Minneapolis police officers stand outside the 3rd precinct building in May 2020. Credit: Ben Hovland | (c) 2020

Minneapolis Mayor Jacob Frey rejected the prospect of imposing more than one oversight body to rectify the systemic abuses committed by the Minneapolis Police Department. Instead, the mayor’s office said on Monday, the city was open to “one consent decree” in the effort to reform the department. 

The Minnesota Department of Human Rights has pledged to negotiate a consent decree–a legally binding agreement to compel reform–between the state and city. It released findings last week that revealed systemic racism in several aspects of Minneapolis police work. The U.S. Department of Justice (DOJ) is also investigating the city’s police and could potentially seek a separate federal consent decree.

A consent decree governs the reform process of a public agency, and is ordered by and overseen by a judge. 

Frey spokesperson Tara Niebling released a statement to Sahan Journal on Monday emphasizing for the first time that “the deep changes we need to see will require one set of clear metrics and tools to get the work done.”

“Mayor Frey is open to a consent decree–one consent decree,” she said, declining to elaborate further.

It’s unknown when the Department of Justice will release its findings and how it will proceed. But a criminal justice professor who has been involved in federal consent decrees said she’s never seen two consent decrees enforced simultaneously against the same police department.

“It’s a novel idea, as far as I’m concerned,” said Delores Jones-Brown, professor emerita at John Jay College of Criminal Justice, in New York.

Jones-Brown served on the independent monitoring teams for federal consent decrees against police departments in Ferguson, Missouri, and Newark, New Jersey. She expects that the federal government will let the state process take precedence in Minneapolis because state law usually takes priority over federal law.

“We’ve got this federalism concept,” Jones-Brown said. “Typically, we defer to the state to address its own affairs and then the feds only become involved if there’s a failure on behalf of the state.”

Minnesota Department of Human Rights Commissioner Rebecca Lucero released the findings of a two-year “pattern or practice” study last week. It showed that Minneapolis police disproportionately used force on Blacks, used social media to spy on Black individuals and groups, and that police officers received deficient training that emphasized “a paramilitary approach to policing.”

The state investigation, launched shortly after police murdered George Floyd, who is Black, in 2020, looked at 10 years of Minneapolis activity. The investigation found that the police department violated the state Human Rights Act by systemically discriminating against people of color.

The DOJ and the U.S. Attorney’s Office of Minnesota are conducting their own, broader “pattern or practice” investigation into alleged wrongdoing by Minneapolis police. The federal investigation, which was announced one year ago, came after a state jury found former Minneapolis police officer Derek Chauvin guilty of murdering Floyd. This investigation is focusing on whether the department systematically committed racial discrimination, discrimination against people with disabilities, and discrimination against people engaged in First Amendment-protected activities like protesting and news reporting.

They are also investigating whether the department’s use of force violated the public’s Fourth Amendment protections against unreasonable seizure and the public’s Fourteenth Amendment protections against racial discrimination.

Minnesota Human Rights Commissioner Rebecca Lucero told reporters last week that her department would push for a state consent decree and that a second consent decree on the federal level was also possible. 

“It is possible to have multiple consent decrees against any entity at any point in time,” Lucero said at the time. “I’m not sure where this will take us.”

Both sides must agree to consent decree terms 

Community activists said a consent decree is necessary, but just what it will require and how it will look remains to be seen. Mohamed Ibrahim, a deputy director of the Council of Islamic American Affairs Minnesota (CAIR-MN), said a consent decree is necessary because the police department has a long history of failed reform.

“We know that the Minneapolis Police Department has not been accountable to the people, but we hope that maybe they will be accountable to the courts,” said Mohamed, who is part of a coalition that pushed for outside investigations into the department.

If Minneapolis city leaders agree to enter a consent decree with the state, they will spend the next several weeks negotiating on benchmarks and timelines for reform goals. Lucero has said it’s too early to say what a consent decree could include. Once both sides reach an agreement, they will submit it to a state judge, who will then issue the consent decree as a court order. 

An independent monitor or team of monitors, paid with taxpayer dollars, would track the city’s progress  and periodically report the results to a state judge. If the judge finds that the city isn’t following the consent decree, the department could be found in violation of the court order.

Lawsuit possible if city refuses to cooperate

If the Department of Justice produces findings, the result could be an entirely different consent decree, this one ordered by a federal judge and also tracked by an independent monitor or team of monitors. The city would also pay for the federal monitors. 

Frey’s office could also choose not to enter a consent decree with the state. This choice could prompt a lawsuit against the city, said David Schultz, a professor who teaches state constitutional law at the University of Minnesota Law School and political science at Hamline University.

“What the decree, if agreed to, would avert is a human rights lawsuit against the city [from the state],” Schultz said.

The federal government could also still decide to issue its own consent decree, or incorporate the state consent decree into its own, Schultz said. Either action from the federal government “would add a lot of legal firepower to force the city to change,” he said. 

Proponents of consent decrees say they are necessary because they force reform efforts.

“It’s not subject to the whims of changing elected officials,” Lucero said during her press conference last week. 

A consent decree, she noted, “lives on past all election cycles, which provides for that sustained action that is necessary here for success.” 

But consent decrees are also time-consuming and costly. The city of Albuquerque, New Mexico, for example, is now in its eighth year of a federal consent decree with its police department. The process has cost the city $25 million, and its success has been contested.

A Department of Justice spokesperson told Sahan Journal the department will review the state’s pattern or practice report and consider its findings in the DOJ’s own investigation. The spokesperson added that the two investigations are “separate and independent” and emphasized how the federal investigation is “examining issues beyond the discriminatory policing issues” that the state investigation focused on. 

Jones-Brown, the criminal justice professor from New York, said she would be surprised if Minneapolis ended up with two parallel consent decrees, especially since the state’s findings against the police department are “very damning.”

“It would sort of be a waste of resources,” she said, “unless the DOJ doesn’t believe that the state of Minnesota can do an adequate job getting the [Minneapolis police] to change its pattern or practice.” 

In the past, Jones-Brown said, the federal government raised the issue of racial profiling in the New York Police Department but then stepped back to allow the department to work with the state to institute reform.

Whatever happens next, said Mohamed with CAIR-MN, community members who have experienced police violence must take part in the process.

“A double consent decree is better than no consent decree,” he said. 

Joey Peters is a reporter for Sahan Journal. He has been a journalist for 15 years. Before joining Sahan Journal, he worked for close to a decade in New Mexico, where his reporting prompted the resignation...