Justice News

Principal Deputy Assistant Attorney General Vanita Gupta Delivers Remarks at the Colorado Lawyers Committee Annual Lunch
Denver, CO
United States
~
Tuesday, May 19, 2015

Remarks as prepared for delivery

Thank you to Constance Talmage, John Walsh and the Colorado Lawyers Committee for inviting me here today.  It’s an honor to speak with you today about the work of the Civil Rights Division, particularly our work to ensure that policing is done in accordance with the Constitution and to help local police departments and the communities they serve build trust where it has eroded.

Eric Garner.  Michael Brown.  Tamir Rice.  John Crawford.  Walter Scott. Freddie Gray.

These names and many others have become familiar to us under tragic circumstances in recent months.  Their deaths and those of other unarmed African American men and women in encounters with police officers, have provoked widespread responses across the country and have fueled the Black Lives Matter movement.  In communities of color, in particular, the reaction has been stark and sobering. 

In the seven months I have been at the Civil Rights Division, I have spent a lot of time with local leaders and community members in cities all across America, including with numerous mothers who have lost their children in officer-involved shootings.  The pain, anger, frustration—the lack of trust in the police—is real, and it is profound.  Again and again, people have told me that young people are losing faith in our justice system and view law enforcement as preying on them rather than protecting their loved ones.  They talk about how the police don’t value their rights, or indeed, their lives.  They talk about being tired of being viewed as criminals first, human beings second.

The conversation in these rooms, however, is not about whether to have police or not but about what kind of policing communities want and deserve. 

There is no question that we need police in our communities.  Police officers ensure the safety of our communities by patrolling neighborhoods, defending the rights of victims and deterring crime.  They are our first responders in many emergency situations.

The overwhelming majority of the women and men who police our streets do their jobs with honor, pride and distinction.  Most of these individuals are driven to the police academy out of a commitment to public service and a desire to make an impact in their communities.  As the senseless and tragic assassinations of NYPD Officers Rafael Ramos and Wenjian Liu this spring, the shooting of two officers in Ferguson in March and the tragic injuries inflicted on officers in Baltimore a few weeks ago, remind us, officers do all of this at considerable risk to themselves.

I am struck everywhere I go by the wide gap in empathy and common language to discuss these problems.  Because in the very same cities and rooms where I speak with folks in the community, I hear from law enforcement who emphasize their responsibility to enforce the law and how they are doing the best job they can.  They feel attacked and undervalued.  They talk about how the actions of a few bad actors have tarnished the whole profession.  They talk about the fact that department budgets have been slashed over the last several years, resulting in drastic cuts for community policing and neighborhood patrols.  They talk about how they are constantly making split second decisions and people don’t account for the thousands of times situations don’t escalate and how the daily stress of their jobs take a toll.

But there is one certain commonality in all rooms I am in.  And that is that everyone agrees that we are confronting grave challenges when it comes to the erosion of trust between police and the communities they serve throughout the United States.  The level of mistrust and resentment is unsettling.  Some, including NYPD Commissioner William Bratton, call it a “crisis in American policing.”

The consequences of distrust between law enforcement and the communities they serve can be devastating.  Where people perceive the criminal justice system to be arbitrary, biased and unfair, they are less likely to cooperate with law enforcement, making us all less safe.  The distrust and alienation experienced in some communities can build into a powder keg of resentment, ready to be ignited by a single tragic incident.  We have seen this over and over—in Watts in 1965, in Los Angeles in 1992 and most recently, in Ferguson in 2014.

It’s worth asking, first, how did we get here?  And second, what are we going to do about it? 

Let’s start with the first question and consider the source of the mistrust.  Mistrust can’t be explained away as the kneejerk reaction of the ill-informed or the hyperbolic.  It’s in part the product of historical awareness about the role that police have played in enforcing and perpetuating slavery, the Black Codes, lynchings and Jim Crow segregation.  As FBI Director James Comey noted, “At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups.”

It is also the product of lived experience, of negative interactions that individuals — or their family members, friends, or neighbors — have had with law enforcement.  Something as quietly humiliating as being mistreated during a traffic stop, or being followed in a retail store.  These stories can circulate through a neighborhood — or these days, across the nation via the web and social media — and they can build up over time into a painful narrative that divides community members and police.

The lack of trust also undeniably results from our criminal justice policies over the last few decades, and the concentrated impact they have had on communities of color and people living in poverty.  Law enforcement practices such as the stopping and frisking of young black men based on stereotypes.  Sentencing policies that result in mass incarceration, particularly of people of color.  And the devastating consequences that convictions have had on individuals’ ability to find work, secure stable housing and reintegrate as full members of society.  These are deliberate policy choices that we made over the last several decades.  We bear the responsibility to confront their consequences.

The Civil Rights Division’s investigation and recently released report on the Ferguson Police Department speaks to all of what I have been talking about.

In Ferguson, we found a community where unlawful police practices have not only severely undermined the public trust and made local residents less safe – but created an intensely charged atmosphere where people feel under siege by those charged to serve and protect them. 

We determined that the FPD engages in a pattern or practice of conduct that violates the United States Constitution and federal law.  Specifically, we found that Ferguson PD routinely:

  • Conducts stops without reasonable suspicion and arrests without probable cause, in violation of the Fourth Amendment;

  • Uses unreasonable force in violation of the Fourth Amendment;

  • Unlawfully interferes with First Amendment rights, including the right to record and to protest police activity;

  • Impermissibly discriminates against African Americans in violation of the 14th Amendment and federal statutory law; and

  • Violates due process and equal protection in the operation of its Municipal Court.

We found that this unconstitutional conduct stems from the interaction of two dynamics:  Ferguson’s undue focus on revenue generation through policing and pervasive racial bias in the police department and court system.

These dynamics fostered unconstitutional practices at nearly every level of Ferguson’s law enforcement system.  One example: During the summer of 2012, a Ferguson officer detained a 32-year-old African American man who had just finished playing basketball at a park.  The officer approached while the man was sitting in his car, cooling off.  The car’s windows appeared to be more heavily tinted than Ferguson’s code allowed, so the officer may have had grounds to question him.  But, with no apparent justification, the officer proceeded to escalate the situation, accusing the man of being a pedophile.  He prohibited the man from using his cell phone and ordered him out of his car for a pat-down search, even though he had no reason to suspect that the man was armed.  And when the man objected – citing his constitutional rights – the police officer drew his gun, pointed it at the man’s head and arrested him on eight different counts.  The arrest caused the man to lose his job.

We observed that even minor code violations can sometimes result in multiple arrests, jail time and payments that exceed the cost of the original ticket many times over.

For example, in 2007, one woman received two parking tickets that – together – totaled $152.  To date, she has paid $550 in fines and fees to the city of Ferguson.  She’s been arrested twice for having unpaid tickets and she has spent six days in jail.  Yet she still – inexplicably – owes Ferguson $541.  Her story is only one of dozens of similar accounts that our investigation uncovered.

By exposing the harm that the Ferguson court system causes, our findings report contributes to a growing understanding of a significant problem in our criminal justice system: the economic exploitation of the poor.  The use of modern-day debtors’ prisons, the outsourcing of supervision to private probation companies, the imposition of fees on defendants to avail themselves of court-appointed attorneys and the right to a jury trial—these are dangerous trends that should concern us all.

In Ferguson, we also found evidence of unlawful discrimination.  African Americans make up 67% of the population, but from 2012 to 2014, they constituted:

  • 85% of the people subject to a vehicle stop;

  • 90% of people who received a citation; and

  • 93% of people arrested.

And discretionary police actions were overwhelmingly concentrated on the black population.  To take just one example, 95% of “manner of walking in roadway” charges—that’s jaywalking—were levied against African Americans.

We found racial disparities in virtually every available metric.  From 2012 to 2014, African Americans were more than twice as likely as white drivers to be searched during vehicle stops, but 26% less likely to be found in possession of contraband.  In 88% of cases in which FPD documented the use of force, force was used against African Americans.  In all cases in which canines were used against subjects for whom racial information is available, the subject was African American.

The evidence of racial bias comes not only from statistics, but also from remarks made by police, city and court officials.  Some of you may be aware of the emails we discovered during our investigation.  The emails were incontrovertible evidence of a culture that tolerated and perhaps even celebrated racial bias.

These findings reveal that the public trust in Ferguson law enforcement and its criminal justice system, especially among African Americans, was damaged long before August 2014.  When there is this level of broad community distrust, public safety suffers and the job of delivering police services is rendered more difficult and more dangerous.

Although we do not know what we will uncover in future investigations – and will never prejudge any outcome – in the weeks ahead, we pledge to bring the same rigor, the same fairness and the same impartiality to Baltimore, where the Division has launched a civil investigation into the Baltimore Police Department.

Wherever this investigation may lead, our goal is to work with the community, public officials and law enforcement to help build a stronger, better Baltimore.  To restore trust where it has been badly eroded.  To promote healing – and address problems that are common to so many great cities across America.

In many ways, Ferguson is not an anomaly.  Through our work around the country, we know there are similar police and court practices in many places.  I also know of several police chiefs around the country that assigned the report as required reading for their officers.  We are already seeing the force multiplying effect of the report.  In the days subsequent to the issuance of our report, cities around the country are beginning to re-examine their policing and municipal court practices, though we know there is much more work to do.                 

I said there were two questions—what the sources of mistrust are and what we are going to do about it.  The second question is hard but we have an unprecedented opportunity now to address fundamental problems in the way communities across the country interact with police and with the criminal justice system more generally. 

While the Civil Rights Division and others in this room and beyond have been working on policing issues for many years, the nation is paying attention because communities are demanding it.  The reality is we tend to confront systemic problems only when forced to by seemingly extraordinary events.  Journalists now are doing impressive investigative reporting on excessive force, racial profiling and police-community relations.  Universities are doing important research and analysis of these problems.  And families are talking about them at the dinner table.

Importantly, the focus on policing issues is happening in a broader conversation about the need to reform our criminal justice system.  There is no question, and I speak from personal experience, that 15 years ago, criminal justice reform was a lonely endeavor.  Few on the Left or the Right were willing to champion its cause.  Today, there is a widespread, even bipartisan, recognition that our criminal justice system needs an overhaul, that it should not be the go to answer for social problems and that mass incarceration has damaged this country in countless ways.  Law enforcement leaders themselves talk about how they have become first responders for a whole host of social problems, including homelessness, mental illness, drug dependency, school discipline.  And in too many places, the only response we have made available to them is arrest and incarceration as opposed to evidence-based, alternative interventions.  There is real reform taking place on broader criminal justice issues right now.

For these reasons, we should be optimistic about this moment.  The public is engaged and there is an opportunity for real progress. 

What is the work ahead?  At the Civil Rights Division, we have redoubled our efforts to ensure that policing is done in accordance with the Constitution and to help local police departments and the communities they serve build trust where it has eroded.

We can and do prosecute individual police officers for intentional misconduct.  In fact, we have prosecuted nearly 400 law enforcement officers over just the last six years for constitutional violations.                                                                                                           

Criminal prosecution, however, is only one tool, and a limited one at that.  We also engage in systemic reform of police departments, like in Ferguson.  Since the start of the administration, the Division has opened 22 investigations into police departments, including most recently the Baltimore City Police Department.  We also are currently enforcing 16 agreements with law enforcement agencies, including consent decrees in New Orleans, Puerto Rico, Seattle, Portland (Oregon), Detroit, the Virgin Islands, East Haven (Connecticut), Warren (Ohio), Albuquerque and Los Angeles.  The department currently has nine open investigations. In the majority of these investigations the Division has issued findings or technical assistance letters. 

The division is often invited into communities with the support of elected officials, law enforcement, police unions and communities.  For example, two weeks ago, Baltimore Mayor Stephanie Rawlings-Blake invited the division to conduct a review of the Baltimore Police Department.  In response to the Mayor’s request, Gene Ryan, president of the Baltimore City Fraternal Order of Police Lodge No. 3, released a statement, saying the union intends to "fully cooperate with any investigation that has the potential to correct departmental deficiencies and improve the morale of our members . . . As the labor union that represents the nearly 3,000 active duty members of the agency, we agree with (the) mayor on her invitation to the Department of Justice and welcome their investigation fully as we, too, have issues with many of the current policies and procedures of the department."

Working together with police officers and community members, we are helping to change the way police services are delivered, to reduce the use of unnecessary force and to combat the influence of racial and ethnic bias in police decision making.  We call the last five years of our work in this area “Police Reform 2.0” because we learned a lot from the first 15 years of enforcement and we have incorporated lessons learned from that first decade and a half into our more recent efforts.  “Police Reform 2.0” entails exhaustive engagement with the community through individual interviews and town hall meetings.  We meet with local officials and civil rights leaders.  We learn from law enforcement leaders.  And we spend a lot of time speaking with line officers and with police unions.  Too often, they tell us that they lack adequate support, training, policy guidance, supervision and even equipment to keep them safe and allow them to engage in constitutional policing that keeps them and the public safe. 

Even after we announce our findings, we continue intensive engagement with all of the various stakeholders, including community leaders, line officers and police unions to help shape the remedies that we negotiate at arm’s length with city officials.  In Ferguson, we have met with several community groups and held an open community forum to learn how area residents wanted to see their police department and court system change.  Several weeks ago, our attorneys facilitated small group discussions, standing with an oversized notepad with marker in hand, taking down the groups’ ideas.  In our view, this is how reform starts.  The stakeholders must feel investment in the remedies laid out in our agreements for them to be successful and sustainable. 

Through this inclusive approach to reform, we have identified certain elements that are absolutely required to build trust and police legitimacy where they have eroded.  For example, police commanders must create opportunities for line officers to have positive interactions, outside of the enforcement context, with individuals they may encounter as victims, witnesses, or subjects.  This is a fundamental component of community policing.  Departments must also commit to transparency, because the more communities know about police activity, the more operations can reflect community values and priorities.  Structured community engagement is vital – there are a host of models for that and I know you will be having a panel about civilian oversight.  We need better research and data.  There is a lot we don’t know that we should, so thoughtful data collection and analysis is a priority.

There must be fair, consistent and robust internal and external systems of accountability so that police departments can course correct when problems are identified.  Improper bias — both explicit and implicit bias — must be identified and corrected.  Critically, officers must be given the specialized training to do their jobs consistent with community values and the professional support to cope with stress and trauma they encounter on the job.  They need training to ensure de-escalation with the mentally ill and others in crisis, as well as to ensure respectful interactions with LGBTI, immigrants with language barriers and other vulnerable populations.  And procedural justice matters.  Research shows that being treated fairly and respectfully matters more than the ultimate result of a person’s interaction with police.

We build these concepts into all of our consent decrees.

Over the past three years, the division has successfully concluded the implementation of three consent decrees, as well as a memorandum of agreement.  Most recently, on May 11, 2015, the division and the U.S. Attorney’s Office announced that the Missoula, Montana, Police Department had fully implemented the requirements of its agreement with the department to improve the its response to reports of sexual assault.  The Missoula Police Department’s successful implementation of the agreement in just two years illustrates the power of government, police and community leaders working together to create change that makes law enforcement and communities safer and stronger. 

The Civil Rights Division is also trying to address problems in policing from every angle.  For example, our Educational Opportunities Section is working to disrupt the school-to-prison pipeline by intervening where school discipline practices are overly punitive and disproportionately enforced against students of color.  Our Employment Litigation Section has brought suits around the country to end discrimination in police hiring.  And our Federal Coordination and Compliance Section is working to ensure that police and court services are available to those with limited English proficiency.  For example, attorneys in FCS have worked with the U.S. Attorney’s Office here in Colorado to secure a voluntary settlement agreement with the Supreme Court of Colorado to expand language assistance in court proceedings and programs.  As a result of this case, limited English proficient persons throughout the state are entitled to interpreter or other language assistance so that they are able to participate meaningfully in all court matters.  

The department, and indeed the President, are committed to these issues, as well. The President yesterday highlighted several initiatives designed to rebuild trust between police departments and the communities they serve. He received the final report from his landmark White House Task Force on 21st Century Policing. He highlighted an open data project where technologists, police associations, and community organizations will use data and technology to reduce use of force and increase transparency and he highlighted the recently created body worn camera toolkit. And he announced the launch of the law enforcement equipment review of federal programs that support acquisitions of equipment by state, local, and tribal law enforcement agencies.  In March, former Attorney General Holder announced the six pilot cities for the new National Initiative for Building Community Trust and Justice, an innovative program designed to enhance procedural justice, reduce bias and support reconciliation between communities and law enforcement.  Attorney General Lynch is dedicated to continuing the department’s commitment to these issues. Today she is in Cincinnati launching a national tour promoting community policing and $163million in grant money available to advance the recommendations of the White House Task Force on 21st Century Policing.

On the local level, U.S. Attorney’s Offices—including yours—have been meeting with law enforcement officers to promote community policing and anti-bias initiatives.  Here in Colorado, U.S. Attorney John Walsh has emphasized the need for outreach to refugee communities as well as the importance of outreach to communities to prevent gang violence.

Importantly, we know that our reform work must go beyond the mechanics of good policing.  We as a society must address the inequality and unfairness that pervade the larger criminal justice system.  Often, an encounter with police is only the first contact in a process that involves prosecutors, defense attorneys, courts, correctional institutions and community supervision.  Individuals experience these as facets of a unitary system, not as individual institutions.  We cannot merely focus on reforming police tactics without focusing on transforming broader criminal justice laws and priorities.

That’s why the Department of Justice has expanded its efforts in these other areas in recent years.  Through the Smart on Crime Initiative, former Attorney General Holder instructed prosecutors to exercise their discretion to avoid charging low-level drug offenders with mandatory minimum sentences, resulting in the first drop in the federal prison population in 32 years, with no resulting increase in crime.  U.S. Attorneys like John Walsh are at the forefront of the Department’s Smart on Crime Initiative.  

Along with the Access to Justice Initiative, the Civil Rights Division has advocated for increased resources for state public defense systems and for reform of local courts and jails that imprison individuals who are too poor to afford their fines.  And we have brought a record number of suits to address conditions in America’s jails and prisons, including the use of solitary confinement on juveniles and those with mental illness.  Only by addressing the criminal justice system as a whole will be build the lasting trust between police and the communities that most need their services.

So that’s a small window into what we’re doing in the policing and criminal justice areas.  Ultimately, change requires commitment and work at the local level – through persistent and authentic engagement between law enforcement and the communities they serve.  That is one of the reasons that we work so closely with U.S. Attorneys around the country and here in Denver.  The U.S. Attorneys provide essential expertise and knowledge to the Division as we address similar issues in sometimes very different communities.  John Walsh and his staff are crucial partners to the Civil Rights Division in this work.

I would be remiss if I did not also tell you that John Walsh and his staff are crucial partners for the Civil Rights Division in civil rights matters beyond policing and criminal justice.  John’s staff has long collaborated with the division on a range of civil rights matters, most notably enforcement of the Americans with Disabilities Act. 

Before I leave, let me be clear about something:  We can accomplish the sweeping reform I have discussed.  In Portland, Oregon, for example, two and a half years after we identified an institutional pattern of excessive force against people with mental illness, police officers are being retrained, accountability measures implemented and the incidence of using force has dropped dramatically.  And right next door in East Haven, Connecticut, residents are seeing transformative change in their police department just two years after the entry of a consent decree with the Justice Department.  There is reason to be optimistic and believe that we can achieve reform that will keep individuals, communities and police safe and ensure that communities have fair, impartial and constitutional policing.  

There is undoubtedly much work to be done but law enforcement and communities alike feel the urgency right now.   The commitment of the Civil Rights Division, U.S. Attorneys and the Justice Department is part of this work, as is commitment by attorneys and local bar associations.  Criminal justice reform at legislatures and city councils is part of this work.  Strong law enforcement leadership throughout the country is part of this work.  And the hard, authentic dialogue in communities all over the country with law enforcement is part of the work.  

Beyond the federal government and the legal community, there are concrete roles for people committed to improving police-community relations, enabling racial reconciliation and promoting justice.  It may seem trite but it is powerful when local communities and law enforcement engage directly and constructively with each other, when local leaders have relationships with police chiefs, when we can understand each others’ perspectives, each others’ lives.  This is hard, inglorious work, but it’s essential.  And there’s a role here for anyone who wants a safer, fairer, more equal society.

There is no problem too intractable or impossible for people committed to justice.  Justice requires hope and hard, persistent work.  We cannot sit idly by and hope that the public attention these issues are receiving will diminish, because they won’t, or at least not for long.  And so I thank you for your work and for your commitment to justice.  Thank you.

Updated August 19, 2016