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With federal oversight in short supply, state AGs step in to probe troubled police

Opening day of the 2020 Colorado State Legislative session of Colorado's 72nd General Assembly at the State Capitol, on Jan. 8, 2020, in Denver.
Opening day of the 2020 Colorado State Legislative session of Colorado's 72nd General Assembly at the State Capitol, on Jan. 8, 2020, in Denver.Chancey Bush/Associated Press

Police in Aurora, Colo., shot 20-year-old Jamaal Bonner in the back three times with a submachine gun during a sting operation, killing him. Four years later, the department formally apologized for killing the unarmed Black man and signed a legal agreement promising systemic changes.

Instead, Jamaal’s parents, Brenda and Bobby Bonner, have watched for more than a decade as violent police encounters with unarmed residents have continued.

There was 23-year-old Elijah McClain, another Black unarmed man, who died after he was detained without cause, placed in a chokehold, and injected with a powerful sedative. And Shataeah Kelly, an unarmed Black woman who was hogtied and placed in the back of a patrol car. Then came Brittney Gilliam, an unarmed Black mother who was held at gunpoint for hours with her 6-year-old daughter, ordered to lay facedown on hot asphalt, on the false assumption that she stole the SUV that she legally owned.

Frustrated by the inability to enact wide-scale changes in police departments like Aurora with long histories of brutality claims, the Colorado General Assembly passed a bill last year giving the state attorney general a power traditionally wielded by the US Department of Justice: to conduct investigations into the “pattern or practice” of civil rights abuses by police departments.

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It was one of four such laws passed by state legislatures across the country after the death of George Floyd, according to the National Conference of State Legislatures. These states are among about 10 that have explicitly given their attorneys general this authority but, with the exception of California, most have only acquired this power in recent years. At least one other state, Wisconsin, already has a similar bill pending.

So far, the new laws have only passed in Democratic-controlled state legislatures, but bills containing the measures received some bipartisan support in two of the four states. Since the bills became law, pattern or practice investigations have been launched exclusively by Democratic state attorneys general.

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Jamaal Bonner’s family say they now have hope that the promises in their 2007 settlement agreement with the city will finally happen, including a plan to diversify the largely white police force.

“It’s not shocking that things haven’t changed. It’s the good old boys’ network. The police cover for one another,” said Bobby Bonner, whose son was killed in 2003. “I love that the attorney general is coming in, so it’s not them investigating themselves.”

The new power given to state attorneys general is being fueled by criticism of Justice Department civil investigations, which look for unlawful and unconstitutional conduct within police departments that have long track records of misconduct complaints.

But there has been widespread frustration from local politicians, community activists, and civil rights lawyers who have made repeated requests for help from the Justice Department that never came.

“The feds only have so much capacity, and there are smaller jurisdictions that may be below the radar and never get the attention they need,” said Colorado Democratic Attorney General Phil Weiser in an interview. “And sometimes the feds back off this work, which is why its important for states to be able to do it.”

Among the four states that recently granted these new powers to their attorneys general, Colorado is the first to complete an investigation, which looked into the Aurora Police Department. It is unclear if the Justice Department was ever asked to investigate Aurora. State investigators, in a report released in September, said they found a “consistent pattern of illegal behavior by Aurora Police, which can be witnessed at many levels of the department.”

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They also found a “pattern and practice” of “race-based policing” in the city. Force was used against people of color almost 2.5 times more than whites based on their relative portions of the population. Nearly half of the individuals whom Aurora police used force against were Black, although Black residents represent about 15 percent of the Aurora population.

Weiser and city officials announced on Tuesday that they have agreed on the terms of a consent decree that will outline police reforms. Progress will be tracked by an independent monitor and a district court judge. City officials said in a statement that they supported the consent decree and that it “builds on Aurora’s ongoing work to improve use-of-force policies and training on those policies.”

This process mirrors that of the Justice Department, which was empowered by Congress in 1994 to perform pattern or practice investigations after an independent commission found the beating of Rodney King by Los Angeles police officers was the result of institutional failures within the department, not a few rogue officers.

Over the past 27 years, more than 70 pattern or practice investigations have been opened, 25 of which launched during the Obama administration. But that is a drop in the bucket in a country with about 18,000 local, state, and federal police departments, something even the Justice Department acknowledges.

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The demand is also high and increasing for the pattern or practice investigations, with Justice Department officials saying there has been a fourfold rise in requests over the past year. They say they are supportive of state efforts and are fielding calls from state attorneys general who are seeking guidance.

“The department does not have the resources to investigate every agency where an investigation might be warranted,” Assistant Attorney General Kristen Clarke said in a statement. “Granting state attorneys general the authority to identify and correct systemic misconduct in law enforcement helps advance the goals of ensuring constitutional policing and promoting public safety across the country.”

Under former president Donald Trump, the Justice Department investigations were suspended and former attorney general Jeff Sessions said they were best left to the states, which further fueled the movement to give state attorneys general clear legal power to conduct the probes.