The politics of policing: ensuring stakeholder collaboration in the federal reform of local law enforcement agencies.

• Author: Simmons, Kami Chavis

1. INTRODUCTION

   On November 21, 2006, after obtaining a "no knock" search warrant based on false information, several Atlanta police officers stormed into the home of ninety-two-year-old Kathryn Johnston. (2) Ms. Johnston, who lived alone and feared a home invasion, always locked her door and kept a gun for protection. (3) When the officers burst unannounced into the home, Ms. Johnston fired a single shot but struck no one. (4) Officers at the scene, however, returned fire, striking Ms. Johnston multiple times and fatally wounding her. (5) When a search of the home revealed no drugs, rather than leaving the scene, one of the officers planted in the basement three bags of marijuana seized in an unrelated case. (6) The officer then filed a false incident report stating that someone had purchased drugs at Ms. Johnston's home earlier in the day. (7) To conceal their crimes, the officers suggested to Atlanta homicide investigators that Ms. Johnston's shooting death was justifiable. (8) Fortunately, in later interviews with the Federal Bureau of Investigation, one of the officers admitted their wrongdoing. (9) With their criminal conspiracy revealed, two of the three officers involved pleaded guilty to state and federal charges stemming from the incident in April 2007. (10)

   If this deplorable incident had been an isolated occurrence involving a few wayward officers, the story may have ended here. Unfortunately, this was not the first time several of the officers involved in Ms. Johnston's death had made false statements in their sworn affidavits before magistrate judges, (11) Perhaps what is even more disturbing is that, as the District Attorney observed, the investigation following Ms. Johnston's death demonstrated that '"many of the practices that led to her death were common occurrences in this unit of the Atlanta Police Department.'" (12)

   A few months after this police shooting in Atlanta, police officers three thousand miles away also engaged in a shocking display of collective force. On May 1, 2007, Los Angeles police officers clashed with citizens during a peaceful immigration rally in McArthur Park. (13) When a small group of people began throwing rocks and bottles at the police officers, the officers responded with a barrage of rubber bullets and used batons to disperse the protestors. (14) Forty-two people, including news media personnel, protestors, and police were injured in the incident. (15) Soon after the incident, Police Chief William Bratton acknowledged the actions of some of the officers "were inappropriate in terms of use of batons and possible use of non-lethal rounds fired," and he later attributed the incident to a "breakdown in communication" among supervising officers. (16)

   The fatal shooting of Kathryn Johnston in Atlanta and the Los Angeles "May Day Melee," as it has become known, are only the most recently publicized representations of institutional failures plaguing police agencies. In Los Angeles, more than 100 criminal convictions were overtumed and 200 people sued the Los Angeles Police Department after a police officer disclosed that members of the police department's Rampart Division regularly tampered with evidence and tortured suspects. (17) Nine officers were criminally charged and twenty-three officers were fired or suspended for their roles in the Rampart scandal. (18)

   In 1994, recognizing the need for a national response to systemic reform of law enforcement agencies, Congress adopted 42 U.S.C. [section] 14141. The statute authorizes the Attorney General to conduct investigations and, if warranted, file civil litigation to eliminate a "pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." (19) Until the adoption of [section] 14141, there was no mechanism available to the federal government to force local law enforcement agencies to change their practices contributing to patterns or practice of conduct that violated a citizen's civil rights. The Attorney General has delegated this authority to the Special Litigation Section of the Civil Rights Division of the United States Department of Justice ("DOJ"), which investigates allegations of patterns or practices of constitutional violations in order to determine whether enforcement under [section] 14141 is justified. In practice, DOJ has initiated what some experts consider only a "paucity" of lawsuits, all of which have been resolved via court-enforced consent decrees. (20) In other jurisdictions where DOJ's investigations revealed a pattern or practice of constitutional violations, the government has refrained from initiating litigation and instead has opened formal investigations and entered into negotiated agreements with the municipalities and police departments, known as Memoranda of Agreement ("MOA"). (21) Citing the expediency and cost-effectiveness of their settlement strategy, U.S. government officials have expressly articulated a preference for avoiding litigation and negotiating with municipalities to ensure compliance with the suggested reforms. (22) These agreements generally contain a package of reforms aimed at enhancing greater public accountability. (23) Called the "new paradigm of police accountability" by one commentator, the most common provisions of these agreements are aimed at implementing or changing internal policies related to developing early warning tracking systems to detect "problem officers," creating use-of-force reporting systems, and devising an impartial civilian complaint review process. (24)

   Notwithstanding the practical benefits of negotiating reforms for local law enforcement agencies, DOJ's negotiation process runs contrary to the established democratic theory that those affected by governmental policies should have an opportunity to participate in the development of those policies. (25) The agreements resulting from DOJ's pattern or practice legislation have far-reaching ramifications for both the police officers performing everyday policing tasks as well as for the community members that the local law enforcement agencies serve. For the most part, however, DOJ's process of fashioning the negotiated agreements has excluded these important stakeholders. The discontent arising from such exclusion undermines the legitimacy of DOJ's reform efforts, thereby threatening the successful implementation and permanence of the reforms.

   The goal of this Article is to devise a model of collaborative problem-solving to ensure inclusion of the interested parties, such as community-based groups and rank-and-file officers, in the federal government's efforts to reform local law enforcement agencies. (26) Specifically, this Article advocates that DOJ adopt the paradigm of regulatory negotiation to ensure the inclusion of stakeholders in the development of the specific DOJ-mandated reforms. The participation of various stakeholders in the reform of local police departments through the framework of negotiated rulemaking ensures the legitimacy of the reform process, thereby increasing the possibilities for expediting compliance with the reforms and ensuring long-term adherence to the improved practices.

   Part II of this Article describes the inception of federal pattern or practice litigation as a response to the limitations of traditional remedies to address police misconduct. Previously, efforts to address police misconduct have focused on punishing individual officers for misconduct and compensating victims of police abuse. Critics have long argued that because police misconduct must be addressed at an organizational level, both the retrospective and individual-focused nature of the traditional remedies account for their inability to address systemic police misconduct. (27) However, there has been little evaluation of the potential for addressing police misconduct through a collaborative process involving the affected stakeholders. I argue that [section] 14141 complements the traditional remedies because DOJ's proclivity to negotiate agreements offers an unprecedented opportunity to include both rank-and-file-police officers and citizens in a collaborative process to address police misconduct.

   Part III examines DOJ's exercise of its "pattern or practice" authority to date. Although widely hailed as a new tool in the arsenal against police misconduct, police experts have expressed many valid critiques of the legislation, including its lack of a private fight of action and a perceived lack of political will to aggressively investigate and reform problem police departments. (28) Part III also describes the provisions commonly included in DOJ's negotiated agreements, including the implementation of early warning tracking systems, use-of-force reporting systems, civilian complaint review processes, and the appointment of an independent monitor to oversee the implementation of the reforms.

   Part IV argues that a greater, yet under-examined, deficiency of DOJ's current enforcement of [section] 14141 is the exclusion of the community members and rank-and-file police officers from the negotiation process that DOJ uses to develop the consent decrees and MOA. The exclusion of these groups is not only inconsistent with general norms of democratic inclusion, but it is also inconsistent with the paradigm of community policing, which emphasizes police-community collaboration and has become a dominant model of policing in the United States.

   Asserting that [section] 14141 is a potential vehicle to utilize collaborative problem-solving in efforts to address institutional reform of local police practices, Part V advocates a normative model of consensus-based negotiation for use in developing future consent decrees or MOA. Part V argues that DOJ should formally adopt the paradigm of regulatory negotiations in future reform efforts under [section] 14141 to ensure that those...