Table of Contents Introduction I. A Primer on City Governance A. Local Government Structures B. Trends in, and Federalization of, Local Law Enforcement II. Mayoral Power and Redesigning Law Enforcement Oversight A. Litigation and Remedial Control 1. Initiation 2. Resolution 3. Words of caution B. Civic Engagement and Representativeness 1. Exit 2. Structural reform 3. Litigation 4. Aligning expectations and power C. Unifying Cosmopolitan Municipalities III. Barriers and Considerations in Charter Reform A. Legal Rules and Trends Constraining Local Empowerment 1. Rules: home rule and Dillon's Rule 2. Trends: emergency managers and state receivership B. Municipal Demographics 1. Talent development 2. Expense assumption C. Charter Moments and Punctuated Equilibria IV. Alternative Ways Forward A. Parens Patriae B. Sensible State-Local Legislation Conclusion Introduction
It has been a punishing past few years for American cities. Economic collapse became kindling for conflict between residents and law enforcement. Again and again tragedy ensued, often in the very public deaths of minority residents at the hands of public safety officials. (1) On other occasions, the roles were reversed, as law enforcement officials became victims. (2) But the disheartening constant is that city governments have provided few heroes to step in and mitigate the damage. (3) The paucity of leadership may be attributable less to the shortcomings of individual leaders and more to institutional constraints. It is the aim of this Note to investigate, analyze, and explore means to circumvent those barriers.
Take, for instance, the stories of two beleaguered cities and the mayors who purport to lead them. James Knowles, mayor of Ferguson, Missouri during the recent period of civil unrest, rued his relatively powerless role as his city's leader. The position of mayor in Ferguson, he remarked, is "mostly ceremonial." (4) One of the most difficult parts of trying to lead the city, he continued, "was that people assumed he has more power than he actually does." (5) As a "part-time, weak-mayor," he was mostly powerless to deliver the active leadership expected of him. (6)
Stockton, California represents a less explosive but similarly ineffective situation. The 2008 recession led to an unemployment rate of more than 20%, and the police department was forced to lay off a quarter of its officers. (7) Since the recession, Stockton has ranked as one of America's most violent cities. (8) In 2013, surveying the damage, Stockton Mayor Anthony Silva bemoaned, "People think I can be their savior and help them.... Under different circumstances, I can do that. Now, I can forward an email on." (9) As the city dealt with economic downturn and violence, Silva was sidelined. He was unable to appoint the city's police chief (10) and was not invited to an unveiling of the new body cameras that the city's police officers were to begin wearing. (11) Unlike Ferguson, other distressed cities like Stockton are resigned to drinking "a quieter, more final poison." (12) The entrenchment of systemic unemployment and collapsed housing prices lead to government cutbacks of essential services and slower-burning tensions. (13)
Whether with a bang or a whimper, (14) cities are giving in to the twin burdens of economic insecurity and social inequality. And their elected leaders are left unequipped to stand up for their constituents.
This inefficacy is the shared experience of many American mayors, who live a bit of a political paradox. They are clothed in the aspirations of their friends, neighbors, and peers, nominated from within their ranks to fix the problems that matter most in day-to-day life. Yet their place at the dais is more prison than pedestal. Many modern mayors are equipped with only weak, ceremonial powers (15) and saddled with high expectations and mounting challenges. These mayors are nothing if not primed to disappoint.
The impotence of many American mayors is punishment for the sins of their predecessors. Metropolises were once governed by "unwise and extravagant" mayors touched by greed and gross incompetence. (16) In response, mayors saw their power shifted away, either vertically to ostensibly more capable state leaders (17) or horizontally to technocratic city managers. (18)
The latter reform became institutionalized in council-manager government, a Progressive solution in which the city manager controlled major decisions without the influence of politics. (19) The mayor and city council were formally combined into a reduced body of informal political actors, confined to neighborhood-based administrative minutiae. (20) Both in the scholarship (21) and on the ground, (22) council-manager government became the model of good city government.
But as American cities have succumbed to violence and economic depression, legal scholars have stepped in to explore ways in which the design and governance of municipalities as institutions can shape legal outcomes. Some writers focus on municipal dissolution or reorganization in the wake of city insolvency. (23) Others attend to municipal unincorporation and consolidation to promote service provision to our most impoverished citizens. (24) Another group turns its focus to urban planning as a mechanism of discriminatory regulation against minority and marginalized populations. (25) And a fourth group has keyed in on unleashing social innovation by decreasing state regulation of cities. (26) Regardless of the particular perspective, focus has turned to ways in which we can redraw the blueprints of our cities, with a particular emphasis on civil rights protection. At the same time, attention is turning, swiftly but not swiftly enough, toward new strategies for policing and addressing police misconduct in America in the wake of recent events. (27)
This Note seeks to weave together these two threads of inquiry: legal changes to municipal design and reformation of local law enforcement to protect minority populations. In doing so, it seeks to push against three broader dogmas sometimes treated as gospel. First, it questions whether conventional post hoc litigation and remedies can prove effective without accompanying prophylactic improvements to city institutions and government. (28) Second, it suggests that solutions to municipal strife might be better instituted through internal evolution rather than the imposition of external, piecemeal reform by state and federal actors. And third, it contends that diffuse executive authority in cities diminishes rather than enhances oversight of law enforcement and responsiveness to residents.
In challenging these dogmas, this Note advocates for the role of the American mayor. It explains how a so-called "strong mayor" can serve as an elemental linchpin for legal improvements in how our cities prevent, handle, and heal from law enforcement violations of civil rights. Whether as an internal ally for Department of Justice (DOJ) investigations, a reliable negotiator for consent decree impositions, or an active embodiment of shared values in a racially divided city, the mayor as executive can step into the present power vacuum as "the vanguard, taking trailblazing steps towards transforming how police departments interact with their communities." (29) This Note does not suggest that this type of charter reform is a panacea--it explains such reform's limitations and ideal conditions and suggests ways to empower mayors without structural reform--but neither does it view this reform as a nostrum.
Part I presents the basic structure of municipal governance. Particularly, it explains the various ways in which cities inhibit or empower municipal executives, either in the form of a mayor or an appointed city manager. This taxonomy will provide a common language for what is to follow. Part I also presents a brief discussion of trends in municipal policing, with the aim of situating this Note's analysis within the context of on-the-ground realities. In doing so, it underscores the ways in which police malfeasance is the result of growing systemic problems rather than individual improprieties.
Part II is the heart of the argument for mayoral empowerment. It demonstrates three ways in which structural reform of city executive power can combine with other existing elements of legal reform to produce more meaningful results. First, this Part argues that stronger mayors play an indispensable role in structural litigation efforts, primarily those...