Maybe the feds can fix Buffalo police

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The U.S. Justice Department has investigated more than 80 problem-plagued police departments and correctional facilities over the past 25 years and mandated remedial action to correct issues it encountered in more than half of them.

Pittsburgh was the Justice Department’s first target. In 1997, the DOJ and the city signed a “consent decree” — a binding agreement — under which the city adopted numerous police reforms, including an “early warning system” to track officers who exhibited a tendency toward excessive use of force or racial discrimination.

A 2012 consent decree between Seattle and the DOJ — prompted by a pattern of police violence against Native Americans and other minorities — led to an overhaul of departmental policies and training, with an emphasis on teaching officers how to de-escalate conflicts.

DOJ’s scrutiny of Ferguson, Missouri, police after the 2014 shooting death of Michael Brown led to the creation of a civilian review board empowered to investigate accusations of police misconduct and provide input on hiring and promotions.

Buffalo’s police department shares some of the problems the Justice Department found in those and other cities. Heavy-handed use of force. Allegations of racism in the ranks and command staff. Discriminatory enforcement practices. Insufficient training.

There have been deaths, too. Four men of color — Wardel “Meech” Davis, Rafael “Pito” Rivera, Marcus Neal, and Jose Hernandez-Rossy — have died following encounters with Buffalo police in the past five years. 

Is it time for the Justice Department to investigate Buffalo police?

A wide-ranging, four-year-old civil rights lawsuit — Black Love Resist in the Rust et al. vs. City of Buffalo et al. — accuses Buffalo police of an ongoing pattern of racial discrimination and unconstitutional stops and searches, among other violations of federal law.

Anjana Malhotra is an attorney with the National Center for Law and Economic Justice, one of three organizations representing the plaintiffs in the lawsuit, along with the Center for Constitutional Rights and the Western New York Law Center.

“A very clear picture and pattern of liability is emerging,” Malhotra told Investigative Post. 

“From the documents we’ve reviewed, the depositions we’ve taken, the city is well aware of ongoing, discriminatory patterns and practices by its police officers, and by its highest leadership.”

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Malhotra said the plaintiffs are seeking both monetary damages and changes in how police operate. But they don’t expect the department to reform itself.  Rather, they seek a court-ordered consent decree, detailing a program of police reforms to be instituted over time.

“Given its past and ongoing harms, and its unconstitutional stops and ticketing of minority residents, we would like to see the city under a consent decree, monitored by a court and a community-based organization,” she said. 

How consent decrees work

Consent decrees are sometimes imposed by a judge to settle civil rights litigation by individuals or community groups, such as the Black Love Resists in the Rust lawsuit. 

In other cases, they are negotiated between a municipality and the DOJ.

Sometimes, according to a former litigator for the DOJ’s Civil Rights Division, consent decrees are achieved by private litigants and federal investigators working together.

“What the consent decree process can achieve … is to compel police departments to have their operations comply with the law,” Jonathan Smith, who is now executive director of the Washington Lawyers Committee for Civil Rights and Urban Affairs, told Investigative Post.

A consent decree by itself will not “bring best practices to a police department,” Smith cautioned. It won’t “transform” a police department “in the way that community activists might want a police department to be transformed,” he said. 

The goal, he said, is “to create a constitutional police department.”

Prior to the Violent Crime Control and Law Enforcement Act of 1994, the DOJ could charge an individual police officer with violating a person’s civil rights, but it did not have a mechanism for policing law enforcement agencies in which such violations were systemic.

The 1994 Crime Bill, passed in the wake of the Rodney King riots in Los Angeles, gave the DOJ the power to investigate “patterns and practices” by law enforcement agencies and correctional facilities that violate the Constitution. 

According to Smith, who was chief of the Special Litigation Section of DOJ’s Civil Rights Division from 2010 to 2015, the department has conducted more than 80 such investigations over the past 25 years. 

Investigations last six months to a year and begin with an exhaustive review of department policies and procedures, as well as years of arrest and ticketing statistics, misconduct complaints and other data points. DOJ’s investigators — “subject matter experts,” according to Smith — interview current and former officers and go on ride-alongs.

“Then we spent considerable time in the community talking to really diverse communities,” Smith said, including people who claimed police had violated their civil rights, prosecutors and defense attorneys, community groups, faith organizations, and professional groups like the ACLU and NAACP.

“We’d sometimes talk to people in jail … to people who run day labor centers or language access or domestic violence clinics … to neighborhood associations … to try to get a perspective on how the policing we see in the records was actually experienced.”

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At the end, the DOJ team presents their findings to city leaders and offers two paths forward: Get sued in federal court or sign a consent decree, agreeing to undertake  reforms under the oversight of an independent compliance team.

Negotiating a consent decree can take another six months, Smith said. Litigation takes longer.

With about 18,000 police agencies across the country, and limited resources, Smith said his team chose carefully where to intervene.

“Was it a jurisdiction where we thought that, if we went in, we could make a difference? Did you have the political will? Did you have community engagement? Was there an opportunity to really make a difference? Was it something that, beyond that jurisdiction, we could be able to influence other departments?”

Smith said that DOJ investigators would track 40 or 50 departments at any given time, based on press reports, contact with community organizations, and referrals from judges and elected officials. 

Smith said private litigation — such as the Black Love Resists in the Rust lawsuit — might prompt the DOJ to turn their resources elsewhere, in the hope that a court would order the same remedies DOJ would seek. 

However, he said, the feds have joined litigation when they believed doing so would facilitate a better resolution. 

A consent decree ordered by a court has one advantage over one negotiated by the DOJ, according to both Smith and Malhotra. A federal judge is relatively immune to politics. The Justice Department is subject to the political ideology of whoever occupies the White House. Obama’s Justice Department made frequent use of DOJ’s authority, as has Biden’s. 

The Bush administration was less interested, while the Trump administration declared it would neither seek oversight of police agencies nor enforce existing consent decrees. 

Mixed results nationwide

The Justice Department is currently enforcing 18 consent decrees with law enforcement agencies — including New Orleans (2013), Cleveland (2014) and Baltimore (2017) — for bad behaviors ranging from persistent police violence to systemic discrimination and unlawful searches and seizures. Louisville, Kentucky, is about to join their ranks.

Pittsburgh’s consent decree lasted five years, which is fairly typical. Some have lasted much longer. Oakland, California, is approaching the end of an agreement that has lasted nearly 20 years.

In some cases, Smith said, the reform process has stalled — or even derailed — due to the opposition of elected officials or police. Some efforts have faltered because the parties failed to include community stakeholders in designing and monitoring reforms.

“Unless you engage the communities that are most impacted by law enforcement practices, it’s very hard to get effective and durable remedies,” he said.

In some early interventions, he said, the DOJ and the city in question didn’t do that, compromising reform efforts. 

“They didn’t take, and so we had to go back.”

Even success stories are frequently mixed bags, Smith said. A successful consent decree might lead to better training on bias, constitutional policing and de-escalation techniques. It might lead to a reduction in uses of excessive force and an improvement in relations between police and the community. It might not change enforcement priorities.

He offered DOJ’s interventions in Seattle as an example.

“Over the course of that consent decree, we did a lot of things that changed that police department that made it constitutional. But it’s not the police department that the community activists want,” he said.

“There’s a lot of things in the law that many communities don’t want their police departments to do. And that’s a political question that the community is going to have to address separately.”

Political intransigence stymied the DOJ’s 2009 federal investigation of the Erie County Sheriff’s management of county jails. Former Erie County Executive Chris Collins and former Erie County Sheriff Tim Howard resisted the DOJ’s investigation, which nonetheless found numerous civil rights abuses, ranging from violence against inmates to deprivation of medical and mental health care.

Consent decrees were negotiated in 2010 and 2011. The implementation of reforms they mandated continue to be monitored by an independent advisory board.

Because he held office so long, the conditions and inmate deaths at county jails are often blamed solely on Howard. However, as The Buffalo News reported last month, deaths at the county jails continue apace — one every six months, on average — under the leadership of Sheriff John Garcia, now one year into his tenure. 

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“Changing the sheriff matters,” Smith said. “But if the [new] sheriff doesn’t actually send a message down the chain of command … if people get away with stuff and know that you’re not going to hold them accountable, it doesn’t matter what your policies are. It doesn’t matter what you say publicly. It doesn’t matter what your values might be. Accountability has got to be at the core.”

Another example: Former New York City Mayor Michael Bloomberg fought a court-ordered consent decree that sought to reduce the NYPD’s controversial stop-and-frisk tactics, among other issues. His successor, Bill de Blasio, ordered the department to comply. 

Money can be an issue, especially for cash-strapped cities. The DOJ foots the cost of its investigation, but a municipality pays the price of reforms — and the oversight panel that monitors the reforms. Cleveland has paid $60 million since 2015 to meet the terms of its DOJ consent decree. 

That figure is in line with costs reported by other cities subject to consent decrees, according to a review last year by the Police Executive Research Forum, a professional organization for law enforcement officers.

Officer misconduct is expensive, too. In February 2020, a state court ordered the City of Buffalo to pay $4.5 million to a man paralyzed by a police bullet in his back. He was shot during a traffic stop. This past May, a federal court ordered the city to pay $6.5 million to a man who spent 10 years in jail for a double murder he didn’t commit. The only evidence against him at trial was a false confession coerced by a Buffalo detective.

The problems in Buffalo

Criticisms of the Buffalo Police Department have mounted in recent years. Neither Mayor Byron Brown, his police commissioners, the Common Council, nor the city’s three police oversight committees have responded with meaningful reforms.

There have been reports about repeated misconduct by individual officers — Joseph Hassett, Karl Schultz, Richard Hy, and Michael DeLong, to name an infamous few — and the lack of consequences they’ve faced.

The Black Love Resists in the Rust lawsuit was prompted by the city’s traffic checkpoints program, in which the since-disbanded Strike Force and Housing units stopped and searched vehicles, most often in predominantly Black or Latino neighborhoods. The plaintiffs claim the city used the checkpoints as a means to generate revenue on the backs of the city’s poorest residents and as pretexts for unconstitutional searches of cars and people, many of whom claim they were physically or verbally abused by officers.

Last month, depositions taken in that lawsuit revealed testimony from former and current officers who described officers’ use of racist language, disciplinary breakdowns, poor supervision and inadequate training. 

Investigative Post was first to report that testimony. A week later, we reported that two current Buffalo police officers and a civilian employee were suing their captain for allegedly making racist remarks in the workplace.

The Black Love Resists in the Rust lawsuit seeks financial damages from the city on behalf of those who claim the department violated their civil rights. 

It also seeks broad changes in the way the department works, according to Malhotra, of the plaintiffs’ legal team, who insisted the discriminatory practices evident in the checkpoints program continue, even though the program was shut down in 2018. 

A consent decree — whether ordered by a judge or negotiated with the DOJ — is “one of the most effective ways that courts have been able to rein cities in,” she said. 

“We’d like to see real meaningful reforms such as a consistent reduction in the disproportionate targeting of minority neighborhoods,” she said. “We’d like to see policies where officers are receiving meaningful training and supervision, where there’s a functioning and effective disciplinary system.”

And, she said, they’d like to see a department “where officers do not feel that they can freely use racial slurs towards people of color.”

Both Brown and Police Commissioner Joseph Gramaglia have disputed the allegations raised in the Black Love Resists in the Rust lawsuit, particularly testimony describing frequent use of racist language by officers.

To Malhotra, those denials indicate the lawsuit is more likely to go to trial than to be resolved at a negotiating table.

“It’s so difficult for them to acknowledge what they’ve done wrong,” she said. “They have an incredible opportunity to transform policing in Buffalo in a way that’s responsive to the community, that functions better, that creates a stronger department. They could be working with us and working with our clients to achieve that.”

In April, attorneys for the plaintiffs will ask the court to certify the lawsuit as a class action. Depositions and other pre-trial discovery, as well as an exchange of expert testimony, are slated to finish in July.

Geoff Kelly