The one-size-fits-all federalization of local police departments

By JOHN PAULUS | Feb. 10, 2015

In January, Milwaukee County Sheriff David A. Clarke Jr. warned the U.S. Senate Judiciary Committee of the increasing federalization of local police departments.

At the Senate confirmation hearing in Washington, D.C., of Loretta Lynch as U.S. attorney general, Clarke testified, “What I have witnessed from the Department of Justice under the leadership of Attorney General Eric Holder has been almost hostility toward local law enforcement.”

The hostility Clarke referred to is the increased scrutiny by the DOJ of local police departments for potential civil rights violations. Under Holder, the DOJ has sued and entered into 15 agreements with law enforcement agencies, including nine consent decrees; is nearing a settlement with the City of Cleveland; and four similar suits are in progress. Police chiefs at various levels of local government are taking notice.

The Justice Department investigation into the Cleveland Division of Police found the following unreasonable practices:

  • Unnecessary and excessive use of deadly force, including shootings and head strikes with impact weapons.
  • Unnecessary, excessive or retaliatory use of less lethal force including Tasers, chemical spray and fists.
  • Excessive force against persons who are mentally ill or in crisis, including in cases where the officers were called exclusively for a welfare check.
  • Employment of poor and dangerous tactics that places officers in situations where avoidable force becomes inevitable.

Under consent decrees, the DOJ imposes various “community-oriented policing” practices, including officer training standards.

The DOJ’s authority to sue local police departments was established by the 1994 Violent Crime Control and Law Enforcement Act. It was a congressional response to the 1991 police beating of Rodney King in Los Angeles. The act also established within the DOJ the Office of Community Oriented Policing Services (COPS). It seems the legislation has grown into a carrot-and-stick approach to wrap local police departments under a tight federal grip – either grants for adopting federal community-oriented policing standards or civil rights investigations and lawsuits.

During the same period, following New York City’s lead, police departments were increasingly adopting “Broken Windows” policing practices. Under Broken Windows, an orderly and clean public environment sends a message that an area is monitored and that criminal activity will not be tolerated. In practice, it means aggressive enforcement of even minor violations of the law.

And it worked in New York City.

Writing in the winter 2015 edition of City Journal, New York City Police Commissioner William J. Bratton and Rutgers University emeritus professor George L. Kelling noted the number of annual NYC shooting incidents fell by nearly 3,300 over a four-year period, from 5,269 in 1993.

The recent deaths, here in Milwaukee and elsewhere, of unarmed black men in encounters with police have put a spotlight on Broken Windows policing as unjustifiably aggressive and racially biased.

The City Journal article was written in response to that criticism. Bratton and Kelling observe:

“Critics use the term ‘zero tolerance’ in a pejorative sense to suggest that Broken Windows policing is a form of zealotry — the imposition of rigid, moralistic standards of behavior on diverse populations. It is not. Broken Windows is a highly discretionary police activity that requires careful training, guidelines, and supervision, as well as an ongoing dialogue with neighborhoods and communities to ensure that it is properly conducted. Broken Windows has never sought to impose inflexible standards; this is, after all, New York City.”

The broader point is that good policing is a highly localized issue. There is general agreement that an outstanding officer in one municipality might struggle if placed in another. This doesn’t just mean an officer from Germantown may have a hard time on the south side of Milwaukee. It means he or she could have a hard time in a seemingly similar environment such as Hales Corners.

It means an ideal psychological profile for a police recruit in one municipality might not be the same for another. It means training for police officers is tailored to the specific communities in which they serve.

Clarke in his statement to the Senate Judiciary Committee implored the DOJ to resist interfering with local police training standards. “Every community is unique in what will work and what will not work. We already have state standards for training.”

With regard to the president and the DOJ, Clarke told me in an interview, “A one-size-fits-all (approach to policing) seems to be their goal.”

John Paulus of Cedarburg is a retired reporter who covered environmental law and regulation and now writes on public policy issues. This column expresses his personal opinion.