Academic journal article Texas Law Review

Bridging the Information Gap: The Department of Justice's "Pattern or Practice" Suits and Community Organizations*

Academic journal article Texas Law Review

Bridging the Information Gap: The Department of Justice's "Pattern or Practice" Suits and Community Organizations*

Article excerpt

I. Introduction

When Jeffrey Thornton, a twenty-three-year-old African-American college student, observed Officer Michael Olsen responding to a fight on Sixth Street, he remarked on the officer's conduct to his friend.1 Officer Olsen, who overheard Thornton, grabbed him and slammed his head into a police car, causing him to fall and strike his head on the ground.2 When surveillance footage revealed that Officer Olsen had filed a false report regarding the incident, he was suspended for sixty days.3 A grand jury indicted him, but the charges were later dropped.4

Unfortunately, this misconduct cannot be dismissed as an isolated occurrence.5 Stories of police misconduct are common, and police brutality has been called "one of the most serious, enduring, and divisive human rights violations in the United States."6 Scholars have recognized that it is not individual officers, but rather the police department as a whole, that is largely to blame.7 The exclusionary rule, civil rights litigation, criminal prosecution, and citizen oversight boards have all been suggested as ways to curb police misconduct.8 However, these solutions suffer from obstacles that make them less than successful as deterrents to police misconduct.9

The Violent Crime Control and Law Enforcement Act of 1994, which gave the Department of Justice the authority to sue police departments that showed a "pattern or practice" of violating constitutional rights,10 has been hailed as a significant reform tool.11 The cause of action, codified at § 14141, allows for broad structural changes in police departments and is particularly powerful given the significant role that organizational structure plays in police misconduct.12 However, it quickly became clear that § 14141 had a serious flaw.13 The Department of Justice lacks the resources to gather information about police departments that are in need of intervention.14 Only by having essential information about police departments can the Department of Justice make informed decisions about which departments to investigate.15

This information gap has led many scholars to call for mandatory- reporting requirements for police departments.16 Until such requirements are in place, however, the Department of Justice must still continue to pursue § 14141 litigation. Community advocacy groups are an overlooked potential resource to solve this information gap. While the Department of Justice must handle 15,000 police departments,17 a local community group need only watch one. By gathering information on a history of incidents in its local department and sending a report to the Department of Justice, the community group can provide the Department of Justice with the evidence it needs to justify an investigation. This solution provides the Department of Justice with much-needed information by relying on resources already in place, i.e., community groups that already monitor police in order to bring § 1983 claims or call for criminal prosecutions.

The idea of using community groups to gather information to support a Department of Justice investigation is deceptively simple. Both sides benefit from such an arrangement: the Department of Justice's job is made easier by the availability of comprehensive reports, and the community groups benefit from the possibility, or reality, of a Department of Justice suit to reform their police department. The Texas Civil Rights Project (TCRP)'s interaction with the Austin Police Department (APD) and the Department of Justice is a prime example of such a mutually beneficial relationship. The TCRP utilized a Title VI complaint to provide evidence to the Department of Justice of a possible pattern of unconstitutional misconduct within the APD.18 In response, the Department of Justice initiated an investigation, which ended with a technical letter suggesting 165 reforms, 161 of which the APD accepted.19

While this example of success is promising, implementing such a strategy across the country may not be as feasible as it first appears. …

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