UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 1 of 17 Pg ID UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, v. CITY OF DETROIT, Plaintiff Case No. 03-cv HON. AVERN L. COHN Defendant. / JOINT MOTION FOR TERMINATION OF USE OF FORCE AND ARREST AND WITNESS DETENTION CONSENT JUDGMENT AND ENTRY OF TRANSITION AGREEMENT Plaintiff, the United States, and Defendant, the City of Detroit, respectfully move this Court to terminate the Use of Force and Arrest and Witness Detention Consent Judgment ( Consent Judgment ) entered on July 18, 2003, and approve the proposed Transition Agreement between the Parties, which is attached hereto as Exhibit 1, for the reasons set forth in the supporting brief. The Detroit Police Department ( DPD ) has substantially complied with the provisions of the Consent Judgment, and the proposed Transition Agreement provides an appropriate level of oversight to ensure that reforms are sustained.

2 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 2 of 17 Pg ID Respectfully submitted, For The United States: MOLLY J. MORAN Acting Assistant Attorney General For the City of Detroit: MELVIN B. HOLLOWELL Corporation Counsel MARK KAPPELHOFF Acting Deputy Assistant Attorney General JONATHAN M. SMITH Chief s/ Jeffrey R. Murray s/ Melvin B. Hollowell LAURA L. COON MELVIN B. HOLLOWELL Special Counsel CHARLES RAIMI JEFFREY R. MURRAY ALLAN CHARLTON Trial Attorney Attorneys for Defendant U.S. Department of Justice City of Detroit Law Department Civil Rights Division 2 Woodward Ave., Ste Pennsylvania Ave. N.W. Detroit, MI Washington, DC BARBARA L. McQUADE United States Attorney s/ Susan K. DeClercq SUSAN K. DeCLERCQ Assistant U.S. Attorney 211 W. Fort Street, Ste Detroit, MI

3 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 3 of 17 Pg ID UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, v. CITY OF DETROIT, Plaintiff Case No. 03-cv HON. AVERN L. COHN Defendant. / BRIEF IN SUPPORT OF JOINT MOTION FOR TERMINATION OF CONSENT JUDGMENT AND ENTRY OF TRANSITION AGREEMENT Plaintiff, the United States of America, and Defendant, the City of Detroit ( the Parties ), respectfully submit this Brief in Support of their Joint Motion for Termination of the Use of Force and Arrest and Witness Detention Consent Judgment and Entry of Transition Agreement. Pursuant to Fed. R. Civ. P. 60(b)(5), the City s sustained substantial compliance with the Consent Judgment establishes grounds for relief from the Consent Judgment. Entry of the proposed Transition Agreement ensures that the reforms achieved by substantial compliance will be sustained.

4 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 4 of 17 Pg ID I. BACKGROUND In November 2000, the Department of Justice Civil Rights Division and U.S. Attorney s Office for the Eastern District of Michigan (collectively, DOJ ) commenced an investigation into the practices of the Detroit Police Department ( DPD ), pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C , which permits the United States to investigate and bring litigation, if necessary, to remedy a pattern or practice of unconstitutional conduct by law enforcement officers. The investigation was prompted in part by then- Mayor Dennis Archer s September 2000 request for an investigation of the troubled agency, following a series of fatal shootings by the DPD. Reportedly, from 1995 through 2000, DPD officers had fatally shot at least 47 people, including six unarmed suspects who were shot in the back. Between 1987 and 2000, the City had paid over $124 million to settle civil suits against DPD officers, including $46 million for claims that involved officers who had been previously sued. And at least 19 pretrial detainees had died in DPD custody between 1994 and 2000, although reportedly no officer had ever been disciplined for neglect of duty in any of the incidents. The DOJ s investigation revealed a pattern or practice of constitutional violations and a contributing array of systemic deficiencies within the DPD. The government reviewed the DPD s shootings (excluding accidental discharges and 2

5 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 5 of 17 Pg ID shootings at dogs) between January 1998 and September 2001, a total of 259 incidents, and found that 81 (31%) were not justified. Overall, the DOJ found half of the shootings to be problematic with respect to the force used by the officer or the subsequent investigation by the DPD. The government also reviewed the DPD s completed investigations of its officers use of chemical spray and physical force between June 2000 and July of 2001 and found 137 of 501 (27%) chemical spray incidents and 86 of 455 (19%) physical force incidents were found to not be justified. The DPD s inadequate investigative practices and common failure to take corrective action were significant factors in the DPD s pattern of excessive force. Nearly half the investigations reviewed during the investigation were inadequate, and at the time of the investigation, the DPD had almost 600 cases in a disciplinary backlog, some as much as three years old. The government s investigation was expanded to include issues related to witness detention after it was revealed that the DPD s Homicide Section regularly arrested and detained persons they believed to have information concerning a homicide-related offense, including suspects family members and individuals who lived in the vicinity of the crime. According to the 1998 FBI Uniform Crime Report, the DPD arrested more than three individuals per homicide that year, but only solved 47% of the homicides. 3

6 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 6 of 17 Pg ID Based upon these findings, on June 12, 2003, the United States filed a Complaint against the City of Detroit alleging that the Detroit Police Department engaged in a pattern or practice of conduct that subjected individuals to excessive use of force, false arrests, illegal detentions, and unconstitutional conditions of confinement. (Doc. #1). The Parties reached an agreement to resolve the case, and on July 18, 2003, the Court entered two consent judgments. (Docs. # 22-23). These judgments provided for the selection and appointment of an Independent Monitor to evaluate and report on the City s compliance on a quarterly basis. The Conditions of Confinement Consent Judgment, which addressed issues related to medical care, fire safety, and environmental health and sanitation practices in the DPD s holding cells, was dismissed by the Court on January 27, 2014, upon a showing that the custodial responsibility for the DPD s prearraignment detainees had been fully transferred to the Michigan Department of Corrections, Detroit Detention Center. (Doc. # 679). The DPD was in full compliance with the Conditions of Confinement Consent Judgment at the time of its dismissal. The Use of Force and Arrest and Witness Detention Consent Judgment ( Consent Judgment ), which is the subject of the current motion, addresses the DPD s use of force policy, documentation and investigation of uses of force, arrest 4

7 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 7 of 17 Pg ID and detention practices, handling of external citizen complaints, training and supervision, use of in-car cameras, and the development of a risk management plan, including an electronic early warning system to track officer activity, whether positive or negative. (Doc. #22). It consists of 110 substantive paragraphs, many of which have sub-paragraphs. The Independent Monitor evaluates each of the Consent Judgment s 110 paragraphs for Phase One and Phase Two compliance. Phase One compliance is attained when the DPD has developed and adopted a policy that conforms to the requirements of the Consent Judgment. Phase Two compliance is attained when the DPD has effectively implemented practices necessary to meet the requirements of the Consent Judgment and applicable policy. The City has been in Phase One compliance with all 110 paragraphs of the Consent Judgment since September 2011 (8 th Quarterly Report). The Monitor issues quarterly reports which reflect the individual assessments for each of the Consent Judgment s provisions and a calculation of the City s overall compliance rating as a percentage of compliant paragraphs. By its terms, the Consent Judgment was to terminate five years from the date of entry provided that the City had substantially complied with each of the provisions and maintained substantial compliance for at least two years. (Doc. #22, 148). However, because the City had not met such requirements, the Court 5

8 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 8 of 17 Pg ID extended the expiration date of the Consent Judgment to July 18, (Docs. #297, #547). Most recently, the Court entered a stipulated order extending the Consent Judgment to August 18, (Doc. #716). On December 22, 2013, the City moved the Court to suspend monitoring of 86 of the 110 paragraphs of the Consent Judgment that had been in full compliance for at least two years. The United States joined the City s motion (Doc # 674) because it would allow the focus to shift from simply measuring technical compliance to considering whether the underlying deficiencies that led to the entry of the [Consent] Judgment have been resolved. Id. at p. 3. Although the Court initially denied the City s motion, upon reconsideration, on July 2, 2014, this Court granted the City s motion and ordered that monitoring was to be suspended on 86 of the Consent Judgment paragraphs which had been in full compliance for at least two years. (Doc. # 714). Based upon the fundamental changes implemented by the City and the DPD over the past eleven years, the Parties now seek to terminate the Consent Judgment and enter into a Transition Agreement to provide for the DPD s self-reporting to the DOJ on the limited issues remaining, via an 18-month Transition Agreement. 6

9 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 9 of 17 Pg ID II. DISCUSSION A. The Consent Judgment Should be Allowed to Terminate on August 18, The City is in Substantial Compliance with Consent Judgment The Consent Judgment seeks to ensure constitutional policing in the City of Detroit through comprehensive reforms to the DPD s operational systems and practices. Over the past eleven years, the Parties have worked together to implement new policies, procedures, mechanisms for supervision, and accountability in the DPD. This work, although slow at first and difficult at times, has brought the City into compliance with most of the terms of the Consent Judgment, with some provisions having been in compliance for more than four years. Indeed, according to the Independent Monitor s most recent Quarterly Report (Nineteenth) dated July 14, 2014, the City is in full compliance with Phase One of all of the requirements and has achieved compliance with 90% of the Phase Two requirements (99 of 110 substantive paragraphs). The DPD has also made significant progress toward implementation of the remaining eleven paragraphs, even though they remain out of statistical compliance. These paragraphs do not deal directly with officer-civilian interactions, but rather involve post-incident documentation and investigative processes. The Independent Monitor s findings of non-compliance are based on the DPD s lack of consistency in completing adequate and timely investigations of 7

10 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 10 of 17 Pg ID use of force incidents and stop-and-frisk encounters. Although these paragraphs fall short of the Independent Monitor s 94% standard of compliance, a holistic review of the Independent Monitor s quarterly reports reveals that the majority of these investigations are being conducted appropriately by the DPD. The Independent Monitor has emphasized that additional time and attention are required to complete these final reforms and ensure that they become a part of the DPD s routine practice and culture. The Parties believe that the proposed Transition Agreement provides an opportunity for the DPD to fully realize these goals. 2. The Original Concerns Underlying the Case No Longer Exist But more importantly, and what truly lies at the core of this case, is that the concerns identified by the DOJ in 2002 that were the basis for entry of the Consent Judgment, have been addressed and rectified by the DPD. The results are compelling. Serious uses of force have drastically declined and the DPD has completely ended the practice of arresting and detaining witnesses. The DPD has had only 17 fatal shootings in the past five years, compared to 47 in the five years preceding the DOJ s investigation. At that time, the DPD averaged approximately 69 shootings per year, but now averages fewer than 28 per year. The use of chemical spray has declined from 460 incidents per year in 2000 and 2001 to approximately 50 incidents per year currently. Overall, the DPD s use of force rate 8

11 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 11 of 17 Pg ID has declined in each of the past four years from 1004 total force incidents in 2010 to 593 in In addition, the Monitor has noted at Command Accountability Meetings that the Consent Judgment s changes to the DPD s definition of force increasing the range of actions that must be reported have resulted in the DPD having a ratio of uses of force to arrests comparable to the expected range for cities of similar size to Detroit. Further, since implementation of the Consent Judgments reforms began in 2003, there have been no suicides and only one death (which was not the result of police action) in the DPD s holding cells. External complaints received from citizens are now being handled by a completely reorganized Office of the Chief Investigator ( OCI ), which has implemented a revised set of standard operating procedures and case management plan developed with the direct assistance of the Independent Monitor. The OCI is currently staffed solely by civilian investigators, which allowed all sworn officers who had been temporarily assigned to OCI to be returned to the DPD. The previously high number of backlogged cases has now been eliminated, and as of July 3, 2014, OCI had 270 open cases, none of which had been open in excess of 90 days. As further confirmation of these positive trends, the DOJ recently conducted its own review of the DPD s current use of force and arrest practices. This review 9

12 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 12 of 17 Pg ID confirmed that the new policies, procedures, and mechanisms for supervision and accountability implemented by the DPD pursuant to the Consent Judgment have resulted in systemic change and greater constitutional policing. In its review of investigations by the DPD s Force Investigation Section completed during the first quarter of 2014, the DOJ found only intermittent incidents of unconstitutional force with no discernible pattern connecting them. Incidents of excessive force can occur in any police department, making it critical that police departments have systems in place to identify them and make changes to policy and practice to ensure that isolated incidents do not become systemic issues. In that respect, the DOJ s review also confirmed strong improvement in the DPD s supervisory review and investigations of officers use of force. Although the DPD still struggles with timely collection and appropriate consideration of all evidence, the DOJ s review concluded that, more often than not, when issues of concern arise DPD supervisors and investigators are identifying relevant policy violations and recommending appropriate corrective action, and the trend is improving. Accordingly, the Parties agree that, although short of the Monitor s 94% compliance standard, in practice the DPD s accomplishments under these remaining provisions reflect greater progress and a commitment to reform than can be adequately conveyed in a mere finding of compliance or non-compliance. The 10

13 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 13 of 17 Pg ID fact is that, after more than a decade of reform efforts under the Consent Judgment, the DPD s practices have improved drastically with respect to both compliant and non-compliant provisions and, even more significantly, with respect to constitutional policing in the City of Detroit. 3. The DPD s Reforms are Institutionalized The practices instituted by the DPD pursuant to the Consent Judgment have been integrated into the fabric of the department, which ensures the sustainability of its reforms. For instance, the DPD tailored its policies to directly correspond with each provision of the Consent Judgment and trains its officers accordingly. It conducts regular needs assessments to ensure that its policies and procedures comport with current law and professional standards, and that its training curricula and methods are appropriately tailored to the knowledge, skills, and abilities of the officers being trained. The DPD has established an Audit Team, staffed with both sworn and civilian auditors, to conduct department-wide audits to track the performance of all aspects of the DPD. The Audit Team members received comprehensive training from the Los Angeles Police Department s audit division, which is known for its strict auditing processes, as well as from professional auditors from Kroll, the original Independent Monitor s firm. When there is a deficiency identified by an audit, the commanding officer of the audited unit is required to develop a 11

14 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 14 of 17 Pg ID corrective action plan to address the issue. The Audit Team then uses an electronic database to track the recommended strategies, ensure that corrective action is taken, and identify repeat offenders. The DPD has also established other reviewing bodies, including the Inspection Unit, Compliance Liaison Officers, and Force Investigation Section, to perform intensive inspections of police practices from the precinct to the command levels. When there is a non-compliant finding, the commanding officers and other supervisors responsible for the deficiency are held directly accountable to ensure that policies are effectively implemented. Finally, the DPD s use of its Management Awareness System has proven to be an effective management tool for use throughout the DPD at all levels. It is used as an early intervention system to alert supervisors of officers who require a review for at-risk behaviors, as well as to conduct Performance Evaluation Enhancement Review Sessions. The DPD is committed to sustaining all of the reforms that it has put in place pursuant to the Consent Judgment to ensure that the progress that it has made will continue even after the formal monitoring ceases. B. Entry of a Transition Agreement Will Provide a Mechanism to Demonstrate Sustained Compliance and Reforms The Parties are confident that adequate safeguards are now in place to ensure that the City will be able to sustain its reforms. However, to the extent that there 12

15 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 15 of 17 Pg ID are areas in which the DPD needs to improve, and in recognition of the Consent Judgment s requirement that the City demonstrate sustained compliance, the Parties have agreed to enter into an approximately 18-month-long Transition Agreement. (The proposed Transition Agreement is attached hereto as Exhibit 1). This Transition Agreement would facilitate the evolution of the DPD from an agency focused on the requirements of the Consent Judgment to an agency focused on sustaining effective and constitutional police practices outside the framework of strict third-party oversight. Specifically, the Transition Agreement provides that the DOJ would remain engaged with the DPD by reviewing and evaluating the DPD s internal audits, as well as conducting on-site visits, and providing comments and technical assistance where needed, to ensure that DPD s reform efforts continue and are sustained. The Transition Agreement also provides the Court with continued jurisdiction so if problems are identified there is a mechanism for any necessary dispute resolution. Finally, the results of the DPD s audits will be published on the DPD s website, which will help maintain the transparency of DPD s practices and foster its accountability to the citizens of Detroit, and the community generally. 13

16 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 16 of 17 Pg ID III. CONCLUSION For the reasons set forth above, the City and the United States request that the Consent Judgment be allowed to terminate on August 18, 2014, which is the current deadline, and be replaced with the proposed Transition Agreement. Respectfully submitted, For The United States: MOLLY J. MORAN Acting Assistant Attorney General MARK KAPPELHOFF Acting Deputy Assistant Attorney General JONATHAN M. SMITH Chief For the City of Detroit: s/ Melvin B. Hollowell MELVIN B. HOLLOWELL CHARLES RAIMI ALLAN CHARLTON Attorneys for Defendant City of Detroit Law Department 2 Woodward Ave., Ste. 500 Detroit, MI s/ Jeffrey R. Murray LAURA L. COON Special Counsel JEFFREY R. MURRAY Trial Attorney U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. N.W. Washington, DC BARBARA L. McQUADE United States Attorney s/ Susan K. DeClercq SUSAN K. DeCLERCQ Assistant U.S. Attorney 211 W. Fort Street, Ste Detroit, MI

17 2:03-cv AC-DRG Doc # 720 Filed 08/08/14 Pg 17 of 17 Pg ID CERTIFICATE OF SERVICE I hereby certify that on August 8, 2014, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record in this matter. I further certify that a copy of the foregoing paper will be sent by electronic mail to the Independent Monitor at the following address: ROBERT WARSHAW Rochtopcop@aol.com s/ Jeffrey R. Murray JEFFREY R. MURRAY Trial Attorney U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. N.W. Washington, DC