Where is the DOJ Civil Rights Division?
For once, Attorney General Bill Barr said the right thing. In a press conference on June 4, he addressed the brutal killing of George Floyd:
As we typically do in cases such as this, the Department of Justice is conducting a parallel and independent investigation into possible violations of federal civil rights laws. . . . I am meeting later this month with the Commission [on Law Enforcement] and have been talking with law enforcement leaders around the country. In the weeks and months ahead, we will be working with community leaders to find constructive solutions so that Mr. Floyd’s death will not have been in vain. We will work hard to help bring good out of bad.
Unfortunately, the rest of Barr’s speech focused on combating the violence that has accompanied protests over Floyd’s death—not the violence of law enforcement, but the outbreaks of looting and vandalism.
These acts of destruction shouldn’t be defended, but in the context of what’s actually going on in the country, Barr’s speech amounts to little more than whataboutism with a badge and a nightstick. Barr is focused on the wrong offenses and the wrong offenders, and, as is his pattern, he’s acting much more like a political operative than like a responsible leader of the Justice Department.
Looting, vandalism, and even assault are all state crimes, not the responsibility of the Justice Department or the attorney general. (Rioting can, in certain instances, be a federal crime, but even senior Justice Department officials are quick to grant that the statute has some friction with the First Amendment and must be interpreted and applied carefully.) Even if it’s salutary for the nation’s chief law-enforcement officer to use his stature and authority to decry violence, Barr went several steps further, pledging that “federal law enforcement efforts are focused on the violent instigators.”
Reinforcing the Defense Department’s push to “dominate the battlespace” is exactly the wrong tack for the Justice Department to be on as police-initiated violence around the country gets more visible and intense. Unlike other Cabinet departments tasked with enforcement of state laws, the DOJ is well equipped to take on systemic police violence. Moreover, policing the police is a core reason the DOJ exists in the first place.
While the office of the attorney general dates from the Judiciary Act of 1789, the Department of Justice wasn’t created until 1870. Formed amid Reconstruction, its first tasks were to enforce the 13th, 14th, and 15th Amendments. The key provision of the 14th Amendment, then and now, is its mandate that
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In other words, the Justice Department was tasked with defending the civil rights of newly freed African Americans from infractions committed by the states.
The Civil Rights Act of 1957 recommitted the Justice Department to oversight of state and local law enforcement by creating the Civil Rights Division, which “works to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.”
Now would seem like a particularly busy time for the Civil Rights Division, considering how frequently images of Americans being bullied, beaten, tear-gassed, and even arrested for exercising their First Amendment rights have become in the past few weeks. Barr’s promise of an “independent investigation into possible violations of federal civil rights laws” would, therefore, seem entirely appropriate.
Except that pledge wasn’t all that it seemed.
In an interview on Sunday, Barr clarified that he meant that his department would investigate the (alleged) murder of George Floyd as a discrete event, which may have had some ramifications for federal civil rights laws. Barr categorically ruled out a “pattern-or-practice” review of systemic corruption or abuses in the entire Minneapolis Police Department—which, as Jonathan V. Last has noted in The Bulwark, systematically covered for the accused officers.
It certainly seems like the police department in Buffalo could use some examination as well. All 57 members of the department’s Emergency Response Unit allegedly resigned from that unit in solidarity with two officers who violently shoved a 75-year-old man to the ground. Some of Buffalo’s “finest” have disputed the motivation for the mass resignation. When the officers were charged with felony assault, a crowd of over 100 police officers and firefighters protested outside the Buffalo courthouse. If that doesn’t call for a “pattern-or-practice” investigation, it should.
But this would be a slippery slope for Barr, who continues to defend the actions of federal law enforcement officers under his command using tear gas and rubber grenades without proper warning against peaceful protesters in Lafayette Square. The trail of police violence leads right back to him. (In his own defense, Barr denies that he gave the order to clear Lafayette Square, but merely helped form the plan. He also maintains that “They were not peaceful protesters.” They must have hurt him with their words.)
It would seem that a man who takes such clear pleasure in overseeing, investigating, second-guessing, and replacing law enforcement personnel and offices within the Department of Justice would leap at the opportunity to do the same to states and municipalities. Especially since doing so is a core responsibility of his department.