The election of former President Donald Trump last month had police reform advocates in Louisville worried. They started putting pressure on Mayor Craig Greenberg’s administration to sign a consent decree with the U.S. Department of Justice sooner rather than later.
Louisville Metro had been negotiating a deal to allow federal oversight of its reform efforts since receiving a draft agreement in March. The consent decree is a roadmap for reform, laying out hundreds of changes to policies, training and enforcement. And it’s supposed to address the practices of discriminatory and unconstitutional policing the DOJ found during its nearly two-year investigation of the Louisville Metro Police Department.
Advocates seemingly got their wish Thursday, when Greenberg, LMPD Chief Paul Humphrey and Assistant U.S. Attorney General Kristen Clarke announced they had an agreement. But Christy Lopez, a professor at Georgetown Law and a former DOJ attorney, said a presidential administration hostile to consent decrees can still sink the deal in subtle, and not-so-subtle, ways.
“An obvious sinking of [the consent decree] is less likely even now, but certainly once a court enters it as a court order,” Lopez said.
Louisville and the DOJ filed their joint agreement in federal court Thursday, and the next step is to have a hearing to determine whether the deal is fair, adequate and reasonable. If the federal judge assigned to the case determines it’s met those conditions, he can enter the agreement as a bonafide order.
“Then the court has jurisdiction,” Lopez said. “Then the court is going to start making all the determinations about the monitor and how it's going to move forward.”
A new DOJ under Trump could still challenge the consent decree after that point. Then-Attorney General Jeff Sessions tried to do exactly that in Baltimore, where city officials signed an agreement between the 2016 election and Inauguration Day.
Sessions argued that the negotiations were a “rushed process” and said he was concerned that parts of the consent decree would “reduce the lawful powers of the police department and result in a less safe city.”
In that case, the federal judge wouldn’t bite. He said the deal was “comprehensive, detailed and precise” and he didn’t see a reason to delay.
“But absolutely the judge in Baltimore could have said, ‘Yeah, OK, you don't want it. This is a consent decree and if one of the parties no longer consents, then who am I to say something different?’” Lopez said. “So one can imagine a world where that would have come out differently, but it's certainly less likely.”
Louisville’s case is in a different federal judicial circuit with a different judge. District Court Judge Benjamin Beaton, who was appointed by Trump, was randomly assigned to oversee Louisville’s consent decree.
Lopez said she thinks a new DOJ is more likely to chip away at enforcement in subtle ways.
During Trump’s first term, the DOJ did not enter into any new consent decrees. They launched just one “pattern or practice” investigation, the type of investigation that usually leads to a decree. The DOJ commenced its pattern or practice investigation in Louisville months after President Joe Biden took office.
When it comes to existing consent decrees, like one Louisville is expected to have before the inauguration, officials in a second Trump administration could be more hesitant to speak up when a city isn’t meeting its end of the bargain, Lopez said.
For example, if Louisville isn’t complying with a part of the decree, the DOJ would typically offer technical assistance. But if that doesn’t work, then they could threaten to go to the judge and ask them to hold the city in contempt of court.
“The question is whether they'll be able to do that,” Lopez said. “Will it be a real threat if you know they can't really do it with Trump in office?”
At Thursday’s press conference, Assistant Attorney General Kristen Clarke acknowledged that the DOJ investigation and the consent decree were a response to the police killing of 26-year-old Breonna Taylor in 2020 and the resulting protests.
“Thousands of people marched and gathered downtown for months here in this city,” Clarke said. “They called for racial justice and accountability.”
If the DOJ under Trump is less willing to hold Louisville Metro accountable to meeting the terms of the consent decree, it may be up to residents to do it.
Lopez said that for every community, regardless of who’s in office, entering a consent decree is just the beginning.
“Everything up to now, as hard as it might have seemed to people, was the easy part. Now the hard part starts,” she said. “You should be able to just turn this over to your government, to whom you pay taxes, and have them make this all work, but that's just not how it works.”
Lopez said ensuring that the consent decree results in real changes to a troubled police department will require residents to be involved in the oversight process.
