This column by ACRU Policy Board Member Hans von Spakovsky and Brad Schlozman was published May 29, 2016 by Conservative Review.

As the sun sets on President Obama’s tenure, it seems his administration is taking every last opportunity to make its mark on our culture. The Department of Justice is not at all bashful about overreaching well beyond its authority and handicapping local police forces at the expense of state sovereignty and community safety.

Conservative Review would like to present a two-part in-depth series from legal experts Hans von Spakovsky and Brad Schlozman that chronicles the administration’s unprecedented assault on local law enforcement. The DOJ’s quest exploits civil rights to travel far outside its proscribed jurisdiction. It is the worst sort of overcorrection to the media’s sensational coverage of police practices and racial tensions. And we are only just beginning to realize the consequences for society at large.

In March, the City of Ferguson, Missouri announced that, unless voters agreed to a massive tax increase to fund its debilitatingly burdensome consent decree with the Department of Justice’s Civil Rights Division over the city’s police department, the city would have to lay off 12 police officers and six firefighters and close one of the city’s two fire stations. The cuts would represent more than 20 percent of the police and fire departments’ current staffing levels. Even if the tax hike were approved, the mayor informed city employees the crippling costs of the consent decree would necessitate that all municipal employees take a three percent pay cut and endure a reduction in the city’s contribution to their retirement benefits.

Despite that warning, voters rejected the proposed property tax increase in an April 5 vote. Now what? Pink slips are apparently being prepared and city services will soon be slashed. Bankruptcy could be just around the corner. In a feat of euphemism, the city manager glibly noted that the tax hike repudiation “will force a close look at the city budget.” No doubt. It won’t be pretty.

And those are just the fiscal costs. The wide-ranging, judicially enforced, settlement agreement (i.e., “consent decree”) will require the police department to radically transform its operations, subject itself to unprecedented new oversight, and surrender much of its sovereignty to the federal government. Sadly, much of this could have been avoided if the city had better understood the law and the general tenor of the attorneys inside the Civil Rights Division’s Special Litigation Section (SLS), which investigated Ferguson’s police department and pushed the settlement agreement on the city.

Whatever political expediency and public relations benefit those council members may have achieved in the short-term, the adverse consequences the city will experience in the long-term — both economically and to public safety — are much more acute.

Had city leaders been willing to stand up to the Justice Department, the resolution of this matter would have been infinitely cheaper and far less oppressive. Had the city demanded that the Civil Rights Division actually prove at least part of its case in court — which would have been no small task for DOJ given the often flimsy allegations replete throughout its March 4, 2015 “findings letter” on the supposed practices of the Ferguson Police Department — there would be little talk of municipal bankruptcy. Had the city council simply insisted on long-term fiscal prudence and rejected those provisions in the proposed consent decree that have little or no connection to federal constitutional mandates, the public safety crisis and loss of confidence in law enforcement would have been far more fleeting. There still would have been substantial smoke, but the raging conflagration — in both fiscal and sovereignty terms — would have quickly subsided.

Instead, though, after briefly displaying commendable fortitude, the council ultimately capitulated to pressure from the usual array of liberal advocacy groups and racially-centric organizations, most of which tend to act as surrogates for the Civil Rights Division during Democratic administrations. Whatever political expediency and public relations benefit those council members may have achieved in the short-term, the adverse consequences the city will experience in the long-term — both economically and to public safety — are much more acute. Applying a tourniquet to those bleeding hearts is going to prove a very painful experience for the city.

Police Departments Don’t Understand How Narrow DOJ’s Jurisdiction Is

All but lost in the typically overheated, and nearly always misguided, political rhetoric attacking the Ferguson City Council’s original, but ultimately temporary, decision to resist a full-scale surrender in this case is the Justice Department’s extremely narrow jurisdiction to get involved in the first place. DOJ’s authority is rooted in a federal statute (42 U.S.C. § 14141) that prohibits law enforcement agencies from engaging in a “pattern or practice” of conduct that violates the federal constitutional rights of the local population.

Passed in 1994 in the wake of the infamous Rodney King beating several years earlier, Section 14141 was designed to fill a gap in the ability of the federal judiciary to impose broad injunctive relief against law enforcement organizations that systematically contravene individuals’ federally protected rights. Other laws (particularly 42 U.S.C. § 1983) were deemed to be ineffective in achieving systemic reforms because, while they allowed damage actions by individual plaintiffs who themselves had suffered some sort of particularized injury, they provided no legal basis for a court to order comprehensive changes to the operations and policies of an entire agency. The new law gave the Attorney General of the United States, rather than individual citizens, the right to commence a lawsuit seeking “appropriate equitable and declaratory relief to eliminate the pattern or practice” of constitutional violations.

Section 14141, though, imposes a very high threshold for establishing liability that, as we know from our own personal experience in the Civil Rights Division, lawyers there too often ignore. As an initial matter, the Attorney General cannot predicate her case on principles of respondeat superior (a legal doctrine providing that an employer is responsible for the actions of employees performed within the course of their employment). Instead, there must be proof that the agency had some officially promulgated or de facto custom or policy that triggered the violation of constitutional rights. That’s an uphill slog for any plaintiff.

DOJ is well aware of this rough terrain and routinely argues for a more liberal standard holding a city responsible for any misbehavior of a police officer even when the city was unaware of the misbehavior or it violated the standards, policies, or regulations of the police department. But so far as we aware, the courts have rejected all such efforts, as evidenced in litigation with Erie County, N.Y. (2010), the State of Pennsylvania (1995), the State of Arkansas (2011), and the City of Columbus, Ohio (2000).

Another roadblock the Justice Department encounters is that it has to prove true constitutional violations — not mere deviations from “best practices.” The distinction is critical and, in our experience, often ignored by those charged with enforcing the statute. In a jail setting, for example, it is well settled that mere medical malpractice does not equate to a constitutional infirmity. Similarly, the fact that a police department may be using an antiquated device such as a blackjack to control suspects, or that its record-keeping practices may have failed to keep pace with advancing technology, does not automatically translate into a constitutional violation.

An agency’s practices may be unorthodox and cry out for modernization. They may cause great consternation to academics and so-called “experts” in the field. Reform may be in order. But establishing a violation of the minimum standards mandated by the Constitution requires much, much more. The mere fact that a police department could do a “better” job in the view of federal bureaucrats does not violate the “pattern or practice” statute.

Further, demonstrating a “pattern or practice” of constitutional violations is no small task. Although the case law defining this term is somewhat sparse, the U.S. Supreme Court has stated generally that the phrase refers to situations in which the legal violations at issue are the “standard operating procedure,” i.e., the “regular rather than the unusual practice.” In other words, a few rogue officers or handful of isolated incidents over an extended period of time does not a “pattern or practice” make.

Perusing the “findings letters” on the Civil Rights Division’s website against other states and cities besides Ferguson, it is easy to identify many where the alleged incidents triggering the Attorney General’s Section 14141 jurisdiction are sporadic and spread out over such an extended period of time that it is difficult to characterize them as a true “pattern or practice” of misconduct vs. isolated, unrelated incidents. And that’s even assuming the allegations’ validity — no trivial matter given the occasional proclivity for exaggeration by complaining individuals who find themselves on the wrong end of the criminal justice system.

Moreover, even when Section 14141 has been properly invoked, its remedial breadth is hardly all-encompassing. Any injunctive relief must be limited to the specifically identified pattern or practice of constitutional violations. Section 5 of the Fourteenth Amendment does not confer upon the federal government the authority to require a state or municipality to engage in “best practices” in law enforcement as defined by the federal government.

While a judicially-directed remedy may be broader than the constitutional right protected in order to prophylactically protect that right, the Supreme Court has said that the remedy still must be congruent and proportional to the rights being protected. Again, based on our review of the consent decrees available on the Civil Rights Division’s own website, many show little deference to this constitutional constraint. For example, mandating new requirements for a currently-existing citizen review panel, or worse yet, insisting on the establishment of an entirely new citizen oversight commission for the police department — as many recent decrees do — is completely attenuated from any constitutionally-grounded requirements.

Such bodies may well advance the goal of community engagement, and may even be a good idea as a matter of policy. But they are in no way constitutionally compulsory, and they certainly do not prevent any particular constitutional violation.

A prime example of how the Civil Rights Division goes far beyond its statutory authority is a peculiar letter that the deputy chief of SLS, Christy Lopez, sent to Ferguson in the middle of its investigation. That September 16, 2014, letter ordered Ferguson police chief Thomas Jackson to “prohibit Ferguson Police Department officers from wearing ‘I am Darren Wilson’ bracelets while in uniform and on duty.” The type of uniforms worn by a police department are not even within the purview of the Justice Department, and it had no authority of any kind to order the officers to stop wearing a bracelet in support of their fellow officer who was wrongly accused of wrongdoing. But this is the type of arrogance that often pervades these investigations.