There was 23-year-old Elijah McClain, another Black unarmed man, who died after he was detained without cause, placed in a chokehold and injected with a powerful sedative. And Shataeah Kelly, an unarmed Black woman who was hogtied and placed in the back of a patrol car. Then came Brittney Gilliam, an unarmed Black mother who was held at gunpoint for hours with her 6-year-old daughter, ordered to lay facedown on hot asphalt, on the false assumption that she stole the SUV that she legally owned.
Frustrated by the inability to enact wide-scale changes in police departments like Aurora with long histories of brutality claims, the Colorado General Assembly passed a bill last year giving the state attorney general a power traditionally wielded by the U.S. Department of Justice: to conduct investigations into the “pattern or practice” of civil rights abuses by police departments.
It was one of four such laws passed by state legislatures across the country after the death of George Floyd, according to the National Conference of State Legislatures. These states are among about 10 that have explicitly given their attorneys general this authority but, with the exception of California, most have only acquired this power in recent years. At least one other state, Wisconsin, already has a similar bill pending.
So far, the new laws have only passed in Democratic-controlled state legislatures, but bills containing the measures received some bipartisan support in two of the four states. Since the bills became law, pattern or practice investigations have been launched exclusively by Democratic state attorneys general.
Jamaal Bonner’s family say they now have hope that the promises in their 2007 settlement agreement with the city will finally happen, including a plan to diversify the largely White police force.
“It’s not shocking that things haven’t changed. It’s the good old boys’ network. The police cover for one another,” said Bobby Bonner, whose son was killed in 2003. “I love that the attorney general is coming in, so it’s not them investigating themselves.”
The new power given to state attorneys general is being fueled by criticism of Justice Department civil investigations, which look for unlawful and unconstitutional conduct within police departments that have long track records of misconduct complaints.
But there has been widespread frustration from local politicians, community activists and civil rights lawyers who have made repeated requests for help from the Justice Department that never came.
“The feds only have so much capacity, and there are smaller jurisdictions that may be below the radar and never get the attention they need,” said Colorado Attorney General Phil Weiser (D) in an interview. “And sometimes the feds back off this work, which is why it’s important for states to be able to do it.”
Among the four states that recently granted these new powers to their attorneys general, Colorado is the first to complete an investigation, which looked into the Aurora Police Department. It is unclear if the Justice Department was ever asked to investigate Aurora. State investigators, in a report released in September, said they found a “consistent pattern of illegal behavior by Aurora Police, which can be witnessed at many levels of the department.”
They also found a “pattern and practice” of “race-based policing” in the city. Force was used against people of color almost 2.5 times more than Whites based on their relative portions of the population. Nearly half of the individuals whom Aurora police used force against were Black, although Black residents represent about 15 percent of the Aurora population.
Weiser and city officials announced on Tuesday that they have agreed on the terms of a consent decree that will outline police reforms. Progress will be tracked by an independent monitor and a district court judge. City officials said in a statement that they supported the consent decree and that it “builds on Aurora’s ongoing work to improve use-of-force policies and training on those policies.”
This process mirrors that of the Justice Department, which was empowered by Congress in 1994 to perform pattern or practice investigations after an independent commission found the beating of Rodney King by Los Angeles police officers was the result of institutional failures within the department, not a few rogue officers.
Over the past 27 years, more than 70 pattern or practice investigations have been opened, 25 of which launched during the Obama administration. But that is a drop in the bucket in a country with about 18,000 local, state and federal police departments, something even the Justice Department acknowledges.
The demand is also high and increasing for the pattern or practice investigations, with Justice Department officials saying there has been a fourfold rise in requests over the past year. They say they are supportive of state efforts and are fielding calls from state attorneys general who are seeking guidance.
“The department does not have the resources to investigate every agency where an investigation might be warranted,” Assistant Attorney General Kristen Clarke said in a statement. “Granting state attorneys general the authority to identify and correct systemic misconduct in law enforcement helps advance the goals of ensuring constitutional policing and promoting public safety across the country.”
Under former president Donald Trump, the Justice Department investigations were suspended and former attorney general Jeff Sessions said they were best left to the states, which further fueled the movement to give state attorneys general clear legal power to conduct the probes.
After Floyd’s death in 2020, a coalition of 18 state attorneys general sent a letter to Congress asking the branch to pass a federal law that would give this “explicit authority” to all 50 state attorneys general. “Urgent action is necessary at all levels of government to remedy the injustice of police misconduct,” they wrote.
A provision that would have granted this power to state attorneys general across the country made it into the George Floyd Justice in Policing Act, but bipartisan negotiations on that the legislation fell apart in September.
Many states did not wait to see if Congress might act. In addition to Colorado, Virginia granted its attorney general this power last year. Illinois and Nevada passed similar laws this year. In addition, Massachusetts last year gave its attorney general the authority to conduct such investigations but only in matters involving racial profiling or mishandling of complaints.
“What we realized is that we could not depend on the federal government,” said Mari Newman, a Denver civil rights lawyer who represents Kelly and the McClain family and was involved in crafting the Colorado legislation. “We needed something we could rely on, a way to have independent investigations with legal authority that had some teeth.”
Colorado is not the only state where the attorney general quickly used new powers to probe local police practices. In Virginia, Attorney General Mark Herring (D) announced in April that he was investigating the Windsor Police Department after video footage went viral showing police in the small southern Virginia town holding uniformed Army Lt. Caron Nazario at gunpoint and then dousing him in the face with pepper spray and knocking him to the ground last year after a routine traffic stop.
During the encounter, Nazario, who is Black and Latino, held his hands out the window of his SUV to show he was unarmed. The 27-year-old told officers he was afraid to exit his vehicle, to which one officer shouted, “Yeah, you should be!”
In Illinois, Attorney General Kwame Raoul (D) announced an investigation into the Joliet Police Department in September after an officer leaked footage that showed two officers and a trainee abusing an unconscious Black man in the back of a patrol car before he died. Video showed officers berating 37-year-old Eric Lurry, slapping him, holding his nose for over a minute and then shoving a baton down his mouth. The county coroner said Lurry had fatal levels of heroin, fentanyl and cocaine in his system.
In Nevada, Attorney General Aaron Ford (D) declined to say whether his office has started any pattern or practice investigations, saying it was against policy to do so.
It is too early to judge the effectiveness of the new state pattern and practice laws, experts said. Only the California attorney general has had a pattern or practice authority over a long period of time, having conducted four probes over 20 years, with another underway into the Los Angeles County Sheriff’s Department.
Past Justice Department investigations have received mixed reviews. However, some studies show communities and police officers are safer if legal agreements are followed through. The Center for American Progress, a liberal think tank, analyzed 10 departments that fulfilled the requirements of their consent decrees and found that violent crime rates declined.
And although police unions have historically been opposed to Justice Department intervention, arguing that the changes can tie their hands and make their jobs more dangerous, at least one study suggests this is not the case. A University of Pennsylvania researcher found that the use of consent decrees, when accompanied by court-appointed monitoring, was linked to a 29 percent drop in officer-related fatalities.
Attorneys general in all four states with new laws actively campaigned for the legislation. Ford testified to Nevada legislators that one or two rogue officers are not the cause of departmental problems, and that is why pattern or practice investigations are in such high demand.
“I recognize that in most instances, there are only a few bad apples. But as the full saying goes, one bad apple can ruin the whole bunch,” Ford said in an interview. “When that happens, we need the ability to do this work because the federal government cannot keep up with all the requests.”
Since the Biden administration announced its intention to restart the pattern or practice probes last spring, Justice Department investigations have been launched in Louisville, Minneapolis and Phoenix. Requests have also come pouring in from other cities across the country in states where their attorneys general do not yet have the authority to do the probes.
Missouri and Kansas serve as examples of states with communities seeking federal intervention. Civil rights leaders in Kansas City, Mo., sent a letter in July that asked the Justice Department to conduct a pattern or practice investigation into their city police department. A few miles west, in Kansas City, Kan., a social justice arm of rap artist Jay-Z’s company Roc Nation financed a full-page advertisement in The Washington Post seeking the same intervention for its local police department.
The Justice Department acknowledged receiving the requests but declined to comment on whether they were considering investigations into these police departments.
Herring, the state attorney general in Virginia, said the massive demands on the Justice Department means investigators are typically devoted to large departments with high-profile incidents that have become national news.
With the Justice Department pattern or practice investigations started under the Biden administration, the Louisville department has about 1,060 officers, Minneapolis has about 800 sworn officers and Phoenix has about 2,700 officers. “Oftentimes with smaller departments,” Herring said the Justice Department “may not have the breath to provide this oversight.”
That can be a problem in a country where 26 percent of local police departments have fewer than five sworn officers and less than 1 percent have 1,000 or more officers, according to the FBI Uniform Crime Reporting Program.
Among the 43 departments that have been investigated and entered into settlements with the Justice Department, nearly half have a police force of 1,000 or more. On average, those departments had 3,400 officers.
The Windsor Police Department has less than 60 sworn officers.
Herring swiftly launched a pattern or practice investigation into the department in April after Nazario filed a lawsuit against the two Windsor officers. After viewing video footage from Nazario’s phone and police body cameras, Herring called the behavior of the officers “appalling,” “dangerous” and “unacceptable.” As part of the investigation, he asked for a decade of internal documents, including community complaints related to use of force, racial basis and traffic stops.
Herring said an agreed remedy, which will likely be embodied in a consent decree, is nearly complete. The city of Windsor declined to comment on the pending investigation. It has fired one of the officers involved in the incident.
Raoul asked for similar documents for his investigation into the Joliet department in Illinois. However, the investigation just began a few months ago and there is no scheduled completion date. Joliet Police Sgt. Dwayne English said the department “welcomes” the probe, adding that officials believe it “will supplement our ongoing mission to always improve upon delivering effective and consistent police service to our citizens.”
There are some concerns about state attorneys general taking over the task. The commitment to conducting investigations can ebb and flow based on the politics of the attorney general, who is generally elected rather than appointed. There is also a potential for conflicts that rarely face federal investigators since, unlike state attorneys general, they do not have to routinely work with local police departments to build cases.
Jonathan M. Smith, who worked on pattern or practice investigations for the Justice Department during the Obama administration, said he has not seen any problems with the state investigations so far.
“The teams that have been put together by these AGs have included very hardcore civil rights lawyers who want to get to the facts,” said Smith, now executive director at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “They handle them in ways that are very impressive. I’m optimistic that we are not going to see these sweetheart investigations.”
Activists and pattern or practice experts say that state attorneys general also have some unique advantages. “The state attorney general is not a temporary player,” said Miriam Aroni Krinsky, director of Fair and Just Prosecution, which works with local prosecutors on social justice issues. “They can not only investigate an individual department but they can take what they learn from that and then implement policies and practices that can improve policing throughout the state,” she added.
Christy Lopez, also a former Justice Department official, agrees with Krinsky. “The state attorney general, given the way policing is organized, is the actor that has the greater capacity to make policing less harmful. They can work to change or create a new program in their state,” she said. “At the state level you really can start thinking about broad change.”
However, Lopez warns that communities should manage their expectations when state attorneys general step in to do pattern or practice work. As with the Justice Department, the results can be uneven and take years to complete.
This lesson is playing out now in Illinois, where the Chicago Police Department entered into a consent decree in 2019 with the Illinois attorney general’s office. The move came after the Justice Department completed an investigation into the Chicago Police Department in 2017, which found “officers engage in a pattern or practice of using force, including deadly force, that is unreasonable” and that their “force practices unnecessarily endanger themselves and others and result in unnecessary and avoidable shootings and other uses of force.”
But the Trump administration declined to move forward with a consent decree. Raoul, the Illinois attorney general, stepped in and took over. He had not yet received explicit authority from the state legislature to issue and enforce such decrees, but he cited another law that he believed gave him the power, and the police department did not object.
However, a report in October from the independent court monitor overseeing the consent decree showed the police department has complied with just 52 percent of the changes the department agreed to make. Moreover, just 26 of the 51 deadlines for the first half of this year had been met. The report noted the department has encountered recent difficulties that may have served as an impediment, including the pandemic and the on-duty killing of Officer Ella French.
“These cases are much more difficult and labor intensive than people suspect. The release of the report is just the beginning,” Lopez said. “It is a very hard slog of implementing the remedies.”
In Colorado, the Bonners hope that changes will come more quickly this time. When the couple signed the legal agreement with the city of Aurora 14 years ago, it issued an apology and paid the Bonners $379,728, as well as attorney fees, but did not admit wrongdoing.
The police department committed to a series of changes, including recording audio and video of future sting operations, conducting “minority relations training” and improving recruitment activities of minority and female officers. Aurora city officials say the changes were made to their sting operations but declined to say if diversity has improved on their police force, which is 79 percent White, according to a state investigation.
Bobby Bonner says his son was on a bad path at the time of his death. On the day he was killed, Jamaal sold an undercover police officer $60 worth of crack. The officer was posing as a prostitute and, after the sale, Jamaal followed her back to a motel room where officers later busted through the door, tased and then shot him with an MP5 submachine gun, police and court records show.
“I still get emotional thinking about what he would be doing at this present time,” Bonner said of his son, adding that Jamaal was young and he believes he had time to turn his life around. “He didn’t get that chance. He didn’t get a future. What he did was wrong, but it wasn’t the kind of crime that would have meant the death penalty. But that’s what he got.”
Alice Crites, Andrew Ba Tran and David Nakamura contributed to this report.