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Why feds are not always the last, best hope on policing the police

Don’t confuse the Department of Justice with the cavalry.

When it comes to police department reform, “Too many community activists think the Justice Department is going to save us,” said Samuel Walker, a professor emeritus at the University of Nebraska who has written extensively on police accountability.

Unofficial reports that Palm Beach County Sheriff’s Office shootings had drawn DOJ’s attention began surfacing days after The Palm Beach Post and WPTV NewsChannel 5 published a series detailing 15 years of shootings. Last week, Palm Beach County Sheriff Ric Bradshaw said the FBI is investigating a single, as-yet unidentified PBSO incident.

Federal intervention could lead to sweeping changes in long-established police practice. However, getting that kind of formal attention is as difficult as it is rare.

True, there are plenty of recent DOJ interventions: In 2011, it investigated police departments in Miami and New Orleans police; in 2013, Cleveland; in 2014 Ferguson, Mo., and, last week, the department officially opened a civil rights investigation into the Baltimore Police Department, after riots followed a man’s in-custody death.

In every case, DOJ was seen as the last, best hope for policing the police.

But for two decades, the special civil rights section handling investigations has been buffeted by politics and hamstrung by scant resources. And some departments, including the Miami Police Department, revert to poor or even lethal policing as soon as DOJ leaves town.

A question of resources

Besieged with hundreds of requests for help every year from advocacy groups, community leaders, lawyers, city councils, mayors and even police chiefs, DOJ’s civil rights section is simply too small for the task, said Walker.

“You have 18,000 police departments, a lot of police misconduct and extremely limited resources,” he said.

“They couldn’t possibly do it all.”

For instance, when Michael Brown was shot by a police officer in Ferguson last August, prompting riots, looting and national outrage, DOJ opened an investigation into the Ferguson police department. They went through 35,000 pages of police records and thousands of emails. They brought in statistical experts to analyze traffic stops, searches, citations, and arrests. They pored over court fees and municipal budgets.

That was just one tiny police department: 54 police officers.

It’s roughly the same number of lawyers in the entire DOJ section responsible for police department cases, according to a recent study into DOJ investigations by The Marshall Project, a non-profit advocacy group.

That helps explain why, since Congress first gave DOJ authority to investigate police department misconduct in 1994, the agency has averaged just three investigations a year, said Stephen Rushin, a visiting professor of law at the University of Illinois and an expert on DOJ investigations of police misconduct.

“Why us?”

Why DOJ picks one police department over another can be baffling. When DOJ announced it would investigate Steubenville, Ohio, in 1996, the city manager protested, “Why us? Why a small town instead of Chicago?”

There’s no clear answer, for instance, as to why the FBI would show interest in Palm Beach County and not Chicago.

And DOJ may want it that way.

“There is no checklist that says, ‘If I do these things, I am going to fall into the investigation bucket, and if I do these other things, I am going to fall outside the investigation bucket,’” DOJ special litigation chief Jonathan Smith said in a 2013 meeting with police chiefs from throughout the country.

Keeping police departments guessing can be a useful tool, Rushin suggested. After all, the prospect of winning DOJ’s “terrible lottery” might prompt reforms just to keep the agency away.

In fact, said Walker, after 20 years of DOJ settlements, every police department in the country already has a road map for DOJ-blessed reforms.

Bradshaw, for instance, examined DOJ reviews in Albuquerque, N.M., and elsewhere to develop policies on shootings. It’s one reason why he insists any federal investigation will confirm that PBSO is far ahead of the curve when it comes to what DOJ wants.

“I don’t care if they come in here or not,” said Bradshaw last year. The sheriff made his comments shortly after attorney Jack Scarola, who represents a bicyclist shot and paralyzed by a PBSO deputy in 2013, wrote then-Attorney General Eric Holder and asked that DOJ investigate.

“I would be very confident that if they looked at our policies, they looked at our procedures, they looked at how we investigate these things, we’re going to be so far ahead of everybody else, you have no idea,” Bradshaw said.

Other cities, same problems

But DOJ has faulted departments in other cities for certain types of shootings that also occurred in Palm Beach County: shooting unarmed or mentally ill suspects, shootings in which larger-than-expected numbers of victims are racial or ethnic minorities and a record of rarely faulting a law enforcement officer’s actions.

In three fatal PBSO shootings since 2010, the suspects weren’t armed. Further, roughly one in every four PBSO shootings since 2000, including those that did not injure or kill a suspect, also involved unarmed suspects, a figure higher than at least two cities DOJ has criticized.

Also in the last five years, a 17-year-old with Down syndrome and a mentally ill man who was not competent to stand trial were shot. A diagnosed schizophrenic was shot and killed. So was a teenager with serious mental illnesses who was throwing rocks at a deputy.

Since 2000, PBSO has ruled all but one of 45 fatal shootings were justified. Since 2010, every PBSO shooting was ruled justified, a 100 percent clearance rate. By contrast, DOJ found Miami’s 87 percent clearance rate unrealistically high.

Finally, deputies have disproportionately shot at black people, particularly young men. Although African-Americans make up 15 percent of people living in the area PBSO patrols, they represent 35 percent of those shot at by PBSO. One in three were unarmed.

Political winds

No single questionable shooting, or even several shootings, automatically means DOJ will come knocking.

For one thing, the number of investigations and settlements closely track who occupies the White House.

During the Bill Clinton era, when legislation enabling investigations passed in the wake of the Rodney King beating, DOJ promptly opened a handful of cases.

President George W. Bush, on the other hand, expressed reluctance to become involved in local law enforcement issues.

Policies and priorities are expected to shift with administrations. However, in the Bush years, a deputy assistant attorney general overseeing the DOJ division handling police investigations went beyond policy shifts, according to a DOJ inspector general inquiry.

The report concluded Bradley Schlozman weeded out or refused to hire attorneys not affiliated with Republicans or conservative groups, and expressed a desire to avoid attorneys involved in “some crazy liberal organization… I just want to make sure we don’t start confining ourselves to, you know, Politburo members because they happen to be a member of some, you know, psychopathic left-wing organization.”

However, another assistant attorney general interviewed by the inspector general said Schlozman wasn’t doing anything out of the ordinary: Under Clinton, he said, there was a virtual ban on hiring conservatives.

Schlozman served between 2003 and 2006. Between 2004 and 2008, new investigations of police departments dropped sharply. Not one reform agreement with a police department was finalized, and many investigations simply were closed.

After Obama was elected, DOJ priorities changed again.

Eric Holder ramped up the number of investigations, picking up speed as Obama neared reelection: 15 new investigations or major settlements in the past three years.

Repeat offenders

However, charges against individuals are rarely open and shut: No charges against a police officer were brought in the Michael Brown shooting, for instance, which triggered the Ferguson unrest.

And when DOJ investigates a department, there’s no guarantee reforms will stick.

Take Miami. After 13 Miami officers were indicted for conspiring to block an investigation into police shootings, DOJ in 2002 launched its first investigation at the request of then-Mayor Joe Carollo and Police Chief Raul Martinez.

Miami pledged voluntary changes, including stronger policies, better training and thorough investigations into shootings as well as other uses of force.

For 20 months, not a single officer fired their gun.

By 2006, after that period ended, DOJ became alarmed at how officers were using force on suspects, including lethal force. It sent a letter to the department, and Miami agreed to restrict shootings and better investigate them.

Then DOJ withdrew.

Shootings began again.

Between 2008 and 2011, police shot at civilians 33 times. In a matter of months, officers killed six young African-American men.

In February 2011, Travis McNeil became the seventh.

Reaching for a cellphone

McNeil and his cousin, Kareem Williams, were pulled over after leaving a bar.

It was a high-powered traffic stop: Miami police and federal agents had been combing the streets as part of a joint effort to arrest gang members.

Three unmarked cars drew up to McNeil’s Kia Sorrento, effectively boxing him in. Miami officer Reynaldo Goyos drew his gun, got within a foot of McNeil’s open window and fired three shots, killing him.

McNeil had ducked toward the floorboard, Goyos said later, and could have been reaching for a gun. There was no gun, only two cellphones.

There were other incidents. One officer fired because a motorist was reaching for his wallet after he had been told to provide identification. At other times, police literally could not shoot straight: Bullets aimed at suspects were found lodged in the homes and cars of bystanders.

In 2011, DOJ opened its second investigation in 12 years, concluding that it was time for “court-enforceable” remedies.

Another way?

Las Vegas tried a different tack.

In 2011, two weeks after The Las Vegas Review-Journal reported many police shootings of suspects could have been avoided, officers shot and killed an unarmed, mentally ill Gulf War veteran.

A hail of criticism followed. But instead of an investigation by DOJ’s special litigation section, DOJ’s Community Oriented Policing Services division led a review.

The COPS division has no legal authority to enforce its recommendations, a fact that led some critics to doubt its effectiveness.

But the process was praised as faster, cheaper and more cooperative, thus generating change more quickly. And three years after the COPS report was published, there’s evidence that it worked, said William Sousa, director of the University of Nevada’s Center for Crime and Justice Policy.

The number of shootings by Las Vegas Metro Police Department officers overall is down, he said, and when shootings do occur, the circumstances are more understandable — almost all of the suspects have been armed.

Regardless of which DOJ division intervenes, reforms can work, Sousa said. And regardless of whether DOJ is investigating a single shooting, such as in Palm Beach County, or an entire department, he said law enforcement officials will want to take their concerns seriously: “The federal government doesn’t usually have an interest in investing resources in areas where they don’t have a great chance of winning.”

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