Boom! Lawyered: Consent Decree Edition

Maybe you've heard what's going on in Ferguson and, amid all the failures of those in power there, you're confused. You've heard the term "consent decree" bandied about, but you don't know what it means.

Maybe you've heard what's going on in Ferguson and, amid all the failures of those in power there, you're confused. You've heard the term "consent decree" bandied about, but you don't know what it means. Shutterstock

Hi there! #TeamLegal here, back with another edition of Boom! Lawyered. We were quite pleased with the reception of our injunction edition. Apparently, there are lot of you out there who are hungry to understand legal terminology, but were smart enough to avoid spending a hundred grand going to law school to learn it.

Good job.

And if you didn’t like our last edition, it’s OK. We understand. We did our best. And hey—at least you got to watch that Magic Mike XXL clip of Channing Tatum dancing to Ginuwine’s “Pony.”

*gazes wistfully into the distance*

OK, we’re back.

This week, we’re going to talk about consent decrees, so strap in.

Maybe you’ve heard what’s going on in Ferguson, Missouri, and, amid all the failures of those in power there, you’re confused. You’ve heard the term “consent decree” bandied about, but you don’t know what it means.

Let us help by taking you on a walk through Anytown, USA. It’s a fictional place, of course, but it might seem all too familiar to you.

Over the years, the Anytown Police Department has had several nationally reported incidents of police violence, shooting of unarmed suspects, and other salacious scandals that have made headline news. (One such scandal involved an experienced police officer who pulled a gun on his partner and demanded that said partner smoke PCP.)

The police officers at APD have also been involved in making false arrests, giving perjured testimony in court, and framing innocent people. Also, large amounts of cocaine and heroin keep disappearing from evidence lock-up and ending up on the streets—it’s Michael Chiklis sort of stuff (The Shield-era Michael Chiklis, not The Commish-era Michael Chiklis.)

But it isn’t until a white cop by the name of Dennis Williams shoots Martin Baker, an unarmed Black teenager, that shit starts to get real. Williams claims that Baker physically assaulted him and that he shot Baker because he was afraid for his life. That logic doesn’t sit well with Anytown community members, who saw the killing of Martin Baker as yet another example of the ways in which Black communities are over-policed and subject to violence disproportionate to any other community in Anytown.

In response to the shooting, hundreds of Anytown community members take to the streets. The Anytown Police Department overreacts in typical fashion, and pretty soon Anytown looks like a war zone, with cops sporting the latest in military riot gear, riding around on tanks, and tear-gassing the hell out of everyone in sight. (Remind you of anything?)

But the Anytown protesters do not back down.

As days of protests turn into weeks, which turn into months, tensions are running high in Anytown, USA.

A grand jury is empaneled to determine whether Dennis Williams, the cop who killed Martin Baker, should face criminal charges, but ultimately, the grand jury decides not to indict him. Upon hearing news of Williams’ non-indictment, communities of color and their allies are outraged and demand a federal investigation.

Then, the Civil Rights Division of the Department of Justice gets involved.

The DOJ begins an investigation into whether it has grounds to prosecute Officer Williams under 18 U.S. Code Section 242, which is a federal statute that authorizes the DOJ to prosecute police officers for violation of citizens’ constitutional rights. In other words, since the Anytown grand jury—like so many grand juries tasked with figuring out whether to indict a cop—didn’t provide the results that Anytown community members wanted, the residents hope they might be able to find justice for Martin Baker in federal court. The DOJ might also decide to take action without the community outcry.

But prosecuting cops in federal court is a Sisyphean endeavor. The burden of proof—in other words, what the prosecution has to prove in order to get a conviction—is virtually insurmountable. A federal prosecutor would have to prove that Officer Williams willfully subjected Martin Baker to the deprivation of his constitutional rights.

And that’s a tough row to hoe.

A “willful” violation of rights means more than an accident. More than “oops, I accidentally killed an unarmed man.” More than “oops, my belief that my life was in danger was a mistake.” A willful violation of rights requires specific intent to use excessive force, or a use of excessive force so egregious that it couldn’t possibly be anything but intentional. In other words, there would need to be some proof of Williams’ malicious purpose beyond claims that the officer should have known that Martin Baker didn’t really pose a threat to him.

The most notable successful prosecution of police officers under Section 242 is the conviction of those who beat up Rodney King. The King trial involved a group of police officers practically beating a man to death. We’ve all seen the videos, right? The attack was so violent and egregious that you’d be hard-pressed to call it “accidental” or “unintentional.” And the fact that it was all caught on tape didn’t hurt, either.

Ultimately, in this scenario, Dennis Williams gets off scot-free. The grand jury declines to indict him and the DOJ decides not to prosecute him because federal prosecutors don’t think they can win.

But wait! There’s more. 

The DOJ opens up an investigation into the Anytown PD and releases a report, similar to the report that the DOJ issued about Ferguson, detailing all of APD’s misdeeds. After the investigation, the DOJ decides to go after the entire police department under the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA), which Congress passed in the wake of the King beating and the subsequent uprising. Justice for Martin Baker may be unobtainable, but the DOJ can try to make sure that more Martin Bakers don’t fall victim to police misconduct in Anytown. It might go after the department even if it decides to prosecute the individual officer as well.

The VCCLEA says that the U.S. Attorney General can file lawsuits against a city if that city’s police department, municipal courts, or district attorney’s office are engaged in a “pattern or practice” of violating citizens’ civil rights.

But the government doesn’t want to sue the City of Anytown. The government would rather that Anytown stop treating its citizens like enemy combatants. But barring that, the government would prefer that Anytown and the Department of Justice come to some understanding about what measures need to be taken in order to ensure that Anytown stops letting its police officers run amok.

So the government threatens to sue Anytown unless Anytown agrees to a consent decree: an understanding that it will implement reforms, such as mandating cultural sensitivity training for cops, increasing community outreach and engagement, and ending racial profiling and the use of bench warrants to shake down already struggling citizens. (In Ferguson, for example, the municipal courts were issuing arrest warrants for failure to pay parking tickets, and using the money generated from the related fees to fill the city’s coffers.)

Anytown, not wanting to defend an expensive lawsuit against the United States, agrees to the terms of the consent decree. An independent monitor is appointed to track Anytown’s progress. If the monitor finds that Anytown isn’t doing what it’s supposed to be doing, Anytown will be held in contempt of court and sanctioned, which is legalese for “suffer these consequences because you disobeyed a court order.”

After a period of time—in most cases, five years, although some reform efforts can take a decade or more—the Attorney General will assess Anytown’s efforts. If she is satisfied that Anytown has finally gotten its shit together, a federal judge will release Anytown from its obligations under the consent decree. If it slides back into its old ways, the DOJ will force Anytown into another consent decree: That’s what’s happening in Pittsburgh right now, for example.

If, for some reason, after the terms of the consent decree have been hashed out, Anytown balks and decides it doesn’t want to be bound by the consent decree—or, as in the case of the current battle between Ferguson and the DOJ, it decides to tinker with the already established consent decree to make it effectively toothless—then the government will file a lawsuit against Anytown and force it to expend hundreds of thousands of taxpayer dollars to defend itself. In the lawsuit, a federal judge will decide what’s next for Anytown PD, and given the egregiousness of the APD’s misconduct, will likely implement the same reforms set forth in the consent decree.

It takes millions of dollars to comply with a consent decree. In Los Angeles, for example, it cost taxpayers $300 million over the course of 11 years to fix the damage caused by the Rampart scandal, which involved members of an anti-gang unit who were involved in drug dealing, framing suspects, planting evidence, and the like. (Think Training Day, but in real life and on a grander scale.) So, it behooves Anytown to simply agree to be bound by the consent decree. Otherwise, it will have probably spent a ton of money on a lawsuit, only to be told that it still has to spend an even greater amount to implement the reform measures.

Of course, making sure police misconduct doesn’t occur in the first place would be the most cost-effective measure, but hindsight is 20/20.

Reforming rogue police departments isn’t the only context in which consent decrees are used.

If you’re following along with Boom! Lawyered at home, let’s say that after the contentious lawsuit over whether or not your ex has the right to publish the sex tape you recorded, you make up and decide to tie the knot. The wedding is a beautiful affair. People laugh. People cry. It’s better than Cats. Unfortunately, after only a couple of year of marital bliss, you both decide that you’ve made a terrible mistake and you file for divorce. You and your soon-to-be ex-husband start hammering out all of the details. You divide up all of your property by putting post-it notes on all of your belongings (pink for you, blue for him; after all, he always was a very gender-normative sort of dude). Fortunately you don’t have kids, so there’s no custody battle, and neither of you feel as if you need spousal maintenance (commonly known as alimony).

In simple terms, the consent decree reflects you and your soon-to-be ex husband’s mutual understanding about how this divorce is going to go down. And once you’ve come to that understanding, the judge will sign the consent decree.

Consent decrees can also be found in other areas of civil law, like anti-discrimination cases. Remember when the government finally decided that maybe it should treat Black people like equal (well, equal-ish) citizens? After the Supreme Court’s landmark decision in Brown v. Board of Education, school desegregation was achieved through consent decrees between school districts and district courts.

Consent decrees are used to address unlawful employment practices too. In a landmark case in 1973, a consent decree between AT&T on the one hand, and the Department of Labor and the Equal Employment Opportunity Commission on the other, was used to address discrimination in employment practices at the telecommunications giant. A few years later, AT&T found itself on the business end of a consent decree again when the Department of Justice decided to break up the Bell System and AT&T’s monopolistic grip on the telecommunications market. Consent decrees have even been used to implement environmental regulations, like the Clean Water Act.

Consent decrees are your friend, is what I’m trying to tell you.

So there you have it. You now know enough about consent decrees to be able to follow the current goings-on in Ferguson, Missouri, where the DOJ has filed a lawsuit in federal court against the city alleging that Ferguson’s police department, municipal courts, and office of the city’s prosecuting attorney routinely engage in practices that deprive residents of their constitutional rights. After months of negotiation, the DOJ and Ferguson hammered out a consent decree, but when it came up for a vote, the city council decided to get cute and revise the already agreed-upon deal.

You’re welcome.