The Journal Sentinel by Gina Barton - April 4, 2012
Allegations that seven Milwaukee police officers and a sergeant may have sexually assaulted people and violated their civil rights while conducting body cavity searches on the street have led to the most sweeping investigation of the Police Department in at least a decade. Milwaukee County prosecutors have launched a John Doe investigation, an inquiry in which prosecutors can compel testimony and subpoena documents without public knowledge. Simultaneously, the civilian Fire and Police Commission and the department's internal affairs division are reviewing numerous complaints dating back a couple of years. The FBI and the U.S. attorney's office are closely monitoring the local investigation. If federal authorities are not satisfied with the outcome, they could launch an investigation of their own, as they did after the 2004 beating of Frank Jude Jr. by a group of off-duty offi cars. In the Jude case, three officers were acquitted in state court. Ultimately, those three and four others were convicted in federal court. And that's not the only federal prosecution in recent years. In total, at least 13 former Milwaukee police officers have been convicted of federal crimes since 2005. But filing criminal charges isn't the only way the federal government can get involved in fighting police corruption. If federal authorities discover a pattern of civil rights abuses, a 1994 law gives them the authority to sanction an entire police department. Under the Obama administration, officials in Washington, D.C., have stepped up those prosecutions, known as "pattern or practice" investigations, experts say. Federal authorities look for trends that show departments are tolerant of illegal or abusive behavior by officers, said David Harris, a professor at the University of Pittsburgh School of Law who specializes in police accountability issues. "The argument that there are a few bad apples, I don't buy that," he said. "The fact that they are allowed to exist and thrive in the open for years and years means you have a dysfunctional organization." Racial profiling; searches and seizures without probable cause; the targeting of minority populations for harassment; a poor citizen complaint process; excessive use of force; or excessive use of weapons or Tasers all could warrant federal intervention, Harris said. The complaints about potentially illegal searches in Milwaukee's District 5 that came to light two weeks ago follow two Journal Sentinel investigations that raise questions about the department's procedures: One in December found wide racial disparities in traffic stops and searches; and one in October showed how 93 officers kept their jobs despite run-ins with the law.
"In any large organization, you are going to have some bad people," Harris said. "But when those bad people are not rooted out, when discipline is uneven, when there is no sense that there is justice, when the department investigates itself, you undermine public confidence - even if crime is down." Pattern or practice investigations usually are triggered when the American Civil Liberties Union or another civil rights group files a complaint with the Department of Justice in Washington, D.C., according to Scott Greenwood, a constitutional and police civil rights attorney who also serves as national counsel for the ACLU. Locally, the ACLU of Wisconsin is conducting its own research into both the invasive searches and the traffic stops, according to Chris Ahmuty, executive director. If the department and the Fire and Police Commission are not cooperative, filing a federal complaint could be the next step, he said. "There's not a contradiction between civil liberties and professional police service," Ahmuty said. "This idea that the officers' motives, if they are pure, that somehow ameliorates the harm, that doesn't wash. You could see that could sort of infect the whole culture of the Police Department." Michael G. Tobin, executive director of the Fire and Police Commission, said it would be premature to conclude that a pattern of misconduct has occurred, he said in a statement. "The fact that people have come forward indicates to me that there is confidence in the system that we have for handling these matters," Tobin said. "Sometimes we lose track of the fact that we have made so many positive changes that have increased the public trust over the past five years or so. We have to keep earning that trust on a daily basis in everything we do, from the beat cop talking respectfully with everyone they meet, to the way we handle this investigation." Milwaukee Police Chief Edward Flynn was unavailable to comment.
Since 1997, the Justice Department has investigated more than two dozen police agencies - including those in New Orleans, Seattle and Maricopa County, Ariz., where the sheriff made illegal immigration his top priority - for potential pattern or practice violations, according to the DOJ's website. Pattern or practice investigations, conducted by the special-litigation section of the Justice Department's Civil Rights Division, generally last several months and involve interviews with potential victims and a review of department records. When it comes to department policies and procedures, Justice Department investigators are interested not only in whether good ones exist, but also whether they are followed, Harris said. "If they have the systems but don't use them, that could be just as bad a problem," he said. "It could be your systems are just window dressing and you do things the way you have always done them." The investigations almost always result in a memorandum of understanding or a consent decree, both of which are agreements among the Justice Department, municipal and police officials and community members to work together for change, according to Harris and Greenwood. The key difference is that a consent decree is enforced by a federal judge. While most agreements include monitoring of the police department and regular reporting of progress, other requirements vary.
In New Orleans, a consent decree is still being hammered out. In the meantime, FBI agents have taken up residence inside the internal affairs division, which, like Milwaukee's, investigates its own officers when they are accused of wrongdoing. In Seattle, the city and the Justice Department each have developed improvement plans and are working on an agreement to fix problems. The Justice Department has urged the Police Department "to collect and analyze data that could address and respond to the perception that some of its officers engage in discriminatory policing," according to a letter federal officials wrote to the city's mayor at the end of their investigation. The Maricopa County, Ariz., sheriff's office must improve its training, data collection, complaint system and communication with non-English speakers, according to a letter to the county attorney presenting the Justice Department's findings. Whether any or all of those reforms end up in an agreement remains to be seen. It may take years for a pattern or practice investigation to yield tangible results, according to Harris. "What this is supposed to result in is a transformed police department with state-of-the-art practices and all the rules for up-to-date police interaction with civilians," he said. The police chief must take the lead in changing the department's culture, according to Greenwood. That's what happened in Cincinnati 10 years ago, said Greenwood, who served as lead counsel in the case there. The Department of Justice came in after 15 African-American men, some of them unarmed, died at the hands of police, according to Tom Streicher, Cincinnati police chief at the time. It resulted in riots, he said. Although he initially resisted change, the Justice Department's involvement helped him realize the department needed to be more transparent, Streicher said. "Anybody who thinks they can do it alone is a fool," he said. "No entity can do it all by itself because a police agency isn't meant to serve itself any more than the government is meant to serve itself. You have to engage the public and you have to keep them engaged and you have to be accountable to the public because they give you the power and authority to police them. If you don't have accountability, history has shown us you are destined to revisit what occurred before."
At that time, the Cincinnati Police Department refused to release information about pending investigations, a policy that still exists within the Milwaukee Police Department and many others around the country. The Cincinnati Police Department's agreement with the Justice Department changed all that. "The agreement required us to share anything and everything we do with anyone who wanted to know about it," Streicher said. "There was no more, 'We can't discuss this because it's under investigation.' " Within eight hours of an incident, the investigating officer was required to produce a PowerPoint presentation that could be shared with the public, Streicher said. Documents such as incident reports were given to the media before investigations were complete. When police officers were accused of wrongdoing, the department released their names and the allegations against them immediately. "That evokes a lot of confidence in people," Streicher said. "That's what the Justice Department can do: Making policing better. Making police more responsible and accountable for their actions, as well as providing guidelines to improve the overall agency." Federal oversight in Milwaukee would go a long way toward changing a number of questionable customs, policies and procedures in the Police Department here, according to attorney Jonathan Safran, who represented Jude. "We believe that better policies and procedures, utilizing outside agencies, and maybe having an independent monitor involved to review the investigations and outcomes, would restore citizens' respect for, and cooperation with the City of Milwaukee Police Department," he said in a statement.