DOJ Investigation of Ferguson Police: Fair and Impartial?

It’s not enough that the Justice Department is investigating the shooting of Michael Brown by a Ferguson, MO police officer. Now it’s opening up a “pattern and practice” investigation of the entire Ferguson police force. The big question: Is this Justice Department capable of conducting a fair and impartial investigation?

The applicable federal law (42 U.S.C. §14141) makes it unlawful for any governmental authority “to engage in a pattern or practice of conduct by law enforcement officers … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” This is not a criminal statute; it gives DOJ authority to file a civil action to “obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.”

The question about the Department’s ability to conduct a fair “pattern and practice” inquiry arises because the shop responsible for conducting the investigation is the Special Litigation Section of DOJ’s Civil Rights Division. Sections attorneys enjoy incredibly broad discretion in deciding what investigations and cases to pursue and have a disturbing track record of abusing that power.

As I explained in one of a series of articles called “Every Single One” that J. Christian Adams and I wrote for PJ Media on hiring in the Civil Rights Division:

Anyone who doubts the havoc that renegade attorneys from the Special Litigation Section can inflict on municipal institutions needs only read Heather MacDonald’s extraordinary piece -- “Targeting the Police: The Holder Justice Department Declares Open Season on Big City Police Departments” -- detailing the $100 million that the Los Angeles Police Department has been forced to incur as part of a draconian federal consent decree demanded by the Section’s legal staff. Or one can examine the (fortunately failed) efforts by Section attorneys during the Clinton administration to intimidate the state of New Jersey into radically modifying its law enforcement practices based on bogus allegations of racial profiling by state troopers.

Incredibly, the Section’s staff even tried to suppress the report that completely debunked the allegations. It was a sad state of affairs that eventually caused the Bush administration to have to remove the then-chief of the Section and force the line attorney involved to find alternative employment.

In the analysis of the resumes of the lawyers hired in the Special Litigation Section during the Obama administration (which DOJ only reluctantly turned over after PJ Media filed a Freedom of Information Act lawsuit), Adams and I found that every single one of the 23 new career attorneys hired in the Section since the Obama administration came to office had unequivocal liberal bona fides. While numerous lawyers were hired who had worked as public defenders or for organizations that advocate for the rights of criminals and prisoners, “not a single lawyer was hired with experience as a prosecutor or in law enforcement in a Section which has as one its main jobs investigating the practices of local police.”

This includes the very head of the Section, Jonathan Smith:

Following the rather ignominious departure of the previous chief in 2010, the Civil Rights Division brought in Jonathan Smith to take the helm of the Special Litigation Section. And what a pick! Indeed, when it comes to liberal activists, Mr. Smith is right out of central casting. He served for eight years as executive director of the Legal Aid Society of the District of Columbia and spent the four years prior to that as the executive director of the Public Justice Center, an organization whose stated mission is “to enforce and expand the rights of people who suffer injustice because of their poverty or discrimination.”

He also spent another nine years as a staff attorney and executive director of the D.C. Prisoners’ Legal Services Project, advocating on behalf of criminals incarcerated in the nation’s capital. For local police departments that find themselves the subject of investigations by Mr. Smith’s shop, his biases will surely reinforce the notion that any expectation of neutrality in the Section’s probes is a pipe dream.

Our review of the backgrounds and experience of the lawyers working in the Special Litigation Section, combined with my own experience working in the Civil Rights Division, convinced me that almost all the lawyers in the Section harbor an active hostility towards law enforcement. That makes it difficult to have confidence in the impartiality and objectiveness of any investigation the Special Litigation Section conducts in Ferguson.