August 10, 2021 • 21 mins
Airplane passengers have done everything from hitting flight attendants in the face to calling in hoax hijacking reports to refusing to wear masks. Alan Levin, Bloomberg News Aviation Reporter, discusses why unruly passengers rarely face criminal charges.
David Harris, a professor at the University of Pittsburgh Law School and host of the "Criminal Injustice" podcast, discusses the Justice Department launching a civil-rights investigation into the Phoenix Police Department.
June Grasso hosts.
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Episode Transcript
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Speaker 1 (00:03):
This is Bloomberg Law with June Brussel from Bloomberg Radio.
Rage in the Sky passengers have hit flood attendants in
the face, interfered with the flight crew, and refused to
wear masks, among other things. What what what what? What?
(00:28):
Boys remains We're going to part every advocate, Police and
authorities will be boarding between to arrestide time. The reports
of unruly passengers during the pandemic this year far exceeded
anything the Federal Aviation Administration has seen in the past.
Yet few passengers faced criminal charges. Joining me is Alan Levin,
(00:53):
Bloomberg Aviation reporter start by telling us about this passenger
on the Alaska Airlines flight in January from Seattle. Yeah,
that's actually a really interesting case. This was an Alaska
Airlines flight in Seattle. It was just about to depart
and a man on the flight allegedly began calling one
(01:18):
reporting a hijacking and was quite vivid. He said there
was a hijacker who had a flight attendant at knife point.
There were multiple calls the plane, I guess it began
to depart, but then authority notified the airport lane was
taxi to a secure area. Police came on board to
(01:40):
start the situation out. And during this time he also
called the FBI and made some sort of vague reference
to a bomb. Now, you know, once a hijacking is
reported like that, you have to re screen the passengers
and they had to rescreen all the bags to make
sure there was no bomb on board, check all the
(02:00):
passengers to make sure nobody had a knife that was reported, etcetera.
And under federal law, making a false report of a
hijackie it's quite a serious criminal charge. It carries a
five up to five year prison term along with a
have to be fine, etcetera. But this is sort of
what happened to some of these unruly passenger cases. It
(02:20):
was referred to the county prosecutor in Under Washington state law,
there is no equivalent charge to making a false hijacking report.
There are you know, serious sylonies in mistakes for things
like making a threat. But in this particular case, the
hoax threats there was no knife, there was no bomb,
there was no real threat. So they've not been able
(02:43):
to charge this individual. They're looking at making filing charges
on a misdemeanor account of making a false report, which is,
you know, less serious matter and we were not able
to determine why, but the case was never referred to
the federal government and no charge federal ars are being brought.
So it's sort of illustrates the difficulty in these cases
(03:05):
tell us about the spike in cases. By all accounts,
it's been a huge increase this year. So far, there've
been about thirty reports of unruly passengers. They sort of
run the gamut, but by and large, the biggest category
is some form of people not wanting to wear their
based mask, which are now required, so either objecting to
(03:27):
wearing the mask or not wearing it properly, or becoming
abusive to the flight attendants after they ask you to
wear the mask. That seems to be one of the
biggest common denominators. There also has been a thread. A
lot of these events occurred just before and just after
the January six storming of the US capital, and so
(03:48):
there's kind of a political thread that runs through this
phenomenon as well. In some cases, people are escorted off
flights for voicing political views loudly and that sort of
thing and sing. So do people actually get arrested who
arrest them? Well, that's one of the issues that makes
it difficult is that the federal government by and large
(04:10):
overseas the aviation industry, and that's largely the case when
it comes to behavior on a plane, but with only
a rare exceptions, there are no federal agents at airport,
so it tends to be some sort of a local
police force. Each airport is different. You know, sometimes they
have their own police force at the airport, but often
(04:30):
it's a state or local entity in which the airport
is located. So they will escort people off aircraft. At times,
they'll make an arrest, but you know, if the activity
occurred in flight, it may not even be in that
police force's jurisdiction, and so they may have limited ability
to bring charges. We have seen cases where the plane
(04:52):
is parked at the gate and the door is open
and there's an assault on a plane, for example, that
may fall under the local police's jurisdiction. But generally speaking,
when the doors are closed and the plane has hold
back and begin taxing to the runway, and then also
obviously in flight, it becomes a federal issue, and so
the powers of the local police are somewhat limited. What
(05:14):
about the f A A. Why aren't they handling these cases,
So that's a very good question. The f a A,
I think it's fair to say, is the entity that
jumped in most aggressively here to try to stem the
stig increase. But they only have civil powers, so they
can't bring criminal charges. But they have initiated enforcement actions
(05:36):
and what that allows them to do is to collect
fine But they're not a police force and they don't
have legal authority to bring any of them. So when
there's an incident, let's say, where there is a physical
altercation and someone gets injured, what happens in those cases
are charges brought? Well, it sort of runs the gamut,
(05:56):
But there's a big distinction to be made between two
passengers fighting each other, which you know is obviously serious
and could injure other people. But that's distinct from a
passenger hitting and or otherwise interfering with the work of
a flight crew that is governed by federal statute and
(06:17):
carries the penalty up to twenty years by the serious offense,
I would say they rarely charge people who aren't terrorists
with that charge to the fullest extent. But we checked
the federal docket around the country and there were a
total of twelve cases filed under that statute this calendar
year so far. How difficult are these cases for federal
(06:39):
prosecutors to make? These are cases where the witnesses all dispersed.
You may get statements from flight attendants, but they likely
weren't obtained from a trained, you know, FBI agent or
somebody who knows what's needed to bring a prosecution. And
then it may also require tracking down other passengers who
(06:59):
are witness says, so it can take quite a bit
of effort to put a case together. Has there been
a push recently to have more passengers criminally charged? Yes,
so the airline industry and that includes their unions. The
flight attendant unions in particular on the front lines having
to deal with this, wrote a letter to the Justice
Department last month asking that they take more action to
(07:23):
bring charges. Attorney General Merrick Garland was asked about this
at a Senate hearing last month, and he said that
at least the most egregious cases are clearly criminal matters,
not civil, And he said he's still developing a policy,
but that they did take it seriously. You know, it's
hard when you have such a small number of cases
(07:44):
to see any actual trends. I think it's fair to
say that so far this year, the number of cases
brought at least under the statute for interfering with the
flight attendant is about the same as they've seen the
past two years. They ranged from about six team to
twenty cases per year. Thanks Alan. That's Alan Levin, Bloomberg
(08:04):
News Aviation reporter. The US Justice Department will investigate the
City of Phoenix and its police department for potential civil
rights violations, including sweeps of homeless encampments, the third such
investigation of policing since President Joe Biden took office. Joining
me is David Harris, a professor at the University of
(08:25):
Pittsburgh School of Law and host of the Criminal Injustice podcast.
So why is the Justice Department launching this civil investigation?
The Civil Rights Division and the federal government can't investigate
any old police department and things might be doing a
better job than it is. The only reason that they
(08:45):
can launch these investigations is if they think that there
may be a pattern of constitutional violations here. This is
certainly true with the investigation launched of Minneapolis Police and
Louisville Police, and here they have information that leads them
to think that there is a pattern of constitutional level abuse.
(09:09):
So they do this not because there's one bad incident
or one bad shooting, or even a couple. They do
this because they see a pattern of violations of constitutional rights.
In the case of the police departments that they've recently
investigated it in a similar way. In Minneapolis, the death
(09:30):
of George Floyd was a motivating factor, and in Louisville,
the shooting of Briana Taylor was a motivating factor. This
is based on whether law enforcement is violating the rights
of homeless people in Phoenix by seizing and disposing of
their belongings. That's the headline allegation at this point, But
(09:53):
the Justice Department made it clear that that wasn't the
only thing that they were looking at. They were looking
at us as a four. They were looking at the
way that the Phoenix police have handled demonstrations and a
number of other things. The things that they have in
common is that all of them are potential violations of
constitutional rights. So it's not a matter of not following
(10:15):
best practices or making a mistake here and there. It's
a matter of finding a pattern of constitutional level wrongdoing.
In the case of Phoenix. The thing that apparently drew
the most attention from law enforcement perspectives was the way
that the city was dealing with its homeless population, sweeps
(10:39):
through homeless encampments and so forth. It sounds like what's
happening in the other cities that they've chosen to investigate
is more serious then what's happening in Phoenix. Now. Is
that just because there's other reasons or is that because
it is less serious? Well, I think the important thing
(11:00):
to look for is not the seriousness of the sort
of headline incident that might have attracted notice in the
first place. Uh, even one very bad in custody death
or shooting is not enough to allow the federal government
to have jurisdiction over a local police department. What they're
(11:21):
looking for is a pattern of use of force, a
pattern of bad search warrant executions like they had in Louisville.
It's that pattern that makes the difference. The fact that
we the public might know about just one important bad
incident isn't what really brings in the justice department. It
(11:43):
might attract the attention of the Justice department first, but
the thing that keeps them there and that gives them
jurisdiction is the existence of a pattern of constitutional violations.
That can be stopping frisk, that can be the use
of force, that can be uh the way that people
(12:03):
are prosecuted, the way that complaints are handled. As long
as there's a pattern of constitutional violation, it doesn't require
the most serious kind of catastrophe like the death of
George Floyd. What's important is whether or not there's a
pattern of violation of the constitution. If you have that,
(12:23):
it's enough to give the Justice Department jurisdiction. What I
found interesting was that Attorney General Merrick Garland said, too
often we asked law enforcement officers to be the first
and last option for addressing issues that should not be
handled by our criminal justice system. Well, it's very interesting
(12:43):
to hear how he talked about it, because what it
was was an acknowledgement of what many of us have
come to understand really only in the last year, and
that is we look at police as the answer to everything,
and they're clearly not. They're not trained to respond to
mental illness and mental health crisis. They're not really trained
(13:05):
to respond the crises of homelessness or drug addiction, and
too often they're the only agency in any given city
that may be available to do those sorts of things,
and they're given those tasks, even though we could easily
imagine that an agency made up of social workers or
other kinds of people would be better suited to these
(13:27):
kinds of tasks. Police or police, they're going to use
the tools that they know and the training that they have.
And so what Garland is saying is that he's acknowledging
that maybe police weren't the right ones to do this.
Maybe it's not their fault that they got sent in
like that, but in any case, since they were there
(13:48):
and they were given that job, the end result may
have been a pattern of constitutional violation. So it's a
way of talking and addressing a problem that acknowledge the
difficulties that law enforcement has been forced to confront that
maybe aren't really in its wheelhouse, and then aren't the
(14:08):
best suited for police? We should have other agencies doing that.
What do they do when they go in joing these investigations?
How are they better suited? Then, Let's say in an
internal investigation by the local police department. The first thing
is that they are independent of local law enforcement and prosecution.
(14:30):
And if there is a long standard standing pattern of
constitutional violation of unconstitutional policing. Typically, people uh in the
jurisdiction would not trust an internal investigation of the police
investigating themselves. That's one of the reasons that we have
(14:52):
civilian oversight in many cities of this country. So Number
one is that they are independent of any of the
local actors. Number Two, they do a comprehensive review. They
talked to the public, they talked to officers, they talked
to the command staff, and you better believe that they
get every document out of that police department that might
(15:14):
shine a light on current practices and patterns, so that
they really understand what has gone on in the past,
what the structures are, why things are functioning or not
functioning the way that they are. So it's a very
deep and comprehensive look at how the department is operating
on a day to day basis, month to month and
(15:37):
year in and year out, so that they have a
full and complete picture. And they do this with input
from all of the stakeholder groups you can think of,
from the public to the inside of the police department
to the police union. I think in the past, and
I say this from the point of view of Pittsburgh,
having been the very first, very first big city to
(15:58):
undergo one of these consent decree back in nine In
the past, they wouldn't do such a thorough job. They
wouldn't talk to all the stakeholders, they might not talk
to the public, and therefore they didn't always come up
with the best answers. They have a much wider view
of things now. Uh, they want to take into account
(16:18):
everybody's a point of view. Uh, they want to know
the full picture of what's happening. It sounds really intense.
How long do these investigations take. They can take a while.
It depends on the degree of cooperation that they get
from the municipality and from the police department. UM. It
depends on what kind of resistance they might be internally
(16:42):
in the police department UM, and how many stakeholder groups
they figured they need to talk to. Already, I was
reading that in Minneapolis and in Louisville, where they've been
working on this already for some months, they've talked to
something like a thousand different people in each of those aces.
So you'd expect an investigation that will last month. The
(17:04):
most important thing is that they be through and that
they get it right. Uh, so that they can come
out of it with the comprehensive plan for rebuilding, reinforcing,
even recreating the necessary structures to give the people of
Phoenix policing that obeys the Constitution and that gives them
(17:26):
the kind of public safety service that they need. So
they take the time that that that they need. If
there's more resistance, it takes more time. Since Garland became
the a G in March, there are three civil rights
investigations of police undertaken by the Justice Department. What does
that signal? Is it too much too soon? No? I
(17:49):
don't think so, Because the incidents and the precipitating events
in both Louisville and Minneapolis told you from the first
minute of the new administration that there would be pattern
of practiced investigations in those cities. I think that was
a total non surprise. This is really the first one
(18:09):
if you look at it that way, and uh, launching
the first one in the first few months of the administration. No,
I don't think that's too much too soon. I think
that we should expect more of these. We know that
the Trump administration basically shut this process down entirely. Former
Attorney General Jeff Sessions went into that job announcing, well
(18:32):
known as an opponent of these investigations, that there was
going to be no more of this stuff. He considered
it wrong, even though the federal statute that authorizes it,
and Attorney General Bill Barr was really no better. And
so it's not a surprise at all that we have
the first of these in Garland's first few months, along
(18:54):
with the totally expected investigations into Minneapolis and Louisville. So
in the past it usually ends up being a consent decree.
How have these worked out in the past. Have some
of them worked better than others? Yes, in a word,
absolutely yes, some of them. The process has been much
(19:15):
longer than anybody would hope. In at least one case,
New Orleans, they needed a second intervention when the first
proved inadequate. Here in Pittsburgh, where I live, the first
consent decree to ever be done in a big city.
UH did a lot for the police department in those
(19:36):
five years that it was in effect. But within just
a couple more years there had been a turnover of
mayors and police chiefs and so forth, and there were
very few people in the higher echelon divided the police
chief of the city that was very committed to the
agreement anymore, and therefore it kind of fell away. In Cincinnati,
(19:58):
it did really train insform that police department, and it's
a much better police department than it used to be
even now almost twenty years later. So it you know,
some of them have been more successful than others. I
think that's fair to say. Are they costly, Yes, they
are um but the price of unconstitutional policing people need
(20:22):
to remember that has a price too. It has a
price in the confidence of people in their police department,
their belief that the police department is legitimate and is
on their side. And then of course the millions and
millions of dollars that many cities have to pay when
police officers violate the law in the constitution. They have
(20:43):
to pay those and damage it. So any thoughts about
the cost of these things in the length of time
they take, you have to compare that to not doing them. Uh,
And there is a substantial cost to lack of intervention
as well. Thanks so much for being on the show, David.
That's David Harris. He's a professor at the University of Pittsburgh.
Law school and host of the Criminal Injustice podcast. Remember,
(21:07):
you could always at the latest legal news on our
Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com, slash podcast, slash Law.
I'm June Grosso and you're listening to Bloomberg
This is Bloomberg Law with June Brussel from Bloomberg Radio.
Rage in the Sky passengers have hit flood attendants in
the face, interfered with the flight crew, and refused to
wear masks, among other things. What what what what? What?
(00:28):
Boys remains We're going to part every advocate, Police and
authorities will be boarding between to arrestide time. The reports
of unruly passengers during the pandemic this year far exceeded
anything the Federal Aviation Administration has seen in the past.
Yet few passengers faced criminal charges. Joining me is Alan Levin,
(00:53):
Bloomberg Aviation reporter start by telling us about this passenger
on the Alaska Airlines flight in January from Seattle. Yeah,
that's actually a really interesting case. This was an Alaska
Airlines flight in Seattle. It was just about to depart
and a man on the flight allegedly began calling one
(01:18):
reporting a hijacking and was quite vivid. He said there
was a hijacker who had a flight attendant at knife point.
There were multiple calls the plane, I guess it began
to depart, but then authority notified the airport lane was
taxi to a secure area. Police came on board to
(01:40):
start the situation out. And during this time he also
called the FBI and made some sort of vague reference
to a bomb. Now, you know, once a hijacking is
reported like that, you have to re screen the passengers
and they had to rescreen all the bags to make
sure there was no bomb on board, check all the
(02:00):
passengers to make sure nobody had a knife that was reported, etcetera.
And under federal law, making a false report of a
hijackie it's quite a serious criminal charge. It carries a
five up to five year prison term along with a
have to be fine, etcetera. But this is sort of
what happened to some of these unruly passenger cases. It
(02:20):
was referred to the county prosecutor in Under Washington state law,
there is no equivalent charge to making a false hijacking report.
There are you know, serious sylonies in mistakes for things
like making a threat. But in this particular case, the
hoax threats there was no knife, there was no bomb,
there was no real threat. So they've not been able
(02:43):
to charge this individual. They're looking at making filing charges
on a misdemeanor account of making a false report, which is,
you know, less serious matter and we were not able
to determine why, but the case was never referred to
the federal government and no charge federal ars are being brought.
So it's sort of illustrates the difficulty in these cases
(03:05):
tell us about the spike in cases. By all accounts,
it's been a huge increase this year. So far, there've
been about thirty reports of unruly passengers. They sort of
run the gamut, but by and large, the biggest category
is some form of people not wanting to wear their
based mask, which are now required, so either objecting to
(03:27):
wearing the mask or not wearing it properly, or becoming
abusive to the flight attendants after they ask you to
wear the mask. That seems to be one of the
biggest common denominators. There also has been a thread. A
lot of these events occurred just before and just after
the January six storming of the US capital, and so
(03:48):
there's kind of a political thread that runs through this
phenomenon as well. In some cases, people are escorted off
flights for voicing political views loudly and that sort of
thing and sing. So do people actually get arrested who
arrest them? Well, that's one of the issues that makes
it difficult is that the federal government by and large
(04:10):
overseas the aviation industry, and that's largely the case when
it comes to behavior on a plane, but with only
a rare exceptions, there are no federal agents at airport,
so it tends to be some sort of a local
police force. Each airport is different. You know, sometimes they
have their own police force at the airport, but often
(04:30):
it's a state or local entity in which the airport
is located. So they will escort people off aircraft. At times,
they'll make an arrest, but you know, if the activity
occurred in flight, it may not even be in that
police force's jurisdiction, and so they may have limited ability
to bring charges. We have seen cases where the plane
(04:52):
is parked at the gate and the door is open
and there's an assault on a plane, for example, that
may fall under the local police's jurisdiction. But generally speaking,
when the doors are closed and the plane has hold
back and begin taxing to the runway, and then also
obviously in flight, it becomes a federal issue, and so
the powers of the local police are somewhat limited. What
(05:14):
about the f A A. Why aren't they handling these cases,
So that's a very good question. The f a A,
I think it's fair to say, is the entity that
jumped in most aggressively here to try to stem the
stig increase. But they only have civil powers, so they
can't bring criminal charges. But they have initiated enforcement actions
(05:36):
and what that allows them to do is to collect
fine But they're not a police force and they don't
have legal authority to bring any of them. So when
there's an incident, let's say, where there is a physical
altercation and someone gets injured, what happens in those cases
are charges brought? Well, it sort of runs the gamut,
(05:56):
But there's a big distinction to be made between two
passengers fighting each other, which you know is obviously serious
and could injure other people. But that's distinct from a
passenger hitting and or otherwise interfering with the work of
a flight crew that is governed by federal statute and
(06:17):
carries the penalty up to twenty years by the serious offense,
I would say they rarely charge people who aren't terrorists
with that charge to the fullest extent. But we checked
the federal docket around the country and there were a
total of twelve cases filed under that statute this calendar
year so far. How difficult are these cases for federal
(06:39):
prosecutors to make? These are cases where the witnesses all dispersed.
You may get statements from flight attendants, but they likely
weren't obtained from a trained, you know, FBI agent or
somebody who knows what's needed to bring a prosecution. And
then it may also require tracking down other passengers who
(06:59):
are witness says, so it can take quite a bit
of effort to put a case together. Has there been
a push recently to have more passengers criminally charged? Yes,
so the airline industry and that includes their unions. The
flight attendant unions in particular on the front lines having
to deal with this, wrote a letter to the Justice
Department last month asking that they take more action to
(07:23):
bring charges. Attorney General Merrick Garland was asked about this
at a Senate hearing last month, and he said that
at least the most egregious cases are clearly criminal matters,
not civil, And he said he's still developing a policy,
but that they did take it seriously. You know, it's
hard when you have such a small number of cases
(07:44):
to see any actual trends. I think it's fair to
say that so far this year, the number of cases
brought at least under the statute for interfering with the
flight attendant is about the same as they've seen the
past two years. They ranged from about six team to
twenty cases per year. Thanks Alan. That's Alan Levin, Bloomberg
(08:04):
News Aviation reporter. The US Justice Department will investigate the
City of Phoenix and its police department for potential civil
rights violations, including sweeps of homeless encampments, the third such
investigation of policing since President Joe Biden took office. Joining
me is David Harris, a professor at the University of
(08:25):
Pittsburgh School of Law and host of the Criminal Injustice podcast.
So why is the Justice Department launching this civil investigation?
The Civil Rights Division and the federal government can't investigate
any old police department and things might be doing a
better job than it is. The only reason that they
(08:45):
can launch these investigations is if they think that there
may be a pattern of constitutional violations here. This is
certainly true with the investigation launched of Minneapolis Police and
Louisville Police, and here they have information that leads them
to think that there is a pattern of constitutional level abuse.
(09:09):
So they do this not because there's one bad incident
or one bad shooting, or even a couple. They do
this because they see a pattern of violations of constitutional rights.
In the case of the police departments that they've recently
investigated it in a similar way. In Minneapolis, the death
(09:30):
of George Floyd was a motivating factor, and in Louisville,
the shooting of Briana Taylor was a motivating factor. This
is based on whether law enforcement is violating the rights
of homeless people in Phoenix by seizing and disposing of
their belongings. That's the headline allegation at this point, But
(09:53):
the Justice Department made it clear that that wasn't the
only thing that they were looking at. They were looking
at us as a four. They were looking at the
way that the Phoenix police have handled demonstrations and a
number of other things. The things that they have in
common is that all of them are potential violations of
constitutional rights. So it's not a matter of not following
(10:15):
best practices or making a mistake here and there. It's
a matter of finding a pattern of constitutional level wrongdoing.
In the case of Phoenix. The thing that apparently drew
the most attention from law enforcement perspectives was the way
that the city was dealing with its homeless population, sweeps
(10:39):
through homeless encampments and so forth. It sounds like what's
happening in the other cities that they've chosen to investigate
is more serious then what's happening in Phoenix. Now. Is
that just because there's other reasons or is that because
it is less serious? Well, I think the important thing
(11:00):
to look for is not the seriousness of the sort
of headline incident that might have attracted notice in the
first place. Uh, even one very bad in custody death
or shooting is not enough to allow the federal government
to have jurisdiction over a local police department. What they're
(11:21):
looking for is a pattern of use of force, a
pattern of bad search warrant executions like they had in Louisville.
It's that pattern that makes the difference. The fact that
we the public might know about just one important bad
incident isn't what really brings in the justice department. It
(11:43):
might attract the attention of the Justice department first, but
the thing that keeps them there and that gives them
jurisdiction is the existence of a pattern of constitutional violations.
That can be stopping frisk, that can be the use
of force, that can be uh the way that people
(12:03):
are prosecuted, the way that complaints are handled. As long
as there's a pattern of constitutional violation, it doesn't require
the most serious kind of catastrophe like the death of
George Floyd. What's important is whether or not there's a
pattern of violation of the constitution. If you have that,
(12:23):
it's enough to give the Justice Department jurisdiction. What I
found interesting was that Attorney General Merrick Garland said, too
often we asked law enforcement officers to be the first
and last option for addressing issues that should not be
handled by our criminal justice system. Well, it's very interesting
(12:43):
to hear how he talked about it, because what it
was was an acknowledgement of what many of us have
come to understand really only in the last year, and
that is we look at police as the answer to everything,
and they're clearly not. They're not trained to respond to
mental illness and mental health crisis. They're not really trained
(13:05):
to respond the crises of homelessness or drug addiction, and
too often they're the only agency in any given city
that may be available to do those sorts of things,
and they're given those tasks, even though we could easily
imagine that an agency made up of social workers or
other kinds of people would be better suited to these
(13:27):
kinds of tasks. Police or police, they're going to use
the tools that they know and the training that they have.
And so what Garland is saying is that he's acknowledging
that maybe police weren't the right ones to do this.
Maybe it's not their fault that they got sent in
like that, but in any case, since they were there
(13:48):
and they were given that job, the end result may
have been a pattern of constitutional violation. So it's a
way of talking and addressing a problem that acknowledge the
difficulties that law enforcement has been forced to confront that
maybe aren't really in its wheelhouse, and then aren't the
(14:08):
best suited for police? We should have other agencies doing that.
What do they do when they go in joing these investigations?
How are they better suited? Then, Let's say in an
internal investigation by the local police department. The first thing
is that they are independent of local law enforcement and prosecution.
(14:30):
And if there is a long standard standing pattern of
constitutional violation of unconstitutional policing. Typically, people uh in the
jurisdiction would not trust an internal investigation of the police
investigating themselves. That's one of the reasons that we have
(14:52):
civilian oversight in many cities of this country. So Number
one is that they are independent of any of the
local actors. Number Two, they do a comprehensive review. They
talked to the public, they talked to officers, they talked
to the command staff, and you better believe that they
get every document out of that police department that might
(15:14):
shine a light on current practices and patterns, so that
they really understand what has gone on in the past,
what the structures are, why things are functioning or not
functioning the way that they are. So it's a very
deep and comprehensive look at how the department is operating
on a day to day basis, month to month and
(15:37):
year in and year out, so that they have a
full and complete picture. And they do this with input
from all of the stakeholder groups you can think of,
from the public to the inside of the police department
to the police union. I think in the past, and
I say this from the point of view of Pittsburgh,
having been the very first, very first big city to
(15:58):
undergo one of these consent decree back in nine In
the past, they wouldn't do such a thorough job. They
wouldn't talk to all the stakeholders, they might not talk
to the public, and therefore they didn't always come up
with the best answers. They have a much wider view
of things now. Uh, they want to take into account
(16:18):
everybody's a point of view. Uh, they want to know
the full picture of what's happening. It sounds really intense.
How long do these investigations take. They can take a while.
It depends on the degree of cooperation that they get
from the municipality and from the police department. UM. It
depends on what kind of resistance they might be internally
(16:42):
in the police department UM, and how many stakeholder groups
they figured they need to talk to. Already, I was
reading that in Minneapolis and in Louisville, where they've been
working on this already for some months, they've talked to
something like a thousand different people in each of those aces.
So you'd expect an investigation that will last month. The
(17:04):
most important thing is that they be through and that
they get it right. Uh, so that they can come
out of it with the comprehensive plan for rebuilding, reinforcing,
even recreating the necessary structures to give the people of
Phoenix policing that obeys the Constitution and that gives them
(17:26):
the kind of public safety service that they need. So
they take the time that that that they need. If
there's more resistance, it takes more time. Since Garland became
the a G in March, there are three civil rights
investigations of police undertaken by the Justice Department. What does
that signal? Is it too much too soon? No? I
(17:49):
don't think so, Because the incidents and the precipitating events
in both Louisville and Minneapolis told you from the first
minute of the new administration that there would be pattern
of practiced investigations in those cities. I think that was
a total non surprise. This is really the first one
(18:09):
if you look at it that way, and uh, launching
the first one in the first few months of the administration. No,
I don't think that's too much too soon. I think
that we should expect more of these. We know that
the Trump administration basically shut this process down entirely. Former
Attorney General Jeff Sessions went into that job announcing, well
(18:32):
known as an opponent of these investigations, that there was
going to be no more of this stuff. He considered
it wrong, even though the federal statute that authorizes it,
and Attorney General Bill Barr was really no better. And
so it's not a surprise at all that we have
the first of these in Garland's first few months, along
(18:54):
with the totally expected investigations into Minneapolis and Louisville. So
in the past it usually ends up being a consent decree.
How have these worked out in the past. Have some
of them worked better than others? Yes, in a word,
absolutely yes, some of them. The process has been much
(19:15):
longer than anybody would hope. In at least one case,
New Orleans, they needed a second intervention when the first
proved inadequate. Here in Pittsburgh, where I live, the first
consent decree to ever be done in a big city.
UH did a lot for the police department in those
(19:36):
five years that it was in effect. But within just
a couple more years there had been a turnover of
mayors and police chiefs and so forth, and there were
very few people in the higher echelon divided the police
chief of the city that was very committed to the
agreement anymore, and therefore it kind of fell away. In Cincinnati,
(19:58):
it did really train insform that police department, and it's
a much better police department than it used to be
even now almost twenty years later. So it you know,
some of them have been more successful than others. I
think that's fair to say. Are they costly, Yes, they
are um but the price of unconstitutional policing people need
(20:22):
to remember that has a price too. It has a
price in the confidence of people in their police department,
their belief that the police department is legitimate and is
on their side. And then of course the millions and
millions of dollars that many cities have to pay when
police officers violate the law in the constitution. They have
(20:43):
to pay those and damage it. So any thoughts about
the cost of these things in the length of time
they take, you have to compare that to not doing them. Uh,
And there is a substantial cost to lack of intervention
as well. Thanks so much for being on the show, David.
That's David Harris. He's a professor at the University of Pittsburgh.
Law school and host of the Criminal Injustice podcast. Remember,
(21:07):
you could always at the latest legal news on our
Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com, slash podcast, slash Law.
I'm June Grosso and you're listening to Bloomberg
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