The Civil Rights Division of the U.S. Department of Justice is responsible for enforcing federal laws that prohibit State and local law enforcement officers from engaging in a pattern or practice of conduct which violates the constitutional or federal statutory rights of community members. (See 34 U.S.C. § 12601).  

For example, attorneys in the Civil Rights Division are authorized to investigate local law enforcement agencies whose personnel are allegedly involved in using excessive force, conducting unlawful searches and arrests, or engaging in racial or disability discrimination, among other violations.  In those cases, attorneys from the Division’s Special Litigation Section can gather evidence to determine whether officers have engaged in a pattern or practice of unlawful conduct and whether an agency has unlawful policies, inadequate training, or other deficiencies which contributed to the practice or pattern of systemic violations.  At the conclusion of its investigation, the Department issues a report of its findings (sometimes referred to as a “Findings Letter”) and provides the local jurisdiction an opportunity to respond to the allegations.  The Department also invites the local jurisdiction to work with it to craft appropriate remedies to resolve the identified concerns.   If the local jurisdiction and Department have agreed upon a set of reforms to address the alleged violations, they may enter into a Civil Consent Decree or an out-of-court Settlement Agreement as explained below.

The Department may file a civil lawsuit seeking a judicial order to require the agency to change its policies, procedures, training or other deficiencies to ensure that the constitutional rights of its community members are protected.  In cases where the Department can prove a pattern or practice of illegal conduct by a local or state agency, the parties may negotiate and enter into a formal agreement known as a civil Consent Decree (Consent Decree) which is entered as a court order and overseen by a local federal judge.  

The Consent Decree identifies the particular reforms necessary to address the allegations of illegal conduct and an agreement by the local jurisdiction to implement the necessary changes.  A court-appointed Independent Monitor measures and reports on progress in implementing the Consent Decree’s requirements and whether the local jurisdiction is in compliance. When the Court finds that the local jurisdiction has complied with the Consent Decree’s provisions, it may end the decree and the terms of the court’s order.  If the Court finds that the local jurisdiction is in violation of the terms of the Consent Decree, the Court can find the jurisdiction in contempt and institute penalties.

In some cases, rather than filing a lawsuit in federal court and entering into a Consent Decree, the Department and local jurisdiction may enter into an out-of-court Settlement Agreement.  Unlike a Consent Decree, which is directly overseen by the court and an Independent Monitor, in a settlement agreement the parties assess the local jurisdiction’s compliance with the agreement without court involvement.   If the local jurisdiction breaches the Settlement Agreement, the Department must file a lawsuit to enforce the agreement’s provisions in court.

In some cases, the Department may resolve a pattern-or-practice finding by entering into a “Memorandum of Agreement” (MOA) with the local jurisdiction enforceable in federal court as a contract between the parties.  This typically occurs only when the issues to be addressed are relatively narrow and there is significant evidence that the jurisdiction has the capacity to accomplish and sustain the needed reforms without court oversight and can do within a reasonable time period.  An MOA may also be a method to address specific issues when the Department does not find a pattern or practice which violates the law but there are problems that both the federal government and local jurisdiction are willing to work together to resolve through technical assistance, training or other methods.

While enforceable in federal court if the Department or local jurisdiction breaches the terms of the MOA, the MOA is not necessarily filed in court.  Such agreements, however, may form the basis of the terms of a “Settlement Agreement” which is filed in Court but, unlike a Consent Decree, does not require ongoing Court involvement and oversight. 

The Department often makes available technical assistance to the local jurisdiction to address issues identified during a pattern or practice investigation or after a Findings Letter has been issued.  The technical assistance is provided through various components of the Department including the Office of Community  Oriented Policing Services (COPS Office) and Bureau of Justice Assistance (BJA), which are separate from the Civil Rights Division, and considered complementary efforts to improve policing in local jurisdictions.

An agreement to provide Technical Assistance may be reflected in a Memorandum of Agreement, Settlement Agreement, or terms of a Consent Decree and do not require a Department finding of a pattern or practice of unconstitutional conduct or violation of federal law.

A post-judgment order is typically when the court has entered judgment against local jurisdiction and then entered an order requiring the parties to perform a specific actions.  These actions may include changes in policies, procedures, hiring practices, or other actions to address the violations found by the judge or jury.

In cases where the Department does not find sufficient evidence of a pattern or practice of unlawful conduct or other violation of federal law, the local jurisdiction is notified and the case is closed without the necessity of a lawsuit, Consent Decree, or other agreement.