Although the catalyst for this motivation for change may have been the acute crisis, once activated there is an opportunity to explore the nexus be­tween the acute crisis and the more fundamental chronic crisis. Communities may be more broadly primed to think expansively about the root causes of the acute crisis, including both institutionalized/structural policing harm, in addition to the unlawful conduct, as well as the interplay between police and other parts of the criminal justice system. Communities can begin to more broadly consider how policy decisions and social dynamics—from the war on drugs, to the dehumanization of Latinx and black people, to municipal revenue-collection decisions—impact policing.

In this way, the acute crisis creates an opportunity to address harm-causing policing at a more fundamental level. Because the opportunity provided by an acute crisis occurs infrequently, is unpredictable, and can have a brief shelf­life, it is important that stakeholders recognize the opportunity and be pre­pared to act when it presents itself.

DOJ should be no exception and should leverage the climate for change offered by an acute crisis to increase the impact of its enforcement work. One of the most potent ways to do so is through findings reports. As discussed below, DOJ's Ferguson Report had a significant impact on the policing and the criminal justice system not only in Ferguson but also across the country. While the investigative team worked hard to ensure the report was solid and persuasive, and while the facts in Ferguson indeed spoke for themselves, there is no question that without the attention already trained on Ferguson due to the acute crisis the Ferguson Report would not have been as broadly read or its import as fully understood.

CHALLENGES PRESENTED BY THE ACUTE CRISIS

DOJ's work in Ferguson underscores that while an acute crisis can appropri­ately serve as the catalyst for DOJ intervention that will have outsized impact, this work should not be expected to significantly decrease the immediate harm or impact of the acute crisis.

One of the most difficult challenges DOJ faces when it is asked to inter­vene in a policing crisis through a pattern-or-practice investigation is setting realistic expectations about which acute problems being faced by communi­ties it can and cannot address in real time. While there are many examples of this phenomenon, what stands out about the Ferguson investigation is the tension and officer conduct during the protests that occurred through­out our investigation. In the midst of some of the most contentious protests, community members were dismayed and frustrated that DOJ investigative team members did nothing more than observe as Ferguson police officers appeared to blatantly violate court orders mandating protections for protest­ers. Some protesters and activists on the ground expected that, when DOJ civil rights attorneys saw civil rights violations committed right in front of them, they would immediately do something about it—after all, if the fed­eral government wasn't going to do anything about it, who was? Although this was an understandable expectation, it was incompatible with the team's actual authority. It was also arguably inconsistent with the role that a pattern- or-practice investigation—and the attorneys and other team members who conduct it—should play during an acute crisis. As discussed below, the work of the Civil Rights Division should be focused primarily on addressing the chronic crisis. This means that the investigative team needs to remain focused on gathering information and analyzing that information so that it can make reliable findings about whether a pattern or practice of unlawful conduct ex­ists. Attending to the immediate legal demands of the acute crisis distracts from that mission and risks undermining the legitimacy of the investigation by making DOJ's findings seem “prejudged.” At the same time, not immedi­ately responding to violations risks DOJ appearing uncaring or ineffective, also undermining legitimacy.

The team sought to educate all stakeholders that the DOJ investigation was neither designed to nor likely able to quell tensions in the near time or provide immediate relief to legal violations. The facts recounted above demonstrate that this was indeed the case in Ferguson: protests and property damage oc­curred upon release of DOJ's Ferguson Report. These renewed protests were largely in response to the announcement the same day that DOJ would not seek to prosecute Darren Wilson. And it is possible that the protests would have been worse had the Findings Report not been released at the same time. But the reaction demonstrates that a DOJ pattern-or-practice investigation does not inoculate against demonstrations, peaceable or otherwise.

The investigative team did seek to balance its longer-term, chronic-crisis focus with immediate focus on the acute crisis in various ways, including, for example, not only sending but also publishing the letters regarding officers covering their name plates and wearing the “I am Darren Wilson” bracelets. The team also sought to work with, and recommend strategies for, DOJ's Community Relations Service, which was on the ground in Ferguson before the Civil Rights Division and whose statutory mandate includes mediating to quell unrest. Nonetheless, this became a difficult aspect of the investigation as the team struggled to find the right balance between immediate action and long-term focus and sought to convince themselves, and others, that the bal­ance they had struck was appropriate.

A second challenge the DOJ faces when it brings its pattern-or-practice investigatory authority to bear in a policing crisis is the fact that the protests and demonstrations that often arise in an acute crisis—especially the non- peaceable aspects and violence that can accompany them—are often polariz­ing. Ferguson demonstrates how acute crises facilitate turning protesters and police into caricatures. In Ferguson, officers calling protesters “animals” and aiming guns at peacefully assembling people, alongside the generally milita­rized response and disregard for First Amendment rights, undermined the legitimacy of all law enforcement and destroyed any proclivity toward a coop­erative solution among many demonstrators in Ferguson. At the same time, many officers working the protests were subject to vitriolic personal attacks— especially African American officers, who were often the subject of racialized attacks. These officers—unaccustomed to being challenged, resistant to the need for self-care, and imbued in a racist policing culture—were ill-equipped to respond to this in any remotely constructive manner. And everybody was exhausted, literally and figuratively.

The team's interactions with Ferguson's officers, as recounted above, un­derscore the extreme level of defensiveness that can set in once the dynamics of an acute crisis are set in motion. The treatment of protesters can increase cynicism among activists and even unengaged members of the public about the possibility of meaningful change. Thus, even as the recognition of the need for change has been enhanced, as described above, confidence that this change can actually be achieved, especially by those at the center of the acute crisis, can dwindle.

DOJ and Chronic Policing Crises

As the previous discussion shows, acute crises present challenges to the effec­tiveness of DOJ's work, but they can also enhance it. Consistent with the origins of the DOJ's statutory authority to investigate systemic law enforce­ment misconduct, however, combating the chronic crisis is where the DOJ has greater potential to have real and lasting impact in the particular com­munity facing the dual policing crisis and beyond.

Understanding the Chronic Aspects of the Ferguson Policing Crisis

The chronic crisis in policing is made up of several components. One is a culture of unlawful police conduct that may have been in place for decades. But lawfully sanctioned police conduct often causes significant harm, especially to people of color and people living in poverty. The chronic policing crisis is also incentivized, and often created, by the work of legislators, prosecutors, judges, and other criminal justice system actors. And the chronic crisis is intertwined with our nation's history of condoning economic and racial inequality and the stories we tell ourselves about why this inequality is acceptable.

Each of these elements of the chronic policing crisis was clearly evident in Ferguson. As set out above, there were clear patterns of unconstitutional conduct in violation of the First, Fourth, and Fourteenth Amendments as well as federal statutory law. But some of the most pervasively harmful as­pects of Ferguson policing were lawful (for example, instructions to cite and arrest for violations of the municipal code so that revenue would remit to the city and the attendant use of arrest warrants as threats to push for pay­ment of court fees). The extent to which non-police actors—from the mayor, to the city prosecutor, to the finance director, to the municipal court judges and clerk—incentivized and even demanded harmful policing was well-doc­umented in the Ferguson Report and subsequent publications. And the use of racial tropes and stereotypes as old as the United States to explain and justify abusive economic practices was evident in Ferguson's reliance on a supposed dearth of “personal responsibility” among African Americans and people liv­ing in poverty as the explanation for the deeply harmful impact of its po­lice and court practices.³⁹ As the Ferguson Report documented, Ferguson's history as a sundown town—in which black people were not welcome after dark—and as a newly majority-minority city, contributed to the dynamics in which abusive policing flourished.

Ferguson in many respects encapsulates the depth and complexity of the chronic crisis of policing. It is therefore a good vehicle for exploring the ex­tent to which DOJ's pattern-or-practice work can serve its core function of addressing the chronic crisis and which elements of DOJ's work do this best.

How DOJ's Pattern-or-Practice Work Addresses the Chronic Crisis

The impact of DOJ's pattern-or-practice work is often assessed solely through the lens of the consent decrees that DOJ negotiates with state actors subse­quent to most investigations.⁴⁰ But DOJ's pattern-or-practice investigation impact goes beyond whatever is achieved via the consent decree. In some instances, a DOJ investigation and findings report may have as great, and in some respects greater, impact than the subsequent consent decree. Further, as discussed below, consent decrees can have an impact beyond address­ing unlawful police conduct. Thus, to fully appreciate the impact of DOJ's pattern-or-practice work on the chronic crisis, one must consider what can be achieved not only through a consent decree but also via a DOJ investiga­tion and findings report. And one must consider how each of these elements of DOJ's work might address the chronic crisis more broadly than it does the systemic unlawful conduct by police.

The Central Importance of Addressing the Harm Caused by Systemic Police Misconduct

Notwithstanding the need to take this broader look at DOJ's pattern-or- practice work, it is worth pausing first to consider the urgent need to address the portion of the chronic crisis that is at the center of DOJ's work: changing police practices so that identified patterns of unconstitutional police conduct are eliminated. Given how much of the chronic policing crisis is fueled by lawful but harmful policing conduct, and nonpolicing actors, it might be easy to discount the import of DOJ's work developing and implementing consent decrees to eliminate unlawful police conduct. A consideration of the harm caused by systemic police misconduct, and the ability of consent decrees to reduce and perhaps even eliminate some of that harm, helps us to more fairly evaluate DOJ's work and also underscores the need to keep that work focused on using consent decrees to eliminate patterns of unlawful police conduct.

DOJ's policing consent decrees and similar settlement agreements gener­ally require changes in how law enforcement agencies recruit, train, supervise, and hold officers accountable. These remedies do not require wholesale trans­formation of policing or the criminal justice system. Rather, as noted above, they are intended to eliminate the pattern or practice of unlawful conduct, not the chronic policing crisis in its entirety. To see the value of the remedies DOJ obtains notwithstanding this limited goal, it is important to recognize at the outset that we do not need to disrupt every cause of the harm to prevent it.

As a difficult but useful illustration, Timothy Loehmann, the Cleveland police officer who shot to death twelve-year-old Tamir Rice, may have done so because he consciously or unconsciously devalued black life, or was respond­ing to our society's institutionalized association of blackness with criminal­ity and danger, or for other reasons rooted in myriad aspects of the chronic crisis. But he was in a position to shoot and kill Tamir because the Cleveland Police Department hired him and gave him a gun. And it did so despite ample red flags that Loehmann should never have been allowed to be a police of­ficer.⁴¹ We must work to end the devaluing of the lives of people of color and unconscious and conscious bias, but we should also be clear about the dif­ficulty of this task, as well as the need to take interim steps to prevent loss of life and liberty while that deeper struggle continues?² Even if court-imposed remedies resulting from a DOJ investigation cannot eliminate deadly race discrimination in policing, these remedies may still be able to bring about changes in hiring, accountability, and other systems that will save lives.

While it is impossible to know how many children like Tamir Rice are alive today because officers like Timothy Loehmann were either not hired or were fired because of changes brought about by DOJ consent decrees, we do know that many law enforcement agencies see far fewer police shootings after the implementation of consent decrees?³ Law enforcement agencies also gener­ally see a decrease in uses of force more broadly after implementation of a consent decree, although this decrease may sometimes be initially masked by better systems of accountability that result in higher numbers of force being reported.44

Similarly, DOJ consent decrees may reduce the harm of race bias even if they cannot eliminate it. It is difficult to imagine, for example, that a DOJ consent decree, in Ferguson or elsewhere, can ever “eliminate” racial, eth­nic, and socioeconomic disparities in policing except in tandem with success combating other elements of the chronic crisis (like legalized race discrimina­tion and embedded biases). As ArchCity Defenders executive director Blake Strode said in 2019: “[T]he status quo [is] one of structural racism, poverty, overinvestment in the carceral system, and policing and prosecution. That is as real today in 2019 as it was five years ago in 2014.”⁴⁵ Nonetheless, DOJ consent decrees can reduce the harm of such disparities by requiring reforms that lower the rate of police stops, searches, citations, and arrests, especially unlawful ones. In Ferguson, for example, in 2013 and 2014 the Ferguson Police Department averaged about 21,000 citations a year, while from 2015 to 2018 it averaged approximately 3,500 citations per year?⁶ The DOJ consent decree likely was central to this drastic reduction and likely increases the longevity of this change.4⁷ The fact that racial disparities persist should not eclipse the fact that far fewer black people in Ferguson—likely thousands fewer—have been ticketed in the years since the filing of the DOJ consent decree (April 2016) and that a federal court and federal monitors will continue to watch over these practices for several years. Particularly given the cascading impact of citations in St. Louis County, this is significant harm averted?⁸

By emphasizing the import of DOJ's consent decrees, in no way do I intend to discount the harm of the chronic crisis that consent decrees cannot reach. This harm is profound. It creates a de facto second-class citizenry and the Catch-22 “chokehold” articulated by professor Paul Butler in which the law is applied in a manner that makes it impossible to comply with or sometimes to even survive?⁹ We should keep fighting this. But we should recognize that as much work as has been done, much work still remains, and we should at least consider the idea that a world of truly harmless policing may be unattainable in the foreseeable future. As professor Butler says: “[T]he Chokehold's genius is its mutability."5° Its mutability stems from its roots in a society and culture that is still imbued by economic inequality and white supremacy with all it entails. Given the severity of current harm, and the uncertainty of truly rising above, we can and should seek to reduce harm however it manifests itself, even as we work to uproot the underlying causes. DOJ's consent decrees are one potent means of reducing current harm.

Consent Decrees’ Potential to Address the Chronic Crisis More Broadly Although DOJ's consent decrees are and should be focused on eliminating unlawful police conduct, to be effective at doing so they must address lawful police conduct and conduct by actors outside of policing. Thus, even though it would be unrealistic to expect DOJ's consent decrees to resolve the entire chronic crisis, in evaluating their full impact we should look not only at how they impact unlawful police conduct but also at how consent decrees impact policing and the criminal justice system more broadly.

It is important to be clear from the outset that this broader impact should not be the intent of the consent decree. Given that a considerable amount of policing harm is caused by lawful conduct by officers or by actors outside policing, it may be tempting to deliberately use DOJ's power as expansively as possible to address the chronic crisis more broadly than the pattern of unlaw­ful law enforcement conduct. Indeed, some people in Ferguson and elsewhere think that is exactly what DOJ has done. One Ferguson resident opposed to the consent decree the city negotiated with DOJ questioned a provision about Ferguson's occupancy permits: “This has nothing to do with policing,” he said. “They proposed changes to expand their powers. They were thinking, ‘How do we use this to make radical change?'”⁵¹ In fact, as discussed below, addressing occupancy permits was important to addressing systemic miscon­duct, but this and similar provisions have often resulted in DOJ being accused of misusing its statutory enforcement authority to implement an agenda that goes beyond ensuring that police abided by the law. In other words, this view posits that DOJ has sought, through its consent decrees, to get at too big a portion of the chronic crisis.

DOJ lawyers should indeed be mindful of not overstepping their statutory authority in carrying out their work. As David Luban writes: “Government has many constituencies, and if it orients itself to just one of them it ceases to be democratic and pluralist and instead veers in a dangerously ideological direction, one step removed from single-party repression”’² One has only to remember that the George W. Bush administration drafted legal opinions that purported to justify torture, or read the newspaper any day of the week about the litigating positions and legal interpretations taken and made by the Trump administration, to be wary of the ease with which the state can dan­gerously overstep boundaries when it begins to serve an ideological agenda rather than the rule of law.’³

But government attorneys can remain within the rule of law and still be energetic and creative in their efforts to enforce it. There is nothing improper per se about a consent decree provision that addresses the broader chronic crisis where this also furthers the Civil Rights Division's legitimate enforce­ment mission.’⁴

Further, eliminating unlawful police conduct often requires addressing other elements of the chronic crisis, including confronting policing prac­tices that may be lawful but cause unnecessary harm. Ensuring that police routinely adhere to the law sometimes requires that police be willing to re­strain their own conduct more than is required by law. There is no law, for example, against using stop-and-frisk per se as a strategy for removing guns, or of adopting “zero tolerance” street enforcement. But when police agencies rely on these lawful strategies, they can become used to stopping people for no public safety purpose, with little or no suspicion of wrongdoing, and often on the basis of impermissible factors such as race. This can result in patterns of unconstitutional stops, searches, and arrests. Similarly, even if raising city revenue through ticketing is lawful, it can result in extensive harm. DOJ in­vestigations demonstrated this in Ferguson, Baltimore, and elsewhere.⁵⁵

Thus, to correct patterns of unlawful policing, consent decrees often must address practices and structures that may not themselves directly violate the law. Consent decrees generally do this by placing greater constraints on police conduct, or by requiring more of police, than does the law. Courts have affirmed this approach, holding that settlement agreements may hold wrongdoers to a higher or more restrictive standard than permitted by law in order to correct past violations/⁶ In other words, where lawful conduct is causing or facilitating legal violations, courts may decree, or parties may negotiate, an order that prohibits police from undertaking even that lawful conduct. By the same token, law enforcement agencies may be required to do more than the law requires to correct patterns of unlawful conduct. A consent decree may, for example, prohibit or discourage a particular type of stop or search that would otherwise be legal because of the tendency of that form of police action to lead to unlawful racial profiling or unreasonable searches or seizures in violation of the Fourth Amendment. Examples of this in DOJ consent decrees include restrictions on pretext stops and consent searches in New Orleans, Ferguson, and elsewhere. Discouraging these sorts of stops can disrupt a culture of using stop-and-frisk or zero tolerance as an abusive polic­ing strategy. It is apt that consent decrees are often referred to as “structural reform agreements.”⁷’⁷

While included for the effect on systemic misconduct, these remedies, once in place, have the potential to get at some of the deeper causes of the chronic crisis. They may, for example, reveal misconceptions about the legal authority or tactical tools police require to keep us safe. The dramatic reduc­tion in stops and frisks by the New York City Police Department during the litigation of Floyd is perhaps the most well-known example of a broad reduc­tion in police intrusion being accompanied by public safety improvements rather than fruition of the dire predictions of “blood in the street”; many cities with police consent decrees have experienced similar dynamics. DOJ's consent decrees demonstrate this same dynamic in jurisdictions across the country. Indeed, the researcher credited with the term “Ferguson Effect”— whereby crime allegedly rises because of police inaction in the wake of con­troversy, has found that there is no apparent link between fewer arrests and increases in serious crime.⁵⁸

Similarly, consent decree requirements for training in, for example, force de-escalation, implicit bias, and active bystandership may be necessary to eliminate patterns of Fourteenth and Fourth Amendment violations. These requirements aim to change officers' conduct by teaching them to exercise their discretion more judiciously, to rethink their relationship to the com­munity they serve, and to be more empathetic. Take, for example, the Fergu­son resident's critique, noted above, of the consent decree provision requiring Ferguson to reconsider its occupancy permit ordinance/⁹ DOJ's investigation found that Ferguson police were enforcing Ferguson's occupancy permit rules in a manner that destroyed police legitimacy and, in so doing, undermined the ability to police lawfully and effectively:

In one instance, for example, a woman called FPD to report a domestic dis­turbance. By the time the police arrived, the woman's boyfriend had left. The police looked through the house and saw indications that the boyfriend lived there. When the woman told police that only she and her brother were listed on the home's occupancy permit, the officer placed the woman under arrest for the permit violation and she was jailed. In another instance, after a woman called police to report a domestic disturbance and was given a summons for an occupancy permit violation, she said, according to the officer's report, that she “hated the Ferguson Police Department and will never call again, even if she is being killed.”⁶⁰

Each of these changes has the potential to make police culture—and the public more broadly—more amenable to policing transformation, even as it addresses the specifics of an unlawful policing culture.⁶¹

Even consent decree requirements that seem quintessentially reformist— such as the requirement in Ferguson's and many other decrees that police engage with communities in nonenforcement capacities—may actually be effective at disrupting one of the most intransigent, foundational elements of the chronic crisis: the automatic devaluation of people of color, or the as­sociation of people of color—especially black boys and men—with crime/² Positive nonenforcement interactions are one of the few interventions sup­ported by research as having the potential to reduce the sorts of biases that cause police to assume danger or guilt when initiating contact with people of color.6³ Other consent decree requirements also encourage or require remov­ing police from the public safety equation altogether in certain circumstances. The Ferguson Consent Decree, for example, requires that the city create a community mediation program that will “conduct neighborhood mediations that promote lasting resolutions of appropriately selected disputes among community members, while reducing the need for involvement in the crimi­nal justice system.”⁶⁴ This remedy, while meant to create a culture that would support lawful policing, also goes directly to one of the main features of the chronic crisis: general overcriminalization. Similarly, many DOJ policing consent decrees require the establishment of mechanisms to divert persons in mental health crisis, or young people, from police and criminal justice involvement?⁵

The DOJ's consent decrees sometimes address another component of the chronic crisis as well: the impact of nonpolice stakeholders on lawful polic­ing. Ferguson is perhaps the most expansive example of this. To interrupt the harm being caused by years of unlawful policing practices, the DOJ insisted upon incorporating and expanding Ferguson's amnesty program as part of the consent decree/'' Pursuant to this program, 44,000 municipal cases have been dismissed in Ferguson since 2014—75 percent of those from before 2014. More than $1 million in court debt has been dismissed by the city.'⁷ Beyond this amnesty program, the consent decree in Ferguson requires significant changes to the city's municipal court system and a rewriting of its municipal code—with community input.'⁸ The Ferguson Consent Decree specifically requires that the city rescind or revise several municipal rules, in addition to the occupancy permit provision noted above. These include “Failure to Com­ply with Order of Police Officer,” which DOJ found unconstitutional on its face, as well as its “Crossing at Right Angles” and “Manner of Walking Along Roadway,” requirements that DOJ found were enforced in an unlawful man­ner by the police, thereby causing unnecessary harm and undermining police legitimacy and community trust.'⁹

Thus, even when hewing to its relatively narrow scope of implementing consent decrees meant to eliminate patterns of unlawful conduct, DOJ's work can have a broader impact. This is not only a legitimate use of DOJ authority; it is essential and even inevitable to DOJ's pursuit of its statutory mission.

The Impact of the Findings Report

While much of the attention to DOJ's pattern or practice police work is focused on the consent decrees it negotiates with the police departments it investigates, the broader impact of DOJ's work may be its so-called findings reports. DOJ has issued a findings report (sometimes styled as a letter) at the completion of every police misconduct investigation conducted since at least 2010. One cannot fully assess the import and impact of DOJ's work in Fergu­son or elsewhere without considering these findings reports.

Findings reports are essential to effective enforcement of the law enforce­ment misconduct statute and can be a powerful tool in combating the chronic crisis of policing more broadly. The Civil Rights Division's investigations are fairly exhaustive, as they must be, to both determine whether there is a pat­tern or practice of misconduct and to assess the nature and breadth of the problem as necessary to develop remedies to eliminate patterns of unlaw­ful conduct. The findings are accordingly substantial and often complex. A findings report is critical in helping the city, police department, and public assess whether a remedy is needed and what that remedy should look like. A findings report also helps the jurisdiction and the public to assess whether the agreed-upon remedies that make up any negotiated settlement agreement address the unlawful conduct that the Civil Rights Division found or whether such remedies go too far or fall short. By setting out the harm caused by the unlawful conduct, a findings report can make it more difficult for a party to back out of a consent decree it negotiated (as in Ferguson and in New Or­leans). If a consent decree is entered, the findings report acts as a touchstone so that the parties to the agreement, as well as the public, can look back to see whether the consent decree has addressed the problem it was meant to address. This touchstone is particularly helpful if a party later seeks to modify terms of the consent decree itself. The findings report ensures that any infor­mation DOJ learned during its investigation is not lost.

The Ferguson Report has been the clearest example of the power of DOJ findings reports. Although many of us had not heard of Ferguson before Au­gust 9, 2014, thanks to the work of ArchCity Defenders and others it already was clear by then that cities in the St. Louis region were using municipal courts to fund towns at the expense of poor, overwhelmingly black, people.⁷⁰ While the attention to the region after Michael Brown was killed likely would have resulted in broader knowledge of this widespread abuse, it likely would not have been as broadly known if DOJ had not become involved; the con­nection to Ferguson's (and the surrounding towns') abusive use of fines, fees, and unconstitutional, racially discriminatory policing might have remained largely hidden. It was not the DOJ pattern-or-practice investigation that re­vealed the “powder keg” created in the region by these practices/¹ It was DOJ's findings report that seared knowledge of this conduct, its causes, and its consequences on the national and international psyches.

Notwithstanding the work that advocates had been undertaking in this area for many years, the publication of the Ferguson Report is widely viewed as the start of the broader movement to reform fines and fees in the United States.⁷² Once Ferguson's police and court practices, and the harm they caused, became known, jurisdictions large and small in St. Louis County and across the United States began looking inward and assessing their own practices—and their own vulnerability to the kinds of police abuse and subse­quent outrage—that the world saw in Ferguson. From statewide initiatives, to local initiatives around Ferguson and elsewhere, to national initiatives, some practices changed quickly, and this change has continued. It is unlikely that these changes—many of them transformative—would have taken place with­out the dramatic impact of the Ferguson Report on public awareness that policing was being done for revenue rather than public safety reasons; that this type of policing both reflected and reinforced racial disparities and ste­reotypes; and that we ignored these dynamics at our moral, economic, and physical peril.

While DOJ's other findings reports to date have not had the high-profile impact of the Ferguson Report, they have similarly served as critically im­portant teaching and advocacy tools. The impact of findings reports has not been systematically documented (and perhaps it is not possible to do so), but there is considerable anecdotal evidence of their contribution to police learn­ing and progress. Police officials and community advocates read them to see how their own law enforcement agencies measure up. Community groups use them to advocate for change in state and local legislatures. Previously, most large policing conferences included sessions on the Civil Rights Division's pattern-or-practice work, including highlighting recent findings reports.

DOJ's findings reports also inform—and perhaps in some cases transform—courts' and judges' understanding of policing generally and of police practices in particular departments. Courts will sometimes cite a find­ings report as consistent with a finding that the evidence supports suppres­sion of evidence, for example. Justice Sotomayor cited several DOJ findings reports in her dissent in Utah v. Strieff, arguing that the majority's expansion of police power where an individual is subject to an outstanding warrant will have an outsized, cascading effect across the country due to the sheer number of people subject to warrants. In her dissent, Justice Sotomayor writes:

Justice Department investigations across the country have illustrated how these astounding numbers of warrants can be used by police to stop people without cause. In a single year in New Orleans, officers “made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes for such infractions as unpaid tickets.” Dept. of Justice, Civil Rights Div., Investigation of the New Orleans Police De­partment 29 (2011). In the St. Louis metropolitan area, officers “routinely” stop people—on the street, at bus stops, or even in court—for no reason other than “an officer's desire to check whether the subject had a municipal arrest warrant pending.” Ferguson Report, at 49, 57. In Newark, New Jersey, officers stopped 52,235 pedestrians within a 4-year period and ran warrant checks on 39,308 of them. Dept. of Justice, Civil Rights Div., Investigation of the Newark Police Department 8, 19, n. 15 *2069 (2014). The Justice Department analyzed these warrant-checked stops and reported that “approximately 93% of the stops would have been considered unsupported by articulated reasonable suspicion.”⁷³

I do not doubt that most officers act in “good faith” and do not set out to break the law. That does not mean these stops are “isolated instance[s] of negligence,” however. Many are the product of institutionalized training procedures......... The majority does not suggest what makes this case “isolated”

from these and countless other examples. Nor does it offer guidance for how a defendant can prove that his arrest was the result of “widespread” miscon­duct. Surely it should not take a federal investigation of Salt Lake County before the Court would protect someone in Strieff's position.

This passage demonstrates not only Justice Sotomayor’s tacit recognition that there is a chronic policing crisis that stems in part from Supreme Court decisions; it also underscores the collective power of DOJ findings reports to inform courts’ understanding of the breadth and harm of some police prac­tices. This understanding is essential (if not always sufficient on its own, as Strieff shows) to addressing the chronic crisis.

Lessons Learned

Recognize You’re Not All That

Successfully addressing the dual policing crisis requires that the Civil Rights Division support police reform efforts that occur parallel to its investigative work—rather than trying to hem them in or shut them down—even though these efforts can sometimes complicate or be seen by some as diluting the import of a DOJ investigation. As in Ferguson, these efforts often are led by local activist, protest, and legal groups that have been working on—or lived through—police abuse for years. It is important that their deeper knowl­edge and import is acknowledged and appreciated. This does not mean that DOJ must always agree with the tactics or precise aims of these groups, but it should seek out common ground. This facilitates the investigation by mini­mizing the risk of local groups undermining or working counter to the DOJ investigation, and it also recognizes that DOJ’s involvement can help create capacity and support for these groups. This capacity and growth will be important to transforming police in the long run: long after the current acute crisis is over, the investigation is done, and even after any resulting consent decree has run its course.

To genuinely support shared aims of local and nongovernmental groups, DOJ attorneys must be aware that the privilege and power conferred by virtue of their DOJ affiliation (not by any special abilities of the attorney) remove obstacles that have stood in the way of police transformation (like jurisdic­tions' willingness to share information, to give just one example). In other words: be humble about why you are able to achieve whatever it is you are able to achieve within any given police department.

DOJ does not face many of the legal hurdles that others seeking to com­bat police misconduct must contend with. The law enforcement misconduct statute has no private right of action. Private plaintiffs must contend with the formidable (and increasing) hurdles of qualified immunity, class-action lawsuit restrictions, and section 1983 limitations on injunctive relief. At the same time, DOJ status hardly removes all obstacles to police transformation and can throw up some additional ones—for example, shifting attention from more transformative local efforts to more reformist DOJ efforts. At heart, DOJ attorneys need to have the humility to recognize that—whatever their expertise, how hard they are working, and the potential scope of their legal authority—they are visitors that have been inserted into a community that has struggled with a policing crisis for decades before DOJ arrived and will continue that struggle after DOJ leaves. DOJ attorneys should strive to use their authority to lessen the harm of the crisis without disrupting the critically important efforts of others.

Support Community Partners

DOJ's pattern-or-practice investigations are meant to address the causes of the acute crisis in the long term by requiring, where appropriate, remedies to prevent unnecessary acts of state violence and abusive police conduct in the future. But, as Ferguson shows us, the team conducting those investigations and negotiating those remedies is not set up to resolve or lessen the immedi­ate harm of the then-current acute crisis. Given the demonstrable need for immediate action, and the unsuitability of the investigative team to fulfill that need, DOJ and others should look to build up, and call upon, other entities for direct support during the acute crisis.

In Ferguson, this need was filled by legions of local activists. An organic movement built up almost overnight, not only to demand justice for Mike

Brown, but to do so in a manner that would have a lasting and just impact. The work done by local organizer-activists—Kayla Reed, Jonetta Elzie, Brit­tany Packnett, DeRay McKesson, Tef Poe, Montague Simmons, and Jon Chas- noff, to name just a few—and by scholar-activists such as Justin Hansford, among others, has been documented in articles, books, podcasts, and movies and is far too extensive to capture here. As discussed below, these individuals and the groups and communities they work with will be the ones to under­take the hard work of confronting the entire chronic crisis long after DOJ's relatively narrow (albeit critically important) scope of work has been com­pleted. But it is important to acknowledge also that while individuals and groups like this need assistance during an acute crisis, they also can provide it if sufficiently supported.

Relatedly, Ferguson underscores the continuing import of groups such as the ACLU and National Lawyers' Guild, as well as other groups with hyper­localized focus, such as ArchCity Defenders, in addressing the acute crisis. DOJ's Ferguson Report and the COPS Critical Response Initiative report were useful in describing some of the rights violations that Ferguson and others committed before and during the acute crisis. And the consent decree re­quires changes meant to prevent similar rights violations in the future. But it was these advocacy groups that were able to take immediate action when individual rights were violated during the acute crisis.

Notwithstanding the import of other groups and individuals, Ferguson also underscored how DOJ could do more to address the acute crisis. DOJ's Community Relations Service should be resourced and directed in a manner that would allow it to better prepare for and respond to acute policing crises. The CRS is, according to its website, meant to be the Department of Justice's “Peacemaker” for “community conflicts and tensions arising from differences of race, color, national origin, gender, gender identity, sexual orientation, re­ligion, and disability.”

CRS fulfills its “peacemaker” role by:

[W]ork[ing] with all parties, including State and local units of government, pri­vate and public organizations, civil rights groups, and local community leaders, to uncover the underlying interests of all of those involved in the conflict and facilitates the development of viable, mutual understandings and solutions to the community's challenges. In addition, CRS assists communities in developing local mechanisms and community capacity to prevent tension and violent hate crimes from occurring in the future. All CRS services are provided free of charge to the communities and are confidential. CRS works in all 50 states and the U.S. territories, and in communities large and small, rural, urban and suburban.

Since its creation in 1964, its website states, CRS has “worked to rectify civil rights disputes and respond to conflicts that poison communities and pro­hibit society from reaching its full potential.”

CRS has the potential, and the mandate, to fill a role that is desperately needed in community conflicts across the country and was desperately needed in Ferguson in 2014. CRS staff was on the ground in Ferguson from nearly the first days of the protest. Several CRS specialists spent much of their time in Ferguson for months, and the CRS's Ferguson work had attention from the highest levels. But despite the diligence of staff efforts, CRS's impact was compromised by a lack of resources and an inability at the institutional level to adapt its work to the needs on the ground. There was a tremendous amount of misinformation among Ferguson police officers and protesters alike. There was a lack of communication between the various stakeholders with various levels of interaction during the nightly protests in downtown Ferguson. Inflammatory rhetoric and dehumanization were widespread. Yet CRS for the most part limited its role to facilitating formal meetings between city leadership and some community representatives, rather than meeting directly with Ferguson line officers to discuss their angers and concerns, or being present at nightly protests to engage in shuttle diplomacy as needed and to facilitate communication.

As tensions continued to rise in Ferguson, some began to urge the inves­tigative team to use time on the ground in Ferguson to leverage community contacts they were developing to try to mediate protests and other interac­tions between community members and law enforcement. This was an under­standable request. The sense that things could erupt at any time was palpable, and the ongoing tension made it more difficult for the team to develop the rapport useful to gather information from officers and members of the public about problems with policing and how to fix them. It was difficult to refocus people on moving forward and on solutions given the dynamics constantly dragging them back into a highly contentious here-and-now. When Fergu­son police blatantly violated the rights of protesters by arresting individuals peacefully protesting, with DOJ observers standing there, it made the federal government appear powerless to stop abuse by local police. This is, unfor­tunately, to some extent true: The investigative team was not the National Guard; it was a group of civil rights attorneys and investigators whose mission was to diagnosis and develop remedies for broken systems, with the aim of preventing future civil rights violations. But had DOJ been better able to assist the relevant stakeholders in developing and implementing effective ground rules for protests, then DOJ might have been more helpful on the ground and gained some legitimacy in the process. But asking the investigative team to serve as a peacekeeping team presented opportunity costs (i.e., time spent as mediators or otherwise responding to the acute crisis was time not spent investigating), and playing the role of mediator seemed, in some respects, at tension with their role as investigators. And—no small thing—the investiga­tive team was for the most part not trained as mediators or facilitators.

The obvious irony is that the need the investigative team was being asked to fill was precisely the need that Congress foresaw in 1964 and addressed via the establishment of the CRS. Unfortunately, it is difficult for a large bu­reaucracy to pivot in the middle of an acute crisis, and CRS lacks sufficient resources for such an approach anyway. As Ferguson and other cases have taught us, we need to provide resources and direction to CRS to allow it to fulfill its desperately important mission—and we should do so before the next acute crisis.

Set and Manage Expectations for DOJ’s Role

Ferguson shows how there are often a variety of expectations for how DOJ's Civil Rights Division is and should be responding to a dual policing crisis. These expectations will drive interactions with the investigative team and DOJ more broadly and will impact evaluations of the efficacy of DOJ's pattern- or-practice investigations and consent decrees. It is thus important that the team manage those expectations from the outset. Perhaps most fundamen­tally, DOJ should convey that its work should be seen as an important—but certainly partial—response to the crisis that should serve as a catalyst for broader momentum and action, rather than as a comprehensive solution that supplants the need for broader action. Managing expectations about what a DOJ investigation can—and cannot—achieve, and then staying out of the way of those who can undertake broader transformative efforts, enhances DOJ's chances of success, even as it facilitates the efforts of others to address the chronic crisis more broadly.

DOJ can communicate its role during its outreach to community groups, individuals, and interest groups. In doing so, DOJ can help encourage the cre­ation of space and momentum for communities to begin to think about their own role—separate from, as well as part of, any DOJ agreement—in defining and realizing policing transformation in their own communities.

Similarly, in their meetings with city and police officials, Civil Rights Divi­sion personnel should be clear that city and police officials can and should meet with concerned community members and activists to work on police- related issues that may be beyond the scope of the DOJ investigation. A DOJ investigation can enhance the “fierce urgency of now” created by the acute crisis. DOJ can impress upon the city and police the need to work directly with communities on issues that go beyond the DOJ investigation and con­sent decree. DOJ should encourage officials to use the energy and creativity that arises during a dual crisis, not only to end the pattern or practice of un­lawful conduct but also to set about doing the deeper work that is necessary to ultimately reduce the harm of policing more broadly.

Educate Through Investigation; Educate Through Outreach

Outreach is essential to any DOJ pattern or practice investigation. Talking with individuals who have been harmed by policing is critical to developing the facts necessary to determining the existence and nature of police miscon­duct. During one-on-one or group meetings, attorneys and investigators can learn more about the particular police-related concerns of a given commu­nity, identifying patterns in stories of police treatment that guide document requests and other aspects of the investigation. In a pattern-or-practice inves­tigation, meeting with individuals and groups—including local community groups, police affinity groups and unions, criminal justice stakeholders, and civil rights groups, among others—is an invaluable mechanism for learning which problematic practices appear to be widespread and for diagnosing the causes of these patterns, as well as potential solutions.

Although these meetings are thus meant to educate DOJ, it can use them to help educate about the chronic policing crisis, that is, how dynamics be­yond a pattern of unlawful police conduct are impacting policing in that com­munity. Much of this education must come after the release of any findings report, thereby allowing for an open discussion of what DOJ has found. DOJ can discuss the portion of the problem that might be addressed in a consent decree as well as what is beyond the scope of that decree. The more sophis­ticated the audience, the more in-depth these conversations can be. Indeed, public sophistication on policing topics has advanced so much since Fergu­son that DOJ may learn more than it teaches in many of these conversations.

Educate Through the Findings Report

The Ferguson Report's impact on systems of fines and fees—far beyond how those fines and fees facilitate unlawful policing—is well-known and discussed above. We should not lose sight of the many other ways findings reports can confront some of the tenets of the chronic policing crisis. For ex­ample, one of the causes of the chronic policing crisis is economic inequality, as the Ferguson Report helps explain. But the Ferguson Report also directly confronts one of the reasons this system of economic inequality was allowed to persist for so long: because it was masked by a racial stereotypes. One ste­reotype documented in the report was that black people are dangerous and unruly and must be controlled and civilized by a network of rules regulat­ing their lives down to how they crossed the streets (only at right angles in Ferguson).⁷⁴

Another stereotype is that the reason that black people were the ones lined up outside Ferguson's municipal court at every session—and the ones being arrested and taken to jail for not paying their fines and fees—was not because of race bias or economic inequality but instead because of a lack of “personal responsibility.’^⁵ In demonstrating the falsity of this excuse and how it was used to deflect attention from the city's actual use of fines and fees to raise revenue and control a racialized social order, the Ferguson Report provided concrete, current, and credible facts that supported the arguments of scholar­activists such as Keeanga-Yamahtta Taylor that it is not moral failures or a “culture’ of poverty among black people that perpetuates disparately poor outcomes; it is how these stereotypes have been allowed to mask deliberately perpetuated economic inequality/⁶

Further, the act of making the findings of its investigation public can itself address the chronic crisis. A findings report is the state's affirmation of the voices and lived experiences of often-marginalized groups and represents a public call to disrupt the status quo. There is power in this tacit admission.

Conclusion

Although instigated by an acute crisis, DOJ's pattern-or-practice investigation of the Ferguson Police Department allowed DOJ to address—incompletely but with significant impact—the chronic crisis of policing not only in Fergu­son but in the United States more broadly. This is often the case, as it should be. That is to say, while a DOJ law enforcement misconduct investigation may be prompted by an acute crisis, and the investigation may help ameliorate some of the effects of that crisis, addressing the acute crisis is not and should not be the intent or focus of a DOJ law enforcement misconduct investigation.

Neither should DOJ seek, or be expected, to address the chronic policing crisis in its entirety: no single entity can do that, especially when that entity is enmeshed in the power structures that give rise to the chronic crisis. Rather, the focus of a DOJ law enforcement misconduct investigation should be the more modest—but still critically important—goal of remedying unlawful pat­terns or practices of policing. As DOJ's work in Ferguson shows us, even this more modest goal leaves ample room for DOJ to push policing forward in the right direction. The lessons learned in Ferguson can help all actors interested in ending the chronic crisis of policing work together more effectively so that our efforts support shared goals.

NOTES

1 Jennifer E. Cobbina, Hands Up, Don’t Shoot: Why the Protests in Ferguson and Baltimore Matter, and How They Changed America (2019).

2 As discussed below, numerous components of the United States Department of Justice were active in Ferguson in 2014. Where not otherwise noted, a general reference to “DOJ” involvement refers to the law enforcement misconduct investigation (also referred to as a “pattern-or-practice” investigation) conducted by the Special Litigation Section of the Civil Rights Division.

3 United States Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (Mar. 4, 2015) (hereinafter “Ferguson Report”).

4 My role investigating the Ferguson Police Department for DOJ provided me unique insights on what transpired there in 2014-2015. I acknowledge, however, that mine is just one perspective and that each person experienced these events differently, having access to insights that I did not, and drawing meaning from these events that may differ from mine in many respects. I do not presume to speak for any other person, including others on the DOJ investigative team.

5 Robynn Tysver, Omahan: To Get Trust, Policy Should Keep a Civil Tongue, Omaha World Herald (Jan. 14, 2015).

6 Kayla Reed, Under the Arch Podcast, episode 2 at 5:00.

7 Wesley Lowery, Black Lives Matter: Birth of a Movement, The Guardian (Jan. 17, 2017).

8 Editorial Board, Justice in St. Louis County, N.Y. Times (Sep. 6, 2014).

9 See www.justice.org.

10 Keeanga-Yamahtta Taylor, From #BlackLivesMatter to Black Liberation (2016); see also reports on National Public Radio at http://npr.org; on the website of the Missouri Chapter of the American Civil Liberties Union, www.aclu.mo.org; and on the website of the National Lawyers’ Guild, www.nlg. org.

11 At the time of the Ferguson investigation, this statute was codified at 42 U.S.C. §14141. It is now codifed as 34 U.S.C. §12601.

12 Sari Hortwitz et al., Justice Dept. to Probe Ferguson Police Force, Wash. Post (Sep. 3, 2014).

13 Julie Bosman, Police Behavior in Ferguson Draws Attention of Justice Department, N.Y. Times (Sep. 26, 2014).

14 Matt Apuzzo, Department of Justice Sues Ferguson, Which Reversed Course on Agreement, N.Y. Times (Feb. 10, 2016).

Stephen Deere, Ferguson Council Unanimously Approves Agreement With DOJ, St. Louis Post-Dispatch (Mar. 15, 2016).

See Cobbina, Hands Up, Don't Shoot.

See www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd- size.html.

See www.forbes.com/sites/ carlieporterfield/2020/06/23/a-whopping-95-of-americans-polled-support- criminal-justice-reform/#6c6954e43ad2.

As of this writing, the DOJ under President Donald Trump has brought only one pattern-or-practice investigation—of a subunit of the Springfield, Massachusetts, police department. Although the DOJ investigation of the Springfield Police Department found a pattern or practice of constitutional violations, DOJ, without explanation, did not demand any remedy to eliminate that pattern or practice. See www.justice.gov/usao-ma/pr/ justice-department-announces-findings-investigation-narcotics-bureau- springfield-police.

The DOJ under Trump has sought to avoid, end, and prevent policing consent decrees.

See, e.g., Taylor, From #BlackLivesMatter; Cobbina, Hands Up, Don't Shoot.

In addition to Ferguson and Baltimore, the DOJ investigation of the Chicago Police Department, among others, can be characterized as occurring in the midst of an acute crisis.

See, e.g., Paul Butler, The System Is Working the Way It Is Supposed To: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419 (2016).

Paul Butler, Chokehold: Policing Black Men (2017); Devon Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017). Butler, The System Is Working; Charles R. Epp, Pulled Over: How Police Stops Define Race And Citizenship (2014); Andrea J. Ritchie, Invisible No More: Police Violence Against Black Women and Women of Color (2017).

Critical legal scholars, including race-crit scholars, have long touched on what I am calling the “chronic crisis” of policing. The recent work of a few, including Amna Akbar, Monica Bell, Paul Butler, Devon Carbado, Tracey Meares, and Keeanga-Yamahtta Taylor, has explored it in depth. The Movement for Black Lives, Campaign Zero, ArchCity Defenders, and prominent policing activists such as DeRay McKesson, Patrice Cuellors, Alicia Garza, Derecka Purnell, Kayla Reed, and Brittany Packnett (among many others) also have emphasized the dynamics that I describe here as composing the chronic crisis. My understanding of the chronic crisis is indebted to their work, even as it is based primarily on my experiences investigating and attempting to change police conduct as an attorney in DOJ's Civil Rights Division.

26 Butler, The System Is Working; Carbado, From Stopping Black People; Monica Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054 (2017).

27 See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); Naomi Murakawa, The Racial Antecedents to Federal Sentencing Guidelines: How Congress Judged the Judges from Brown to Booker, 11 Rog. Will. U. L. Rev. 473, 482 (2006); Elizabeth Hinton, Creating Crime: The Rise and Impact of National Juvenile Delinquency Programs in Black Urban Neighborhoods, 4 J. Urban Hist. 808 (2015).

28 See, e.g., Taylor, From #BlackLivesMatter.

29 See, e.g., Butler, The System Is Working; Carbado, From Stopping Black People; Bell, Police Reform.

30 Joanna C. Schwartz, Who Can Police the Police? 2016 U. of Chi. Leg. For. 437 (2016).

31 U.S. Department of Justice, www.justice.gov.

32 Id.

33 My focus on the Civil Rights Division’s pattern-or-practice work is not meant to discount the import of the Criminal Section’s work investigating and prosecuting officers for criminal violations of federal civil rights. This work is critically important. As Ferguson itself underscores, however, the work of the Criminal Section has an even more narrow scope and its own hurdles to overcome. Its impact on the dual crisis is thus a topic for a different day.

34 Human Rights Watch, Shielded From Justice: Police Brutality and Accountability in the United States (1998); The Independent Commission on the Los Angeles Police Department, Report of the Independent Commission on the Los Angeles Police Department (Christopher Commission Report) (1991).

35 Kenny Reich, Police Throughout U.S. Feel the Effects of Events in L.A, L.A. Times (July 15, 1991); See also Stephen Rushin, Federal Enforcement of Police Reform, 82 Fordham L. Rev. 3189, 3207-15 (2014) (discussing history of federal police misconduct statute).

36 See U.S. Department of Justice Office of the Inspector General, Audit Division, Audit of the Department of Justice’s Efforts to Address Patterns or Practices of Police Misconduct and Provide Technical Assistance on Accountability Reform to Police Departments, 18-14 at 9 (Feb. 2019), https://oig.justice.gov.

37 There were many useful resources created during the first days and weeks of the crisis, but the one with the single greatest impact may have been the white paper by ArchCity Defenders documenting abusive fines and fees throughout St. Louis County, including in Ferguson. See www.archcitydefenders.org.

Martin Luther King Jr., March on Washington, August 28, 1963 (“We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there “is” such a thing as being too late. This is no time for apathy or complacency. This is a time for vigorous and positive action.”)

Taylor, From #BlackLivesMatter; Ta-Nehisi Coates, The Gangsters of Ferguson, The Atlantic (Mar. 5, 2015).

See, e.g., Kimbriell Kelly, Sarah Childress & Steven Rich, What Happens When Police Are Forced to Reform? Wash. Post (Nov. 13, 2015).

Eric Heisig, Tamir Rice Shooting: A Breakdown of the Events That Led to the 12-Year-Olds Death, Cleveland.com (Jan.13, 2017, updated Jan. 19, 2019), www.cleveland.com. (“In the wake of Tamir's shooting, the city said it was committed to improve its hiring practices. At the time he was hired, the police department had no policies for vetting recruits. Improving hiring practices is also something the city is required to do under a settlement it reached with the Justice Department.”)

See, e.g., Butler, The System Is Working (arguing that DOJ's pattern-or-practice investigations are “stopgap measures that provide limited help but fail to bring about the transformation demanded by the strongest articulations of the crisis [in American criminal justice].”).

For example, in the five years before the DOJ investigation of Detroit's police department, Detroit police officers fatally shot at least 47 people. After extensively remaking use of force training, reporting, and investigation as part of the consent decree, this rate declined dramatically. Between 2009 and 2014, when the Detroit consent decree ended, there were a total of 17 fatal police shootings. Overall police shootings decreased from an average of 69 shootings per year in 2000, to an average of 28 shootings per year in 2014. Letter from Barbara L. McQuade, United States Attorney, and Molly J. Moran, Acting Assistant Attorney General, to Detroit Mayor Michael E. Duggan (Aug. 25, 2014).

See, e.g., Kimbriell Kelly, Sarah Childress & Steven Rich, Forced Reforms, Mixed Results, Wash. Post (Nov. 13, 2015) (noting increase in use of force in Pittsburgh after consent decree but disregarding requirements that more minor levels of force be reported and more stringent requirements for force reporting).

John Eligon, Stopped, Ticketed, Fined: The Pitfalls of Driving While Black in Ferguson, N.Y. Times (Aug. 6, 2019).

United States v. City of Ferguson, No. 4n6-cv-0018-CDP, Transcript of Status Conference Before Judge Catherine D. Perry at 65 (Dec. 17, 2018).

Samuel Walker, Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure, 32 St. Louis U. Pub. L. Rev. 57 (2012).

A lower rate of stops and other police intrusions occurs in many jurisdictions after a DOJ consent decree. This outcome appears to be uneven however. See, e.g., Samuel Walker, “Not Dead Yet”: The National Police Crisis, A New Conversation About Policing, and the Prospects for Accountability-Related Police Reform, 2018 U. III. L. Rev. 1777, 1837-38 (discussing decreases in LAPD stops after consent decree and increases in arrests).

Butler, The System Is Working.

Id., at 7.

Rachel Lippmann, Federal Judge Approves Ferguson Consent Decree, St. Louis Public Radio (Apr. 19, 2016), https://news.stlpublicradio.org.

David Luban, The Moral Complexity of Cause Lawyers Within the State, 81 Fordham L. Rev. 705, 712 (2012).

Id. (“One of the failings of the Bush Administration’s Office of Legal Counsel (OLC) was the way that it aggressively pressed to build extreme legal positions into the fabric of the law by embedding them in OLC opinions.”) See, e.g., Douglas NeJaime, Cause Lawyers Inside the State, 81 F ordham L. Rev. 649, 654 (2013) (arguing that “cause lawyers” working for government can “harness state power to advance shared movement-state goals”). As David Luban points out, however, while lawyers who have chosen to pursue a law reform agenda may find government lawyering “a dream come true,” lawyers pursuing a more radical agenda may have to “mask or transform their commitments.” Luban, The Moral Complexity, 709-11.

See, e.g., U.S. Department of Justice Civil Rights Division, Investigation of the Baltimore City Police Department Report 40-43 (Aug. 10, 2016).

See, e.g., Frew v. Hawkins, 540 U.S. 431 (2004).

See, e.g., Steven Rushin, Structural Reform Litigation in American Police Departments, 99 Minn. L. Rev. 1343 (2015).

Richard Rosenfeld & Joel Wallman, Did De-policing Cause the Increase in Homicide Rates? 18 Criminology & Pub. Pol’y 51 (2019). (“We find no evidence of an effect of arrest rates on city homicide rates for any offense category for any year in this period [2010-2015], including 2015, the year of the spike in homicide levels.”)

According to the consent decree: “To ensure constitutional enforcement of the Ferguson Municipal Code (“Code”) and further promote community-oriented policing, the City agrees to revise the Code and ensure that it comports with the United States Constitution and other laws; establishes clearly defined municipal offenses and appropriate penalties for violations; and adequately protects the public health, safety, and welfare.” The occupancy permit provision of the code was one of several specified provisions to be revised. Consent Decree, United States v. City of Ferguson, No. 4π6-cv-000180-CDP (E.D. Mo. 2016), y 36 (hereinafter “Ferguson Consent Decree”).

Ferguson Report, 81.

Bell, Police Reform.

See, e.g., Jennifer L. Eberhardt, Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do (2019).

See, e.g., Jack Glaser, Suspect Race: Causes and Consequences of Racial Profiling (2015).

Ferguson Consent Decree, y32.

U.S. Department of Justice Civil Rights Division, The Civil Rights Division's Pattern or Practice Police Reform: 1994-Present 33-34 (Jan. 2017) (describing how in recent years DOJ's settlement agreements “have attempted to more effectively and sustainably address police misconduct... by focusing on the links between such misconduct and institutional failures outside of police departments, in areas such as social services, medical and mental health care, jails, and court systems”).

Ferguson Consent Decree, yy 326-27.

United States v. City of Ferguson, No. 4n6-cv-0018-CDP, Transcript of Status Conference Before Judge Catherine D. Perry at 64 (Dec.17, 2018).

See Ferguson Report, 9-11; 78-89.

Consent Decree, jy36-40.

ArchCity Defenders, Municipal Courts White Paper (2014). U.S. Department of Justice, Attorney General Holder Delivers Update on Investigations in Ferguson, Missouri (Mar. 4, 2015), https://justice.gov.

Fines and Fees Justice Center, Investigation of the Ferguson Police Department (Mar. 1, 2015).

Utah v. Strieff, 136 S.Ct. 2056, 2068-69 (2016) (some internal citations omitted). Ferguson Report, 70-75.

Id.

Taylor, From #BlackLivesMatter, 29-32.