You’ve seen the headlines before. A police department has a harrowing record filled with multiple incidents of police misconduct. Officers are harming people in innumerable ways, from inflicting violence on families, to engaging in racist policing, initiating unreasonable stops, and more. These repeated incidents of misconduct make it clear that it’s not just the police officers engaging in these horrific acts who should be investigated.
The entire department should.
Here’s another scenario that is all too familiar: Officers engage in practices that shine a light on an entire department’s conduct. A community responds with calls for government officials to stop this police department from terrorizing their friends and families. Occurrences like these unfold throughout the country on a disturbingly frequent basis. And when they do, many questions arise, including this one: What is the federal government going to do about it?
This is where a pattern-or-practice investigation comes into play.
Following the brutal law enforcement attack on Rodney King in March 1991, Congress authorized the U.S. Attorney General to conduct pattern-or-practice investigations, which were placed under the purview of the Department of Justice (DOJ)’s Civil Rights Division — specifically the Special Litigation Section. Notably, certain state legislatures have accorded power to state attorneys general to conduct pattern-or-practice investigations of their own, such as in California and Illinois. However, here we will look solely at the federal process.
In federal pattern-or-practice investigations, the DOJ examines whether there is a pattern or practice of unlawful conduct in a law enforcement agency. In other words, instead of investigating a singular incident of police misconduct, the Civil Rights Division engages in a deep dive into a police department’s history of actions, evaluating whether a law enforcement agency has systematically engaged in excessive uses of force, racially-biased policing, unreasonable stops and searches, discrimination, and more.
It’s not uncommon for pattern-or-practice investigations to be confused with the DOJ’s reviews from the Office of Community Oriented Policing Services (COPS), which are sometimes mistakenly referred to as investigations. These are distinct processes, however. In a COPS review, a law enforcement agency voluntarily makes the initial request for a DOJ review and may choose to implement reforms. However, the agency is not required to carry out these reforms and the DOJ does not have the authority to mandate them under the COPS process. By contrast, pattern-or-practice investigations ultimately compel law enforcement agency reforms through court orders or court-enforced agreements.
During a pattern-or-practice investigation, investigators and attorneys review officer trainings, policies, and actual day-to-day practices; examine accountability systems and data collection methods; interview law enforcement officers and other officials; observe officer conduct more broadly; and review documentary evidence related to specific misconduct incidents. The DOJ also seeks feedback from local, impacted communities and local stakeholders during its investigation. However, it’s important to note that communities may need to advocate for greater public access to information to influence every stage of the investigative, negotiation, or implementation process during a pattern-or-practice investigation, in order to ensure that the process is responsive to their needs and desires.
A pattern-or-practice investigation often takes longer than a year to complete, though the exact length varies depending on many factors. These can include the size of the law enforcement agency under investigation, the Civil Rights Division’s capacity, the amount of evidence it must review, how frequently the Division engages with the affected community and local officials, and an investigation’s overall complexity.
Following a pattern-or-practice investigation, the Division discloses its findings to the public. If it does not identify patterns or practices of law enforcement agency conduct that deprive people of their legal rights, immunities, or privileges, the Division will close its investigation. It will subsequently inform the affected jurisdiction and then typically announce the closure to the media and the public through a press release.
If it does identify systemic unlawful conduct, the Division will issue a publicly available report declaring its findings. Following this report’s release — and if the jurisdiction is amenable to negotiating remedies — the Division and jurisdiction will reach an agreement outlining changes that the law enforcement agency (and, in some cases, a city, county, or state) will need to make to remedy this conduct. This agreement, often called a consent decree, is a federal court order in which parties agree to implement specific reforms within a certain time frame to address the practices contributing to the unlawful conduct found by the investigation. These court orders are typically overseen by an independent monitor — a third-party individual appointed by the court to ensure that the police department complies with the order.
If the Division cannot come to an agreement with the law enforcement agency, it can sue the department to compel reforms.
The process of negotiating a consent decree’s provisions and then implementing the included reforms typically takes multiple years — and some implementation processes have even taken a decade or more. Recent agreements contain a number of outcome measures to help evaluate a law enforcement agency’s conduct and assess its implementation in order to help inform when a consent decree’s goals have been fulfilled. These measures can include community surveys; data on use of force, stops, searches, and arrests by law enforcement (broken down by race, gender, ethnicity or age); and the number of civilian complaints received and how often they are substantiated.
Ultimately, the court makes the final assessment of a law enforcement agency’s progress in implementing reforms, then determines whether it has complied with the agreement for the required time period.
Consent decrees are settlements between local police departments and the DOJ and are often monitored by a third party to ensure compliance after a pattern or practice investigation. This database tracks federal grants, consent decrees, settlements, and military equipment transfers to local law enforcement agencies across the nation along with demographic and police department data for those jurisdictions.
Understanding the tools available to the federal government for holding law enforcement agencies accountable — and the way these tools are used — is necessary to get a fuller sense of both the capabilities and limits of pattern-or-practice investigations. It is also critical for contextualizing the subsequent reform measures that have historically arisen from them. Pattern-or-practice investigations have unearthed troves of disturbing police practices — and have led to reforms that include instituting policies that prohibit the use of certain types of force and biased policing, overhauling of police accountability systems, and more. Though, while important, these investigations are certainly not a substitute for the critical overhaul that the United States’ public safety system needs, one that requires prioritizing alternative responders to those in crisis, expanding and institutionalizing restorative justice practices, and increasing community investments.
Moreover, there are extensive limitations to pattern-or-practice investigations’ reach and capabilities. Tellingly, although there are 18,000 law enforcement agencies throughout the country, there are currently only eight ongoing pattern-or-practice investigations, even though communities throughout the United States endure police violence and misconduct on a disturbingly regular basis.
This reality speaks to the limited reach of federal pattern-or-practice investigations. There are only so many attorneys, investigators, and support staff available to conduct these investigations. As a result, there are a limited number of law enforcement agencies the Division can investigate, and it balances several competing factors when determining which investigations to pursue. This means that even though a given law enforcement agency may demonstrate a pattern of unlawful conduct, it might not be prioritized for investigation by the Division because of capacity limitations.
Furthermore, the frequency with which investigations are initiated typically depends on the priorities of presidential administrations. The Trump administration, for example, only opened one pattern-or-practice investigation, while the Obama administration opened 25.
Despite these limitations, it’s critical for communities, and the public at large, to understand how pattern-or-practice investigations unfold so that this knowledge can inform their advocacy efforts. The availability of federal interventions is important, and the insights and information gained from them are numerous, but they are only one tool in an ever-expanding toolbox to advance the goal of true public safety.
Indeed, while accountability measures like pattern-or-practice investigations are necessary, they are not sufficient on their own. LDF’s Framework for Public Safety outlines the basic building blocks for a more humane public safety system that will respect people’s dignity — and move away from the many harms associated with a law enforcement-centric system.
Our current system of law enforcement has largely been unsuccessful in reducing violence and increasing public safety on a sustained basis. Many promising reforms and models exist. LDF offers this framework, comprised of three mutually reinforcing strategies, as a starting point for progress.
Through litigation, research, and legislative and policy advocacy, LDF has been at the forefront of efforts to transform public safety across the country. LDF has compiled an index of the efforts by states and cities to address police accountability and transform public safety since 2020.
The myths that are used to justify qualified immunity are numerous and egregious, and its dangers are clear. It’s critical to explore both in order to raise awareness about qualified immunity’s detrimental impacts, particularly on communities of color, and why it is a danger to public safety.
Throughout the United States, law enforcement officers have stolen money and valuables, shot children, attempted to harm family pets, killed vulnerable people, and, worst of all, they have gotten away with it — all because of qualified immunity.
