Last week’s developments by the city of Phoenix that advised the DOJ that they were not going to agree to a police consent decree was historic and you deserve all of the credit for making that happen.
There is no question in our minds that the city would have never made that decision if it wasn’t for the concerns and efforts by the citizens of this great city.
Phoenix residents should be proud that you are the first major city to ever take this important step and whether you know it or not, without a consent decree, lives have been saved. That is not an opinion. That is based on every consent decree researched and peer reviewed literature.
It’s Not Over
But this is no time for celebration. This was the first battle in what likely could become an extended war. The DOJ cannot afford to let this happen and we will explain why and how they will fight below.
The New Playbook
Up until now, we have known exactly what the DOJ will do both during an investigation and their process to implement a consent decree. That playbook, which entails a faulty investigation combined with pressure on the city to sign a consent decree before even seeing a summary report, has pretty much always worked.
It certainly worked in every large city and there was no reason that the DOJ anticipated that it wouldn’t work in Phoenix.
But they underestimated the resilience and intelligence of our residents, politicians, and law enforcement professionals. Ultimately, they underestimated politicians that would simply do the right thing.
The DOJ had a good thing going…until that original playbook didn’t work.
We are somewhat in uncharted territory but not really. The next step by the DOJ will be to once again, attempt to gain compliance. That is the easiest and safest route and their efforts could get nasty.
They may threaten the city using grant money. The Byrne Justice Assistance Grant gives federal funding to agencies across the country and Phoenix is likely getting a few million dollars a year. There are smaller grants for technology, training, etc. but there is no question, this will be one of the first moves by the DOJ.
The DOJ could simply show their investigation and present evidence to the city as to why they need oversight. If the Phoenix Police Department is indeed corrupt, racist, etc. it shouldn’t be hard to prove. The DOJ was given a decade of documents, videos, reports, etc.
But that will not happen. The DOJ will tell the city that DOJ Grant Money will stop. Of course, that is likely not legal and as the DOJ would say just a few years ago, that sounds like a “quid-pro-quo.”
But it won’t work.
Anyone that can do basic math would understand that the absence of grant money and no consent decree makes the city richer…way richer.
The DOJ may threaten other funding like roads or highways but that isn’t legal and would be just a bluff.
When that doesn’t work, the DOJ will have three options.
- They can grant PPD a “Technical Assistance Letter” as they requested.
- They can release the summary report and file a lawsuit in federal court.
- They can leave.
What Will They Do?
They Can Leave
This will not happen. Consent Decrees have been destroying cities for 30 years and Phoenix has just called the DOJ out. If the DOJ walked away, it would signal to every other potential city that they also don’t have to comply. Remember, compliance is how consent decrees work. Without compliance, the DOJ must prove their case in court with actual evidence. Experts would have to be revealed, methodologies examined and a critique of their examples would occur. Phoenix would have the ability to respond to the investigation with their own investigation and as we have said for months, the investigation could not hold up in court.
They can grant PPD a “Technical Assistance Letter” as they requested
The DOJ is in a very difficult position. They know their case will not hold up to a court standard and they certainly don’t want a defeat which would empower others to fight them.
The Phoenix Police Department has gotten ahead of the summary report and potential lawsuit and in many ways, have prepared their residents for what the DOJ typically does (make the agency look really bad with a summary report). This significantly mitigates the ensuing DOJ press conference and dirty talk about PPD. A press conference and faulty summary report, designed to gain compliance from a city by baiting outrage from the citizens has usually worked in the past for the DOJ but that will not work now.
This has been a Masterclass in strategic communication by PPD and the Technical Assistance Letter (TAL) makes a ton of sense to anyone that knows how to read. Not only did PPD ask for the TAL, they cited the use of them by the DOJ in the past and attached a 50 page document outlining all of the reforms that agency has and will be making. We bashed Interim Chief Sullivan for his silence in the past but maybe he was typing the whole time. Getting the truth to the DOJ, in a public fashion, was nothing short of brilliant.
The only option for the DOJ to save face is the TAL and hope no other police chief or politician saw any of this.
But the DOJ hasn’t released a TAL for over a decade and it’s clear that in this era of “reimagining” police, the DOJ does not see a TAL as part of that equation.
But here’s the problem…
If the DOJ does not agree to a TAL, it becomes very clear to anyone paying attention around the country that the DOJ and their mechanism (consent decree) is not about police reform…it’s about something different…it’s about control.
The Phoenix Police Department is one of the best agencies in the country and the DOJ has acknowledged that in the not so distant past. In 2016, the Attorney General called Phoenix police one of the best agencies in the country. In 2021, the DOJ picked PPD as one of just a few agencies to be in the DOJ Public Safety Partnership program and since then, PPD has been instructing other agencies on how to become better and progressive. This has all been arranged and hailed by the same DOJ that will be accusing PPD of a “pattern and practice” of discriminatory policing.
Shoving a consent decree at PPD made no sense in the beginning and in light of the effort, resources, and change that PPD has done in recent years, a rejection of the TAL makes the DOJ look exactly the way we have told you they are.
Our prediction…The DOJ will not agree to a TAL.
They can release the summary report and file a lawsuit in federal court.
The only play the DOJ has made in the last decade is to file a lawsuit against the police department. It’s rare and DOJ has only gone to an actual trial on a few occasions – and yes, they have lost in court (Alamance County, 2015). Despite that, DOJ will likely file a half-hearted lawsuit that will only be used as a high-stakes bluff to convince Phoenix to cave in and submit to DOJ’s compliance demands.
We believe this is what will happen. We don’t know when as it may not be popular in the White House to file a lawsuit against a city that is very much important to a November election, but this is the most probable course of action for the DOJ and frankly, we think it’s the best course for Phoenix.
It is time that the country sees behind the curtains so they can understand how and why DOJ Consent Decrees have left carnage in every city they have been in.
It’s a win for Phoenix.
Meeting the DOJ in court is an opportunity to let the evidence speak for itself. PPD has already provided a ton of evidence on what they have done to improve and what their continual efforts will be. They will expand that greatly in court and have a chance to examine and counter what the DOJ says. Any money spent by the city would be a bargain compared to long, disastrous consent decree. Additionally, we do not believe the DOJ would ever make it to discovery. The last thing they want is to be exposed for their faulty investigative practices and biased opinions on policing. Once Phoenix does not back down, the odds are great that the TAL would be offered.
While we would love nothing more than to end consent decrees all together, an offer and acceptance of a TAL makes sense for PPD and the residents to move forward with the DOJ in the rear view mirror. The TAL also enables the DOJ to save some resemblance of being completely obliterated by their lack of transparency and arrogance.
In 1994, the United States Congress gave the DOJ the power to destroy cities in the Crime Bill. That same Congress needs to examine that decision, acknowledge the damage it has done, and repeal federal consent decrees for police agencies forever.
It is our belief that police oversight and reform will function best at a state level moving forward. The time of allowing the federal government to marginalize and centralize soverign state authority in local law enforcement operations, through and by civil takeover of departments, must come to an end.