By Robert Romano —
The Obama administration has been using the controversial practice of sue and settle to engage in a federal takeover of local police and corrections departments.
The way the regime works is the Civil Rights Division at the Department of Justice (DoJ) files a suit against a city, county or state, alleging constitutional and civil rights violations by the police or at the prison, and the local government simply agrees, resulting in wide-reaching policy changes being imposed on local police and corrections departments via federal court order.
An Americans for Limited Government review of DoJ-reported court documents and public statements has revealed a number of cases being brought against major city police departments—and settled without contest.
These include, for example, a 77-page March 30 consent decree between the DoJ and the City of Newark, New Jersey that resulted from a 2011 investigation, a 2014 series of findings by the Civil Rights Division, and then finally a federal lawsuit alleging police misconduct in the United States District Court in the District of New Jersey.
The original complaint alleged that the Newark Police Department (NPD) “has engaged in a pattern or practice of constitutional violations in its stop and arrest practices, responses to individuals’ exercise of their rights under the First Amendment, uses of force, and theft by officers. The investigation also revealed that the pattern or practice of constitutional violations stems in part from deficiencies in NPD’s systems that are designed to prevent and detect misconduct, including its systems for reviewing force and investigating complaints regarding officer conduct.”
The city of Newark via the consent decree agreed to the allegations and to implement “comprehensive and agency-wide policies and procedures that are consistent with and incorporate all substantive requirements of this agreement,” which include requirements of how searches are conducted, how the use of force must be handled, the mandatory use of on-body cameras by the police, allowing civilians to film police during stops, and so forth.
The agreement imposes a five-year compliance review regime, with a two-year implementation deadline.
This means even if the political administration changes in the city of Newark, the new mayor and city council would still be required to implement the court order.
In short, the Civil Rights Division via these consent decrees is regulating every aspect of policing.
Similar processes and mutual consent agreements on policing have been initiated by the DoJ in Miami, Florida, Los Angeles, California, Ferguson, Missouri, Chicago, Illinois and many, many other locations at various degrees of implementation. The Obama DoJ has been at this for years—and nobody noticed.
Almost nobody. The Senate Judiciary Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts held a hearing where witnesses testified to this practice on November 17, 2015.
Prosecuting individual cases against abusive police officers is one thing. The Civil Rights Division under federal law has brought numerous charges and achieved convictions in individual cases of police and corrections facilities misconduct. Agree or disagree with the practice of the feds prosecuting local police officers, it was Congress that decades ago created law making such individual cases a federal crime when rights are deprived, such that the DoJ can then prosecute.
At least if it was thought those cases were illegitimate or otherwise maliciously prosecuted, the people and states certainly would have remedy in Congress to change the law to bar the practice.
These consent decrees, on the other hand, are a different species entirely. They subvert the lawmaking process and countermand representative government. There are no administrative procedures requirements, no public input via comments, no limits to the regulations that would otherwise be imposed by Congress, no challenge to the allegation of civil rights violations—just the Civil Rights Division at the DoJ and a consenting liberal city government and suddenly, the city police department has been federalized with a whole scheme of new regulation.
When reached for comment, former attorney in the Civil Rights Division J. Christian Adams decried the consent decrees, writing via email, “Local officials are [insane] not to force DoJ to prove these cases in court. DoJ fears having to go to trial more than just about anything else. They can be beaten. Targets who fight back have found that DoJ moves on to easier prey. Targets who surrender find the financial costs and federal interference come with a heavy price.”
Meaning, these consent decrees will come with very heavy burdens on cities that assent to them, so buyer beware.
Further, the regulatory requirements, for example, requiring on-body cameras, would almost certainly not arise in an adversarial court situation where a type of police stop practice was sued against, for instance. A court could find the stop to be unconstitutional, but never come back with a requirement that therefore every cop in the jurisdiction was suddenly required to wear a camera. Yet that is exactly what the consent decree does.
This may be the first stage of federal regulation over local police. Under the Department of Housing and Urban Development, the regulation over local zoning ordinances that creates requirements on where people of certain races and income backgrounds must be zoned to live originated as a consent decree against Westchester County, New York requiring affordable housing units to be built in the county.
Subsequently, Republican Robert Astorino was elected county executive after fighting against the consent decree. But he was still required to implement it. Fast forward a few years, and the Obama administration had concocted the “Affirmatively Furthering Fair Housing” regulation that would impose similar zoning requirements on any municipality that accepted any part of the $3 billion of annual Community Development Block Grants to 1,200 recipient cities and counties.
Who’s to say that there isn’t another regulation in the works that will impose similar policy changes, including on-body cameras for police officers and regular federal reviews, by police departments that accept federal funds?
Americans for Limited Government President Rick Manning ominously warned: “Obama’s wholesale assault on the uniquely American concept of federalism and local policing would have gone entirely unnoticed had it not been for the radicals who took to the streets in places like Ferguson and Baltimore, forcing the federal usurpation of local police powers into the public eye. The next presidency will determine whether Obama’s war on police and the federalization of traditional local power becomes the new norm, never to be rescinded.”
The war on police is real. The war on local government and federalism via Common Core education and HUD zoning requirements is real. And it will not end with Obama. This revelation puts a whole new perspective on the 2016 election. The reality is this: Either Donald Trump will restore the rightful powers of local government and local police, or nobody will. This is the last stand. People either rise up now or this fundamental transformation of our system of government will be complete once Hillary Clinton is through destroying what remains of local governance in America.
Robert Romano is the senior editor of Americans for Limited Government.
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