MEMPHIS, Tenn. — Nearly a year and a half later after announcing their investigation, United States Department of Justice officials have presented a consent decree to City of Memphis officials - but city officials are resisting it.
City of Memphis officials released a document earlier Wednesday in response to the Department of Justice’s agreement in principle relating to the pattern or practice investigation saying they, “cannot do that.”
Addressed to Assistant Attorney General Kristen Clarke, Steven Rosenbaum and Maureen Johnston of the Justice Department’s Civil Rights Division, the letter reads that the city has received the agreement in principle from the DOJ to negotiate the consent decree.
“The agreement would require the city to agree in principle to negotiate a consent decree aimed at institutional police and emergency services improvement without having adequate time or opportunity to review and/or vet the DOJ’s forthcoming findings report,” the document reads.
DOJ officials announced the pattern or practice investigation into the Memphis Police Department July 27, 2023, roughly six months after the death of Tyre Nichols. The investigation focused on MPD’s use of force and its stops, searches and arrests, as well as whether it engages in discriminatory policing.
Nichols was stopped by MPD’s now-disbanded SCORPION unit officers on Jan. 7, 2023. He was pepper sprayed, beaten and tased across two different scenes by officers. Nichols died three days later at St. Francis Hospital. Those officers were later indicted on federal and state charges.
“The tragic death of Tyre Nichols created enormous pain in the Memphis community and across the country,” Attorney General Merrick B. Garland said in a release at the time of the investigation’s announcement.
“The Justice Department is launching this investigation to examine serious allegations that the City of Memphis and the Memphis Police Department engage in a pattern or practice of unconstitutional conduct and discriminatory policing based on race, including a dangerously aggressive approach to traffic enforcement."
Despite the timing with Nichols’ death, DOJ officials said it was not the sole cause for the announcement of the investigation. According to the DOJ, data suggests MPD uses discriminatory practices with traffic stops, specifically targeting Black and brown people around the city, including the traffic stop on Jan. 7, 2023, that led to Tyre Nichols' death.
THE CITY’S RESPONSE
The document, signed by the city’s Chief Legal Officer Tannera Gibson, continues to say that a legal finding supporting that the city’s patterns and practices violate the Constitution requires a legal process.
“In the best interest of our community, we cannot do that. Moreover, the investigation and unreleased findings only took 17 months to complete, compared to an average of 2-3 years in almost every other instance, implying a rush to judgement,” the document reads.
The city’s letter reads that the legal process includes things such as the ability to challenge the methods of evaluating information, the credibility of witnesses, and the facts used to arrive at the conclusions.
“Until the city has had the opportunity to review, analyze, and challenge the specific allegations that support your forthcoming findings report, the City cannot - and will not - agree to work toward or enter into a consent decree that will likely be in place for years to come and will cost the residents of Memphis hundreds of millions of dollars,” the document reads.
“From what we understand, consent decrees remain in place for an average of more than ten years, with absolutely no controls to ensure timely completion or consideration for the financial impact to the affected community. Such a proposal is not the right solution for Memphis.”
The city’s documents continue to say that they believe there are better ways to “reimagine policing” that won’t cost taxpayers millions of dollars.
The city’s letter also said that they will work with partners within the city, as well as national police reform experts and the DOJ to produce an improvement plan that can be implemented, “much more effectively and efficiently than a consent decree.”
“The City is committed to supporting the Memphis Police Department’s continuous improvement plan, and we will be in contact with you in the next several weeks after we have had an opportunity to thoroughly review and legally analyze the forthcoming report.”
THE DOJ'S FINDINGS
In a release late Wednesday, the Justice Department laid out its findings in its investigation, saying MPD and the City engaged in a pattern or practice of conduct that violates the U.S. Constitution and federal law.
The DOJ said it found that MPD:
- Uses excessive force,
- Conducts unlawful stops, searches and arrests,
- Unlawfully discriminates against Black people when enforcing the law,
- And the City and MPD unlawfully discriminate in their response to people with behavioral health disabilities.
The DOJ said it also “identified serious concerns about MPD’s treatment of children,” and found “deficiencies in policy, training, supervision and accountability that contribute to MPD’s and the City’s unlawful conduct.”
“The people of Memphis deserve a police department and city that protects their civil and constitutional rights, garners trust and keeps them safe,” said Clarke. “We acknowledge Memphis’ cooperation during our investigation and look forward to instituting reforms that will address the harms we identified.”
“This process and these findings uncovered that our city has a lot of work to do,” said Acting U.S. Attorney Reagan Fondren for the Western District of Tennessee. “Memphians are rightly concerned with gun violence and violent crime. They are also rightly concerned about the collective approach that we must take to tackle these issues. We hope to work with Mayor Young, Chief Davis, the Memphis Police Department and our Memphis partners to move forward.”
The DOJ said the City and MPD “cooperated fully” with its investigation.
WHAT COMES NEXT FOR THE INVESTIGATION
With city officials saying they do not intend on entering the consent decree, DOJ officials could potentially take the city to federal court to enforce it but that might not be feasible due to the shifting power structure in Washington D.C.
“This whole dynamic tells us a couple of things,” said Alex Vitale, sociology professor at Brooklyn College. “One, it tells us that the city of Memphis is not really that interested in police reform, that they don't want anyone looking over their shoulder, that they don't want to have any binding agreements.
“It also points out the fact that the Trump administration is likely to walk away from these consent decrees, quit trying to obtain them and probably stop really enforcing or monitoring the ones that exist.”
Vitale said the move makes him wonder what city officials plan to do on the problems that led to the investigation opening in 2023.
“It just continues to rely on policing to paper over a whole set of deeper policy failures, and then when that results in misconduct, violence, racial disparities in policing, we see them trod out a bunch of very superficial measures where there’s no follow-up and no long-term accountability.”
This isn’t an anomaly for a city government to resist consent decrees, Vitale said, and part of that involves a calculation about what is going to happen in the presidency.
“This is a slightly different situation, where cities have a pretty good reason to believe, even a couple months out, that these consent decrees are not going to go forward under the new administration,” Vitale said. “You know these consent decrees have not been around for that long, only about 30 years.”
Pattern or practice investigations spawned in 1994 in response to the beating of Rodney King in Los Angeles. Vitale said even in the 30 years of their occurrence, the value of them is questionable.
“Over the last 10 years, we've seen a whole raft of consent decrees, presidential commissions, police reform initiatives, but the number of people killed by police has actually increased, and the racial disparities in policing have not gotten any better,” Vitale said. “So in a way, the consent decrees are actually often quite expensive for localities to implement. They don't necessarily get any new resources to do so, and even when they do implement them, they don't produce the kinds of results that are hoped for.”
The consent decrees are often critiqued at not primarily being designed to make policing better, Vitale said, instead serving as a “level of political cover.”
“In the sense that in a moment of crisis, when there's a lot of righteous anger demands for real structural changes in the role of policing, the federal government partners with [the] local government to say, ‘It's okay, don't worry. Quit protesting. We're going to look at everything. We're going to give you some common sense reforms. We're going to put a monitor in place to make sure this is done,’” Vitale said.
“But in practice, what happens is that the departments don't abide by the agreements the monitors routinely report failure to follow through on the conditions, and even more importantly, the actual conditions in the community don't change.”
With the city deciding to spurn the decree, Vitale said it presents an opportunity for the city to find a new way forward - breaking through the normal platitudes of reforms that have been seen several times in various municipalities.
“Instead of trotting out the same tired old, superficial and ineffective reforms like tweaking training and, you know, body cameras and a little change in the use of force policy that perhaps they could ask some tougher questions about why every time there's a problem in Memphis, the solution is give it to the police,” Vitale said.