Resource: An Alternative Remedy for Police Misconduct: A Model State "Pattern or Practice" Statute

Section 14141 of the 1994 Violent Crime Control Act empowers the Attorney General of the United States to bring civil suits against law enforcement agencies where there is 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.” As implemented, the purpose of such suits has been to effect organizational reforms designed to establish standards of accountability that will prevent such abuses from occurring in the future. The Special Litigation Section of the United States Department of Justice Civil Rights Division has reached formal outcomes with about 21 state or local law enforcement agencies under Section 14141. Experts on police reform, including court-appointed Monitors, argue that, despite some limitations, litigation under Section 14141 has brought about significant reforms in the affected law enforcement agencies. For example, the Independent Monitor for the Washington, D.C. Police Department reported in January 2008 that the department “has substantially transformed itself for the better since the late 1990s.” Similarly, the Monitor for the New Jersey State Police concluded that as a result of the reforms implemented because of a consent decree “the agency appears to have become self-monitoring and self-adaptive.”
Equally important, in terms of the long term process of police reform, the various outcomes under Section 14141 embody a set of “best practices” that serves as a model for other police reform efforts. Law Professor Debra Livingston, a frequent commentator on police accountability, argues that “enforcement of Section 14141 may have the beneficial effect of further stimulating the articulation and dissemination of national standards governing core police managerial responsibilities.” Additionally, it is believed that a number of law enforcement agencies have initiated reforms on their own in an effort to avoid possible intervention by the Department of Justice.
A Vera Institute independent evaluation of the consent decree experience in Pittsburgh, Pennsylvania rhetorically asked, “Can Federal Intervention Bring Lasting Improvement in Local Policing?” The report answered its own question by concluding that the consent decree did in fact “dramatically change the culture” of the department, brought about “sweeping management changes” that introduced new standards of accountability, and helped the department “regain the trust of the community.” This conclusion indicates an enormous achievement in reforming a police department and suggests that pattern or practice litigation under Section 14141 can be an effective instrument of police reform.
Despite the positive conclusion of the Pittsburgh evaluation and similar positive reports by court-appointed monitors in other cases, a number of questions remain regarding the nature and impact of pattern or practice litigation. The evidence from several cases also indicates that the pattern or practice litigation strategy has encountered some difficulties. As explained in this Article, the implementation of reforms mandated by consent decrees and memoranda of agreement (“MOAs”) in some agencies has encountered organizational obstacles and delays. Serious questions remain about whether reforms effected through litigation will be sustained once the consent decree or MOA is terminated. Some civil libertarians have expressed concern that the Department of Justice under President George W. Bush had substantially scaled back use of Section 14141. In an overview of these developments, Richard Jerome characterized the federal police reform effort as “a job half done.” In an early essay on Section 14141, meanwhile, Debra Livingston argued that the statute “raises many empirical questions which must await further study and elaboration.” This Article addresses some of Livingston's principal questions.
This Article will propose a model state statute, similar to the federal Section 14141, which would authorize state Attorneys General to *482 bring civil suits to effect police reform designed to curb civil rights abuses and enhance police accountability. The language and intent of such state laws would be essentially identical to Section 14141. Their practical effect would be to vastly increase the number of officials authorized to pursue police reform through litigation. Barbara Armacost, while lauding Section 14141's potential to effect needed organizational change in policing, noted that “the Justice Department lacks the resources to monitor all police departments nationwide.” It is conceded that not all state legislatures would enact a model pattern or practice law. It is also conceded that where such laws would exist, not all state attorneys general would use the statute. Nonetheless, even if some states adopted such a statute and some attorneys general used it, there would be a significant increase in police reform efforts directed at patterns or practices of police abuse of rights.
This Article commences with an explanation of the use of pattern or practice litigation in police accountability cases. Part II of this Article places pattern or practice litigation in context by providing a brief review of the various remedies that have been employed to reduce police misconduct over the years, the strengths and limitations of each of those remedies, and the potential for overcoming those remedies in Section 14141-style pattern or practice litigation. Part III reviews the implementation of Section 14141 since 1994, with attention to both the positive achievements and the limitations of that effort. Part IV reviews the evidence on the impact of pattern or practice litigation under Section 14141. Finally, Part V offers a model state pattern or practice law. Part V also discusses the potential impact of state pattern or practice laws, with attention to both the positive contributions to police accountability and the potential limitations on this strategy for police reform.