This story was co-published with the Marshall Project.
With Senator Jeff Sessions about to be the next attorney general, the likelihood that the Justice Department will continue to regularly intervene to reshape troubled local law enforcement agencies appears greatly diminished.
Under the Obama administration, 12 police departments signed court-ordered agreements called consent decrees—four times as many as in the George W. Bush era. Sessions, an Alabama Republican, has made it plain that he's highly skeptical of this option. "These lawsuits undermine the respect for police officers," he said at a recent Senate hearing on his nomination.
But an alternative to federal intervention—and a possible model for similar programs throughout the country—exists in at least one state law, specifically in the California Civil Code. The seldom-used 16-year-old statute allows the California attorney general to sue a local police agency whose officers have engaged in a "pattern or practice" of unconstitutional behavior. The statute's language hews closely to the 1994 federal law that underpins Washington's role in police oversight. California is believed to be the only state that grants its attorney general the power to root out and "eliminate" a local police force's bad behavior.
"I don't know what to expect from Trump," said former California Attorney General William Lockyer, who served from 1999 to 2007 and was the first prosecutor to use the state's police reform law. "Yes, local and state authorities ought to be prepared to do a lot of this work without federal help. There is a lot of anxiety about withdrawal from civil rights enforcement work."
Joseph Brann, a former Bay Area police chief who served as a federal police monitor in Cleveland, Seattle and Cincinnati, as well as in California's first state-led intervention, thinks the statute could be replicated widely.
"My personal observation is that this is something that state justice departments should have been looking at doing many many years ago. And I do hope, in light of what we will be looking at now under the Trump administration, and the Sessions Justice Department, that other states will give serious consideration to what they might be able to do."
Only one existing California police department, in Riverside, about an hour east of Los Angeles, has undergone the state reform process. A second department that came under state oversight was later disbanded. Meanwhile, the Justice Department undertook investigations* of eight law enforcement agencies throughout the state, three of which led to a reform plan.
The Riverside department attracted national scrutiny in 1998, after four white officers fatally shot a 19-year-old black woman named Tyisha Miller as she sat, with a gun on her lap, inside a locked car at a gas station. State and federal prosecutors declined to file criminal charges against the officers, saying that the cops may have made questionable decisions but didn't break any laws.
The state's police-reform law was approved by legislators two years after the woman's death in reaction to abuse cases that had plagued the Los Angeles Police Department throughout the 1990s.
"Riverside was groundbreaking for us, and what I am told, ground-breaking for AGs around the country," said Lockyer, the former attorney general.
Lockyer released Riverside from its state mandate in 2006, after Brann, the police monitor, certified that the police department had improved training, data collection and the tracking of misconduct, among other categories. The current chief, Sergio G. Diaz, who took over in 2010 after a long career at the Los Angeles Police Department, said most of the reforms are still in place except for the requirement that officers collect demographic statistics on who they are stop. "It was busy work," Diaz said. "There was no analysis that was significant."
Despite the outcome in Riverside, Lockyer stopped using his new police reform tool. "I don't recall there being other circumstances in which there were community efforts to bring the AG into a local matter," Lockyer said. "There are thousands of cases that the AG folks are working on at any given time. They tend to respond to events, rather than go out and look for work."
Lockyer's successor, Jerry Brown, now the governor, also did not rely on the police reform law. Louis Verdugo, a 36-year veteran of California's attorney general's office, and longtime head of the civil rights enforcement section who retired in 2012, recalled only one police reform agreement under Brown. It involved the now defunct Maywood Police Department, a 60-officer agency outside of Los Angeles, which was disbanded in 2010—nearly a year after it agreed to the state-ordered changes. The attorney general investigated Maywood in response to reporting in the Los Angeles Times that found the department employed cops who had been fired from other forces. "To me it (closing) wasn't a bad result. It was dysfunctional," Verdugo said. The Los Angeles Sheriff's Department—currently under federal oversight—now patrols Maywood.
Check out the VICE News Tonight segment on how big businesses try to use arbitration to block regular people from filing lawsuits.
California's Attorney General's office did not respond to requests to comment on why the law isn't used more often. But the police reform law hasn't been a popular option for California prosecutors for a mix of reasons, according to Lockyer and Verdugo. Federal intervention in local police departments was usually a preferred option because the federal government, rather than the state, had the time and the staff to undertake lengthy investigations. Also, using state prosecutors to investigate local police forces tends to breed tension within the usually tight-knit law enforcement community. "It would be harder to be a prosecutor in that environment," Lockyer said.
Yet Lockyer and Verdugo said they would encourage other states to adopt their own version of the California law. "Obviously, there will be political and resource constraints as a general matter. But that doesn't mean that law shouldn't be enacted," Lockyer said.
The law had stayed off the public's radar, and then in December, California Attorney General Kamala Harris—now a US senator—announced that prosecutors were investigating the Bakersfield Police Department and the Kern County Sheriff's Office using the powers of the state's police-reform law. Harris' announcement came after the Guardian, in a five-part series, dubbed Kern County, in central California, the nation's deadliest county for police shootings.
With additional reporting by Tom Meagher
*The federal statute went into effect in 1994. Since 2001, after the state law was enacted, the US Justice Department has opened three federal investigations of California police departments.
This article was originally published by the Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.