What 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.