Do some, most or all US police departments have a pattern and practice of racial bias that makes them fundamentally unable to regulate themselves?
“It felt like the Columbus Police Department was at war with its citizens in the middle of the day, in the middle of downtown.”
Tammy Fournier-Alsaada was addressing a crowd in front of Ohio’s domed Capitol building one day last spring when someone whispered in her ear: Police were arresting protesters.
Fournier-Alsaada, 59, knew a thing or two about protests. She was an organizer with the People’s Justice Project, which had been fighting police abuse in Columbus since 2015. Fournier-Alsaada also knew the police. She had sat across the table from top officers as a member of a mayor-appointed commission on public safety reform.
This was May 30, 2020, the third day of racial justice protests in Columbus following the killing of George Floyd last spring. Everything looked mostly peaceful from Fournier-Alsaada’s vantage point on the stage — there had been some violence on a previous night — but she noticed a little commotion down the block.
She dropped the mic and rushed to investigate, but found a cordon of bicycle cops blocking her way. "Shut up, bitch!" Fournier-Alsaada said one officer spat at her when she asked to be allowed to pass. She spotted a familiar face among the officers milling in the street — a deputy chief she knew from the mayoral commission. He ordered his officers to allow Fournier-Alsaada and her group to cross the street.
She thought she’d gotten the police’s cooperation, but quickly realized they’d painted a target on her back. She was halfway across the empty street when she heard a sound like a bomb going off. She looked to the sky and saw tear gas canisters arcing right toward her. She was immediately blinded and unable to breathe — all she could hear was people screaming. Mounted officers charged into the chaos, a horse knocking her to the ground as she struggled to stand.
“It felt like the Columbus Police Department was at war with its citizens in the middle of the day, in the middle of downtown,” Fournier-Alsaada said. “That's what it was — they just launched a war.”
“Fournier-Alsaada looked to the sky and saw tear gas canisters arcing right toward her.”
Dozens of protesters were injured by police over several days of unrest. Police fired wooden bullets at protesters, shattering one man’s kneecap. Columbus’ three highest-ranking Black elected officials — a congresswoman, the president of the City Council, and a member of the county board of commissioners — were tear-gassed in the face.
In one incident caught on video, a woman named Aleta Mixon approached police for help finding her daughter. Instead, police sprayed her three times with tear gas at point-blank range. Mixon later testified that an officer also knocked her to the ground and stomped on her knee, shouting, “That’s what the f--- you get for being down here, you Black protesting b----.”
Fournier-Alsaada, Mixon and 24 others injured during the protests got lawyers. This group’s legal team included the city’s foremost civil rights attorneys, some of whom had been filing suits against the city and its police department for racial discrimination for more than 40 years.
Their case — known as Alsaada v. City of Columbus — is primarily about whether the police unconstitutionally used tear gas and other “less-lethal” weapons against protesters peacefully exercising their right to protest. But they also put another question before the court, one that is usually very hard for private litigants to raise: Does the Columbus police department have a pattern and practice of racial bias that makes it fundamentally unable to regulate itself? Whatever the beliefs of individual officers, does the institution behave in a racist way?
For decades, lawyers have tried to ask courts to stop biased policing, but legal technicalities make that difficult. Private plaintiffs sometimes can sue for damages when an officer violates their individual rights, but going after a whole department for institutional racism is usually out of reach. The Department of Justice does have the ability to sue a police department for racist "patterns and practices" under federal law, but it’s willingness to do so has been inconsistent.
But the police response to last year’s racial justice protests — which was often violent, extensively videoed and often in stark contrast with muted responses to right-wing protests — has given attorneys around the country the kind of evidence that they often lack to put systematic police racism before federal judges. There are now more than 70 lawsuits pending over police violence during last summer’s racial justice protests, from Seattle to Detroit to New York.
“The Columbus police put their propensity for violence, especially when dealing with Black people and people who question their racism — Black or white — on display,” said Fred Gittes, one of the attorneys in the Columbus case. “[That] was made public and videoed during May and June of 2020.”
“Going after a whole department for institutional racism is usually out of reach.”
As the one-year anniversary of Floyd’s killing approaches, the impact of the uprising that followed continues to grow. Judges have already issued preliminary rulings in several cities reining in the kinds of force police can use in response to peaceful protests.
The ruling in Alsaada from an Ohio federal court on April 30 was especially eloquent in condemning police abuse as part of a history of biased policing.
“This case is the sad tale of police officers, clothed with the awesome power of the state, run amok,” wrote Judge Algenon Marbley. Tracing the history of modern police departments from antebellum slave patrols to the murder of George Floyd, Marbley wrote, “New dark chapters have been drafted in this institution’s history books.”
arbley’s preliminary injunction was a significant victory for civil rights advocates, but it is not the final word in Alsaada; that will depend on the outcome of a full trial, which could take years. As this and other suits around the country move through federal courts, attorneys want to review hundreds of hours of body camera footage from last year's protests, as well as depose mayors, police chiefs and other high-ranking officials.
As recent history has shown, it’s hard to sue police for wrongdoing in America. You have to overcome the legal doctrine known as “qualified immunity,” which protects officers from litigation if they’re acting in their official capacity. You also have to overcome the built-in bias that judges and juries often have to believe the word of the police over the word of victims, especially if those victims are people of color.
This has made it hard enough to sue individual officers for specific incidents of wrongdoing in the past. But there are even more hurdles for plaintiffs who want courts to order systematic changes to the way police do business in the future — what’s technically known as “injunctive relief.”
“There's a number of legal doctrines that make it difficult for private plaintiffs to sue police departments for injunctive relief,” said Christy Lopez, a Georgetown Law professor who led pattern-and-practice investigations of police departments when she was an official at the Justice Department. “It's one thing to sue an officer and say, ‘I want money damages for you violating my rights.’ It's another thing to say, ‘I want the police to change its use-of-force training, and its use-of-force reporting, and to ban chokeholds and do all these other things’.”
“There are even more hurdles for plaintiffs who want courts to order systematic changes to the way police do business in the future.”
There have been only a handful of successful lawsuits that won major court orders forcing police departments to systematically change policy, Lopez said. Lopez served as a court-appointed monitor in Oakland, California, where a case filed in 2000 led a court to order a broad overhaul of the department’s discipline, training and management practices. Another important victory for private plaintiffs was litigation against New York City’s “stop-and-frisk” policy, which a judge ruled was unconstitutional in 2013.
DOJ has had much more success getting courts to step in than private plaintiffs.
The 1994 crime bill gave the DOJ the ability to sue departments for “a pattern or practice of conduct … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” Columbus itself was actually one of the first cities to be sued under this provision — and the first jurisdiction to aggressively fight a settlement, thanks in large part because of to the opposition of the local Fraternal Order of Police. Over recent decades, the DOJ has used its power to win consent decrees in cities including Pittsburgh, Detroit and New Orleans.
But the federal government has used this power only in fits and starts. The Biden administration has recently opened investigations under this provision into the police departments of Minneapolis and Louisville, but the Trump administration issued a memo in its earliest days declaring it would not be in the business of overseeing local police departments. The George W. Bush administration also pulled back from using this authority after a few path-breaking investigations under President Bill Clinton.
Civil rights attorneys are under no illusion that the lawsuits arising out of last year's protests are a substitute for federal action — or an overhaul of police departments by elected officials. But they do open the door to a kind of litigation that is often hard to pursue.
“All this is unusual,” said Jesse Merrithew, an attorney representing protesters in Portland, Oregon. “The sustained nature of the protest this summer really allowed a critical examination of tactics and bias that we don't typically get an opportunity to have. ... It's [usually] really hard for those of us who are litigators to say, ‘Oh, this is a pattern and practice of the police department of using force against this group and not that group.’”
“Lawsuits do open the door to a kind of litigation that is often hard to pursue.”
That’s partly why Marbley’s ruling in Columbus is so important, said Sean Walton, another attorney representing the Columbus protesters.
“The comprehensive nature of the judge's opinion, it really brings to life and it showcases to the entire world this underbelly that exists where the Columbus division of police have these unwritten policies that allow them to continuously discriminate against citizens,” Walton said.
Columbus, America’s 14th largest city, is in a county that ranks in the top 20 counties with the highest rates of fatal police shootings, according to a recent study. In the months before the hearings in the Alsaada case, police officers killed two Black men in Columbus — Casey Goodson and Andre Hill. Two more Black residents — Miles Jackson and 16-year-old Ma’Khia Bryant — were shot by police just before Marbley issued his ruling.
Against this backdrop, plaintiffs’ attorneys presented evidence of admitted bias within the department. One piece of evidence was a $475,000 settlement the city reached with a Black officer who was discriminated against within the department. Even though another officer routinely used racial slurs and allegedly threatened violence against him, the offender was not disciplined for discrimination and continues to work in the department.
Another key piece of evidence was a 2019 report by the Matrix Consulting Group which found that 29 percent of Columbus officers and 70 percent of the force’s Black officers said they’d personally witnessed racial discrimination within the department. A significant portion — 8 percent of all officers and nearly 30 percent of Black officers — said they’d witnessed officers discriminating against members of the public. In fact, only one officer has ever been recommended for termination for alleged discrimination — and she was a Black woman who wrote a book decrying racism within the department.
These facts won a stunning admission from Columbus Mayor Andrew Ginther during hearings in the police case.
“Mr. Mayor, you know from your consultants that there is a substantial portion of your police force that you cannot rely on ... to report misconduct by other officers?” asked attorney Gittes.
“Based on the findings of the Matrix report, yes, that is correct,” the mayor replied.
Columbus has struggled with racism in its police department even as the city has elected a number of high-ranking Black officials. Ginther’s predecessor, Michael Coleman, was the city’s first Black mayor when elected in 2000 and served four terms before leaving office in 2015.
“Twenty-nine percent of Columbus officers and 70 percent of the force’s Black officers said they’d personally witnessed racial discrimination within the department.”
Ginther has long acknowledged the Columbus police department has a problem with institutional racism and has taken steps to correct it, including demoting the police chief who was in charge of the department during last summer’s protests. Ginther also won passage of a referendum during last year’s elections that would create a civilian review board to investigate complaints against officers. The city also recently adopted a law that would require officers to activate body cameras during any enforcement action. And Ginther also ordered the police to rein in their use of tear gas during protests, though the court found that order was insufficient.
In an interview, Ginther acknowledged that reforming the police department is an uphill battle.
“Culture eats strategy for breakfast every day. And so no matter what kind of strategy and plan we had, the culture had to change,” Ginther said. The local Fraternal Order of Police, Ginther said, has “opposed me on every form of reforms.”
“It's an organization that has fought change and reform historically, and the community is demanding change and reform. And so the FOP is going to have to decide whether or not they're going to stand with the community or be opposed to the community.”
Since the most recent officer shooting of a Black citizen, Ginther has invited the DOJ to open an investigation into his own police department. The inquiry is necessary, Ginther wrote in the letter requesting federal intervention, because “the City has been met with fierce opposition from leadership within the Columbus Division of police.”
“It has become clear we will not be able to affect the rapid, significant and sustainable change we all desire and demand without different levers of power,” he wrote.
“The FOP is going to have to decide whether or not they're going to stand with the community or be opposed to the community.”
The local FOP, Capital City Lodge #9, did not respond to requests for comment. But the union has petitioned to intervene in Alsaada, opposing changes to the use of less-lethal weapons against non-violent protesters, because this “would dramatically affect and alter the terms and conditions of employment” under the contract with the city. The FOP’s motion to intervene says the union is particularly concerned about protecting “several important provisions that ensure the health and safety of law enforcement officers while they are on duty.”
The city of Columbus has not decided whether it will challenge Marbley’s order, according to a statement from Columbus City Attorney Zach Klein, but Klein said, “We respect Judge Marbley’s decision and agree with the need for changing the way police handle First Amendment-protected protests.”
But even if the city doesn’t fight the order, the FOP could. At the same time Marbley issued his judgment against the Columbus police, he also granted the FOP’s request to intervene in the case.
Whatever the final outcome in Columbus, it seems clear that this type of litigation will become more common. Even now, nearly a year since George Floyd was murdered in Minneapolis, new cases are still being filed connected to police use of force during the protests that followed.
“These claims are becoming much more widespread across the country because police violence is becoming much more widespread across the country,” said Amanda Ghannam, an attorney representing protesters in Detroit. All across the country, “we see the police sort of using the same tactics, the same techniques, the same equipment, the same weaponry.”
And this litigation will continue, said Ghannam’s co-counsel, Jack Schulz, until police themselves recognize the need for reform.
“I think there's really no resolution without the police identifying that there is an institutional problem going on and exhibiting any willingness to change their ways,” Schulz said. “I don't know that they're ready to do that.”
J. Lester Feder is a freelance journalist and 2020-2021 Knight-Wallace Reporting Fellow at the University of Michigan.
This article previously appeared in Politico.
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