Last week, U.S. District Court Judge Solomon Oliver denied the City of Cleveland’s request to end the consent decree that has required federal oversight of police reform since 2015. The city, along with the U.S. Department of Justice, had argued that it had reached “substantial compliance” with the goals of the agreement.
Judge Oliver acknowledged the city’s progress — calling it “laudable,” “commendable” and “significant” — but repeatedly rejected the idea that the consent decree is no longer needed. The city and DOJ “do not, and cannot show, that the City and [Cleveland Division of Police] have satisfied all of the Agreement’s terms,” he wrote.
City officials have not decided whether to appeal the judge’s decision.
“The City just received the Judge’s order on Friday and needs time to review,” a city spokesperson told Signal Cleveland. “We remain committed to constitutional policing, accountability and building trust with our community.”
Until then, it’s business as usual. City and DOJ lawyers will be back in federal court again on June 4. Oliver informed them he expects updates on several ongoing issues.
“An unusual kind of legal arrangement”
The consent decree is an agreement between Cleveland and the DOJ. But it’s “an unusual kind of legal arrangement” in that the parties don’t dictate the terms of ending it, said Jonathan Witmer-Rich, professor of law at Cleveland State University.
“It’s kind of a three-legged stool,” said Witmer-Rich. “The city, the Department of Justice and the judge are all playing independent roles.”
The most straightforward way to end the consent decree is to comply with all 97 provisions. The Cleveland Police Monitoring Team, an independent body that reports to the judge, ranks the city’s level of compliance on each with one of five grades ranging from “Non-Compliance” to “Substantial and Effective Compliance.” The consent decree can end when the city maintains the highest compliance ranking in every category for two years (or one year for the provision on search and seizure).
But the monitoring team has not finished its assessments.
In arguing that it has achieved substantial compliance, the city focused on three areas, Use of Force, Crisis Intervention and Search and Seizure. The city said these sections are the most “material,” or relevant to the purpose of the consent decree, and that compliance in those areas should be enough to release it from the agreement.
They also offered another argument that’s rooted in federal rules for legal proceedings that give judges some discretion to end legal agreements in certain circumstances.
Judge Oliver was having none of it.
Nothing in the consent decree “suggests that some requirements are material and some are not,” he wrote.
He also rejected the procedural argument, twice quoting a Supreme Court opinion stating that a consent decree should not be terminated simply because “it is no longer convenient to live with the terms.”
“The changes, however, did not last”
Matthew Ahn, an attorney and former candidate for county prosecutor, pointed out that Oliver cited 10 sets of facts related to consent decree provisions that he said show that the city “has not met its heavy burden to convince the court it should be relieved” of oversight.
A consent decree is similar to a contract, Ahn said, and “there has to be some fairly substantial reason to say ‘I should not be held to the terms of this contract,’ and that in function is what the city has been arguing.”
An appeal would have to refute all 10 sets of facts, Ahn added.
“That is the core of the order,” said Jonathan Entin, professor of law at Case Western Reserve University. Oliver “points out that many aspects of the decree have not been assessed by the monitor and that this means that work remains to be done.”
Ahn also thought it was noteworthy that Oliver mentioned the city’s 2004 consent decree, which also followed a DOJ investigation into use of force and lasted about a year. (“The changes, however, did not last,” Oliver wrote.) It has no legal bearing on the current consent decree but shows “there was backsliding” the last time federal oversight was ended.
Back in court in three weeks
Oliver told the city and other parties to be ready with updates at the June 4 status conference on the still-unfinished work and some points where there’s been friction.That includes community surveys, the city’s contract with consulting firm Jensen Hughes, its search and seizure data and its relationship with the Cleveland Community Police Commission, which has opposed the city’s request to terminate.
If the city or DOJ appeal before then, they could also ask the appeals court to suspend the consent decree until it decides the case, said Witmer-Rich.
“It seems unlikely to me they would do that,” he said. “It’s been going on for a long time and there’s nothing extremely urgent about letting it continue for a few more months while there’s an appeal.”
