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

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

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

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

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

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

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

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

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

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

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

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

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

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Rich||

    Is it safe?

  • EDG reppin' LBC||

  • ||

    You can spin this in any number of ways, but I'm skeptical that it's anything more than a mix of priorities and whims. Shit, there's a bazillion laws in the Federal Register at this point. Which ones are actively enforced? The ones they feel like enforce. Whether those feelings are from increased status, moral code, or sheer spite, it's still ultimately arbitrary.

    Seems a bit silly to pick one law out of the morass and say LOOK, THEY AREN'T ENFORCING IT! Really? No kidding. And BTW, what makes your preference so much more important than all the other preferences which other laws cater to?

  • Heroic Mulatto||

    Seems a bit silly to pick one law out of the morass and say LOOK, THEY AREN'T ENFORCING IT!

    I do agree to a point, but the question of "who watches the watchmen" has an element of urgency, doesn't it?

  • sarcasmic||

    Not if you're one of the watchmen.

  • thom||

    Obviously this couldn't have happened, since as prosecutors have instructed us time and time again, they have no choice but to enforce the law.

  • The Late P Brooks||

    Seems a bit silly to pick one law out of the morass and say LOOK, THEY AREN'T ENFORCING IT!

    Yeah! Committing egregious crimes UNDER COLOR OF LAW is no different than product labeling infractions. They should just flip a coin, or something.

  • Andrew S.||

    Why do you hate our brave men and women in blue? Why, they're the only things keeping us from anarchy! You can't make an omelette without breaking a few eggs! There are only a few bad apples in the bunch!

    (there's probably a few more of the badgelicker arguments I've forgotten there. HTH. Smooches.)

  • R C Dean||

    This is one of the few valid functions of the federal DOJ in our Constitutional system. Most of the rest of what they spend their time on is enforcement of unconstitutional federal "police power" laws.

    The answer to this is, as always, incentives. Pave the path to promotion with the scalps of state, local, and federal agencies and employees, and this would change.

  • ||

    That sounds good, but the reason it never, ever seems to work out is: monopoly. The government is a monopolistic organization, and therefore the bosses of the investigators are the people they're supposed to be investigating. Whether it would be a detective investigating the corrupt police chief, or an FBI agent investigating a politician, they're investigating someone within the same overall organization. Whoever replaces the person they investigate will see that they do this, and their job will likely not be around for long, or will be changed.

    Without competing systems, monopolistic organizations (including corporations to a certain degree) will be terrible at policing themselves. The incentives just aren't there.

  • ||

    Why are Maynard James Keenan and his clone wearing police uniforms?

  • Hawk Spitui||

  • Invisible Finger||

    Put abuse to the side and focus on police incompetence.

    Police incompetence/laziness essentially led to the Boston Marathon bombing. Police incompetence/laziness leads to misdemeanor rapes in Harvey, IL. That's just the first 2 that came to mind.

    Look how many homicides the Chicago PD reclassifies as "death Investigations" to make their numbers appear better.

    At least abuse means the pig finally got off his lazy ass.

  • AD-RtR/OS!||

    If DoJ couldn't fit it into a Disparate Impact argument, they weren't interested.

  • optimusratiostultum||

    so this answer to government abuse is to bring in more government to abuse its power?

    no the answer is for people in their respective communities to start caring about their own communities. After all it is the local community which controls the local police.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement