DOJ Right to Dismiss Lawsuits Against Police Departments

Earlier today, the U.S. Department of Justice announced that it would move to dismiss lawsuits filed by its civil rights division under President Biden against the police departments of Minneapolis, Minnesota, and Louisville, Kentucky. It also announced that it will cease investigations launched—or retract findings of constitutional violations made—under the Biden administration against law enforcement agencies in six other jurisdictions, including Memphis, Tennessee, and the state of Louisiana. The announcement follows a directive in President Trump’s wide-ranging executive order on policing last month, which called on the department to review existing “consent decrees, out-of-court agreements, and post-judgment orders” involving state or local law enforcement agencies. 

At its core, today’s move reflects the Trump administration’s rejection of the “disparate impact” theory of liability, which, in practice, has let plaintiffs claim civil-rights violations based on disproportionate outcomes rather than on the entity in question’s discriminatory intent. For example, in its finding report regarding the Louisville Metro police, the Biden DOJ’s civil rights division relied heavily on the fact that black residents were statistically more likely to be subject to various enforcement actions, without accounting for the distribution of crime and its effects on the deployment of police resources. The Trump DOJ’s announcement chided the Biden administration for “wrongly equating statistical disparities with intentional discrimination” in policing.

Today’s move builds on an executive order issued last month, titled “Restoring Equality of Opportunity and Meritocracy.” In that order, Trump directed his administration to abandon the use of disparate-impact liability, which he described as a “key tool” of a “pernicious movement . . . to transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics.” The April order predictably was criticized on the left. The New York Times, for example, lamented that the president was stripping away “a legal tool key to civil rights enforcement,” as part of his supposed “crusade to stamp out . . . policies that benefit anyone who is not white and male.” 

Wednesday’s announcement will likely generate another flurry of criticism, just as we saw when then-Attorney General Jeff Sessions took similar steps during President Trump’s first term. Perhaps those rebuttals will be tempered by the fact that, despite the more aggressive civil rights posture Biden’s DOJ took toward police, 2024 marked the highest recorded number of fatal shootings by police in the post-Ferguson era. It should make progressive critics humbler about their claims that such shootings represent regulatory failures rather than factors outside the control of police (like suspects’ behavior). After all, if regulatory oversight worked, shootings would have gone down, not up. 

Notwithstanding the inevitable condemnations from the Left, the department’s move should be viewed as a positive development, as it signals a retreat from the more politicized approach to police oversight of the Obama and Biden Justice Departments. The sorts of investigations and legal actions highlighted in Wednesday’s announcement have often harmed the targeted jurisdictions, as Harvard University economists Roland Fryer and Tanaya Devi documented in a 2020 study. Fryer and Devi found that so-called “pattern or practice” investigations—which seek to identify a pattern of unconstitutional conduct—launched after viral incidents of police using deadly force, “caused almost 900 excess homicides and almost 34,000 excess felonies” over a two-year period. Those crime spikes, the researchers found, were likely driven by reduced proactive enforcement. 

For many in the policing profession, the Justice Department’s posture toward local police under Presidents Obama and Biden could best be described as oppositional. Past actions not only fueled crime spikes but also gave active police and potential police recruits the impression that they would never get a fair shake from the DOJ. This impression doubtless contributed to the ongoing recruitment and retention crises that have hit urban police departments especially hard over the last five years. Today’s announcement, particularly considered alongside last month’s executive order, may boost morale and help make policing an attractive career path again. 

Another major upside of the DOJ’s rejection of the “disparate impact” framework is that it reflects the reality of crime concentration. For far too long, political leaders have ignored geographic and racial disparities in criminal victimization and perpetration. Take New York City, where blacks and Hispanics, who make up 52 percent of the population, consistently account for more than 95 percent of both shooting victims and suspects. A crime problem that disparately affects certain groups simply cannot be adequately addressed without generating disparities in enforcement—but that same enforcement program will also yield crime declines that will disproportionately benefit the communities suffering the most. It’s past time to acknowledge this simple, if uncomfortable, truth. 

If the DOJ’s announcement has a downside, it is that political realities will limit its impact. President Trump will be out of office in less than four years, and there can be no guarantee that the next administration will maintain this new course. That long-term uncertainty will continue to cast a shadow over state and local police departments. But for the next three years, police across the United States can breathe a sigh of relief. And if that relief allows them to reach their crime-fighting potential, the Justice Department’s move may have positive effects lasting well beyond the current president’s term.

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