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Consent Decrees and Risk Management

Consent decrees are a concern for many law enforcement agencies. One bad, high-

profile incident can trigger a DOJ inquiry that could lead to federal oversight of your organization. Law enforcement leadership needs to understand what factors can lead to a consent decree, and how they can mitigate the risk of their agency being the focus of an inquiry.

In our most recent webinar, I was fortunate to be able to sit down with Chris Moore, retired Chief of the San Jose Police Department and principal at Brooks, Bawden, and Moore - a consulting firm in Washington DC. Also on the webinar was Chris Bolton, currently a Deputy Chief with the Oakland Police Department.

We opened the discussion with a primer on consent decrees. In the following clip, Chief Moore touches on the origin of the DOJ's authority to investigate law enforcement agencies, which originated with the Violent Crime Control and Law Enforcement Act of 1994:

Origin of DOJ's authority to review the practices of law enforcement agencies

  • Violent Crime Control and Law Enforcement Act of 1994

  • 42 U.S.C. § 14141 (re-codified at 34 U.S.C. § 12601)

  • U.S. DOJ has the authority to review the practices of law enforcement agencies that may be violating people's federal rights.

  • If reasonable cause to believe that a pattern or practice of violations has occurred, the U.S. DOJ, in a civil action, can seek declaratory or other types of equitable relief

Chief Moore explains the general process of how the DOJ initiates an inquiry and what they are looking to determine, followed by Deputy Chief Bolton's thoughts on being prepared for an incident that may trigger a DOJ inquiry:

Common causes for DOJ to initiate an inquiry into a law enforcement agency:

  • High-profile use of force incident

  • Multiple public complaints

  • News media reports around an apparent rights violation

Consent decrees are not solely a function of the U.S. DOJ. Some State Attorney Generals have been granted authority to probe law enforcement agencies, resulting in state-level consent decrees. Several states have moved in this direction in recent years and likely more will in the future as calls for investigations exceed the DOJ’s resources.

Common areas of focus for consent decrees are:

  • The use and reporting of force

  • Supervision and management

  • Hiring and training practices

  • Equal treatment

In the following clips, Chief Moore gives some tips on how to avoid coming under a consent decree.

How to prevent a consent decree

  • Study current best practices in the US

  • Look to those jurisdictions who are currently or have been under consent decrees

  • Read their consent decree documents and identify which improvements were requested by the DOJ

  • Implement solutions that are proven to work

What leaders of law enforcement organizations can do to minimize the risk of coming under a consent decree.

  • Recognize where your organizational weaknesses are

  • Take proactive measures to improve in those areas

  • Data collection is an important piece to that assessment

This was a great conversation with two experienced law enforcement leaders. If you'd like to listen to the entire conversation, you can access our webinar here.

You can also peruse our library of past webinars for more discussions with industry experts on contemporary issues in law enforcement.

Take care and be safe.

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