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Can Merrick Garland Save the Minneapolis Police Department?

The attorney general has initiated a larger probe of Derek Chauvin’s colleagues, but there’s no quick fix for a broken system.

Al Drago/Getty Images

Most of the attention on how George Floyd died last year focused on the actions of Derek Chauvin, the Minneapolis police officer who was convicted of murder on Tuesday for Floyd’s death. But Chauvin didn’t act alone during that fateful encounter in May 2020. Three other officers were present when Floyd died. None of them tried to save his life; two of the officers even helped pin him down.

The Minneapolis Police Department itself also played a role in how events unfolded. It kept Chauvin on the force despite the fact that there were more than a dozen use-of-force complaints against him. And it lied to the public about what had happened, claiming at first that officers “noted he appeared to be suffering medical distress,” omitting that Chauvin had been the reason for that “distress.” If Darnella Frazier, a 17-year-old bystander at the time, hadn’t filmed the entire incident, that statement could have been the final public word on Floyd’s fate. Philonese Floyd, George’s brother, recounted how he had watched him die “over and over, thousands of times” in video footage at Chauvin’s trial over the past two weeks.

“I watched as the strangers who stood on that street and saw George slowly, agonizingly die testified about how they pleaded for his life and felt guilty that they weren’t able to save it, sometimes sobbing through their words,” he wrote in a Washington Post op-ed on Wednesday. “They never thought they’d have to stand there and witness his soul leave its body. That included a 9-year-old girl with the word ‘love’ on her shirt, who saw something no child should ever have to see. She will be forever changed by it. Those good people who were there with George at the end, when we were not, are also now part of our family.”

It’s impossible to separate Floyd’s death from its impact on the community, or Chauvin’s actions from the police department for which he once worked. So it was little surprise that Attorney General Merrick Garland announced on Wednesday that the Justice Department would open a sweeping investigation into the Minneapolis Police Department itself. “Yesterday’s verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis,” Garland told reporters on Wednesday. “Building trust between community and law enforcement will take time and effort by all of us. But we undertake this task with determination and urgency, knowing that change cannot wait.”

The investigation, which was announced less than 24 hours after a Minnesota jury found Chauvin guilty of murdering Floyd, is the most substantive move yet by federal officials to hold the police department to account for Floyd’s death. It marks the return of a potent federal tool for reforming local law enforcement agencies that fell out of use during the Trump years. And it poses an early test for whether Garland can reenergize his department’s efforts to rein in local police abuses across the country.

The DOJ’s power to investigate state and local police departments comes from the 1994 crime bill, which President Joe Biden played a major role in crafting as a senator. The law allows DOJ to conduct “pattern and practice” investigations to find out whether a local law enforcement agency is systematically violating constitutional rights. In a letter to Minneapolis Mayor Jacob Frey, DOJ’s Civil Rights Division said it would investigate use-of-force policies by the city police department, especially toward “individuals with behavioral health disabilities or individuals engaged in peaceful expressive activities.”

“One of the Civil Rights Division’s highest priorities is to ensure that every person in this country benefits from public safety systems that are lawful, responsive, transparent and nondiscriminatory,” Pamela Karlan, the acting head of the division, said in a statement on Wednesday. “It is essential that police departments across the country use their law enforcement authority, including the authority to use force, in a manner that respects civil rights and the sanctity of human life.”

The federal government does not control or oversee the more than 18,000 state, local, and tribal law enforcement agencies scattered around the country. But if a pattern-and-practice investigation turns up widespread violations of constitutional rights in a particular agency, the Justice Department can sue the city in federal court to impose reforms. The binding agreements, known as consent decrees, are perhaps the most powerful federal tool for reforming individual police departments.

Consent decrees aren’t a cure-all, however. The investigations can require vast amounts of manpower and resources to carry out. As the Marshall Project’s Simone Weischelbaum noted in 2015, uncooperative cities and counties can spend years fighting the reforms in court, and even if DOJ prevails, it can be hard to make the changes stick in major metropolitan departments. The consent decrees’ obligations can even hinder reforms in some instances. In Seattle, where federal and local officials had struck an agreement eight years ago, a federal judge warned in February that the city’s plans to reduce police funding could violate the decree.

More recently, federal police reform efforts have fallen victim to partisan whims. In the latter years of the Obama administration, the Justice Department responded to a wave of public interest in police misconduct by announcing investigations into multiple cities after high-profile killings there. But those efforts were soon undermined by the Trump administration, which generally opposed police reforms. Under then–Attorney General Jeff Sessions, the Justice Department scaled back or abandoned most of its police oversight efforts. Sessions’s last act was to promulgate a memo that sharply limited how DOJ could use consent decrees in the future.

After George Floyd’s death ignited protests across the country last summer, former Attorney General Bill Barr considered opening a pattern-and-practice investigation in Minneapolis but took no action on it. Barr had already authorized a narrower inquiry into whether Chauvin and other Minneapolis officers had violated federal civil rights laws, which could open the door to federal charges against the officers themselves. Prosecutions on those grounds are relatively rare, however, and they do not give the department any influence to address more systemic issues within a particular police department. That inquiry is still ongoing in Floyd’s case.

Garland rescinded the Sessions memo last week, signaling that the Biden administration will take a more intense approach to scrutinizing wayward police departments. Biden himself has also highlighted the department’s historical responsibility to enforce federal civil rights laws. When announcing Garland’s nomination in January, Biden took the unusual step of also revealing his choices for the next two highest positions at DOJ at the same time, as well as his nomination of Kristen Clarke to lead the Civil Rights Division itself. Garland noted during his confirmation hearing that the Justice Department itself had been created during Reconstruction to enforce civil rights laws and protect Black Americans’ rights in the South.

It remains to be seen whether the Biden Justice Department can avoid the pitfalls that befell it under the Obama administration on this issue, or fully restore its diminished reputation from the Trump era. And while reformers can take heart from the immediacy of Garland’s announcement, it’s a long and difficult road between DOJ announcing a probe and that probe bearing fruits. Nothing federal officials can do would serve as a substitute for the kinds of locally driven reform that might demilitarize police departments or get cops out of the business of performing mental health interdiction or other kinds of social services. But Garland’s timing sends a strong signal to those who might more effectively catalyze change that DOJ is back in the game.