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Article Excerpt
I. INTRODUCTION
On November 21, 2006, after obtaining a "no knock" search warrant based on false information, several Atlanta police officers stormed into the home of ninety-two-year-old Kathryn Johnston. (2) Ms. Johnston, who lived alone and feared a home invasion, always locked her door and kept a gun for protection. (3) When the officers burst unannounced into the home, Ms. Johnston fired a single shot but struck no one. (4) Officers at the scene, however, returned fire, striking Ms. Johnston multiple times and fatally wounding her. (5) When a search of the home revealed no drugs, rather than leaving the scene, one of the officers planted in the basement three bags of marijuana seized in an unrelated case. (6) The officer then filed a false incident report stating that someone had purchased drugs at Ms. Johnston's home earlier in the day. (7) To conceal their crimes, the officers suggested to Atlanta homicide investigators that Ms. Johnston's shooting death was justifiable. (8) Fortunately, in later interviews with the Federal Bureau of Investigation, one of the officers admitted their wrongdoing. (9) With their criminal conspiracy revealed, two of the three officers involved pleaded guilty to state and federal charges stemming from the incident in April 2007. (10)
If this deplorable incident had been an isolated occurrence involving a few wayward officers, the story may have ended here. Unfortunately, this was not the first time several of the officers involved in Ms. Johnston's death had made false statements in their sworn affidavits before magistrate judges, (11) Perhaps what is even more disturbing is that, as the District Attorney observed, the investigation following Ms. Johnston's death demonstrated that '"many of the practices that led to her death were common occurrences in this unit of the Atlanta Police Department.'" (12)
A few months after this police shooting in Atlanta, police officers three thousand miles away also engaged in a shocking display of collective force. On May 1, 2007, Los Angeles police officers clashed with citizens during a peaceful immigration rally in McArthur Park. (13) When a small group of people began throwing rocks and bottles at the police officers, the officers responded with a barrage of rubber bullets and used batons to disperse the protestors. (14) Forty-two people, including news media personnel, protestors, and police were injured in the incident. (15) Soon after the incident, Police Chief William Bratton acknowledged the actions of some of the officers "were inappropriate in terms of use of batons and possible use of non-lethal rounds fired," and he later attributed the incident to a "breakdown in communication" among supervising officers. (16)
The fatal shooting of Kathryn Johnston in Atlanta and the Los Angeles "May Day Melee," as it has become known, are only the most recently publicized representations of institutional failures plaguing police agencies. In Los Angeles, more than 100 criminal convictions were overtumed and 200 people sued the Los Angeles Police Department after a police officer disclosed that members of the police department's Rampart Division regularly tampered with evidence and tortured suspects. (17) Nine officers were criminally charged and twenty-three officers were fired or suspended for their roles in the Rampart scandal. (18)
In 1994, recognizing the need for a national response to systemic reform of law enforcement agencies, Congress adopted 42 U.S.C. [section] 14141. The statute authorizes the Attorney General to conduct investigations and, if warranted, file civil litigation to eliminate a "pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." (19) Until the adoption of [section] 14141, there was no mechanism available to the federal government to force local law enforcement agencies to change their practices contributing to patterns or practice of conduct that violated a citizen's civil rights. The Attorney General has delegated this authority to the Special Litigation Section of the Civil Rights Division of the United States Department of Justice ("DOJ"), which investigates allegations of patterns or practices of constitutional violations in order to determine whether enforcement under [section] 14141 is justified. In practice, DOJ has initiated what some experts consider only a "paucity" of lawsuits, all of which have been resolved via court-enforced consent decrees. (20) In other jurisdictions where DOJ's investigations revealed a pattern or practice of constitutional violations, the government has refrained from initiating litigation and instead has opened formal investigations and entered into negotiated agreements with the municipalities and police departments, known as Memoranda of Agreement ("MOA"). (21) Citing the expediency and cost-effectiveness of their settlement strategy, U.S. government officials have expressly articulated a preference for avoiding litigation and negotiating with municipalities to ensure compliance with the suggested reforms. (22) These agreements generally contain a package of reforms aimed at enhancing greater public accountability. (23) Called the "new paradigm of police accountability" by one commentator, the most common provisions of these agreements are aimed at implementing or changing internal policies related to developing early warning tracking systems to detect "problem officers," creating use-of-force reporting systems, and devising an impartial civilian complaint review process. (24)
Notwithstanding the practical benefits of negotiating reforms for local law enforcement agencies, DOJ's negotiation process runs contrary to the established democratic theory that those affected by governmental policies should have an opportunity to participate in the development of those policies. (25) The agreements resulting from DOJ's pattern or practice legislation have far-reaching ramifications for both the police officers performing everyday policing tasks as well as for the community members that the local law enforcement agencies serve. For the most part, however, DOJ's process of fashioning the negotiated agreements has excluded these important stakeholders. The discontent arising from such exclusion undermines the legitimacy of DOJ's reform efforts, thereby threatening the successful implementation and permanence of the reforms.
The goal of this Article is to devise a model of collaborative problem-solving to ensure inclusion of the interested parties, such as community-based groups and rank-and-file officers, in the federal government's efforts to reform local law enforcement agencies. (26) Specifically, this Article advocates that DOJ adopt the paradigm of regulatory negotiation to ensure the inclusion of stakeholders in the development of the specific DOJ-mandated reforms. The participation of various stakeholders in the reform of local police departments through the framework of negotiated rulemaking ensures the legitimacy of the reform process, thereby increasing the possibilities for expediting compliance with the reforms and ensuring long-term adherence to the improved practices.
Part II of this Article describes the inception of federal pattern or practice litigation as a response to the limitations of traditional remedies to address police misconduct. Previously, efforts to address police misconduct have focused on punishing individual officers for misconduct and compensating victims of police abuse. Critics have long argued that because police misconduct must be addressed at an organizational level, both the retrospective and individual-focused nature of the traditional remedies account for their inability to address systemic police misconduct. (27) However, there has been little evaluation of the potential for addressing police misconduct through a collaborative process involving the affected stakeholders. I argue that [section] 14141 complements the traditional remedies because DOJ's proclivity to negotiate agreements offers an unprecedented opportunity to include both rank-and-file-police officers and citizens in a collaborative process to address police misconduct.
Part III examines DOJ's exercise of its "pattern or practice" authority to date. Although widely hailed as a new tool in the arsenal against police misconduct, police experts have expressed many valid critiques of the legislation, including its lack of a private fight of action and a perceived lack of political will to aggressively investigate and reform problem police departments. (28) Part III also describes the provisions commonly included in DOJ's negotiated agreements, including the implementation of early warning tracking systems, use-of-force reporting systems, civilian complaint review processes, and the appointment of an independent monitor to oversee the implementation of the reforms.
Part IV argues that a greater, yet under-examined, deficiency of DOJ's current enforcement of [section] 14141 is the exclusion of the community members and rank-and-file police officers from the negotiation process that DOJ uses to develop the consent decrees and MOA. The exclusion of these groups is not only inconsistent with general norms of democratic inclusion, but it is also inconsistent with the paradigm of community policing, which emphasizes police-community collaboration and has become a dominant model of policing in the United States.
Asserting that [section] 14141 is a potential vehicle to utilize collaborative problem-solving in efforts to address institutional reform of local police practices, Part V advocates a normative model of consensus-based negotiation for use in developing future consent decrees or MOA. Part V argues that DOJ should formally adopt the paradigm of regulatory negotiations in future reform efforts under [section] 14141 to ensure that those impacted by the reforms are afforded the opportunity to participate in the negotiations through their respective representatives.
Finally, Part VI considers the implications of the collaborative model in the context of police reform, including increased political legitimacy, greater cooperation, and better quality reforms specifically tailored to the jurisdiction. Part VI also examines potential challenges this collaborative model may experience in the specific context of police reform.
II. THE INADEQUACY OF "TRADITIONAL" REMEDIES IN ADDRESSING POLICE MISCONDUCT
Even when naively dismissed as exaggerated or aberrant instances of police wrongdoing, the Kathryn Johnston shooting, May Day Melee, the L.A. Rampart scandal, or countless other anecdotes paint a vivid picture about the contours of policing and police culture in a democratic society. (29) In state and local agencies with 100 or more sworn officers, citizens filed more than 26,000 complaints regarding police officer use of force in 2002 alone. (30) An estimated 2000 of these incidents were "sustained," meaning that there was "sufficient evidence of the misconduct allegation to justify disciplinary action against the subject officers." (31) These figures confirm that police misconduct is more than just a rare occurrence. Rather, citizen abuse at the hands of those sworn to protect the public is a complex problem without a simple cure. It is easy to identify and punish individual rogue officers for isolated incidents of misconduct once an incident has already occurred. But as the Johnston shooting and the May Day Melee make clear, these events often are symptomatic of a larger problem endemic in American law enforcement agencies. (32) The culture of police violence is tightly woven into the institutional fabric of the police organization itself. Therefore, police reform efforts should address not only the conduct of individual police officers, but should also address systemic problems within police departments that contribute to police misconduct.
When one officer is responsible for a single act of police misconduct, there are a variety of remedial responses available to address his conduct, ranging from judicial intervention, state prosecution of police officers, federal prosecution of police officers, tort suits by aggrieved citizens, internal police investigations and citizen review of police misconduct. (33) But when the police organization itself is responsible for a pattern of misconduct, these remedies have proven inadequate as catalysts for addressing systemic problems in police departments.
A. "TRADITIONAL" METHODS OF ADDRESSING POLICE MISCONDUCT
Upon analyzing the goals and structures of traditional methods previously used to address police misconduct, the distinction between these methods and [section] 14141 becomes immediately apparent. The traditional remedies all share one common feature they are all centered on an adversarial, litigation-based model. Such remedies generally focus upon deterring police misconduct by making illegally obtained evidence unavailable, punishing individual wrongdoers, or imposing financial consequences upon the municipality for abuses. These remedies rarely focus on systemic changes within a law enforcement agency to reduce and monitor violations of citizens' rights. In contrast, [section] 14141 offers the possibility for collaborative problem-solving among stakeholders to identify problems, implement institutional reforms, and monitor progress.
1. Judicial Intervention
The exclusionary rule, set forth in Mapp v. Ohio, represents the judiciary's attempt to deter officers from producing evidence in violation of a criminal suspect's constitutional rights by excluding evidence obtained in violation of the Fourth Amendment from being used at trial. (34) A byproduct of the Warren Court's "due process revolution," the exclusionary rule is perhaps one of the most controversial doctrines in criminal procedure because of its potential to allow "guilty" defendants to go free. (35) However, the numerous exceptions to the exclusionary rule have severely limited the doctrine's ability to deter police officers from engaging in misconduct and have rendered the rule virtually meaningless. (36) In addition to the numerous exceptions, the effectiveness of efforts to address police misconduct such as the exclusionary rule is limited because the rule can seek only to remedy or deter conduct that is adjudicated. Because many citizen-police contacts are never scrutinized by the judiciary, (37) courts may "lack the institutional capacity to ensure compliance on a day-to-day basis." (38)
2. Civil Remedies Available Under State and Federal Law
Another traditional method of addressing police misconduct is through civil litigation under state or federal law. (39) Many civil actions involving police misconduct are filed under 42 U.S.C. [section] 1983, which allows federal suits for damages or equitable relief where state or local governments have deprived citizens of their constitutional rights or have violated federal law. (40)
Proponents of civil remedies cite advantages including lower burdens of proof than in a criminal case, the ability of victims to initiate the lawsuit, and the possibility of monetary compensation for the victim. (41) Advocates of civil suits as a strategy to address police misconduct contend the monetary compensation for victims, if significant, may pressure local elected officials to urge reform of local police departments. (42) However, the tort litigation strategy has not substantially impacted police reform because police officers rarely experience adverse financial consequences associated with such suits. (43) For example, municipalities pay for both the individual officer's legal defense as well as for any penalties imposed. (44) Furthermore, civil actions against police officers face significant legal barriers such as the doctrine of qualified immunity, which prevents monetary actions against police officers acting in their official capacity. (45) A successful [section] 1983 prosecution requires the jury to find that the officer violated "clearly established" law at the time of the incident. (46) As one expert noted, qualified immunity improperly "focuses the jury's attention on what the officer reasonably believed about the facts justifying the force used" and juries therefore have a difficult time finding the officer liable "if the conduct is objectively unreasonable but somehow understandable." (47) Additionally, local municipalities or police unions often indemnify police officers when they have acted in their official capacity, and thus, the police officer may face no direct financial consequences. (48) In addition to these legal hurdles, just as with criminal prosecutions of police officers, juries often decide credibility determinations in favor of the police officers rather than the victim. (49) Thus, some critics believe "civil remedies are never a sufficient form of accountability because they almost never address flawed management, policies, or patterns of abuse, nor do they hold an individual officer financially responsible." (50)
3. State and Federal Criminal Prosecutions of Law Enforcement Officers
State and federal criminal prosecutions are also available as a remedy for police misconduct. State prosecutions of law enforcement officers are rare. (51) In one study, entitled Shielded by Justice, Human Rights Watch reported that prosecutors in many cities such as Chicago, Detroit, Indianapolis, New Orleans, Philadelphia, Portland, and San Francisco frequently have failed to prosecute officers for police brutality. (52) There is little doubt that the dearth of state prosecutions may be related to the inherent conflict of interest that exists between the prosecutors' offices and the police officers upon whose work the prosecutors rely. (53) Prosecutors may be hesitant to prosecute police officers who work in the same police department as other officers with whom the prosecutors work closely and rely upon to seek successful convictions in other criminal cases.
Where states fail to prosecute officers for unlawful actions, 18 U.S.C. [section][section] 241 and 242 allow for federal intervention. (54) Federal intervention is also rare because DOJ officials have often asserted that state prosecution is the preferred avenue for criminal prosecutions of law enforcement officers, and therefore federal intervention should serve only as a "back-stop." (55) By most accounts, [section][section] 241 and 242 traditionally have been underutilized. (56) According to DOJ, in fiscal year 2001, of the 6000 complaints received, the Federal Bureau of Investigation investigated approximately 1000 complaints. Only about 100 of those complaints resulted in federal prosecutions. (57)
The infrequency of criminal prosecutions under federal law may be attributed to a lack of resources as well as to the many challenges associated with these proceedings. Criminal trials are plagued with many of the same problems experienced in civil cases, including the police "code of silence," where officers refuse to testify against fellow officers or, worse, hinder investigation and prosecution by tampering with evidence and witnesses to cover up the officer's actions. (58) As with civil trials involving police officers as defendants, jurors in state and federal criminal cases involving police officers often make credibility determinations in favor of the police officer instead of an unsympathetic victim. (59)
Finally, in the rare circumstance that the federal government prosecutes a police officer, the current statutory scheme itself serves as an impediment to effectively addressing police misconduct. Prosecutions under [section] 242 require that police officers have the specific intent to violate the plaintiff's civil rights, as opposed to the specific intent to assault the victim, which creates a difficult evidentiary requirement for the victim to meet. (60)
4. Internal Investigations of Police Misconduct
In order to address police misconduct, many police departments have internal affairs divisions that oversee investigations of misconduct by individual officers within the department. (61) Perhaps the strongest criticism of internal police investigations is that the officers investigating these reports have an inherent inability to conduct impartial investigations. (62) In addition, internal investigations may be less likely to result in favorable results for claimants. For example, the Bureau of Justice Statistics reported that use-of-force complaints received by agencies with an internal affairs unit were "more than twice as likely to be found not sustained than in agencies not having an internal affairs unit." (63) Citing "lax and incomplete investigations," low rates of substantiation of complaints, and the failure to inform the public of the reasons for the results of complaints, critics of internal review of police misconduct have advocated for a more transparent process to investigate police misconduct. (64)
5. Citizen Oversight
Citizen oversight of police departments transfers the investigatory process of police misconduct allegations to an entity independent of the police department. (65) Citizen review boards, also commonly known as civilian review boards, were created in many communities in the United States in the 1960s with the hope that citizen review could quell the tensions between inner-city residents and the police in those communities. (66) Underlying the trend to develop citizen review boards is the argument that greater transparency increases the political accountability of police, thereby deterring police misconduct. (67) Thus, the primary goal of these review boards is to provide an independent review of police conduct and to combat the insularity of internal investigations of police misconduct. (68)
Despite the value associated with increased public participation in reviewing citizen complaints against police, like other efforts at reforming police misconduct, citizen oversight has fallen short. Even proponents of citizen oversight agencies argue that they are often "weak, ineffective, poorly led," (69) and have had no measurable impact on police misconduct. (70) In addition to the general critiques of the citizen oversight movement, the retrospective nature of reviewing citizen complaints makes it particularly ill-suited to address police misconduct before it actually occurs. (71)
Despite the failures of the traditional methods to curb police misconduct, many of the remedies have intrinsic values that should not be overlooked. (72) The traditional methods used to address police misconduct focus on determining culpability and compensating victims; this focus is both necessary and admirable. Thus, advocates of police reform should not jettison these efforts or fail to improve their effectiveness addressing police misconduct. However, the retrospective nature of the "traditional" reforms and their focus on the misdeeds of individual officers are often blamed for the failure of these remedies to result in widespread cultural changes in police organizations.
B. EMPHASIZING ORGANIZATIONAL REFORM OF POLICE DEPARTMENTS
In recent years, there has been renewed evaluation and debate about the nature and causes of police misconduct, and many experts agree that the roots of police misconduct rest within the organizational culture of policing. (73) In the aftermath of the Rodney King beating, the Christopher Commission concluded in its July 1991 report that "there is a significant number of officers in the LAPD who repetitively use excessive force against the public." (74) The Commission also found that police department management condoned this behavior through "a pattern of lax supervision and inadequate investigation of complaints." (75) Recent scholarship demonstrates police officers are not "independent agents" of the police agencies for whom they work. (76) Rather, individual police officers operate within a "powerful organizational culture that significantly influences and constrains their judgment and conduct." (77) Thus, efforts to address police misconduct, no matter how sincere, are doomed to fail if they consistently emphasize the behavior of individual officers rather than address the "distinctive and influential organizational culture" of police institutions. (78) The pivotal role of organizational culture in police reform requires institutional change of law enforcement agencies to address effectively the problem of police misconduct. Yet, as demonstrated above, the common disadvantage shared by the aforementioned "traditional" remedies of police misconduct is their focus on retrospective acts of individual instances of police officer misconduct. The retrospective nature of the "traditional" reforms and their focus on the misdeeds of individual officers are often blamed for the failure of these remedies. The narrowly focused remedial approach prompted discussion about the need for a "new paradigm of police accountability" and has refocused efforts toward the broader goal of institutional reform rather than the malfeasance of individual officers. (79)
III. THE NEW PARADIGM 1N POLICE ACCOUNTABILITY: THE EMERGENCE OF [section] 14141
A. THE POLICE ACCOUNTABILITY ACT OF 1991
The Police Accountability Act of 1991, a precursor to [section] 14141, exemplifies the shift away from legal remedies to address police abuse that are premised upon rational actor theories such as criminal prosecutions and the imposition of civil liability. (80) Although [section] 14141 has no direct legislative history, as the statute's predecessor, the Police Accountability Act's emphasis on institutional reform is relevant in understanding the policy concerns underlying the enactment of [section] 14141. In 1991, prompted by the national call for police reform precipitated by the Rodney King beating, a subcommittee of the House Judiciary Committee held hearings on the excessive use of force by police in the United States to determine the federal response. The hearings shed new light on the institutional failures within law enforcement agencies that cultivated police misconduct. In its report, the committee noted that while police misconduct was endemic to police departments nationwide, the U.S. government lacked the authority to address systemic patterns or practices of police misconduct and could only prosecute individual police officers. (81) The report recognized that "if an officer was poorly trained, or was acting pursuant to an official policy, it is difficult to obtain a conviction, and the Department of Justice has no authority to sue the police department itself to correct the underlying policy." (82) Indeed, in United States v. City of Philadelphia, (83) the court held that the federal government does not have implied statutory or constitutional authority to sue a local government or its officials to enjoin violations of citizens' constitutional rights by police officers. Citing the Supreme Court's decision in Los Angeles v. Lyons, (84) the House Judiciary Committee also noted that "while a private citizen injured by police misconduct can sue for money damages, he or she cannot sue...
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