Jurisprudence

How the Trump Administration Undid Obama’s Response to Ferguson

The Obama-era reforms could not have stopped George Floyd’s death, but dismantling them sent a clear message to the police.

Many police officers and vehicles in front of the White House
A large law enforcement response near the White House after a protest was dispersed on Monday. Drew Angerer/Getty Images

For the second straight week, peaceful daytime protests in response to the murder of George Floyd have given way to widespread, violent police suppression and sporadic looting by nightfall. Even in the past five years, the United States has seen similar uprisings against police brutality and similar state-sanctioned violence against protesters. But many have commented that this time feels somehow different. With millions out of work, hundreds of thousands hungry, more than 100,000 dead because of the unchecked COVID-19 pandemic, and a president who douses the violence in tear gas, there are some obvious explanations for why 2020 is different from 2015, or 2014, or 1992, or 1968.

Racism and police violence existed long before Donald Trump became president, but he’s further emboldened police forces across the country. In addition to aligning himself rhetorically with police who commit brutality, Trump methodically dismantled the already limited federal checks on abusive police departments in the years before the Floyd uprising. If it feels like police officers across the country are acting with virtually total impunity, it’s because they have been granted that impunity by federal officials.

There are three key ways that Trump’s Department of Justice has eroded or outright dismantled checks on abusive police departments in the past 3½ years: First, it has all but ended the Barack Obama–era practice of placing police departments that violate constitutional rights under court-supervised consent decrees. These court-monitored settlements have, according to experts, offered some deterrent to police chiefs who do not want to see their departments placed under federal supervision. Second, it ended a voluntary federal-state collaborative reform program, over the opposition of police chiefs—including Republicans—who embraced the initiative. Finally, it reversed limits on a program that has provided billions of dollars of military-grade vehicles and weapons—such as grenade launchers and bayonets—to local police departments. These reforms were either introduced or escalated in response to the police killing of Michael Brown in Ferguson, Missouri, in 2014 and the subsequent heavily armed police crackdown on Black Lives Matter protests. As soon as he took office, Trump has undone them one by one.

“The political leadership of the Justice Department targeted the most effective parts of the police reform program and essentially prohibited them,” said Chiraag Bains, the director of legal strategies for Demos and a former Civil Rights Division attorney who co-wrote the Ferguson report. “I think you can see just how severe the absence of Justice Department oversight and intervention has been in the moment we’re in right now.”

It’s impossible, of course, to draw a causal link between the gutting of these programs and the current conflagration. Cities and states have much more direct control over police agencies than the federal government, and systemic racism has existed in this country since its founding. But we’ve seen recently how this president’s dismantling of seemingly minor systemic checks can have devastating consequences. Prior to the COVID-19 pandemic, the Trump administration closed the National Security Council’s pandemic response unit, withdrew the Centers for Disease Control and Prevention’s China expert whose job it was to track novel disease outbreaks, shelved the previous administration’s pandemic response playbook, and dismissed a transition briefing on pandemic danger. Preserving these programs might not have stopped COVID-19 from spreading to the U.S., but they could have helped the administration get an earlier handle on the problem, as many other countries did, and saved thousands of lives.

Like how Trump’s dismantling of pandemic-response systems clearly exacerbated the coronavirus crisis, the impact of the DOJ’s dismantling of its own tools to rein in corrupt police departments is being felt today. The lack of oversight is obvious as police across the United States assault and arrest peaceful protesters, domestic and foreign journalists, people standing on their own property, 70-year-old members of Congress, clergy, and old men with canes.

The reforms implemented by the previous administration were not nearly enough to curtail systemic racist policing, but they did at least offer some mechanism of accountability. Start with the consent decrees—the court-monitored agreements between local police departments and federal or state officials that result in mandatory changes and benchmarks for departments that have violated citizens’ constitutional rights. Under a 1994 law, the attorney general has the right to sue local police departments that have engaged in constitutional abuses. Under Obama, the Department of Justice used that power to threaten localities with lawsuits and get them to agree to voluntary court-supervised oversight. The Obama administration opened 25 investigations of police departments that resulted in at least 15 consent decrees leading to court oversight of police departments in cities ranging from Chicago to Ferguson to Baltimore. In municipalities across the country, the DOJ mandates have included bias training and official monitoring of incidents of bias, independent investigations of use-of-force incidents, de-escalation training, and limits on how and when police can interact with citizens. At the very least, these departments understood they were being watched and had to regularly report progress to a judge.

After significant lobbying from police unions that have supported Trump, the Department of Justice undid these reforms. In his second month in office, former Attorney General Jeff Sessions ordered a review of all consent decrees and placed roadblocks to existing decrees. On his last week on the job, Sessions issued a memorandum imposing strict limits on new consent decrees and preventing enhancements to current ones. He demanded that new decrees and changes to existing ones be approved by political leadership rather than career attorneys, required proof of violations other than constitutional abuses, and ordered sunset dates for all new agreements. These moves effectively closed the door to new consent decrees and placed severe limitations on current ones.

Dramatically, the Sessions DOJ even refused to go forward with a consent decree of the Chicago Police Department after the Obama administration had already issued a report finding systemic abuses in the wake of the murder of Laquan McDonald. “You were in a place where a department had been thoroughly investigated by Department of Justice attorneys, there were findings of constitutional violations, and still this administration literally abandoned this effort,” said Lynda Garcia, one of the DOJ Civil Rights Division’s Chicago investigators who is now the policing campaign director at the Leadership Conference on Civil and Human Rights. After the state of Illinois took the Obama DOJ’s report and enacted its own consent decree with Chicago, Sessions’ department took the unprecedented step of filing with the court in opposition to the state-local consent decree. “It was a jaw-dropping moment when the Department of Justice weighed in on a state-level matter to try and intervene to prevent an agreement between the state government and the local government to correct constitutional violations,” Garcia noted. “It was not within their jurisdiction. … It was a real show of where they stand and that they are actually working to impede police accountability and reform.”

While consent decrees are not and have never been a panacea, they at least offered some mechanism to keep the most egregious police departments in check. “The absence of the possibility of a DOJ investigation has been extremely harmful as a deterrent to misconduct,” Bains said. Under the old rules, the Minneapolis Police Department—with its history of killings of unarmed black men—might now be facing a consent decree demanding court-ordered reforms. Senators have called on the DOJ to launch an investigation into the patterns and practices of the department to discern if Floyd’s killing was part of a bigger problem (the available evidence suggests that it is), and the state of Minnesota on Tuesday filed civil rights charges against the department. But the DOJ has continued to forswear its own role.

“Right now, you’re seeing calls for a pattern and practice investigation of the Minneapolis Police Department,” Bains said. “This Justice Department has completely walked away from this work. It would be helpful to have a Justice Department that stayed active on police reform and had the infrastructure and the ability to get involved in this case.”

Even if Attorney General William Barr wanted to reverse course, the Civil Rights Division has been so hollowed out that enforcing the law would be very difficult. “The unit that does these pattern and practice investigations was small to begin with, and now it’s been cut in half due to attrition and failure to hire people to fill slots,” Bains noted. (As Garcia also pointed out, Barr has said that communities that protest abusive police should lose policing protections altogether, and the DOJ said he personally ordered Trump’s attack on protesters in front of the White House on Monday, so it seems unlikely he would change the department’s position here.)

Critically, the police also have access to an even greater arsenal to respond to peaceful protesters thanks to the Trump administration’s reinstatement of a military surplus giveaway. Near the start of his term, Trump reversed Obama-imposed limits on a military program known as 1033 that allows the military to give surplus equipment to local police departments. “The Pentagon said 126 tracked armored vehicles, 138 grenade launchers and 1,623 bayonets had been returned since Mr. Obama prohibited their transfer,” the New York Times reported in 2017. “Tanks don’t belong on our city streets. They belong in combat,” Garcia said. Since Trump rescinded Obama’s ban, those weapons and equipment have flowed freely back to local departments that are now using them to assault lawful protesters. The New York Times reported on Tuesday that a handful of libertarian-minded Republican and independent members of Congress have indicated a willingness to join with Democrats to undo the program through legislation. It likely won’t be enough, though, to actually move the needle. The easy access to weapons is just one factor in the militarization of police.

Finally, in November 2017 the New York Times reported that the Department of Justice under Sessions had—over the opposition of local sheriffs—significantly scaled back a voluntary program called the collaborative reform initiative that allowed sheriffs to request DOJ funding and logistical support in analyzing and proposing reforms of their departments. The Times reported that multiple Republican and pro-Trump sheriffs from Spokane, Washington, to Fort Pierce, Florida, were frustrated that they had invested their department’s time to be assessed by independent collaborators in this voluntary program, but would now be denied even access to the resulting reports. “That was an even more shameful situation because there were police departments that never got reports that were due to them because the program was shut down,” Bains said. “They had worked with [that] office for months and months, turned over data and submitted to interviews, spent a lot of time with the [program] office, and never got their final report and recommendations, which they really sincerely wanted because they were trying to reform their practices and build trust with the communities that they serve.”

Ultimately, none of these initiatives was a silver bullet for police brutality and systemic racism in law enforcement. As many activists have noted, criminal abuses by police officers were rampant while Obama was president. The threat of accountability, the loss of military weapons, and a voluntary police reform program would almost certainly not have been enough to stop George Floyd’s murderer and his accomplices from taking Floyd’s life. But as with the pandemic, the fire is growing faster and spreading wider than it might have otherwise. As Garcia noted, the administration’s rhetoric and its dismantling of these reform efforts “send messages to police that they can do whatever they want.”