USA v. Det City, et al

Filing 676

ORDER denying 672 Motion to Suspend Monitoring. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
-vs-

Case No. 03-72258
Honorable Julian Abele Cook, Jr.

CITY OF DETROIT, MICHIGAN
and the DETROIT POLICE DEPARTMENT,
Defendants.
ORDER
On July 18, 2003, the City of Detroit (“City”) consented to the entry of two Consent
Judgments with the Department of Justice (“DOJ”) in response to allegations by numerous citizens
that its Police Department (“DPD”) had engaged in a continuous pattern or practice of (1) using
unlawful levels of force in achieving arrests and detentions, and (2) providing unconstitutional or
otherwise unlawful living conditions to those persons who were confined in the DPD’s holding cells.
Currently before the Court is the City’s motion to suspend monitoring of compliant provisions of
the Use of Force Judgment.
I.
Inasmuch as there have been several recent changes relating to the Monitor’s assessment of
the DPD’s compliance efforts, a short review of these changes is appropriate. For the vast majority
of the life of these two Consent Judgments, the Monitor conducted a quarterly assessment of the
DPD’s compliance with each of the Consent Judgments’ requirements, regardless of whether the
requirements had been previously considered in or out of compliance. Recently, however, the Court
agreed to reduce the total number of in-compliance paragraphs that are audited each quarter. The

end result is that approximately 37 paragraphs - selected at random by the Monitor - are not subject
to review. This procedural change has been implemented for two reasons: First, it provides the DPD
with a greater level of independence, and second, it allows the Court to assess the DPD’s ability to
sustain compliance while not directly under the microscope of the Monitor. The purpose of this
procedure - which is to inspire confidence in the DPD’s ability to operate independently over the
long term - implicates the very core of the Consent Judgments and is, accordingly, of great
importance to the Court. To date, this process has been in place for less than 6 months.
Turning to the “Conditions of Confinement” Consent Judgment, the City has recently taken
steps to close all of its holding cells and to transfer the detainees therein to the Michigan Department
of Corrections (“MDOC”) at its Mound Road facility. As a result, the Monitor concluded in his most
recent Quarterly Report that the City had reached full compliance with the requirements of the
“Conditions of Confinement” Consent Judgment. The parties are now in the process of closing out
this aspect of their respective obligations under this Consent Judgment.
Finally, the Court again expressed its frustration during its most recent status conference with
the City’s continued failure to achieve full compliance with the “Use of Force” Consent Judgment
and directed the Monitor to increase the frequency of his visits to the City in order to assist it in
reaching full compliance. See Order, December 19, 2013, ECF No. 671.
As a result of these recent changes, the Monitor has now focused his attention on the
requirements of the “Use of Force” Consent Judgment. Although the monitoring of non-compliant
paragraphs has been intensified, the monitoring of the compliant paragraphs has been lessened.

II.

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In its motion, the City requests the Court to suspend its monitoring of the 86 paragraphs of
the “Use of Force” Consent Judgment that have been in compliance for two or more consecutive
years. The plain terms of the Consent Judgment, however, do not contemplate this suggested
piecemeal approach to compliance. Indeed, the parties agreed that “the [a]greement shall terminate
. . . if the DPD and the City have substantially complied with each of the provisions of this
Agreement and have maintained substantial compliance for at least two years.” Use of Force
Consent Judgment, ECF No. 22 at ¶148 (emphasis added). In fact, the City acknowledges that “the
Consent Judgment [contemplates] termination of the entire Judgment upon two years of sustained
compliance with all paragraphs . . . .” Def’s. Mot. 3, ECF No. 672. Finding no support for relief
within the document that has governed this case for over 10 years, the City opts to frame its request
as a modification of the Consent Judgment based upon the notion that “adequate safeguards . . . are
now in place to ensure that the City will maintain its compliance . . . . ” Id. As discussed more fully
below, the City has failed to sufficiently set forth any factual or legal circumstances that would
warrant the modification of this “Use of Force” Consent Judgment.
Pursuant to Federal Rule of Civil Procedure 60(b), a court may modify a consent judgment
when it has been satisfied or “applying it prospectively is no longer equitable.” Fed. R. Civ. P.
60(b)(5). “This rule does not allow modification simply when it is no longer convenient to live with
the terms of a consent decree, but solely when there is a significant change either in factual
conditions or in the law.” Northridge Church v. Charter Tp. Of Plymouth, 647 F.3d 606, 613 (6th Cir.
2011) (internal quotes omitted) (emphasis added) (quoting Rufo v. Inmates of Suffolk County Jail,
502 U.S. 367, 383-84 (1992)). The party seeking the modification “bears the burden of establishing
that a significant change in circumstances warrants revision of the decree.” Rufo, 502 U.S. at 383.

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Examples of circumstances when modification of a consent decree may be appropriate include one
or more of the following; namely, (1) compliance is made substantially more onerous due to changed
factual conditions; (2) the decree proves to be unworkable due to unforeseen obstacles; or (3)
enforcement without modification would be detrimental to the public interest. Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 384 (1992). The Court notes that “‘modification of a consent
decree is an extraordinary remedy that should not be undertaken lightly.’” Northridge Church, 647
F.3d at 614 (citing East Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 465 (6th Cir. 2011)).
Here, the City contends that the DPD “has changed significantly since the Consent Judgment
began.” Def. Mot. 5, ECF No. 672. The suggested change by the City is claimed to be an
improvement in the DPD’s level of compliance with the Consent Judgment rather than some change
in the factual conditions. In other words, the City’s motion is little more than a reiteration of its oftrepeated request for the Court to absolve it of its responsibility to follow through with the original
agreement. As the Court has repeatedly told the parties, the goal posts will not be changed midstream simply because the City has not yet satisfied its level of compliance mandated under the
Consent Judgment. Indeed, the City has failed to direct the Court to any authority that would allow
the modification of a consent judgment where the only “significant change in circumstances” is the
satisfaction of a greater portion of the party’s original obligation. The Court finds this line of
argument to be particularly unpersuasive where, as here, the Consent Judgment implicates the
protection of basic civil rights of the citizens within this community.
Even assuming, arguendo, that the Court was inclined to grant the City’s request, an
examination of the broader context surrounding the DPD’s institutional structure indicates that now
is not the appropriate time to reduce the role of the Monitor. The purpose of the two-year

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sustainability period required under the Consent Judgment is to ensure that the DPD has
institutionalized the reforms such that they have become ingrained in the culture of the Department.
An important component of this process is the creation of a strong mechanism for internal
investigation and review to replace the external oversight of the Monitor. As the City has
acknowledged, “[t]he Consent Judgment provisions addressing documentation, investigation and
review of use of force incidents have presented a challenge for the Department.” Def’s. Mot. 6. In
fact, almost half of these requirements remain out of compliance as of this day.1 Id. Suffice it to say
that the City’s admission does not inspire confidence in the Court that the DPD currently has the
capacity to proactively discover and remedy the very abuses which prompted the filing of this case
over 10 years ago.
Another vital component of institutionalized reform is the preservation of a stable group of
executive level personnel to oversee the transition. Here, too, the circumstances do not suggest that
now is the time for the Court to reduce the Monitor’s role. The DPD has been in a state of turmoil
for much of the period of the Consent Judgment and once again has entered a new stage of transition
at every level of its hierarchy. Previous police chiefs were appointed by and answered to the elected
mayor, who shared oversight of the DPD with the Board of Police Commissioners. The current
structure has seen the removal of the mayor and the Board from any oversight of the DPD and
placement of that authority solely with the Emergency Manager. At the next level, the current police
chief - who represents the fifth chief in five years - has been in office less than seven months. Since

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The City now appears to quibble with the Monitor’s method of assessing the level of
compliance with these paragraphs. The Court will remind the City that the burden is on it - not
the Monitor - to demonstrate that it is in substantial compliance with each of the Consent
Judgment’s paragraphs. Use of Force Consent Judgment ¶ 148, ECF No. 22. Until it does so, the
Court will consider these paragraphs to remain out of compliance.
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his appointment on July 1, 2013, he has overhauled his entire command staff, including many
officers who oversee various aspects of compliance with the “Use of Force” Consent Judgment.
Recent organizational change has even filtered down below the executive level, where, as evidenced
by the DPD’s 2014 Plan of Action, the Chief anticipates a significant degree of “strategic
restructuring” in a number of different internal units. All of these changes occurred after the Monitor
issued its most recent Quarterly Report. As a result, the Court has not received any indication of the
effect of these changes - if any - on the sustainability of the reforms.
The City asserts that the DPD’s gains in its compliance with the identified Consent Judgment
are sustainable. The Court certainly hopes so. But without a strong internal review system or a stable
group of personnel who will oversee the reforms, the Court will neither modify the Consent
Judgment nor reduce the presence of the Monitor - one of the few constants over the past few years.
For the reasons that have been discussed above, the City’s motion to suspend monitoring of
compliant provisions of the “Use of Force” Consent Judgment (ECF No. 672) is denied.
IT IS SO ORDERED.
Date: January 16, 2014

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on January 16, 2014.
s/ Kay Doaks
Case Manager

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