The Basics On Consent Decrees...
Government, whether it’s federal, state or local – or in this context, state – seems to wield consent decree like an ax, chopping away at their rights and ability to effectively police.
Lodge 7 members saw “consent decree” come up in the Department of Justice report following its investigation of the Chicago Police Department in January 2017. And they are hearing about it again after Illinois Attorney General Lisa Madigan filed a lawsuit against the City charging that police changes that have been made “are insufficient to eliminate the decades-long policy, custom or practice of unlawful conduct and to ensure it will not recur.”
It’s easy, and reasonable, to experience that chalk-on-a-blackboard sensation or feel that step-on-a-nail pain when “consent decree” finds its way into headlines.
Lodge 7 attorneys remind that a consent decree is a settlement usually contained in a court order or tied to a motion for summary judgement to settle a lawsuit. Oftentimes, the parties involved will enter into a consent decree that require both sides to take specific actions; to engage, or not engage, in certain conduct with specific stipulations.
The threat of consent decrees as applied to police departments grew legs – among other body parts – with the Obama administration. But the practice has been flawed and, accordingly, decrees were implemented inconsistently and with little evidence of success. In some cities, like Baltimore, consent decrees have been devastating, leading to a marked increase in violent crime.
Under the Obama administration, the DOJ would have filed a lawsuit in federal court moving for a consent decree in Chicago that called for action to correct or improve Department policy and practice. When Donald Trump was elected and Attorney General Jeff Sessions took over the DOJ, he came in with a policy dictating that federal government had no business mixing into municipal matters.
Looking back, it appears that perhaps fighting the DOJ’s investigation of the police department back in 2015 might have been a better strategy than cooperating with it, particularly with President Trump’s unexpected win. But that, as they say, is water under the bridge.
A consent decree usually comes with a monitor, a third-party person inserted to track benchmarks that confirm achieving the objective of the decree.
Along with Chicago, Baltimore and Cleveland, DOJ targeted Seattle and implemented a consent decree this year. It led to booking time increasing three-fold by requiring lengthy, obtrusive officer questionnaires that delved far beyond the probable cause necessary for the arrest. (Sound familiar?) As the booking time tripled, arresting officers were not available to patrol the street, leaving the area more vulnerable to crime.
Another dangerous side effect of the consent decree is related to officer safety. After the Washington, D.C. Metropolitan Police Department entered in a decree this past spring, the DOJ started tracking the drawing of a weapon as a “use of force,” even if the weapon was not used. The officers tracked in this regard saw these statistics used in a negative light when promotions or special unit transfers were under consideration. Additionally, officers who were trained to ready a baton, Taser, OC spray or firearm as a precautionary measure started to second guess this tactic. Not a good idea in an era when assaults on law enforcement have risen at an alarming rate nationally.
Attorney General Sessions pinpointed the crux of the consent decree matter, saying: “These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing its work consistent with fidelity to law and fairness, and we need to be careful before we do that.”
What’s more, if systemic corruption or abuse of power was alleged in any of these police agencies, why didn’t the FBI conduct a criminal investigation? Many believe that consent decrees have become political statements on law enforcement policy that have robbed residents of high-crime areas of the proactive policing they deserve and paid for with their hard-earned tax dollars.
Madigan’s lawsuit is similar to what would have happened if the DOJ had gone into federal court, and alleges violations of section 1983 of the Civil Rights Act, which guards against the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws by a person acting under color of state law.” Such a charge might be a flaw in her complaint.
To be fair, there can be some smaller benefits within a consent decree. Remember, the January DOJ report identified Department brass as being at fault for the “pattern and practice of civil rights violations.” But if the Lodge and the attorney general can agree on language to provide staffing, training, equipment and facilities to improve policing, that would be beneficial for all members. Of course, the Lodge will also not agree to any language in a consent decree that could interfere with its collective bargaining rights or points that are currently being discussed in the current contract negotiations.
A possible alternative might be a consent decree for one year, which could achieve everybody’s objectives. Madigan has 14 months left on her term and is not running for re-election. Expect a decision to be decreed sometime before then.