The Danger of Consent Decrees
Every Agency Is At Risk
This week, the Department of Justice announced that they are imposing a consent decree on the Louisville (KY) Police Department after they determined that the agency engaged “in a pattern or practice of conduct that violates the U.S. Constitution and federal law.” You can see the details here but it really doesn’t matter. You can copy and paste any past consent decree and see the exact verbiage.
The national press conference by the DOJ and their report seems legitimate until you understand exactly what a consent decree is and what it has done to agencies and communities for close to 30 years.
What Is a Consent Decree
The 1994 Crime Bill gave the DOJ the authority to conduct a pattern and practice investigation of local law enforcement. The use of consent decrees is highly political, and the standards used to choose what agencies to investigate have never been made public. Under the Obama Administration, 15 agencies were placed under the control of the federal government and the Biden Administration likely intends to take that top spot away.
LISTEN TO ‘CONSENT DECREES’ FEATURING BOB SCALES
While everyone is familiar with consent decrees, few know that there was a second component in the statute that required the DOJ to collect national data on excessive use of force and publish it. They have never done it and are apparently in violation of their own law. Considering that consent decrees are not based on actual data, it only makes sense that the DOJ wants to avoid real data at all costs.
Consent decrees begin with the DOJ launching an investigation. They hire consultants that come into the agency, interview personnel and citizens, and obtain thousands of documents and video. With thousands of contacts, they will choose a few, place those in the report and use them as the reason for the, yet to be defined, “pattern and practice.”
The foundation is always the same.
Anytown Police Department targets African Americans including using force at a disproportionate rate.
Here is that required portion in the Louisville Report:
We have reasonable cause to believe that LMPD engages in racial discrimination in violation of Title VI of the Civil Rights Act of 1964 and the Safe Streets Act. Black people in Louisville disproportionately experience the conduct described in the previous sections of this report. Nearly half of LMPD’s reported uses of less-lethal force from 2016 to 2021 were against Black people—twice the overall percentage of Black residents in Louisville Metro.
The idea that blacks are subject to force at twice the rate certainly sounds awful until logic prevails (something in short supply these days). The idea that law enforcement activity should mirror the population in a community is fantasy land.
Here is some data that didn’t make it in the DOJ report.
The census lists 23% black residents in Louisville while they make up 73% of the homicide suspects and 73% of the homicide victims.
In 2021, blacks were the suspects in 66% of the violent crimes while they were the victims of violent crime at a rate of 52%.
If anyone actually believes that when one race commits violence at three times their population, that the entity responsible for stopping that violence, law enforcement, should only be permitted to encounter the exact demographics in the population, I suppose they should apply for a job at the DOJ.
The DOJ use of the non-scientific method of comparing the census population to police activity is just one example.
In the Louisville report, the DOJ cited constitutional police practices used by the agency such as the use of pretextual stops which according to the report, “LMPD relies on heavily in its street enforcement activities.”
According to LMPD reports, officers use traffic stops to “target offenders in high crime neighborhoods” and “address crime in neighborhoods affected by violent crime.” Officers told us that when they are not responding to calls for service, they engage in what they call “proactive policing,” where they look for equipment or registration violations that might generate pretext for a stop.
Sounds about right considering the violence the community faces. Apparently, the DOJ has no clue how that violence is addressed by law enforcement.
The DOJ rarely uses actual scientific methods but once in a while, their report will reflect more than just their twisted opinion on how local law enforcement should conduct business. Something that is laughable considering that until just a few months ago, the law enforcement agencies under the DOJ banned the use of body cameras.
LMPD officers use neck restraints in circumstances where they are not justified. Neck restraints—applying pressure to the neck or throat in a way that inhibits air or blood flow—are “inherently dangerous” and have the potential to cause “serious bodily injury or death.”
Yes, you read that right. The same technique that we watch nightly in MMA and done in every jiu jitsu gym in the country daily, is suddenly deadly force?
Anyone with a younger brother understands how comical this statement is.
You can thank the IACP for that as it has been in their National Consensus Policy since 2020 and that is exactly what the DOJ cited in their report. Considering the DOJ gives millions to the IACP, the organization that is supposed to support law enforcement will likely never mention anything about the damage that consent decrees do.
Where Is The Evidence
The DOJ is not looking for a fight when they demand that an agency surrender control to them. According to Bob Scales, the CEO of Police Strategies, just one agency has taken the DOJ to court on their supposed evidence and the DOJ was sent packing back to Washington D.C. The DOJ looks for compliance and a political environment that will simply agree to their decree. Once an agency and city does so, the real drama begins.
The DOJ assigns a federal judge to monitor the agency and gives the agency a list of court monitors to choose from, typically attorneys. The annual salary starts at one million dollars but typically is much higher than that. Whatever “reforms” demanded by the decree and monitored through this newly minted millionaire have to be done, regardless of the cost and the city pays for it all. As an example, the court monitor wanted a data analysis program in Seattle so after 25 million dollars they had it. The entire agency is uprooted including massive policy and training changes and the leadership within the agency is muted.
The track record of consent decrees is abysmal. Recruitment and retention are only the beginning of the issues that occur. Crime and particularly violence will increase and once an agency enters into a consent decree, the chances are that they will never get out of it. The Virgin Islands Police Department has been under a consent decree for 19 years and the reason is quite simple. The court monitor has to ask the judge to remove the decree and when you make over a million dollars for writing quarterly reports, that’s not necessarily a good business move.
The idea that any police leader would voluntarily surrender control of their agency (and their employees) to an entity that has a track record of ruining departments and cities, is insanity. If you question the damage being done, book your next vacation to Cleveland, Portland, Seattle, Baltimore, Chicago, or New Orleans and see how that works out.
More appalling are the chiefs I saw sticking their chests out this week on how horrible Louisville is and how good they are. They clearly have no idea what a consent decree is and how it’s used. There isn’t an agency in this country that could pass whatever twisted standard the DOJ uses to impose consent decrees. Out of the thousands of videos they reviewed in Louisville, they spoke of just a few incidents and the narrative was obviously missing a lot of context.
To discuss how ridiculous consent decrees are, does not mean that there aren’t agencies that need to improve and do better but that will never occur using consent decrees. The last three decades have proven that.
Courageous Police Leadership Principles
“Never Let Feelings Redefine Facts”
Whether it’s the DOJ investigation or a consent decree, facts are certainly tough to find. The language and reforms “sound” good but the premises are not based on facts and by agreeing to a consent decree without making the DOJ present a evidentiary case, leaders are simply giving in to feelings. It’s virtue signaling at a high cost…
“Communicate To Eliminate Misunderstandings”
The vast majority of the “talking points” in any DOJ report can be explained to the public and it should be done long before any investigation and subsequent consent decree. The scam of disparity isn’t new in any agency and every city has some that keep saying it. Courageous Leaders should continually communicate to the public and eliminate false or misleading information.
“Continually Anticipate and Challenge Assumptions and the Status Quo”
The best way to avoid a consent decree and the destruction of a police agency is leadership. Whether it’s sound policy, top notch training, or the constant evaluation of law enforcement activity compared to the criminal element (not the census), leaders must never rest from making their agency the best that it can be. Keep in mind, none of this can avoid a visit from the DOJ but leadership will create an organization that can withstand any attempt to destroy it.
Agencies should evaluate every aspect of their agency, in real time, by collecting and analyzing their data. Considering the pretext of every DOJ investigation is disparity compared to the population, your agency should know exactly where your activity is based on crimes being committed. If disparity exists with that credible analysis, adjustments need to be made immediately.
Courage matters in leadership and there may not be more of a need for this courage then when the bully shows up. When leaders place facts over feelings, communicate to eliminate misunderstandings, and continually anticipate and challenge assumptions, they place their agency and their community in a position of success rather than abject failure.
Dr. Travis Yates is a commander with a large municipal police department and author of “The Courageous Police Leader: A Survival Guide for Combating Cowards, Chaos & Lies.” His risk management and leadership seminars have been taught to thousands of professionals across the world. He is a graduate of the FBI National Academy with a Doctorate Degree in Strategic Leadership.
You wrote: The idea that law enforcement activity should mirror the population in a community is fantasy land. If you question the damage being done, book your next vacation to Cleveland, Portland, Seattle, Baltimore, Chicago, or New Orleans and see how that works out. I can’t agree with you more!
Every consent decree mandates more robust minority hiring and representation - after the organization has been branded racist. The sadistic part is by that point they have secretly proved that the agency is not racist.
Great job and thank God for Bob Scales!