Civil Rights

Obama's Civil Rights Enforcer Is as Worried as You Are

Vanita Gupta led the charge against shady cops in Ferguson, Chicago, and Baltimore. We asked her how bad it will get under Donald Trump and Jeff Sessions.

by Matt Taylor
May 8 2017, 10:34pm

Image by Lia Kantrowitz. (Photo by Melina Mara/The Washington Post via Getty Images)

Just after 3:30 AM on Saturday, police shot and killed a teenager brandishing a BB gun outside a high school in San Diego. Though the incident didn't have the usual hallmarks of a high-profile police killing—the victim was white, and he'd placed the 911 call summoning cops himself, apparently in an attempt to commit suicide—the tragedy was a reminder of how fraught encounters with law enforcement can be. Just hours before that shooting, a white cop in Texas was arrested and charged with murder for shooting and killing an unarmed black teen named Jordan Edwards outside a house party in Dallas. According to a Washington Post tracker, 345 people have been shot and killed by cops in America already in 2017.

Vanita Gupta has seen her share of cases like these. Just weeks after Michael Brown was shot and killed in Ferguson, Missouri, in 2014, the prominent ACLU lawyer was picked to head up the Justice Department's Civil Rights Division. That's the office with unique power to investigate shady police departments, onerous voting rights laws, and colleges that fail to protect kids from sexual assault, among other national nightmares. The post Gupta filled is among the most important jobs in the country, and one of the most potentially controversial. It didn't take long for Gupta to make her mark: Her office's Ferguson report a few months later detailed how the police and judges there preyed on people of color, slapping them with bullshit fines to prop up the local government. Since then, Ferguson has entered into a consent decree with the feds, a common legal tool used by the government to change troubled police departments by imposing an independent monitor and bringing in a judge to keep tabs on progress.

The only question is if Gupta's work in Ferguson, Chicago, Baltimore, and countless other cities is about to be completely undone now that President Donald Trump and Attorney General Jeff Sessions are in charge.

Trump ran on an explicitly pro-cop platform, and has been installing tough-on-crime zealots like Sessions—who doesn't like consent decrees, by the way—in the top levels of his administration. But if you want to know just how badly things can go wrong when cops aren't checked by the federal government, Gupta is the person to talk to. I called her up recently for a chat on her experience reining in shady cops, how afraid she is of the new administration, and what you can do about it.

This interview has been lightly edited and condensed for clarity.

VICE: So you took over the Civil Rights Division and protests were raging across the country. You'd already been in this field for years, but when you got the new gig, were you ever personally shocked by what you saw?
Vanita Gupta: In Ferguson, when we went in—just uncovering the level of resentment that had built up. Not necessarily because of the typical reasons but because the police department was running the municipal courts and levying exorbitant fines and fees on low-income African American residents for so many years, and engaging in constant harassment through ticketing and citations, largely on issues that had nothing to do with public safety. Being able to uncover that nexus, and revealing to the American public the extent to which that justice system was typical of justice systems around the country, was an important moment.

There were aspects of Baltimore and Chicago where we talked about officer-involved sexual assault, and had a lot of facts and statistics that really surprised people and weren't going to be uncovered unless we did that investigation and made the case to the public about why it's really important to have long-term reform. Every investigation we did revealed things we wouldn't have known, and in some instances couldn't have imagined—and yet the residents in those places long knew about those issues. It was important for the Justice Department to validate them.

What can the Department of Justice do that activists and lawyers and even groups like the ACLU can't?
There are certain statutes that only the Justice Department enforces. So for instance only the Justice Department has the authority to investigate police departments for systemic abuse. There's no private litigation analog to it. Private litigation is really important, but the other overarching thing that the Justice Department is able to do is conduct investigations. In order to get the information, the Justice Department has subpoena power, and has the ability to basically avoid litigation altogether by issuing findings with the local or state jurisdiction, and then seek to settle the case. And only if the case doesn't settle will there be a complaint filed in court—whereas private litigation often takes much much longer.

I'm sure you heard the cops who killed Alton Sterling in Baton Rouge last year are ducking federal charges. When people like me see that as a harbringer of what Jeff Sessions has in store—lax or nonexistent police oversight—are we wrong?
I can't say anything specific to that investigation because it was pending on my watch. But I think it's worth noting that criminal prosecution of police officers in the federal realm is exceedingly difficult because there's only one statute, and it requires proving that an officer had the specific willful intent to kill the person or to engage in a criminal act. A district attorney can charge recklessness, negligence— there's all kinds of different statutes that a DA has. The federal statute has a very high criminal intent bar.

Right. But there's a perception out there, based on the things Sessions is saying about consent decrees and cops, that the DOJ is just going to let police completely off the hook. Do you worry about that?
I worry about a retreat from the commitment to ensuring that police departments are engaging in constitutional policing. I think this notion that constitutional policing somehow undermines public safety is both without evidence and a very dangerous proposition for communities that have been living with police departments that have engaged in longstanding, systemic violations.

What I have heard from the attorney general sounds like a pretty marked retreat from the willingness to enforce a congressionally-mandated statute [a 1994 law] that gave the Justice Department the responsibility of ensuring that police departments don't engage in a systemic pattern or practice of unconstitutional policing. And that concerns me greatly.

Is there any particular city or locality where you worry about the feds pulling back and cops running wild?
Obviously Chicago—I'm really worried about it because we issued our findings and they were quite serious, and for a statutory responsibility, the Justice Department should be ensuring those problems we identified are remedied, and I don't know what the fate of that investigation will be.

As to other police departments, it remains to be seen whether this administration is going to open any more investigations into police departments where there's ample evidence there may be systemic abuses or misconduct or systemic deficiencies in the police department. I can't tell you a specific jurisdiction because that's law enforcement–sensitive material where we hadn't spoken out publicly yet.

When Sessions talks about the need to support cops and how we've gone too far scrutinizing them, and the president says he loves cops and law and order, how much does that affect the typical beat cop? Does it embolden them?
These offices are a very significant bully pulpit. Words have consequences, and they matter. What's been disheartening is that there's a lot of leadership in law enforcement that recognizes how, in order to be effective, they have to have the trust of their communities. And where there are longstanding problems, a lot of law enforcement wants to address it proactively and not wait until there's a critical incident that unravels and creates a lot of unrest. But losing the pressure from the top or actually getting contrary messages can really dissipate the level of energy that has existed over the last several years, since Ferguson, to engage in the introspection.

But policing is inherently local, and a lot of police chiefs understand that the political winds of Washington can't really dictate what their efforts are going to be to make sure there's trust between their officers and the communities they serve. And they are moving forward with reform efforts.

Certainly Sessions has been scrutinized a lot. But how much power or influence does he have given all the career people in place at the Justice Department? Can your legacy of intervention be upheld by individuals in in the federal bureaucracy?
The AG has a lot of authority. On the civil side, priorities are set from the top, both through agenda-setting and the bully pulpit but also the funding mechanisms—DOJ gives a lot of money to districts around the country, and can have enormous influence locally.

That doesn't mean local criminal justice efforts are not worthy, they absolutely are. And I think increasingly advocates and activists are focusing on local and state reform. But I think it's a little too optimistic to hope that DC doesn't have a significant impact on what happens. For career lawyers, on the civil side, the attorney general can have influence over a recommendation that may come from career lawyers about opening a high-profile investigation. Still, there's going to be a paper trail if the AG is shutting down meritorious cases that should be going forward.

Are consent decrees still the best way to rein in bad cops in America?
Consent decrees are vital for police departments that have a multitude of systemic problems. Culture change doesn't happen overnight, and when you think about it, there's only 15 consent decrees out of 16,000 police departments [nationally]. But jurisdictions where the Justice Department makes findings are usually ones where there's been severe erosions of trust as a result of systemic deficiencies and longstanding constitutional violations, and those are not overnight remedies—they really do require a sustained focus and sustained investment in the process that comes with a consent decree.

Having an independent monitor and a federal judge oversee the process is enormously important. Memorandums of agreement may work with departments where there's a single or two issues that are at play—we had a memorandum of agreement with the Missoula [Montana] police department, and that whole investigation only focused on sexual assault investigations. But that was a much narrower slice than the kind of thing in Baltimore where it's hard to imagine how a memorandum of agreement will have the adequate impact without federal court involvement.

How worried should we be about voting rights under Trump?
Voting rights took a really big hit after the Shelby decision in 2013—the Justice Department lost a key tool to evaluate changes in local elections. Of course it is concerning for the Justice Department to have reversed a longstanding position in the Texas voter ID litigation. It isn't clear to me yet what the level of undoing will be, but certainly the rhetoric that has been raised around this myth of voter fraud has been very concerning. We don't have voter fraud in our midst—what we have is voter suppression. A lot of the work at the Justice Department and other advocates and litigants had been focused on was addressing the voter suppression issues that especially came to light after the Shelby decision, when states felt pretty emboldened to enact legislation that would make voting harder, not easier, particularly for low-income and minority communities.

The work remains. I remember early on in this [new] administration there was talk of a voter fraud investigation—I don't know what the status of that is. My hope is it will die on the vine, since there really has not been any systemic evidence collected of voter fraud.

What do you see the feds doing about sexual assault on college campuses in the coming years given the government is now run by an alleged assailant?
It's an issue that obviously has a devastating impact on its victims. The work [under the Obama administration] was important and thoughtful and it needs to go forward and it just remains to be seen whether that work will be slowed down. There were rumors about budget elimination of the Office on Violence Against Women. There's a lot of concern about this—it's something that I hope you'll track to find out.

What do you recommend regular, non-lawyer people do if they're worried about the feds being asleep at the wheel?
I think it's really important that people who never saw themselves as activists are getting involved. It's important to support organizations that are doing this work, like the Leadership Conference [where Gupta is now president and CEO]. We've got to be able to fight back. But it's not just about the so-called resistance. We also have to be thinking about a longer-term strategy to protect civil rights that is affirmative. So being able to invest in organizations that have that vision and are in it for the long haul is really important. And people power is really important. It matters that people are out in the street. It matters that people are filing things in court. it matters that people are not giving up on the need for action, and meeting with their legislators, and letting them know what they think about policies that are being enacted. That level of activism is deeply important.

If ever there was a call to action for civil rights, it's right now.

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