When the grand jury in Ferguson failed to indict police officer Darren Wilson, attorney general Eric Holder repeated his vow to use the Justice Department to do what a grand jury would not: bring justice to the family of Michael Brown and lasting change to the practices of the Ferguson police department. He’s running out of time, though; Holder is leaving his job in a matter of weeks, which means the task of dispensing justice in Ferguson will fall to Loretta Lynch, Barack Obama’s nominee for the next attorney general.
The lead federal prosecutor in Brooklyn’s Eastern District, Lynch seemed like a safe, un-splashy choice for Obama — so below-radar, in fact, that one epic Google fail by conservatives mixed her up with another Loretta Lynch. Yet the president’s legacy on civil rights — and, one could argue, the nation’s ability to heal the fraught relationship between local police forces and black Americans — could very well depend on how she handles her investigation into Ferguson’s police force. And in that regard, Obama’s pick could turn out to be inspired.
Lynch’s personal civil-rights story is fairly well-known. As a girl, she once was forced to retake a standardized test after scoring high on it and had to share the Valedictorian honor; as a young attorney, she’s said, she’d “be mistaken for the court reporter all the time.” Zachary Carter, her close ally and predecessor in the Brooklyn federal prosecutor’s office (who now works as Bill de Blasio’s corporation counsel), has praised Lynch’s “determination to never forget where she came from.” For the bulk of her career, though, Lynch has built a reputation as a quiet and competent administrator, ready to be tough on violent and organized crime, political corruption, and white-collar abuses. Then, in 1997, NYPD cops brutally abused a Haitian immigrant named Abner Louima in a precinct house. Lynch served as a prosecutor for the trial. Even during those highly charged proceedings, she refrained from playing on the jury’s emotions. “She had a low-key, even-tempered, steady approach,” says her old colleague Alan Vinegrad, who tried the case alongside her and Kenneth Thompson.
Lynch’s team won the conviction, and she was soon tapped to be the U.S. Attorney in Brooklyn’s Eastern District. During that tenure, Lynch said in some speeches, as today’s Times notes, that African-Americans feel “the pain of a broken trust,” and that “the onus is on law-enforcement” to make changes. But it was at an appearance at a forum held by the city’s bar association on June, 5, 2000, that Lynch outlined specifically how she hoped to make that change — and it happens to be the same method Holder is banking on in Ferguson.
That moment in history 14 years ago is worth examining, if nothing else for how Ferguson at times feels like its dreadful sequel with many of the same players. Back then, the police in New York City had burnished an ugly reputation, particularly in the black community, for police brutality and excessive use of force. Two years after Louima, on February 4, 1999, four cops used 41 shots to kill Amadou Diallo, an unarmed 23-year-old immigrant from Guinea. All four were eventually acquitted at trial. Then, on March 16, 2000, the police shot 26-year-old Patrick Dorismond, a security guard and father of two children. Al Sharpton spoke out, as he is now. So did then-mayor Rudy Giuliani, who pushed back publicly against the investigations, declaring, “There is no racial profiling in the New York City Police Department.” (His recent comments about Ferguson were, of course, even hotter.) This was the context of the forum convened in midtown Manhattan, late in the spring of 2000 — a roundtable discussion hosted by New York City’s bar association, meant to address head-on the breakdown of goodwill between the police and the public. The panel’s title: “Law and Disorder: Is Effective Law-Enforcement Inconsistent With Good Police Community Relations?”
The transcript of the event has been preserved in the pages of the law journal of Fordham Law School. Some of the more notable legal personalities of the time turned up for the talk: There was Bill Bratton, who had played a crucial role as commissioner of Giuliani’s NYPD in the mid-’90s only to be ejected from that job a few years earlier (and who now, in his return as police commissioner, was splattered with fake blood by an activist during the Ferguson grand-jury protests). There was Johnnie Cochran — he of the ill-fitting gloves in the O.J. Simpson case — who before his death in 2005 was fond of bringing civil-rights lawsuits against the police. And there was Lynch. The moderator, Ronald Tabak of Skadden, Arps, Slate, Meagher & Flom, summarized the findings of a recent study on the link between the Giuliani-era “broken windows” model of policing and an increase in civilian complaints. Bratton offered a somewhat self-serving speech about how the NYPD’s community relations problems started after Giuliani fired him. Then the mic was passed to Lynch.
Given her success and fame from the Louima trial, one might have expected her to pump up the ability of federal prosecutors of going after bad cops. Instead, she’d moved on to a broader, more ambitious goal. “Dealing on a case-by-case basis, you may have issues of proof,” she said. “But the real problem, from my perspective and the Justice Department’s perspective, is that you are coming into an event after it has already occurred — whereas the real goal here is to effect some sort of systemic change that will prevent such incidents from occurring in the first place.” For lasting systemic change, Lynch clearly preferred a stronger tool: After the acquittal of the police accused of beating Rodney King in Los Angeles in 1992, Congress passed the Violent Crime Control and Law Enforcement Act, which allows the feds to sue cities for civil rights violations if they allege a “pattern and practice” of misconduct. The Department of Justice had launched just such a probe into the NYPD’s use of excessive force soon after the Louima trial — and when Lynch took over the Eastern District, she inherited that investigation. Mary Jo White, Lynch’s counterpart as U.S. Attorney of Manhattan’s Southern District, launched a “pattern and practice” probe of her own into racial profiling, after the Diallo acquittals.
As others have noted, police “pattern and practice” legislation may be the most powerful civil-rights tool to come our way in a generation. It allows the feds two options: the stick of a federal civil-rights lawsuit alleging a pattern and practice of misconduct, or the carrot of a negotiated (but court-ordered) “consent decree” that initiates reforms right away. In her remarks, Lynch clearly liked how broadly “pattern and practice” cases could be defined — or the room it gave prosecutors like her and White to apply pressure on a general issue, without everything hinging on the minutiae of a specific incident. “It can be in the area of racial profiling; it can be in the area of excessive force, as is the focus of the investigation that my office is conducting; indeed, it can touch upon a myriad of things,” Lynch said. “This is important because this new law that is about six years old has real force and real power for change.”
She was encouraged, she said, by the new law’s burgeoning track record. Pittsburgh had voluntarily subjected its department to oversight in 1997 in order to settle litigation, becoming the model for a 1999 racial-profiling consent decree entered into by the New Jersey State Police (spurred by the 1998 shooting of black motorists stopped by state troopers). Within a year, the number of searches conducted by the New Jersey State Troopers dropped from 440 to 281. (In the years after this bar-association event, the LAPD went into a consent decree to improve police practices, and the feds launched a probe into the Cincinnati police, after unarmed 19-year-old Timothy Thomas became the 15th black man in six years killed by the police in that city.) “It’s our view that it can be done because it is being done,” Lynch said. “And it can be done while keeping crime low, Lynch added: “They are still reducing crime, and they are reducing citizen complaints and improving their relationship with the community.”
At the time she was speaking, Lynch was in the middle of negotiations with the Giuliani administration about reaching some sort of agreement that would avoid the need for a lawsuit. That, along with her general professional temperament, could be why Lynch favored the carrot over the stick. “The goal is to set in place a format for change so that the police departments can operate effectively, protect individuals, and carry out their law enforcement mandate without violating constitutional rights,” she said. “Quite frankly, our goal is to try and get ahead of the curve. It is to our advantage to enter into more of a partnership model with the police, so that problems of excessive force — the individual incidents as well as patterns of abuse that affect the entire city — don’t occur.”
Lynch closed by offering a glimpse into her own feelings about this issue — how the community’s relationship with the police speaks to something more profound about a society. “The reality is that when people, as they have in this city, say that they are afraid of the police, that is on its surface a terrible thing,” Lynch said. “What they really are expressing is an even deeper fear: that if they ever need help, if a criminal element in our society ever comes into contact with them, they will have no one to call, nobody to protect them. That is the worst feeling in the world. That’s why it’s a federal issue, spanning the city and this country. The Justice Department thinks it’s uniquely positioned to work with this issue, in conjunction with other offices.”
What happened next will likely be a lesson for Lynch as she tries to make that partnership model work in Ferguson with the limited time she’ll have as attorney general: Giuliani spent the next six months running out the clock on Lynch’s federal probe, negotiating privately with her office. The feds never prosecuted or called for a federal monitor. In 2001, there was a new president, George W. Bush, and a new priority, after 9/11 — and with that, a new U.S. attorney in Brooklyn. Mary Jo White left her job at the end of the year, too, with no lawsuit resulting from her racial-profiling probe. In 2010, Lynch returned to the job as an Obama appointee, working under Eric Holder, who has launched some 35 different civil-rights probes into police departments around the country, twice more than any of his predecessors — Abequerque, New Orleans, Seattle, St. Louis, and, of course, Ferguson. Lynch, in recent years, served as a member of Holder’s Advisory Committee of U.S. Attorneys, and this summer, she met with the family of Eric Garner, the African-American Staten Island man who died after a cop chokehold, as Garner was becoming another case in point for activists outraged by police use of force. (The grand jury is expected to weigh in any day now.)
In Ferguson, Holder has actually launched two federal civil-rights probes. The first, into Darren Wilson himself, fell short, just like the criminal case. (The problem: Wilson’s actions had to be considered “willful,” which will be hard to prove, given how, despite the reason, he did consistently claim to be in fear for his life.) But the broader “pattern and practice” probe is still alive — and may soon become Lynch’s case. “She has the experience of working on some sensitive and high-profile police cases,” Vinegrad says. “That definitely applies to ‘pattern and practice.’ There’s learning and experience that comes from that, which other prosecutors, through no fault of their own, never get to do.” In the months to come, Lynch may have a second chance to bring about the lasting change she hoped for 14 years ago.