Phoenix turns investigation into police failures into a showdown over federal oversight
Critics of the U.S. Department of Justice are eagerly watching the showdown between Phoenix and the feds, hoping local leaders' resistance to federal oversight of police reshapes how the nation polices the police.
The DOJ began investigating Phoenix police in August 2021 for excessive use of force and discrimination against protesters, people with disabilities and those experiencing homelessness. As the 2 1/2-year investigation unfolds, residents who steadfastly support the police are pressuring City Council to reject the DOJ's findings before its report is issued.
Elected officials have responded by going on offense. They're offering interviews, writing op-eds and hosting meetings to convey their discontent with the feds and their preference for a reform agreement without federal oversight.
Phoenix Councilman Jim Waring blasted the feds at a meeting in January saying, "They expected us to just roll over like every other city does, and wind up having them run our police department for the next 10 to 12 years and pay them for the privilege ... I'd rather take my chance and fight it out."
Experts say Phoenix's pushback could inspire resistance to the Justice Department from other U.S. cities but would probably do little to change the practice of federal oversight itself. They question why Phoenix would opt for a public pushback campaign when the prospect of oversight, they say, is all but inevitable.
The Justice Department declined to comment.
Mayor Kate Gallego did not answer questions about the city's handling of the Justice Department investigation and her role in shaping the response.
Instead, she provided a written statement saying Phoenix was going "above and beyond in making meaningful reforms" and that it was important to understand the investigative findings before signing any agreements.
Phoenix residents see attack on states' rights in DOJ investigation
In Phoenix, crusaders against federal government overreach hope the city's public opposition ignites a re-thinking of consent decrees, the contracts that legally bind cities, judges and outside monitors to reform law enforcement departments, as has happened with the Maricopa County Sheriff's Office.
Critics ultimately hope, they say, to remove outside influence that they believe hinders and demoralizes law enforcement.
The city's recent letter to the DOJ bemoaning federal oversight as inefficient, and requesting to settle without it, was intended to bolster the cause.
"Phoenix has called DOJ's bluff," police consultant Bob Scales said after Phoenix published its letter. "If Phoenix says no, the entire consent decree system could come to an end."
Scales had been rallying the Phoenix community for months beforehand, meeting with council members and speaking to neighborhood groups about the ills of the Justice Department's Civil Rights Division, which he described as "corrupt," "purely political," and filled with "anti-police activists."
His presentations were influential and evoked suspicion about the DOJ's processes.
"This consent decree garbage is nothing more than a glaring example of an illegitimate, authoritarian government trying to insert itself in a way that destroys state rights," said north Phoenix resident Ray Sweeney after hearing Scales speak.
Sweeney was one of about two dozen residents who had gathered for a virtual presentation in the back of an Italian restaurant in north Phoenix midday on a Wednesday in November.
The group was exasperated by Scales' information. The Phoenix police union gave a short presentation too, reinforcing Scales' comments.
Ana Sanchez, another resident, suggested an email campaign and contacting congressional representatives. Maybe they could change the law to take the DOJ's authority to investigate police departments away, she suggested.
Scales narrowed the residents' focus to City Council. Because of Phoenix's unique form of government that puts the city manager in charge, residents would need to convince five of the nine City Councilmembers to reject a consent decree, he said.
"This is the only chance the city has to defend itself," Scales added.
Most residents decided they would email their councilmember and help spread the word. Sanchez wrote down the federal law to research. Sweeney, who wore a Marine veteran's hat, beseeched the group to take a stand.
"It's our responsibility to make sure the people who represent us mirror our thoughts," he said.
City escalates public campaign defending city, criticizing feds
Two days after the meeting, Councilmember Ann O'Brien published an op-ed titled, "Why I'm not about to give the Justice Department control of Phoenix police."
The opening paragraph quoted Ronald Reagan's famous line about the most "terrifying words in the English language" are government saying it's here to help.
The mayor and three other councilmembers joined O'Brien in publicly stating their refusal to sign an agreement in principle — the technical name for the document other cities had signed that committed them to negotiate a consent decree in advance of the DOJ releasing any investigative findings.
It wasn't a wholesale rejection of a consent decree yet, but it was a shift in the right direction for Scales and the residents.
"Everyone should stand behind the city of Phoenix as they stare down the might of the federal government," Scales wrote online afterward.
Shortly after, the city escalated its campaign.
Councilmembers offered interviews to the media, decrying the DOJ's practices as unfair and opaque while praising the city's police department as an agency known for proactive self-correction.
"Phoenix Police Department has never been beyond looking at itself and really making an assessment and figuring out, 'Should we make a change?'" Councilman Kevin Robinson said. "When something happens, the department is quick to make the necessary changes."
Robinson, a 36-year veteran of Phoenix police, said he would scrutinize the DOJ's findings report.
As a criminal justice professor at Arizona State University, Robinson said he had studied consent decrees in other cities and sometimes disagreed with the DOJ's characterization of events in the findings reports. Or, he said, the report would leave out information he viewed as critical, like how the department changed its policy after something had gone wrong.
The feds cherry-picked, he thinks.
Council subcommittees invited officials from Maricopa County Sheriff's Office to share their experience with federal oversight inside council chambers. The invite came after Sheriff Paul Penzone mentioned burdensome federal oversight in his resignation announcement.
The county sheriff's office has been under court-ordered federal oversight since 2013 after Latino drivers sued the office under former Sheriff Joe Arpaio in 2008 for racial profiling. Compliance has cost more than $250 million.
More: Racial profiling lawsuit, reforms for Maricopa County Sheriff's Office top $250M in costs
City staff launched a series of public outreach meetings to share the reforms the department had made and to convey the needlessness of federal oversight. The city scheduled 14 in January alone, a significant ramp up from previous effort, according to Communications Director Dan Wilson.
On Jan. 11, Michael Bromwich, the attorney representing Phoenix, penned the DOJ requesting an agreement to implement reforms without court-enforced oversight, known as a technical assistance letter. Bromwich argued the city had made significant strides in the key areas of DOJ's investigation and that oversight would merely slow progress.
But the letter was also sharply critical of the DOJ, saying it lacked transparency and had "developed a one-size-fits-all approach to police reform" that didn't make sense for Phoenix.
Cities could mimic Phoenix, but change unlikely
Experts say the pushback in Phoenix could encourage jurisdictions elsewhere to resist federal oversight in the name of political expediency, particularly in areas where anti-federal government sentiment is strong and where those most at risk of police violating their civil rights are least represented politically.
More: Arizona lawmakers to Phoenix: Don't sign consent decree with U.S. Justice Dept.
Christy Lopez, a former deputy chief in the Justice Department's Civil Rights Division, said she thinks more jurisdictions will request technical assistance letters in lieu of a consent decree after watching Phoenix.
"Places where it's a more popular political choice to fight the government are more likely to seek that route, regardless of whether it actually merits that," Lopez said.
She added, "You'd have this really ironic, really corrosive dynamic where in places where people whose rights were violated have less political power, they are more likely to get a less effective remedy. Because if they had a strong political voice, then it wouldn't be such an easy decision."
There is one pathway, in Lopez's mind, that could jeopardize the consent decree program: If the DOJ finds a pattern of violation in Phoenix but still grants the city a technical assistance letter.
Those letters, she said, are for cities with occasional violations. They offer guidance but no teeth in terms of enforcement. By contrast, a consent decree or suing to get a court order is better suited to cities with patterns of violation because they ensure the department complies, no matter the political bellwether.
It would be antithetical to the DOJ's mission to give a city whose police officers routinely violate the public's civil rights an agreement without assurance the changes will be made, Lopez said.
"It would be very difficult for the DOJ's pattern or practice program to retain its legitimacy and credibility if it agreed to a technical assistance letter," Lopez said. "Unless they found there's no pattern or practice of legal violations."
Neither Lopez nor other experts, however, think the DOJ will change its consent decree model based on the Phoenix outcome.
More: What is a consent decree? What would federal oversight mean for Phoenix police?
Rick Myers, a retired police chief and former executive director of the Major Cities Chiefs Association, said he thinks as long as the DOJ believes consent decrees bring improvement, it will continue using the tool.
The DOJ in a report published in 2017 stated directly that consent decrees were its most effective tool for reform.
Michael White, a criminology professor at Arizona State University, said he thinks Phoenix's request for no oversight will be rejected and other cities won't bother trying.
"DOJ, in the initial stages of that investigation, if they thought that these were consolidated incidents and there was no deep organizational problem, they would have stepped away," White said. "But they didn't, and now they've invested their own resources into a 2 1/2-year investigation."
Once the department releases its findings, "they're not going to walk away," White said.
The DOJ's 2017 report says it considers other federal interventions before the department initiates its pattern-or-practice investigation.
Civil Rights Division officials "consult" with other DOJ programs to determine "whether a pattern-or-practice investigation and enforcement action is the best approach or whether other forms of intervention would be more appropriate to address the issues in a particular jurisdiction," the report says.
Lopez and White wondered why Phoenix has chosen the strategy of public pushback.
"I don't think it helps to be rancorous as you go into a negotiation like this," Lopez said.
"The idea of fighting the process? To me, all that's going to do is prolong the start and expenses because there will be litigation that has to play out," White said. "Ultimately, I believe you're going to end back at the same spot."
The only caveat, White said, was if Phoenix could stall negotiations long enough for former President Donald Trump to secure the Republican nomination and win election against President Joe Biden in 2024.
"If (Phoenix) can stall it enough ... and Trump wins again, he will be all accounts shut down this whole process," White said.
Under Trump's tenure, former Attorney General Jeff Sessions criticized DOJ interference with local law enforcement, and he made it harder for the department to implement consent decrees.
Since December 2021, Phoenix has spent $1.2 million on third party consultants and representation from Steptoe and Johnson, Bromwich's law firm.
Bromwich declined to specify precise costs for Phoenix to challenge the DOJ in court but said it would be "extremely expensive."
Mayor Kate Gallego relatively quiet
The mayor, for her part, has been less outspoken than her council peers and more cautious in her comments about the investigation.
Gallego said she would refuse to sign an agreement in principle but not necessarily a consent decree, saying she wants to review the DOJ's findings first.
She also rejected requests from city union members who asked her to stop complying with the investigation.
What is unclear is how or whether Gallego is steering the city's messaging on DOJ behind the scenes, or if she's taking a hands off approach.
Executive sessions, where the mayor and council would discuss the subject with attorneys, are confidential.
When asked directly, the mayor pivoted to highlight reforms the police department made and claimed it was "above and beyond" what other cities under investigation did.
Waring in early January acknowledged the city may lose money it didn't need to spend in court against the Justice Department if the city loses. But, he said, "I'll certainly sleep better at night" having tried to keep the feds from controlling the police department. "That's just insane."
Reporter Taylor Seely covers Phoenix for The Arizona Republic / azcentral.com. Reach her at tseely@arizonarepublic.com or by phone at 480-476-6116.
This article originally appeared on Arizona Republic: DOJ critics hope Phoenix inspires pushback against police oversight
