Monday, June 9, 2003

City helped tame DOJ's fierceness

Justice's kinder tactics came on heels of riots

By Dan Horn
The Cincinnati Enquirer

Before coming to Cincinnati in 2001, civil rights lawyers from the U.S. Department of Justice had a habit of making life miserable for police departments.

They rolled into town with little warning and raided police files for evidence of racial bias, excessive force or other civil rights violations. If they found a problem, they were relentless.

Typically, they sent city officials a letter that said, in essence, "Do what we say or we'll take you to court."

Attorney General John Ashcroft vowed those tactics would change in Cincinnati, and they did. The Cincinnati investigation ended amicably last spring with a deal to reform the city's police department.

A year later, it's clear the strategy used in Cincinnati has changed the way the Department of Justice does its job.

In city after city, the department's civil rights lawyers have adopted a gentler approach to police misconduct investigations, emphasizing cooperation over conflict, compromise over court orders.

Federal lawyers who once threatened lawsuits to spur reforms now encourage police to change on their own. Police who once balked at federal intervention now praise the new willingness to compromise.

And civil rights activists who once saw the Department of Justice as an ally fear it is no longer interested in meaningful reforms.

"I have sensed there is a shift," said Maya Harris West, an associate with the Oakland-based PolicyLink, a nonprofit advocacy group that advised Cincinnati officials after the city's riots in 2001. "The Department of Justice is less aggressive."

Between 1997 and 2001, the Department of Justice responded to evidence of civil rights violations by police departments with the strongest possible action: a court-supervised consent decree. After President Bush took office, Justice has resolved six investigations - including Cincinnati - with some form of settlement. The cases:
• Pittsburgh, 1997 - Consent decree
• Steubenville, Ohio, 1997 - Consent decree
• New Jersey State Police, 1999 - Consent decree
• Los Angeles, 2001 - Consent decree
• Washington, D.C., 2001 - Settlement
• Highland Park, Ill., 2001 - Settlement
• Cincinnati, 2002 - Settlement
• Buffalo, N.Y., 2002 - Settlement
• Columbus, 2002 - Dismissal of lawsuit (Settlement)
• Mount Prospect, Ill., 2003 - Settlement
The change was as sudden as it was dramatic. From 1997 to early 2001, the Department of Justice consistently responded to evidence of misconduct with the strongest possible action: A federal consent decree that forced police to reform or risk years of expensive litigation.

Since 2001, however, six police cases have been resolved and not one ended with a consent decree. Those investigations were resolved with a settlement, as in Cincinnati, or with the Justice Department walking away from the case.

Justice officials acknowledge their tactics changed when President Bush and Ashcroft took office in 2001. But they say the new approach is effective and does not hinder their ability to enforce the federal law that empowers them to investigate police departments for civil rights violations.

They also dispute any suggestion that the shift from consent decrees to the less intrusive settlements means Justice is no longer willing to get tough with police.

"We take very seriously any abuses (of civil rights), and we think that the approach taken in Cincinnati should be a model for this reason," Ashcroft said last week at a congressional hearing. "It's been working."

But there's growing debate over that very issue. Police, civil rights activists and community leaders are now questioning the value of federal involvement and the future of civil rights enforcement.

Many are looking to Cincinnati for answers.

A model of dissension

The Cincinnati investigation, launched after the riots in 2001, is best known for the way it ended: with a groundbreaking collaborative agreement involving police, the Department of Justice and African-Americans who had complained about police misconduct.

The collaborative was created to help the parties work out their differences as police implemented the reforms called for in the settlement.

The settlement's emphasis on cooperation would soon become a familiar refrain. Five other cities, including Buffalo and Washington, D.C., have signed similar settlements during the past two years.

Some of those deals were made before Cincinnati's settlement, an early sign that tactics were changing under Bush and Ashcroft. But it is Cincinnati that Ashcroft has repeatedly singled out as "a model that people will want to replicate."

Lately, though, the city has been a model of dissension.

The Black United Front pulled out of the collaborative and the Fraternal Order of Police has threatened to do the same. The city and Department of Justice have spent most of this year bickering over how police report and investigate the use of force.

And three weeks ago, at a congressional hearing, U.S. Rep. Steve Chabot accused a top Justice official of "handcuffing" Cincinnati's police.

"There's a lot of dysfunction in what has gone on here recently," said Sharon Zealey, who was the U.S. attorney in Cincinnati during the settlement negotiations.

Critics say Cincinnati's problems would not be so serious if the Department of Justice had stuck to its old, hard-line approach and pursued a consent decree.

They say consent decrees work because they allow a federal judge to force compliance if the city resists. With a settlement, the only option when things break down is to file a lawsuit, which could take months or even years to resolve.

Civil rights groups say consent decrees are the glue that holds police reform deals together.

"Justice has abandoned that role," said Keenan Keller, Democratic counsel for the House Judiciary Committee. "If you look at the circumstances in Cincinnati, you have a breakdown. If that's your model for how you want to go forward, you have a problem."

Perceptions of success

Police, however, see the settlements as progress.

"Under the Bush administration, a buy-in by the rank-and-file police officer is recognized as an integral part of any settlement," said Jim Pasco, executive director of the national Fraternal Order of Police. "A more appropriate role for Justice is to find a basis for accord, rather than imposing itself on communities."

Pasco and others have been eager to test the government's commitment to compromise. The recent dispute in Cincinnati over use of force guidelines shows how far they are willing to go.

Mayor Charlie Luken, unhappy with negotiations with Justice's civil rights lawyers, tried to bypass them with a letter to Ashcroft about his concerns.

"I took it to a higher power," Luken said. "I get the feeling there are different levels at the Justice Department. At some levels they are more by the book; at others they are more flexible."

In the end, Luken and Cincinnati's police got most of what they wanted: Police no longer are required to investigate every incident in which physical force is used to subdue a suspect.

Justice officials say the compromise was not a victory for the city. In fact, they say, the compromise was originally proposed by Justice last year but was rejected at the time by the city.

They say the settlement in Cincinnati is working.

"I'd argue that the advantage to the approach in Cincinnati is that we're a year into implementing a significant agreement," said Bob Driscoll, chief of staff for the Justice Department's civil rights division. "If we had litigated the case, we'd be in the middle of a trial right now."

New attitude, new policy

A trial appeared inevitable last year in Columbus, a city that for years had been a symbol of the Justice Department's aggressive enforcement of civil rights laws.

Federal authorities had accused Columbus police of violating civil rights through illegal searches and excessive force. Justice sued in 1999 when the police union balked at a consent decree.

But as the trial date approached last year, Justice voluntarily dismissed its lawsuit. The sudden reversal stunned many, including some of the lawyers who had worked on the case and still believed it winnable.

Justice officials say the case was dropped because police in Columbus made significant changes. But the police tell a different story.

"It was not a massive change," said Bill Capretta, president of the Columbus Fraternal Order of Police. "It was minor stuff."

He said Ashcroft was the real reason Justice dropped the case.

"When (Bush) put Ashcroft in charge, the whole attitude changed," Capretta said. "The new DOJ came in with a more positive attitude. ... They were satisfied and they gracefully backed out the door."

Talk like that worries civil rights activists, who fear the changes at Justice have cost them the one effective tool they had to reform reluctant police departments.

But some in Cincinnati say it's too early to call the new policy a failure.

"I would not like anyone to get the impression that because Justice listened to all sides and compromised, they are somehow weaker," said Kenneth Lawson, one of the attorneys who negotiated the Cincinnati settlement.

Justice officials also say the move toward settlements doesn't mean they are unwilling to get tough when they need to.

That, Zealey said, will be the real test. If Justice lawyers encounter an unrepentant, uncooperative police department, or if one of the settlements collapses, they must be willing to pursue sterner measures.

"I have no reason to think John Ashcroft wouldn't pull the trigger if he needed to," Zealey said.


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