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Jonathan McClellan believes he knows the best way to change policing in Minnesota: Get the federal government involved. 

McClellan, a former Minneapolis firefighter and president of the Minnesota Justice Coalition, is among several local activists who are calling for the Department of Justice to open what are called pattern or practice investigations into local police departments. Under such investigations, the Justice Department determines whether a police department’s use of force violates the public’s constitutional rights. If so, this can lead to a court-ordered consent decree forcing that department to reform. 

Minnesota U.S. Sens. Amy Klobuchar and Tina Smith asked the Trump administration’s Justice Department for an investigation into the Minneapolis Police Department last summer, after the George Floyd killing. In late March, less than two weeks before a Brooklyn Center police officer killed Daunte Wright during a traffic stop, McClellan led a coalition of advocacy organizations to make an official request to the new attorney general, Merrick Garland, for such a federal probe into Minnesota policing, though they were not specific about which police departments should be investigated. Among the co-signers of the letter were known faces of the Twin Cities advocacy community like Jaylani Hussein of the Council for American-Islamic Affairs Minnesota and Nekima Levy Armstrong of the Racial Justice Network.

“This is needed to heal the community as well as find areas that need reform, and ultimately obtain justice, and build public trust of our institutions that are supposed to protect us,” the letter reads. 

Why ask for this route? At a time when debates over how to change policing seem endless — from reforming to defunding to outright abolishing police departments — McClellan argued that the Justice Department is best equipped to handle the matter because local and state policymakers have failed. 

“When you have a community where there is absolutely no credibility in your elected leaders and in your police departments, you have to look outside,” McClellan said. “The pattern and practice investigation seems to be the only avenue that we have to seek redress.” 

Pattern or practice investigations were a hallmark of President Barack Obama’s Justice Department. Under Obama, the Justice Department launched 23 pattern or practice investigations into police departments in cities like Albuquerque, N.M.; Ferguson, Mo.; and Baltimore. The Obama Justice Department entered into consent decrees with 15 police departments, including in all of the cities listed above. 

They fizzled out under President Donald Trump’s administration, which opened no new pattern or practice investigations. President Joe Biden 

 to reverse this trend. Last Friday, Garland reversed a decision by Trump’s former Attorney General Jeff Sessions to weaken enforcement of existing consent decrees. 

Now, with policing in Minnesota under intense local and national scrutiny amid Wright’s killing and a coming verdict in the murder trial against former Minneapolis police officer Derek Chauvin in the death of Floyd, questions loom over whether the Justice Department will recommit to this type of police accountability and set its eyes on Minnesota. Below, Sahan Journal breaks down what such an effort may look like, and what it would mean for Minnesota.

What is a ‘pattern or practice’ investigation of a police department? 

A pattern or practice investigation happens when the Justice Department studies whether misconduct from a particular police department forms a pattern over time. For example, if a city’s police force’s traffic stops, arrests, and searches all fall disproportionately on that city’s Black population, a pattern or practice investigation may look into whether these practices violate the city residents’ Fourteenth Amendment rights, which guarantee all people equal protection under the law. 

The Justice Department also uses this type of investigation to examine whether a police department’s deadly use of force violates the public’s Fourth Amendment rights against unlawful searches and unreasonable seizures. 

When the Justice Department opens a pattern or practice investigation of a police force, its Civil Rights Division leads the probe. The division typically partners with the U.S. Attorney’s Office that has local jurisdiction. 

Pattern or practice investigations take time. For example, federal investigators took one year and interviewed 340 police officers in its investigation of the Chicago Police Department in 2016, 

. Besides interviewing the police officers, federal investigators also interview people from the community impacted by the force’s actions. 

What happens after such an investigation? 

The Justice Department publicly releases its findings on whether a police department’s practices violate the public’s constitutional rights. If no findings are made, the case is closed with no further action.

If findings are made, what usually comes next is negotiations between the Justice Department and the police department over what type of reforms must occur. That negotiation often happens in federal court, resulting in a consent decree. The consent decree is essentially the court-ordered reforms that the police department undertake. 

The federal court usually appoints an independent monitor to follow the progress of the reforms and mediate between the federal government and the local police department. 

What gives the Justice Department the right to investigate and enforce reforms of local police departments?

This authority comes under a section of the 1994 Violent Crime Control and Law Enforcement Act, best known as the Clinton Crime Bill. This is the same law that many civil rights advocates decry today for beefing up law enforcement, toughening criminal penalties, and causing mass incarceration, especially of people of color. President Joe Biden, then a senator, played a leading role in authoring the Senate version of the bill. 

bars law enforcement from engaging “in a pattern or practice” that “deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” The law allows the U.S. Attorney General to “eliminate the pattern or practice” in civil court.

This provision came as a response to the Rodney King beating in 1991 by officers of the Los Angeles Police Department.

What doesn’t a pattern or practice investigation do? 

A pattern or practices investigation cannot investigate more than one police department. So while McClellan’s coalition calls for a general investigation into Minnesota policing, any such investigation would have to pick one police department. 

Pattern or practice investigations cannot result in criminal indictments of police officers. 

Do pattern or practice investigations and consent decrees work?

This would probably be a topic of ongoing debate should such an investigation come to Minnesota. Proponents point to studies 

 use of force dropping 25 percent one year into multiple police departments’ operations under consent decree. Police shootings in Detroit 

 five years after entering a consent decree. Serious use of force by Seattle police 

 seven years after entering into a consent decree. 

Such processes, however, are lengthy and costly. The Albuquerque Police Department is now into its seventh year of consent decree, and taxpayers 

have paid the federal monitor in that case $7.5 million

. Relations between APD and the monitor 

How deep is the push for a pattern or practices investigation into Minnesota police departments? 

In her formal request last May to then-Attorney General William Barr, Klobuchar wrote that MPD’s “racially discriminatory and violent policing” warranted such an investigation. The Justice Department, Klobuchar wrote, must “be prepared to use the strongest tools available — including the use of court-supervised consent decrees — to ensure oversight, enforcement, and accountability on an ongoing basis.” 

Around that same time, the Leadership Conference on Civil and Human Rights, a Washington DC-based civil rights group, led a coalition of more than 200 organizations making the same request. In its formal letter to Barr, the Leadership Conference cited documented racist practices from MPD against the city’s Black community going back to the 1940s. 

“The Justice Department must determine whether MPD’s practices violate the 14th Amendment’s Equal Protection Clause,” the Leadership Conference’s letter reads. On top of Floyd’s killing, the letter also specifically cited MPD’s recent killings of Thurman Blevins in 2018 and Jamar Clark in 2015. 

At the time, Barr said his office would not rule out such an investigation. But a spokesperson from Smith’s office told Sahan Journal the Justice Department never took the steps to open an investigation. 

A spokesperson with the local U.S. Attorney’s Office in Minnesota, which is under the Justice Department’s jurisdiction, did not respond to Sahan Journal’s request last week seeking comment on the matter. 

 that the Justice Department would conduct and prioritize such investigations again. 

Perhaps most notable about the Leadership Conference’s request for an MPD investigation last summer is the person who led that organization until January: Vanita Gupta. Under President Barack Obama, Gupta supervised the Justice Department’s Civil Rights Division, which oversees pattern or practice investigations. Biden has since nominated Gupta for the No. 3 spot in the Justice Department, which is pending a Senate confirmation vote. 

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