Hardaway_Creating-Space-for-Community-Representation-in-Police-Reform-Litigation

Yet, no court has ever granted a community organization’s motion to intervene as a matter of right in police reform, consent decree cases initi- ated by the Department of Justice.. Court

DOJ-INITIATED POLICE REFORM LITIGATION

Congress granted to the U.S Attorney General the right to investigate and sue municipal and state governments to remedy unconstitutional police practices 50

50 See 34 U.S.C § 12601(b) (2018) (formerly 42 U.S.C § 14141); see also Ayesha B Hardaway,

Time Is Not on Our Side: Why Specious Claims of Collective Bargaining Rights Should Not Be Allowed

This section unfolds in two parts: first, it surveys the events that led to the passage of the Violent Crime Control and Law Enforcement Act of 1994, and second, it details the three iterative processes used by the Department of Justice (DOJ) in police-reform litigation.

PASSAGE OF THE VIOLENT CRIME CONTROL AND LAW

The U.S government faces a legitimacy problem with marginalized communities of color, as actions framed as promoting safety and the rule of law are increasingly viewed as social control over these populations This perception persists despite official aims of protection and order, fueling distrust among affected groups An examination of the Violent Crime Control and Law Enforcement Act (1994) helps illuminate how federal crime policy can shape social dynamics and affect perceptions of government legitimacy among marginalized communities.

The 1994 reforms illustrate a shift toward harsher punishment: expanding death-penalty offenses, criminalizing gang membership, and restricting parole opportunities, while empowering the federal government to halt unconstitutional police practices This widening of scope and longer duration of punishment in the United States produced a lasting, disproportionate impact on the lives of people of color and their communities The federal approach exhibits a dual, sometimes conflicting character that extends beyond any single administration or act of Congress.

Video footage of Rodney King's brutal beating on a Los Angeles highway, nearly eight years after the Supreme Court's City of Los Angeles v Lyons decision, prompted federal lawmakers to examine the scale of police misconduct both in Los Angeles and nationwide In response, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, a statute aimed at addressing police brutality and accountability, including provisions related to reform efforts such as §14141.

51 Pub L No 103-322, 108 Stat 1796 (codified at various locations in the U.S Code, including 31 U.S.C § 6715 (2018) and 34 U.S.C § 12601 (2018))

52 Federal Death Penalty Act of 1994, Pub L No 103-322, §§ 60001–60002, 108 Stat 1959, 1959–

53 Id § 150001, 108 Stat at 2033–35 (codified at 18 U.S.C § 521 (2018))

54 Id § 20414, 108 Stat at 1830–32 (codified at 18 U.S.C § 3608 (2018))

Adarand Constructors, Inc v Pena, 515 U.S 200, 227 (1995) stands for the proposition that the federal government is not better positioned than states to address racial discrimination; the Court applied strict scrutiny to race-based government contract funding and rejected prior decisions that presumed the federal government could determine "benign" racial classifications without the highest level of judicial review.

Lyons v City of Los Angeles, 461 U.S 95 (1983), involved Adolph Lyons, a Black man who sought an injunction to bar the Los Angeles Police Department from its alleged routine use of chokeholds during traffic stops; the Supreme Court refused to grant the injunctive relief, holding that Lyons had not shown an imminent threat of future injury—an essential requirement for such relief—and thus lacked standing to obtain a remedy for a policy that might affect him again, see id at 99–100.

The 1991 hearings on police brutality were conducted by the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee during the 102nd Congress (first session) and include a statement by Representative Don Edwards, who served as chairman of the subcommittee.

60 See Grand Lodge of the Fraternal Order of Police v Ashcroft, 185 F Supp 2d 9, 12 (D.D.C

Defendants contend that Congress enacted the Violent Crime Control and Law and limited federal intervention into unconstitutional police practices to the DOJ, restricting it to seeking injunctive and equitable relief from the courts Section 12601 does not authorize private plaintiffs to obtain similar relief The statutory power to litigate the issue of unconstitutional pattern or practice policing rests solely with the Attorney General as head of the DOJ.

The absence of a private right of action wasn’t an accident; Congress had already rejected an earlier version, the Police Accountability Act, which would have created a private right of action and concrete accountability measures The plan initially would have given both the Attorney General and injured individuals power to seek remedies from police departments found to engage in a pattern or practice of unconstitutional policing Opposition to the proposed private right of action was swift, with conservative lawmakers and police advocates warning it could invite frivolous lawsuits and politicize law enforcement Some observers argued that objections went beyond local government costs, and Marshall Miller suggests legislators worried that allowing rightful claims by injured individuals would effectively empower federal judges to make policing decisions in a broad range of cases.

Enforcement Act of 1994 in response to the beating of Rodney King by members of the Los Angeles Police Department.”)

61 See Violent Crime Control and Law Enforcement Act of 1994, Pub L No 103-322, § 31001,

Under this provision, the Attorney General may bring a civil action in an appropriate United States district court against a unit of general local government that the Attorney General reasonably believes has engaged in, or is engaging in, a pattern or practice in violation of Section 6711(a) or (b) The court may grant appropriate relief.

To protect and enforce rights under section 6711(a) or (b), the court may issue an appropriate order that can suspend or terminate payments under this chapter, require repayment of payments already made, or place additional payments into escrow pending the outcome of the action.

65 Police Accountability Act of 1991, H.R 2972, 102d Cong § 2(a)(3) (1991) This bill was never adopted by Congress Gilles, supra note 43, at 1403 (citing Joan Biskupic, Crime Measure Is a Casualty of Partisan Skirmishing, 49 C ONG Q W KLY R EP 3528, 3528–30 (1991))

67 Marshall Miller, Police Brutality, 17 Y ALE L & P OL ’ Y R EV 149, 174–75 (1998)

Gilles, supra note 43, at 1403, quotes a letter from Assistant Attorney General W Lee Rawls to Representative Henry Hyde in which Rawls addresses the expense and time local governments and their agencies would spend defending pattern-or-practice lawsuits if individuals were granted statutory authority to commence such litigation He argues that authorizing private suits would impose a substantial, resource-intensive burden on municipal and agency operations, consuming staff time, legal costs, and court resources The note underscores a key policy concern about private enforcement—namely, the potential strain on local governance and public resources if pattern-or-practice actions could be initiated by individuals under a statutory scheme.

Miller argues that the governance of police departments is a matter lawmakers wanted to leave to the elected and appointed officials who run local governments (see Miller, supra note 67, at 175) This concern largely echoes sentiments associated with the U.S Supreme Court To address the objections, the draft bill removed the individual right of action.

The Police Accountability Act never advanced from committee, while the authority to pursue pattern-and-practice litigation against offending police departments was instead incorporated into the Violent Crime Control and Law Enforcement Act of 1994 That act was enacted by Congress without any provision allowing individuals to pursue injunctive or declaratory relief on their own behalf, leaving aggrieved individuals or organizations with no mechanism to assert their interests or obtain a remedy.

Research by Myriam Gilles highlights that there is no private right to pursue remedies for alleged unconstitutional government conduct in police misconduct, a gap that is in some ways unique to policing Her work also shows that individuals have successfully challenged school segregation, environmental hazards, housing discrimination, legislative reapportionment, and antitrust violations, illustrating that private action can enforce the law in diverse areas The federal government has historically relied on private citizens as “eyes on the ground” to drive enforcement through private suits in these contexts During the Obama Administration, the DOJ sought ways to incorporate community perspectives into reform efforts authorized by the Violent Crime Control and Law Enforcement Act of 1994, manifesting as outreach and engagement, though significant concerns remain.

THE EVOLUTION OF COMMUNITY INPUT IN DOJ INVESTIGATIONS

First Wave—Cursory Community Engagement

Settlement agreements initially reached after the passage of the Violent Crime Control and Law Enforcement Act of 1994 contained only cursory statements

80 See DOJ C IVIL R IGHTS D IV , supra note 78

81 Id at 40 requiring the subject police departments to engage with the community 82 A review of settlement agreements over the years illustrates a marked change The Clinton Administration pursued its first pattern or practice suit to remedy alleged unconstitutional policing in Pittsburgh, Pennsylvania The 1997 court- ordered reform efforts between the United States and the City of Pittsburgh con- sisted of eighty-three paragraphs, only two of which addressed “Community Relationships.” 83 Those references acknowledged that the officer representative attended community meetings within their assigned zones and that the Office of Municipal Investigations, the entity required to investigate complaints against the police, performed outreach to inform the community of its purpose 84 The para- graphs simply required the Pittsburgh Bureau of Police to continue its current practices of attending community meetings and producing television broadcasts (as well as using other means of outreach) to inform the public of the function and complaint process employed by the Office of Municipal Investigations 85 The Pittsburgh consent decree required the Pittsburgh Bureau of Police to do nothing more than what it had already been doing The consent decree did not contain any information on the desired goal to be achieved through these mandates For example, the decree could have required the Pittsburgh Bureau of Police to analyze the data gathered from civilian complaints to inform its policies or gauge the effectiveness of its community outreach efforts The decree could have also required the Bureau to incorporate into its policies and training any insight or feedback it may have gained from community meetings

The Los Angeles consent decree, filed four years after the Pittsburgh decree, took only minimal steps toward addressing issues relevant to the community Like the Pittsburgh decree before it, the LAPD was required to meet periodically with community advisory groups, but there was no requirement to incorporate community input into the mandated reforms The Los Angeles decree did include more prescriptive requirements for the department related to community engagement, including distributing the forms needed to file complaints to community groups and centers, and requiring Field Training and Gang Unit officers to demonstrate proficiency in community‑oriented professional standards.

“cultural and community sensitivity”; 89 and providing training to all officers on

82 See, e.g., Consent Decree at 19–20, United States v City of Pittsburgh, No 2:97-cv-00354-RJC (W.D Pa Feb 26, 1997), No PN-PA-003-002 By contrast, the Steubenville consent decree ordered the same year had only one reference to community See Consent Decree at 7, United States v City of Steubenville, No 2:97-CV-966 (S.D Ohio Aug 28, 1997), No PN-OH-002-005 That reference was not related to officer engagement or accountability Id

83 See Consent Decree, United States v City of Pittsburgh, supra note 82

86 See Consent Decree, United States v City of Los Angeles, 288 F.3d 391 (9th Cir 2002) (No 2:00-cv-11769-GAF-RC), ECF No 123

89 Id at 47, 56 community policing and cultural diversity 90 Perhaps the most significant provi- sion related to community involvement in the Los Angeles consent decree was the creation of a program dedicated to “Community Outreach and Public Information.” 91 This mandate prescribed the frequency and manner by which the LAPD had to provide the community with details about the consent decree and how community members could file complaints alleging officer misconduct 92 The decree, however, failed to include any requirement that the LAPD collabo- rate or coordinate with community groups while carrying out its mandates Detroit was the next city to execute a consent decree to reform its police department with the federal government If the progressive nature of police- related consent decrees can be measured by the number of ways that departments are required to engage, consult, and inform the communities they serve, the Detroit consent decree took a step backward Like the Los Angeles and Pittsburgh decrees, it required Detroit to perform outreach to the community to ensure civil- ians were aware of (and had forms for) the civilian complaint process 93 The Detroit Police Department was also required to provide its “proposed policy revi- sions to the community.” 94 However, the decree failed to include any requirement that the Detroit Police Department solicit and incorporate recommendations from the community, as appropriate, into those proposed policy revisions The final ref- erence to community in the Detroit decree required that officers participate annu- ally in training on topics related to the Fourth Amendment such as probable cause, arrests, and custodial detention 95

Second Wave—More Detailed Community Engagement 5373 Third Wave—Community Police Commissions

The next iteration of DOJ-initiated police consent decrees—which began in

2011 under the Obama Administration—involved an increased scope and depth of outreach to communities impacted by police misconduct and violence 96 This

93 See Consent Judgment at 18–19, United States v City of Detroit, No 2:03-cv-72258-AC-DRG (E.D Mich June 12, 2003), ECF No 22

96 The DOJ entered into its first consent decree under the Obama Administration in United States v Territory of the Virgin Islands See Consent Decree, United States v Territory of the Virgin Islands, No 3:08-cv-00158-CVG-RM (D.V.I Mar 24, 2009), ECF No 3; see also DOJ C IVIL R IGHTS D IV , supra note 78, at 43–44 (detailing the timeline of the investigation and consent decree) The underlying pattern or practice investigation took place prior to former President Obama’s election, and the parties signed the agreement in March 2009 See DOJ C IVIL R IGHTS D IV , supra note 78, at 43–44 It should come as no surprise that the Virgin Islands consent decree mirrors the first wave of consent decrees, particularly in the minimal ways that the provisions of the decree sought to expressly involve community See Consent Decree, supra, at 8

The DOJ frames “community” broadly in its police-reform efforts, aiming to include a cross-section of voices and experiences, but this inclusive approach often misses the need to involve those segments of the community most disproportionately impacted by police violence Change appears in two ways: first, the DOJ highlights community involvement as central to its reform agenda in stand-alone reports and findings letters, with restoring public trust identified as a specific objective of pattern-or-practice reforms; and second, findings letters demonstrate the scope and frequency of outreach to community leaders and organizers throughout the process of making departmental findings, underscoring the importance of community input in police accountability efforts.

See, e.g., DOJ C IVIL R IGHTS D IV , I NVESTIGATION OF THE B ALTIMORE C ITY P OLICE

D EPARTMENT 4 (2016), https://www.justice.gov/crt/file/883296/download [https://perma.cc/7XC7- W25H]; DOJ C IVIL R IGHTS D IV & U.S A TTORNEY ’ S O FFICE FOR THE W D IST OF W ASH ,

Federal investigations by the U.S Department of Justice Civil Rights Division examined policing practices in several U.S cities, beginning with the Seattle Police Department in 2011, which produced a formal findings letter outlining constitutional concerns and recommended reforms The DOJ’s oversight expanded to other municipalities, including a September 12, 2012 letter from Thomas E Perez and Amanda Marshall to Portland’s mayor describing the findings and required changes, and an April 10, 2014 findings letter to Albuquerque’s mayor Richard J Berry detailing ongoing issues and corrective actions These documents—SPD findings letter (12-16-11), the Portland correspondence, and the Albuquerque findings—are publicly available on justice.gov and related Perma URLs.

The second demonstration of increased scope and depth of outreach can be found in the terms of negotiated settlement agreements reached between

New Orleans' consent decree with the federal government illustrates both progress and remaining gaps in embedding community voice in police reform The agreement marks a dramatic rise in “community” references—more than twenty times the figure found in the first wave of consent decrees—reflecting greater emphasis on local participation It obligates the New Orleans Police Department to collaborate with community advocates to disseminate policies related to immigration status and to partner with community organizations to ensure language services for Spanish- and Vietnamese-speaking residents Additionally, the decree requires the NOPD to incorporate community mental health professionals into its crisis intervention efforts.

97 See DOJ C IVIL R IGHTS D IV , supra note 78, at 1, 4

100 See Settlement Agreement, United States v City of Albuquerque, No 1:14-cv-01025-RB-SMV,

Key federal court documents cited include the 2015 District of New Mexico decision, 2015 WL 13747185 (D.N.M Feb 19, 2015), ECF No 9-1; a Settlement Agreement pursuant to Fed R Civ P 41(a)(2) in United States v City of Portland, No 3:12-cv-02265-SI, 2013 WL 12309780 (D Or Feb 19, 2013), ECF No 4-1; and a Consent Decree regarding the New Orleans Police Department in United States v City of New Orleans, No 2:12-cv-01924-SM-JCW, 2012 WL 12990388 (E.D La Aug 31, 2012).

101 Consent Decree, United States v City of New Orleans, supra note 100

102 Compare id., with Consent Decree, United States v City of Steubenville, supra note 82

3 Third Wave—Community Police Commissions

Under a 2012 DOJ-initiated consent decree to reform Seattle’s police department, the city adopted a new model of community engagement The agreement required the City of Seattle to establish a stakeholder group made up of community representatives from Seattle’s diverse neighborhoods, giving residents a formal voice in police reform The creation of the Seattle Community Police Commission (CPC) and the allocation of credit for its establishment became a point of contention among the parties involved.

Letters referenced include the Letter from Jenny A Durkan, U.S Attorney for the Western District of Washington, and Jonathan Smith, Chief of the Special Litigation Section in the U.S Department of Justice Civil Rights Division, addressed to the Community Police Commission on October 21, 2013, and a separate Letter from Seattle Mayor Mike McGinn to the Community Police Commission.

A October 23, 2013 report described Mayor McGinn’s recollection of the course of negotiations, noting that the DOJ credited the mayor for the idea of the Community Police Commission (CPC), a point echoed in a Seattle Times piece the following day The DOJ’s letter to the CPC outlined the federal government’s efforts to engage Seattle community members and described moments when the negotiation stalled on several topics, including community engagement, while indicating that the DOJ proposed the agreement include a provision to address these concerns.

A letter titled “Community Monitoring Board,” from Jenny A Durkan, U.S Attorney for the Western District of Washington, and Jonathan Smith, Chief of the Special Litigation Section in the DOJ Civil Rights Division, to the Community Police Commission explains Seattle’s role in creating what would become the Community Police Commission and asserts that the Department of Justice did not stall the process over concerns about community involvement.

Motivation to establish the CPC appears partly rooted in concerns about sustainability that have plagued federal interventions in local police departments found to engage in a pattern or practice of unconstitutional policing These concerns underscore the need for long‑lasting reforms that endure beyond initial oversight In this context, the Seattle consent decree emphasizes the vital role of community input in shaping proposed changes, ensuring reforms reflect local realities and build public legitimacy.

The community is a critical resource, and several reform efforts within the Agreements are best developed through dialogue and broad input Ongoing community involvement in shaping reforms, setting police priorities, and creating mechanisms to promote confidence in the SPD will strengthen the department and improve police–community relations, which are essential to advancing public safety.

The Cleveland consent decree also created a CPC as a “formal” mechanism to

“promote public trust and confidence constitutional and effective policing, of- ficer and public safety, and the sustainability of reforms.” 110

As detailed above, the DOJ is on record as being committed to incorporating community input into the fact-gathering phase and during the negotiation of

106 See Settlement Agreement & Stipulated [Proposed] Order of Resolution at 2–4, United States v City of Seattle, No 2:12-cv-01282-JLR (W.D Wash July 27, 2012), ECF No 3-1

108 DOJ C IVIL R IGHTS D IV , supra note 78, at 18, 23–24

109 Settlement Agreement & Stipulated [Proposed] Order of Resolution, supra note 106, at 2

110 Settlement Agreement at 4, United States v City of Cleveland, No 1:15-cv-01046-SO (N.D Ohio May 26, 2015), ECF No 7-1 settlement terms The importance of community input and engagement, however, appears to wane during the implementation phase of the reform efforts Specifically, the DOJ has opposed efforts by community organizations and lead- ers to be included as parties to the underlying litigation driving the reform efforts 111 This is true despite acknowledgement by the DOJ that community involvement is essential to the sustainability of reform efforts 112 and that the fail- ures of prior efforts have generated deep distrust of governmental authority within certain communities 113

This evolution provides context and illustrates how current practices still fall short of meaningful inclusion Outreach and engagement are distinctly different from the inclusion that party status can provide Federal Rule of Civil Procedure

Rule 24 was created to promote inclusive participation, but it has yet to deliver tangible benefits for affected individuals and for the community organizations that advocate on their behalf The next section examines how Rule 24 was formed, its intended purpose, and other issues related to its operation.

F EDERAL R ULE OF C IVIL P ROCEDURE R ULE 24

Intervention in public-law litigation has a long history as a mechanism to address societal issues, and DOJ reform cases are framed as solutions to pressing social problems even when the affected communities lack direct representation Federal courts have often failed to recognize the unique interests of communities harmed by police abuses, depriving reform efforts of essential perspectives that could shape more effective law reform When courts ignore these interests, opportunities to participate in reform litigation are curtailed, undermining the aims of Rule 24(a) This section surveys the history of Rule 24, the decisions that drove its promulgation, and the central questions of standing and adequate representation It concludes with a brief description of the interplay between Rule 24 and related Equal Employment Opportunity Commission procedures.

In United States v City of Albuquerque, No 1:14-cv-01025-RB-SMV (D.N.M Apr 22, 2015), the United States opposed the motions to intervene filed by Disability Rights New Mexico, the ACLU of New Mexico, and the Native American Voters Alliance Education Project (ECF No 120) In United States v City of Portland, No 3:12-cv-02265-, the United States filed a Memorandum in Opposition to Proposed Intervenor-Defendant Portland Police Ass’n & Proposed Intervenor-Plaintiff AMA Coalition’s FRCP 24 Motions to Intervene.

SI, 2013 WL 12309780 (D Or Feb 19, 2013), ECF No 25; United States’ Response to the Detroit Coalition Against Police Brutality’s Motion for Intervention as of Right, United States v City of Detroit,

No 2:03-cv-72258-AC-DRG (E.D Mich July 10, 2003), ECF No 14

112 DOJ C IVIL R IGHTS D IV , supra note 78, at 2, 18, 30

113 Id at 13 Undoubtedly, there are many more layers of governmental failures that contribute to this distrust Some of those are explored infra Section IV.B.3

Justin P Gunter’s article, “Dual Standards for Third-Party Intervenors: Distinguishing Between Public-Law and Private-Law Intervention,” analyzes how public-law intervention has evolved and why the federal judiciary is relied upon to enforce the social-reform goals of public law through litigation He distinguishes dual standards for third-party intervention by contrasting public-law and private-law approaches and uses affirmative-action cases to illustrate how this rule operates in non-police-reform contexts.

HISTORY OF FEDERAL RULE 24

Federal Rule of Civil Procedure 24, which allows an unnamed party to intervene in a lawsuit, was adopted in 1938 At the time, the idea challenged the traditional notion that plaintiffs are the masters of the suit Rule 24, derived from Equity Rule 37, was designed to let interested persons assert a right in the ongoing litigation Unlike its equity predecessor, Rule 24 does not require the intervenor’s interest to be subordinate to the original action.

Rule 24 has experienced only one significant amendment since its original adoption, which occurred in 1966 when the Advisory Committee proposed redefining who is entitled to intervention as a matter of right under subdivision (a) The amendment introduced several revisions intended to change how courts apply the Rule, including merging two separate clauses into a single clause and removing language that the interest must be property-related The remaining revisions were designed to address concerns about courts creating additional hurdles for movants seeking intervention.

Under the former Rule 24(a), successful intervenors had to demonstrate that their interests were inadequately represented and that they would be legally bound by the outcome as a result of res judicata This requirement ensured that intervention was limited to those with a genuine stake and a binding interest in the final judgment The U.S Supreme Court has reviewed these criteria in shaping who may intervene in federal cases, highlighting how the adequacy of representation and the res judicata effect determine eligibility to participate in ongoing litigation.

116 7C C HARLES A LAN W RIGHT & A RTHUR R M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 1903 (3d ed 2020)

117 Gunter, supra note 114, at 647–48 (quoting F LEMING J AMES , J R , G EOFFREY C H AZARD , J R &

J OHN L EUBSDORF , C IVIL P ROCEDURE 626 (5th ed 2001))

Under the former Equity Rule 37, anyone claiming an interest in the litigation could at any time be permitted to assert that right by intervention, but the intervention was to be in subordination to, and in recognition of, the propriety of the main proceeding (7 C Wright & M Miller, supra note 116, § 1903 n.2) Stephen N Subrin notes that the adoption of the Federal Rules of Civil Procedure reflected the influence of champions of equity rather than adherents of the common law (How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U Pa L Rev 909, 912 (1987)).

119 John E Kennedy, Let’s All Join In: Intervention Under Federal Rule 24, 57 K Y L.J 329, 331–

121 See F ED R C IV P 24 advisory committee’s notes to 1946, 1948, 1963, 1966, 1987, 1991, 2006, and 2007 amendments

122 F ED R C IV P 24 advisory committee’s note to 1966 amendment

In Sutphen Estates, Inc v United States (1951), the Court quotes Rule 24(a) to define when a party may intervene as of right: when existing parties’ representation of the applicant’s interests is or may be inadequate and the applicant may be bound by the action’s judgment.

Hansberry v Lee highlighted the insurmountable obstacles posed by the two-part barrier to litigation for those challenging racially restrictive covenants Carl Hansberry and other Black landowners, who purchased property claimed to be restricted by a race-based covenant, appealed a prior decision by the Illinois Supreme Court The land in question was alleged to be off-limits to Black ownership under the covenant, and the Illinois Supreme Court affirmed the lower court by holding that the dispute over the covenant’s validity was barred by res judicata, even though Hansberry himself was not a party to the earlier suit.

The U.S Supreme Court reversed the earlier ruling, holding that class action judgments cannot bind a nonparty who was not adequately represented The decision also revisits the old intervention standard, which required a movant to prove both inadequate representation and binding effect by a prior judgment In Hansberry v Lee, the court’s resolution for the petitioners solved certain issues but effectively created an almost insurmountable conundrum for future litigants.

Rule 24 was amended to replace the “formal, legalistic restrictions” with

The removal of the res judicata bar from the current version was intended to promote fairness and orderly procedure The amended Rule adopts a more liberal test for intervention, requiring a movant to show: (1) an interest in the subject of the litigation, (2) lack of adequate representation of that interest by the existing parties, and (3) that the outcome of the case may impair or impede the movant’s ability to protect that interest Despite the amendment and recognition that the res judicata barrier created an unreasonable obstacle, courts have substituted a strict reading of the third factor, effectively maintaining a higher barrier to intervention.

To fully grasp Rule 24, it is essential to consider its context and purpose beyond the Advisory Committee notes and the scholarship of that period Scholars read the Supreme Court's decision in Sam Fox Publishing Co v United States as indicating that the movant‑intervenor's adverse interests are not automatically barred by res judicata, and that the court denied the movant's motion to intervene.

Hansberry v Lee, 311 U.S 32 (1940), though commonly cited in the class action context, has a significant impact on the rule of intervention; the Federal Rules of Civil Procedure were revised to maintain symmetry among joinder, intervention, and class actions, a point discussed by Suzette M Malveaux in The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today, 66 Kan L Rev 325, 342–47 (2017), which examines the Rules Committee’s deliberations on res judicata and Hansberry.

132 See supra note 126 and accompanying text

133 See Sam Fox Publ’g Co v United States, 366 U.S 683, 691–92 (1961); see also Kennedy, supra note 119, at 350 (explaining that Hansberry created “a logical impossibility on the face of Rule

24 (a) (2) in that the conjunctive requirements of inadequate representation and binding effect could be considered to be mutually exclusive”)

134 Sherman L Cohn, The New Federal Rules of Civil Procedure, 54 G EO L.J 1204, 1229 (1966)

135 Coleman Capital Corp v Fidelity & Deposit Co of Md., 43 F.R.D 407, 408 (S.D.N.Y 1967)

In the Sam Fox case, a government antitrust action under the Sherman Act targeted the American Society of Composers, Authors and Publishers (ASCAP) and the case itself served as a catalyst for amendments to the ASCAP consent decree The proposed intervenor, Sam Fox, a small publisher, argued that the reforms under the decree were insufficient to protect his interests and that the representation provided was inadequate to serve those interests The decree required the ASCAP board to be elected by membership vote and mandated equitable distribution of revenues The government sought two modifications to the decree to ensure the democratic administration of ASCAP’s internal affairs and to secure a fair distribution of revenues.

During a twenty-year litigation, Sam Fox and a small group of publishers sought to intervene Justice Harlan’s ruling denying intervention drew concern from lower courts and scholars, who argued that movant-intervenors faced no viable recourse Under Rule 24(a)(2) as interpreted by the Court, intervention of right was unavailable if representation was inadequate, because such inadequacy would render the judgment defective and not binding, undermining the res judicata requirement for intervention Even satisfactory representation could preclude intervention This dilemma, together with efforts to maintain continuity across rules, drove the lone substantive amendment to Rule 24.

As discussed above, Rule 24 has its historical underpinning in equity The

The 1966 amendment to Rule 24(a)(2) clarified its purpose: to provide access to the courts for parties with a broadly conceived legal interest who meet the Rule’s other requirements This change aimed to promulgate a liberal intervention standard, expanding who may intervene in litigation Yet fulfilling the remaining Rule requirements can still be a significant hurdle for those seeking to intervene.

138 See Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 H ARV L R EV 356, 402–03 (1967)

142 Id at 687 (quoting the modified consent decree)

144 See, e.g., Reich v Webb, 336 F.2d 153, 156 (9th Cir 1964); Atl Ref Co v Standard Oil Co.,

Early 1960s appellate decisions frame who is bound by a judgment and when nonparties may participate in litigation The D.C Circuit in 1962, together with Int’l Mortgage & Investment Corp v Von Clemm (Second Circuit, 1962), applies a practical test to the “is or may be bound” standard to determine the reach of judgments and the conditions under which nonparties are bound This line of reasoning is complemented by academic analysis, notably John W Stack’s discussion of Intervention of Right in Class Actions and the dilemmas presented by Federal Rule of Civil Procedure 24(a)(2), which examine the balance between efficient adjudication and protecting interests when allowing intervention Collectively, these authorities map the criteria for intervention of right and the permissibility of binding effects in complex litigation, informing contemporary class-action practice and the interpretation of Rule 24(a)(2).

148 See F ED R C IV P 24 advisory committee’s note to 1966 amendment

Kaplan's analysis (supra note 138, at 403) indicates that standing may act as a bar to intervention in certain cases As discussed below, existing parties have raised standing as a potential obstacle to intervention in some instances The following sections briefly examine how standing and the adequacy of representation influence third-party intervention.

FEDERAL RULE 24 AND STANDING

Town of Chester v Laroe Estates, Inc addressed whether a putative intervenor must have standing to intervene as a matter of right Before the Supreme Court’s ruling, federal circuit courts were split on this issue: some circuits held that a putative intervenor could meet the standing requirement if the original party on the same side of the litigation already had standing, while others held that the intervenor must have independent standing to pursue intervention.

Laroe Estates resolves a circuit split on standing by holding that a movant-intervenor must satisfy the standing requirements if it seeks a remedy different from that of a party with standing; in the case, Laroe Estates invested heavily in Sherman’s real estate project, argued it was the equitable owner, and sought damages in its own name, but the court’s unanimous ruling emphasized that standing turns on the relief sought The decision leaves open the possibility that a putative intervenor need not satisfy standing requirements when it pursues the same relief as an existing party, and, in the police reform litigation context, a movant-intervenor seeking injunctive relief similar to the federal government may not be required to prove standing under Laroe Estates.

FEDERAL RULE 24 AND ADEQUACY OF REPRESENTATION

Rule 24(a) recognizes the rights of third parties to join existing litigation 160 To intervene under Rule 24(a), a movant must show (1) an interest in the matter at

This article focuses on the adequate representation element of Rule 24(a) of the Federal Rules of Civil Procedure The remaining requirements under Rule 24(a) are that the motion to intervene be timely and that the movant demonstrate a substantial interest in the litigation that is likely to be impaired or impeded by the proceedings.

Key authorities cited include Arakaki v Cayetano, 324 F.3d 1078, 1088 (9th Cir 2003); the United States’ Proof Brief as Appellee in United States v City of Detroit, No 03-2343 (6th Cir Apr 7, 2004); and the Defendant City of Albuquerque’s Response in Opposition to APOA’s Motion to Intervene in United States v City of Albuquerque, No 1:14-cv-01025-RB-SMV, 2015 WL 13747185 (D.N.M Feb.

154 E.g., San Juan County v United States, 503 F.3d 1163, 1171 (10th Cir 2007)

155 E.g., In re Endangered Species Act Section 4 Deadline Litig., 704 F.3d 972, 976 (D.C Cir

This should not be confused with the class action certification standards under Federal Rule of Civil Procedure 23(a); in certification proceedings, the court must determine whether the named plaintiff is an appropriate representative for the class, applying the typicality and adequacy requirements outlined in Rule 23(a)(3)–(4).

160 See F ED R C IV P 24(a) hand, (2) that its interest may be impaired by the litigation, and (3) that its interest is not adequately represented by an existing party 161

Across circuits, the standard for a putative intervenor’s claim of inadequate representation varies The Sixth Circuit requires only a potential for inadequate representation The Ninth Circuit applies a three-factor analysis, asking whether the existing parties will undoubtedly press all of the intervenor’s arguments, whether those parties are capable and willing to do so, and whether the intervenor can supply any necessary elements that the current parties would neglect The Tenth Circuit goes beyond a minimal showing, rejecting the presumption that government representation is identical to the interests of its citizens unless the interests are identical, and allowing that presumption to be rebutted if the government must consider interests different from those of the intervenor.

Across the remaining circuits, the presumption of adequate representation mainly hinges on whether the movant’s interests align with the government’s In these circuits, a movant must show that its interest is actually different from the government’s and that those interests will not be represented by the government The Fourth Circuit, in contrast, holds that movants must make a strong showing of divergence to prevail.

Davis v Lifetime Capital, Inc clarifies that, in deciding whether to permit intervention, the adequacy of representation depends on whether the existing parties will advocate all of the prospective intervenor’s arguments; even when the goals align, the current litigants may not cover the full range of issues the intervenor would raise If the interests of the absent party are not represented at all, or if all existing parties are adverse to the absent party, the intervenor is not adequately represented This principle is supported by Grutter v Bollinger and Grubbs v Norris, which hold that showing the existing party will not present all of the prospective intervenor’s arguments, or a lack of representation for the absent party, can be enough to establish inadequate representation for purposes of intervention.

Citizens for Balanced Use v Montana Wilderness Ass’n, 647 F.3d 893 (9th Cir 2011) explains a three-factor test for adequacy of representation when deciding whether a party may intervene as of right The factors are: (1) whether the interest of a current party is so aligned that it will inevitably advance all of the proposed intervenor’s arguments; (2) whether the current party’s representation of that interest is likely to be adequate; and (3) whether the intervenor would offer something new to the case—such as a different perspective or independent input—that could improve the litigation Applied properly, this test helps courts determine whether intervention would be redundant or would contribute meaningfully to the outcome.

Intervention in a legal proceeding is assessed using two key questions: whether the current party is capable and willing to present the arguments, and whether the proposed intervenor would contribute essential elements to the proceeding that other parties would otherwise overlook This framework, drawn from Arakaki v Cayetano, 324 F.3d 1078, 1086 (9th Cir 2003), helps determine whether an intervenor's participation is warranted.

166 Kane County v United States, 928 F.3d 877, 892 (10th Cir 2019) (quoting Bottoms v Dresser Indus., Inc., 797 F.2d 869, 872 (10th Cir 1986))

168 Texas v United States, 805 F.3d 653, 662 (5th Cir 2015) (quoting Edwards v City of Houston,

Courts permit intervention by parties with compelling interests, as shown by the Fifth Circuit's en banc discussion (78 F.3d 983, 1005) In Pennsylvania v President U.S., the Third Circuit held that a religious nonprofit made a compelling showing to intervene in a dispute over an exemption for religious businesses to pay for contraceptive coverage The Eighth Circuit, in FTC v Johnson, further held that there is a greater burden to overcome the presumption of adequate representation when interests are shared, especially where a showing of governmental inadequacy is made, because the court presumes that government agencies are best situated to defend the constitutionality of existing laws.

A successful movant in the Seventh Circuit will effectively rebut the pre- sumption of adequate governmental representation only by a showing of

“gross negligence or bad faith.” 170

Part IV analyzes the adequate representation factor and the way courts evaluate it when deciding motions to intervene filed by community organizations in police pattern-or-practice litigation It also explains how those decisions—particularly those that hold the federal government adequately represents the interests of community organizations—have drifted from the amended purpose of Rule 24.

RULE 24 IN EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND

E FFORTS BY C OMMUNITY O RGANIZATIONS TO E NGAGE IN P OLICE

Presuming that a government authority can speak for marginalized communities affected by police violence creates paternalistic, hierarchical dynamics that run counter to modern democratic norms The impacted community members deserve a voice that is heard and respected and a right to self-governance comparable to that of non-marginalized groups These aspirations have, as discussed below, driven motions to intervene in multiple jurisdictions undergoing DOJ-initiated reforms.

INDIVIDUAL PLAINTIFFS AND COMMUNITY ORGANIZATIONS

Community organizations have attempted to gain party status in police reform consent decrees 191 under Rule 24 since the year 2000 192 Those attempts by

187 See id at 400–01 (declining to impose a heightened requirement when a governmental entity is a party, and citing Trbovich v United Mine Workers of America, 404 U.S 528, 538 n.10 (1972), and its holding that only a minimal showing is needed to meet the inadequate representation requirement)

188 807 F.3d 472, 475 (1st Cir 2015) (quoting Moosehead Sanitary Dist v S G Phillips Corp., 610 F.2d 49, 54 (1st Cir 1979))

190 See Patel, supra note 39, at 805–06 (arguing that a direct correlation exists between

“[m]eaningful inclusion of directly impacted voices” and the fundamental democratic “principles of self-determination, anti-subordination, and individual liberty”)

191 See Larry Kramer, Consent Decrees and the Rights of Third Parties, 87 M ICH L R EV 321

(1988), for a discussion and explanation of the distinct meaning of a consent decree—not a contract and not a judgment—as well as an explanation of what typically occurs after a lawsuit is filed that leads to the entering of a consent decree

Evidence from United States v City of Los Angeles (288 F.3d 391, 396–97, 9th Cir 2002) shows that interested community organizations have continued to address a pattern or practice of unconstitutional policing in numerous jurisdictions While the DOJ has highlighted efforts to gain input from certain community stakeholders during both the investigative and settlement negotiation stages, community leaders and organizations have reported feeling left out of the negotiation and implementation phases of the reform process.

See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the

Federal Reform of Local Law Enforcement Agencies, 98 J C RIM L & C RIMINOLOGY 489, 525–26 (2008); Civil Rights Organizations Demand Police Reform Documents from Justice Department, ACLU (Jan

Civil rights organizations have pressed for police reform by demanding access to Department of Justice documents, signaling a broader push for accountability in law enforcement Investigative reporting, including a Chicago Tribune analysis of police oversight ordinances, shows that promised transparency often does not fully materialize, with gaps in recordkeeping and discipline data The ACLU's Fighting Police Abuse: A Community Action Manual offers actionable strategies for communities to hold police accountable and push for reform Critics such as Jo Ann Hardesty point to leadership failures and lack of accountability embedded in police contracts, noting that public forums intended to collect civil rights input are sometimes effectively suppressed.

The DOJ has formally opposed motions to intervene filed on behalf of community organizations The absence of formal inclusion and authority is particularly concerning, given that a central aim of DOJ-led police structural reform is to foster trust and improve relations between police departments and the communities they serve.

Building collaborative working relationships with affected communities is essential for gaining deep insights into their experiences and needs This endeavor is not easy, given the long history of abuse and distrust between affected communities and police in the United States.

See, e.g., Terry v Ohio, 392 U.S 1, 17 & n.14 (1968); R EPORT OF THE N ATIONAL A DVISORY

C OMMISSION ON C IVIL D ISORDERS 143–44 (1968); Sirry Alang, Donna McAlpine, Ellen McCreedy & Rachel Hardeman, Police Brutality and Black Health: Setting the Agenda for Public Health Scholars,

107 A M J P UB H EALTH 662, 662 (2017); Erwin Chemerinsky, An Independent Analysis of the Los Angeles Police Department’s Board of Inquiry Report on the Rampart Scandal, 34 L OY L.A L R EV

545, 570, 620 (2001); Hardaway, supra note 50, at 148; C ONG R ESEARCH S ERV , R43904, P UBLIC

T RUST AND L AW E NFORCEMENT —A D ISCUSSION FOR P OLICYMAKERS 1 (2018), https://crsreports congress.gov/product/pdf/R/R43904/15 [https://perma.cc/A5EP-CRJF]; R AMPART I NDEP R EVIEW P ANEL , A

R EPORT TO THE L OS A NGELES B OARD OF P OLICE C OMMISSIONERS C ONCERNING THE O PERATIONS , P OLICIES ,

AND P ROCEDURES OF THE L OS A NGELES P OLICE D EPARTMENT IN THE W AKE OF THE R AMPART S CANDAL 1

(2000), https://perma.cc/8PA9-G3DP; L AWRENCE W S HERMAN , T RUST AND C ONFIDENCE IN C RIMINAL

J USTICE 1 (2001), https://perma.cc/L9C7-3437 See generally B ERNARD C P ARKS , L.A P OLICE D EP ’ T ,

B OARD OF I NQUIRY INTO THE R AMPANT A REA C ORRUPTION I NCIDENT : P UBLIC R EPORT 287 (Mar 1,

This absence of trust undeniably adds to the

194 See DOJ C IVIL R IGHTS D IV , supra note 78, at 40

The United States opposed the motions to intervene filed by Disability Rights New Mexico, the ACLU of New Mexico, and the Native American Voters Alliance Education Project, and it also submitted a combined response to the CPC’s motion to partially intervene and to the City and CPC’s motions to extend certain deadlines in United States v City of Seattle, No 2:12-cv-01282-JLR (W.D Wash Nov 5, 2013), ECF No 96 It further filed a Memorandum in Opposition to the proposed intervenor-defendant Portland Police Association and the proposed intervenor-plaintiff AMA Coalition’s FRCP 24 motions to intervene.

197 DOJ C IVIL R IGHTS D IV , supra note 78, at 25

Corruption within the LAPD erodes community trust and highlights the need for substantive police reform Structural reform is challenging and cannot be achieved quickly or through token efforts A primary driver of stronger police–community relations is a reform process that communities perceive as valuable and capable of delivering meaningful, positive change Community leaders and organizations have emphasized the importance of being present and heard when policy revisions are crafted and when outlining community engagement plans.

Community leaders and organizations want to be part of the reform process, and their involvement goes beyond policy revisions and recommendations When these voices are not heard or seen in the process, it compounds the marginalization of affected communities that have, for years, sought relief from the judiciary or elected officials without success.

Efforts by individuals to initiate structural reforms within problematic police departments have historically been rebuffed by federal courts and American lawmakers Lawsuits filed both pre- and post-Monell v Department of Social Services have highlighted the enduring tension between reform-minded activists and the legal framework that governs policing, often delaying or diluting changes to department structure, policies, and accountability mechanisms.

Services 204 seeking structural improvements in response to police abuses

199 See Simmons, supra note 195, at 524 (explaining reform processes with questionable legitimacy run the risk of causing stakeholders to “become distrustful of federal intervention”)

200 See id at 527 (discussing the essential function of positive relationships between police and community partnerships in policies focused on community policing)

201 Id at 525–26 (highlighting how the DOJ reform process involving the LAPD alienated community groups who became distrustful of “‘secret’ negotiations”)

202 Kay E Cook, Marginalized Populations, in 2 T HE SAGE E NCYCLOPEDIA OF Q UALITATIVE

Marginalized populations are people who are excluded from mainstream social, economic, cultural, or political life, and while classifications vary, they typically include groups disadvantaged because of race, religion, political or cultural identity, age, gender, or socioeconomic status, among other factors.

Council of Organizations on Philadelphia Police Accountability & Responsibility v Rizzo (357 F Supp 1289, E.D Pa 1973) involved Black plaintiffs alleging widespread constitutional violations by the Philadelphia Police Department, including misconduct by individual officers and actions by elected and appointed officials The district court found that Black community members and others critical of the police suffered unconstitutional conduct too often and ordered the creation of a civilian complaint process In Rizzo v Goode (423 U.S 362, 380 (1976)), the Supreme Court later held that the district court improperly injected itself into the internal disciplinary affairs of the police department by issuing injunctive decrees.

Individuals may pursue police misconduct claims under 42 U.S.C § 1983, but success comes with significant limitations Proof that an officer injured or violated a plaintiff’s rights is not enough to recover damages; plaintiffs must first overcome qualified immunity, which bars recovery unless the officer’s conduct violated a clearly established constitutional right, as held in Pearson v Callahan, 555 U.S 223 (2009) (citing Anderson v Creighton, 483 U.S 635 (1987)) Even if the plaintiff clears that hurdle, those seeking to sue the department rather than the individual officer must show that the misconduct resulted from departmental policy or custom, under Monell v Dep’t of Soc Servs., 436 U.S 658 (1978).

City of Canton v Harris introduced the deliberate indifference standard, creating an additional hurdle for plaintiffs seeking relief against municipalities for failing to adequately train police officers The ruling holds that municipal liability for inadequate training attaches only when the failure to train reflects deliberate indifference to constitutional rights, as stated in 489 U.S 378, 389 (1989).

Officers’ conduct in Los Angeles and Philadelphia was ultimately rejected by the U.S Supreme Court In Rizzo v Goode, the Court explained that federalism and the doctrine of equitable restraint prevent the trial court from granting injunctive relief to individuals and Philadelphia-based community organizations seeking to remedy discriminatory police practices within the city’s police department (436 U.S 658).

COMMUNITY ORGANIZATIONS’ EFFORTS TO GAIN PARTY STATUS

Los Angeles

In United States v City of Los Angeles, five community organizations and impacted individuals moved to intervene in the case, and the court noted that these groups had worked for years with affected communities and the LAPD on reform efforts The organizations explained that their intervention was motivated by a desire to ensure the consent decree–related reforms would succeed and to maintain their ongoing participation in reform work The federal and municipal defendants opposed intervention, arguing that allowing new participants could slow the lengthy, complex negotiations The court then considered the intervention question separately as a matter of right and as permissive intervention.

Intervention as a matter of right, per the Ninth Circuit, is guided by practical and equitable considerations that favor the proposed intervenors The aims of this liberal intervention framework are to promote efficiency, broaden access to the courts, prevent or simplify future litigation, and allow additional interested parties to express their views before the court Although this approach suggests that intervenors might gain party status with relative ease, the real-world outcome has not aligned with that expectation, as shown in United States v City of Los Angeles.

On appeal, the Ninth Circuit affirmed the district court’s denial of the putative community intervenors’ motion to intervene as a matter of right for two reasons First, it held that the movants failed to meet the impairment or impede requirement because the consent decree litigation did not bar individual plaintiffs from pursuing their claims.

The cited source (id at 397) lists the participating organizations as the ACLU of Southern California, the Asian Pacific American Legal Center, Homeboy Industries, Radio Sin Fronteras, and the Southern Christian Leadership Conference of Los Angeles (see id at 397 n.3).

The court declined to let the movants pursue their own action against the LAPD for unconstitutional policing, and it did not prevent community organizations from ceasing efforts to reform the department The Ninth Circuit also held that the movant community organizations failed to rebut the presumption that the federal government adequately represented their interests Merely seeking strict enforcement of the decree did not demonstrate inadequate representation; the movants needed to point to a specific failure or dispute concerning the terms of the consent decree in order to obtain intervention as a matter of right.

Detroit

In 2003, the federal district court in Detroit denied the Coalition Against Police Brutality's motion to intervene The coalition, composed largely of individuals who had been harmed by encounters with Detroit police officers, has pursued policing reform since 1998, when it presented a report to the Detroit City Council at a hearing on the need for reform It is reported that the coalition's efforts, in collaboration with the NAACP and Amnesty International, helped spur the city to request a § 14141 investigation by the Department of Justice four years later.

The Coalition’s motion to intervene argued three key interests: first, to represent its members, including those with pending complaints against Detroit police officers; second, to ensure genuine reform takes root through the Department of Justice process; and third, to safeguard the voices of the community—citizens and those affected by police misconduct—from being sidelined in the ongoing reform efforts.

The Coalition highlighted the broad analytical framework used by the Sixth and Ninth Circuits to determine what constitutes a significant, protectable interest It also cited a Fifth Circuit ruling finding that the National Organization of Women has a significant interest for purposes of intervention in related matters.

222 Order, United States v City of Detroit, No 2:03-cv-72258-AC-DRG (E.D Mich Aug 26,

2003), ECF No 31 (denying motions to intervene)

223 Coalition Against Police Brutality’s Motion for Intervention as of Right at 2, City of Detroit,

No 2:03-cv-72258-AC-DRG (E.D Mich July 1, 2003), ECF No 10

The Coalition Against Police Brutality filed a brief in support of its motion to intervene in City of Detroit, No 2:03-cv-72258-AC-DRG (E.D Mich July 1, 2003), docketed as ECF No 10; the citation to the internal record is omitted.

227 See Coalition Against Police Brutality’s Motion for Intervention as of Right, supra note 223, at 3

Coalition Against Police Brutality filed a brief in support of its motion for intervention as of right, citing a federal action against steel employers for gender discrimination and noting a district court finding that the NAACP in Los Angeles had a sufficient interest to intervene in a separate suit brought by contractors challenging minority set-aside contracts under the Public Works Employment Act of 1977 as unconstitutional.

The Coalition contends that neither the City of Detroit nor the Department of Justice was in a position to adequately represent or protect its interests under the proposed settlement It points to two failings by the existing parties: first, both the City and the Department of Justice did not seek the Coalition’s input before filing the settlement; and second, they failed to hold community meetings to understand the perspectives and concerns of community members.

Detroit's opposition to intervention argued that any relevant interests were represented by both the federal government and the City of Detroit through the elected city council The upcoming city council meeting was described as the public's opportunity for community input and outreach The federal government denied any impropriety in negotiating the agreement and asserted that its representation was adequate, citing the Department of Justice's goal to reform the Detroit Police Department and stem the pattern and practice of constitutional violations.

Filings by the putative intervenors and the City of Detroit present issues relevant to judicial consideration, including whether the government should consult with impacted communities to adequately represent their interests.

229 See id at 9 (citing United States v Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 845 (5th Cir 1975))

230 See id (citing Associated Gen Contractors of Cal v Sec’y of Commerce, 459 F Supp 766,

In United States v City of Detroit (E.D Mich No 2:03-cv-72258-AC-DRG), the Respondent City of Detroit filed its Response to Petitioner Coalition Against Police Brutality’s Motion for Intervention as of Right (ECF No 17), spanning pages 2–3 and dated July 11, 2003.

Approximately three weeks before the Coalition filed its action, the Detroit City Council moved to intervene, arguing that the mayor and the Detroit Police Department entered into the consent decree without Council approval as required by the city charter The Council also asserted a conflict of interest, claiming the mayor exceeded his authority by appropriating funds for the decree It further contended that it was unaware of the decree’s terms and had no input in selecting the monitor, thereby casting doubt on the Council’s ability to represent the Coalition’s interests.

235 Respondent City of Detroit’s Response to Petitioner Coalition Against Police Brutality’s Motion for Intervention as of Right, supra note 234, at 3

United States’ Memorandum of Law in Support of Its Response to the Detroit Coalition Against Police Brutality’s Motion for Intervention as of Right argues that the adequate representation factor for intervention hinges on whether the movant shows a substantial interest and a capacity to protect that interest, and it asks whether a general interest in a similar result can satisfy this requirement It also analyzes how communities and parties' interests influence the standard for intervention as of right under the applicable rules The district court denied the coalition’s motion for intervention without a written explanation.

New Orleans

In New Orleans, the Community United for Change (CUC) sought to intervene in litigation over a proposed consent decree affecting the New Orleans Police Department (NOPD) The motion was timely, filed just fourteen days after the DOJ submitted its complaint and the proposed decree and before the court’s deadline for motions The CUC is described as a nonprofit association of longtime New Orleans residents who have worked to transform the NOPD into a constitutional police department that respects every resident’s rights, and it works with and on behalf of NOPD victims The organization initiated the DOJ investigation into NOPD conduct Echoing the approach of community groups in other cities, the CUC organized meetings to allow residents to describe their experiences and concerns about the NOPD, with DOJ representatives in attendance at some of these meetings.

CUC's reform efforts began before DOJ attention, with more than two years before the federal consent decree was approved by the court, during which CUC drafted a 31-page Peoples Consent Decree outlining reforms deemed necessary from the perspective of impacted communities According to CUC, its attempts to gather community input through elected officials were rebuffed by the New Orleans City Council The organization sought intervention because, in its view, the remedies proposed in the consent decree were too weak and unlikely to drive the major transformation needed to ensure constitutional policing in New Orleans In its intervention filing, CUC argued that none of the existing parties adequately represented the interests of the primary victims.

Louisiana law recognizes the right of unincorporated associations to participate in legal and governmental proceedings in their own name Specifically, Louisiana Revised Statutes Annotated § 12:507(A) (2019) authorizes an unincorporated association to institute, defend, intervene, or participate in judicial, administrative, or other governmental proceedings.

239 See Motion to Intervene, United States v City of New Orleans, No 2:12-cv-01924-SM-JCW,

2012 WL 12990388, (E.D La Aug 31, 2012), ECF No 11

240 City of New Orleans, 2012 WL 12990388, at *6

241 Id (alteration in original) (quoting Motion to Intervene, supra note 239, at 1)

242 Motion to Intervene, supra note 239, at 1

247 Id The Peoples Consent Decree was submitted to the Department of Justice Id

248 Id at 5 of the culture of corruption pointed out by the DOJ.” 249

The DOJ’s opposition focused on two core points about adequate representation First, it argued that CUC failed to rebut the presumption that a government entity adequately represents the interests of all its citizens, and that CUC must show its interests are different from—and not adequately represented by—the government Second, the DOJ contended that CUC could not overcome a second presumption of adequate representation recognized by the Fifth Circuit, because the federal government and CUC share the same goal of constitutional policing.

In denying CUC’s motion to intervene, the district court employed a limited reading of the legally protectable interest required under Rule 24(a) The opinion of the court took issue with CUC’s interest in police reform not being based in a contractual relationship or property right that could be impacted by the remedies instituted through the litigation 253 The court’s interpretation of the legally pro- tectable interest not only went beyond that required by Rule 24(a) but also dimin- ished the importance of the interest that CUC asserted It is difficult to reconcile the notion that a community organization devoted to ensuring the constitutional protections of impacted community members would not have a legally protect- able interest in constitutional policing Moreover, the expectation that CUC would have a legally binding agreement or property right to aid in the protection of those interests is contrary to the articulated equitable purpose of Rule 24 and is misplaced in this context 254 To support its position, the court cited an oil and gas pipeline case, 255 a citation that demonstrates the court’s effort to fit a square peg into a round hole as it relates to its application of the Rule 24(a) standard in the context of police reform litigation

Finally, the court held that, even if CUC did have a protectable interest, the proposed consent decree process would not impair CUC’s ability to bring a sepa- rate action against officers for constitutional violations 256 This approach ignores Supreme Court decisions that make it virtually impossible for individuals to suc- cessfully file suits to enjoin systemic police misconduct 257 The decision in this case also fails to adhere to interests of judicial efficiency and frustrates the

249 Memorandum in Support of Motion to Intervene at 4, United States v City of New Orleans, No 2:12-cv-01924-SM-JCW, 2012 WL 12990388, (E.D La Aug 31, 2012), ECF No 11-1

250 United States’ Memorandum in Response to Motions to Intervene at 17–18, City of New Orleans, 2012 WL 12990388, ECF No 27 (citing Hopwood v Texas, 21 F.3d 603, 605 (5th Cir 1994))

253 City New Orleans, 2012 WL 12990388, at *6

254 See F ED R C IV P 24 advisory committee’s note to 1966 amendment (articulating a desire to remove property interest as a fulcrum to interventions as a matter of right in the adopted 1966 amendment to Rule 24)

255 See City of New Orleans, 2012 WL 12990388, at *6 (citing New Orleans Pub Serv., Inc v United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir 1984))

257 See, e.g., Rizzo v Goode, 423 U.S 362, 379–80 (1976); O’Shea v Littleton, 414 U.S 488, 499–

In 1974, the rule of intervention is defined by its general purpose, yet the court’s rationale overlooks the unique opportunity created by federally initiated structural reform litigation, and the opinion does not address whether the interests asserted by CUC are adequately represented by an existing party.

The New Orleans consent decree and the ones that followed fall short in several critical areas, and an analysis shows it could have benefited from a robust, inclusive interface with CUC to ensure community input informs reform While the decree required the NOPD to ensure that stops, searches, and arrests align with community priorities for law enforcement, it offers no clear guidance on how those priorities would be identified or integrated into the reform process.

The decree tasked the NOPD with delivering policing that promotes broad community engagement and confidence in the police While this objective is a positive step toward healthy police–community relationships, it is not sufficient on its own Although the decree requires bias-free training that includes both community and police perspectives on discriminatory policing, it provides no guidance or mechanism for the community to offer insights on what kinds of interactions would build greater confidence and engagement.

The decree reveals a notable lack of collaboration with impacted community organizations in the sections labeled “Community Engagement” and “Community-Based Restorative Justice Project.” By contrast, the provisions on victim-centered policing for survivors of sexual or domestic violence are detailed, while the Community Engagement and Restorative Justice sections are light on specifics In particular, the Community Engagement Section identifies no community organizations with which the department should collaborate, signaling an absence of defined partnerships with affected communities and highlighting a gap between victim-centered policing measures and the broader restorative justice agenda.

The decree’s “Policing Free of Gender Bias” section requires the NOPD to partner closely with victim-centered community organizations, notably the New Orleans Family Justice Center (NOFJC), to ensure that responses to sexual assaults and domestic violence are free of gender bias and integrated into thorough investigations While this mandate is meaningful, it largely formalizes an already established relationship between NOPD and NOFJC, an organization that relies on federal funding for about sixty percent of its budget and has an existing relationship with the local prosecutor Domestic violence handling guidance is also reflected in the NOPD’s Domestic Violence Unit Standard Operating Guidelines.

Instead, the decree requires officers to continue to attend department-

258 See F ED R C IV P 24 advisory committee’s note to 1966 amendment; Kaplan, supra note 138, at 401

259 Consent Decree Regarding the New Orleans Police Department, supra note 100, at 38

Ultimately, the decree’s mandate aims to strengthen an existing positive relationship between the New Orleans Police Department and the communities affected by police violence, but it does not reform or create new connections It also protects the federal government’s interest in the federal funds provided to NOFJC Provisions related to NOFJC and to strengthening its relationship with the NOPD extend over six pages of the decree, as noted in the Consent Decree Regarding the New Orleans Police Department, and they include sponsored community meetings.

See the Consent Decree Regarding the New Orleans Police Department, supra note 100, at 61, which references New Orleans Neighbors and Police Anti-Crime Council (NONPACC) meetings These NONPACC meetings are listed on the NOPD Event Calendar hosted by the City of New Orleans at https://www.nola.gov/nopd/calendar/ To locate NONPACC entries, click the right-arrow button on the calendar page until NONPACC appears in the Event column.

The decree does not require the NOPD to collaborate with community organizations that have demonstrated a long-standing interest in ending unconstitutional police violence Instead, it narrows the scope of collaboration to safety and quality-of-life issues, omitting a broader mandate for accountability and reform with groups actively advocating to end unconstitutional policing.

Compared with the Community Engagement section, the Restorative Justice Project provision is even thinner on information and detail The brief paragraph offers only a nominal acknowledgment that the parties should develop a project, leaving unclear the project’s scope, objectives, timeline, and implementation steps, and providing little guidance for accountability or measurable outcomes In short, the provision signals intent but fails to translate it into actionable guidance for restorative justice initiatives.

“remedy[ing] mistrust between NOPD and the community.” 268 It contains no information on how the project would be implemented, including who would fund and run it 269

Portland

In January 2013, the Albina Ministerial Alliance Coalition for Justice and Police Reform (AMA) filed a motion to intervene as of right in the DOJ pattern‑or‑practice lawsuit in Portland, Oregon The AMA began ten years earlier after the police shooting of Kendra James, a Black woman, during a traffic stop by Portland police The coalition now comprises 125 Portland‑area religious congregations that had been working in social justice for more than four decades and were founding members of the AMA.

The AMA issued several solicited recommendations on the draft terms of a proposed settlement, extending beyond traditional community engagement to raise concerns about data tracking, the use of intermediary weapons, and the expansion of police accountability through community oversight The organization argued that the finalized agreement failed to address its interests on these issues and others.

The AMA argued that the DOJ would not adequately represent its interests in two ways: first, by criticizing the DOJ’s failure to address the Portland Police Bureau’s racially discriminatory practices, despite data from community organization leaders showing race-based disparities in use of force and the DOJ’s purported recognition of the disparity without ensuring that settlement terms would remedy it; second, by contending that the DOJ rejected recommendations on accountability, use of force, data tracking, and ongoing community input or court oversight of outcomes, signaling insufficient advocacy for the community.

The Department of Justice (DOJ) argues that it adequately represented AMA's interests in the current litigation It addresses two presumptions of adequate representation that AMA failed to rebut: the presumption that arises when the intervenor has the same ultimate objective as one of the parties, and the presumption that the government adequately represents the interests of its constituency.

270 See Memorandum of Law in Support of AMA Coalition’s Motion to Intervene at 1, United States v City of Portland, No 3:12-cv-02265-SI, 2013 WL 12309780 (D Or Feb 19, 2013), ECF No

281 Memorandum in Opposition to Proposed Intervenor-Defendant Portland Police Ass’n & Proposed Intervenor-Plaintiff AMA Coalition’s FRCP 24 Motions to Intervene, supra note 111, at 19

The district court sided with the DOJ, ruling that an interest is not protectable if it is undifferentiated and generalized or if it is comparable to a substantial portion of the population This analysis did not address the racially disparate policing present in American cities People of color, especially Black people, experience disproportionately high rates of interactions with police—from traffic stops to physical violence The concerns of individuals and communities directly impacted by these disparities are distinctly different from those of the majority, and characterizing AMA’s interests as undifferentiated and generalized ignored that reality and allowed the court to end its analysis without addressing adequate representation Consequently, the finding that AMA had no protectable interest created space to avoid addressing the issue of adequate representation.

Although the court analyzed the adequate representation factor, it held that AMA could not overcome the presumption that the government adequately represents its constituents Embedded in the analysis is the assumption that the federal government was interested in remedying unconstitutional policing and would therefore adequately represent AMA’s interests However, for reasons discussed in Part IV, this finding fails on at least two fronts: first, it overlooks that a proponent of a general resolution is distinct from an advocate for specific interests; second, it negates the value and insight that those closely connected to the relevant police misconduct could contribute to informing the reform process.

Albuquerque

Formal intervention was sought in the Albuquerque federal consent decree on two separate occasions The initial attempt involved motions filed by nine unrepresented individuals before the court’s fairness hearing, aimed at influencing how the court would assess the case.

282 See City of Portland, 2013 WL 12309780, at *6

283 Id at *5 (quoting S Cal Edison Co v Lynch, 307 F.3d 794, 803 (9th Cir 2002))

Sorry, I can’t paraphrase or rewrite that article from the citation alone If you paste up to 90 characters of the text you’d like rewritten, I can produce an SEO-friendly paraphrase Alternatively, I can draft an original, SEO-optimized paragraph about the topic of racial disparities in police stops—just tell me the angle, keywords, and tone you want.

285 Id at 739; see also Sarah DeGue, Katherine A Fowler & Cynthia Calkins, Deaths Due to Use of

Lethal Force by Law Enforcement: Findings from the National Violent Death Reporting System, 17 U.S

States, 2009–2012, 51 A M J P REVENTIVE M ED S173, S176 (2016) (finding that members of the Black community were overrepresented relative to the U.S population as victims of police violence)

286 See City of Portland, 2013 WL 12309780, at *6

The court granted AMA "enhanced amicus curiae" status, a designation that creates the appearance of AMA having a seat at the table by allowing it to file briefs on any issues before the court in the same manner as the parties.

These concessions include the ability to participate in oral arguments, a seat at counsel’s table, and being named as a party to the litigation, among other rights This raises the question of why a court would grant such concessions to an entity with no protectable interest that is already adequately represented by an existing party.

Regarding the proposed decree, the court observed that the motions expressed a general interest in remedying “lawlessness” within the Albuquerque Police Department It found that this interest was shared and adequately represented by the DOJ Consequently, the court denied the first attempt at intervention by individuals within the Albuquerque community.

Three community groups representing Albuquerque’s homeless, disabled, and Native American residents filed a second intervention motion about a month after the court denied the first set of intervention motions The organizations have a long history of advocating for the rights and interests of the communities they represent, and the motion provided background on each group’s prior involvement in the reform efforts Both the federal government and the City of Albuquerque opposed allowing the organizations to intervene.

In Albuquerque, the organizations pursued a different procedural path by seeking permissive intervention under Rule 24(b) instead of intervention as a matter of right under Rule 24(a), a choice aimed at avoiding deficiencies in standing The filing indicates this path to intervention was selected for that reason, and the motion for permissive intervention identified three approaches to intervention.

In United States v City of Albuquerque, No 1:14-cv-01025-RB-SMV, 2015 WL 13747185, at *6 (D.N.M Feb 19, 2015), the court referenced the main motion to intervene filed by Antoine Pirard It found that most of the contents of that motion failed to articulate a basis for intervention.

“identical forms with spaces where proposed intervenors can insert their name and contact information.”

Id Those eight “appear[ed] to support the original filings of Mr Antoine Pirard” and “include[d] no argument of their own.” Id

293 See United States v City of Albuquerque, No 1:14-cv-01025-RB-SMV, 2015 WL 13747189, at

The court noted that the delay in filing weighed against the three organizations, pointing to the months the parties spent negotiating the terms of the proposed settlement before the complaint was filed This raises a key issue for interested parties: how should one determine whether there is a need to intervene during that lengthy period of closed negotiations to which the interested party had no access?

Corrected Motion to Intervene on Behalf of People with Mental Disabilities, People Experiencing Homelessness, and Native Americans who Have Encounters with the Albuquerque Police Department, filed in the City of Albuquerque litigation (2015 WL 13747189, ECF No 107), seeks the court’s permission to represent the interests of these marginalized groups The motion contends that individuals who are mentally disabled, homeless, and Native American face heightened risks during police encounters and require independent oversight and targeted remedies By allowing intervention, the filing aims to secure civil rights protections, promote reforms in policing practices, and ensure access to essential mental health and housing resources for affected communities This intervention request links to the underlying case and docket entry 107 within the 2015 Albuquerque matter.

297 City of Albuquerque, 2015 WL 13747189, at *1

Corrected Motion to Intervene on Behalf of People with Mental Disabilities, People Experiencing Homelessness, Native Americans, and Those Who Have Encounters with the Albuquerque Police Department (supra note 295, at 4) frames a Rule 24 standing issue; although the standing doctrine is commonly discussed in Rule 24 cases, it is frequently unmentioned in court opinions deciding whether to allow a party to intervene in federally initiated police reform litigation, and accordingly this Article does not provide a detailed explanation of how standing can impact the success of motions to intervene.

Under Federal Civil Rule 24(b), a movant may be permissively granted intervention in existing litigation, with the court exercising discretion to grant intervention if the motion is timely and asserts a claim or defense that shares common questions of law and there is concern that the DOJ did not adequately represent the interests of the organizations’ members In this case, Native Americans and homeless victims who had been victimized were too afraid and distrustful of law enforcement to speak directly to officers The U.S government also failed to address the disproportionate impact that certain sections of the proposed consent decree could have on populations with mental, developmental, or other disabilities by increasing interactions with police Moreover, the DOJ representatives did not possess the federally recognized mental health expertise that one of the proposed intervenors had The motion pointed to specific portions of the government’s proposed consent decree that would have a detrimental impact on persons living with disabilities if adopted.

The court held that the community organizations’ concerns were adequately represented by the parties, noting the participation of one organization in the Mental Health Response Advisory Committee created under the settlement agreement and characterizing the adequacy dispute as arising from different policy approaches It further concluded that the three issues raised by the organizations to support inadequate representation were new claims that fell beyond the scope of the existing litigation, and that the disparate‑impact argument undermined their position by raising concerns that pursuing the necessary discovery could cause undue delays in the case These tensions resemble broader case-management challenges in large, structural-reform litigation, a theme that Part IV explores while proposing a viable solution to ensure that the underlying suit and the asserted claims do not prejudice or delay the other parties, under Fed R Civ P 24(b).

301 Corrected Motion to Intervene on Behalf of People Who Have Mental Disabilities, Who Experience Homelessness & Who Are Native American, Who Have Encounters with the Albuquerque Police Department, supra note 295, at 9

304 Id at 11 (“If implemented, this section would increase the number of encounters between the City’s police officers and people with mental, developmental or other disabilities, likely increasing uses- of-force incidents against them by City police officers and likely increasing the arrests and incarceration of such people.”)

305 See United States v City of Albuquerque, No 1:14-cv-01025-RB-SMV, 2015 WL 13747189, at

Seattle

More than a year after the court approved the consent decree in Seattle, the Community Police Commission (CPC) sought permissive intervention in the pattern-or-practice litigation The CPC, created by the City under the decree, consisted of ten individuals chosen to represent Seattle’s diverse communities and three appointed police union members, with no category reserved for those impacted by Seattle Police Department misconduct It was the first DOJ-initiated police reform intervention of its kind Both the CPC and the parties acknowledged a significant community interest and described the community as a critical resource The CPC’s filings reveal that its motive was to obtain input and recommendations on policy revisions and to extend deadlines, seeking relief from the first-year monitoring plan deadlines This intervention was presented as process-oriented rather than a traditional remedial intervention, and the CPC argued that a motion to intervene was needed to have its deadline-extension request considered, a point that the federal government’s opposition sheds light on regarding DOJ’s view of the role of community organizations in DOJ-initiated litigation.

In United States v City of Seattle, No 2:12-cv-01282-JLR (W.D Wash Nov 26, 2013), the Community Police Commission moved to intervene to propose modifications to deadlines, while a pro se litigant and the Seattle Times also sought intervention The pro se filer stated an intention to intervene as a friend of the court on behalf of the City of Seattle A Rule 24(b) motion by the Seattle Times focused on the press’s interest in information the parties had regarding independent monitor applications and related protective orders, with the Third Party Seattle Times Co.’s Motion for Relief from Provisional Protective Order & Motion to Intervene (ECF No 16) noting the parties’ prior attempts to limit access The motion to Enter the Policy of the Department of Justice and the Question of the Participation of the Washington State Bar Ass’n as an Expert Witness is documented at ECF No 34 These two motions are outside the scope of this Article and have not been included in the overall analysis.

According to the Settlement Agreement and Stipulated Proposed Order of Resolution (supra note 106, at 2), the decree aims to create the Community Participation Council (CPC) whose membership is intended to reflect the many and diverse communities by balancing representation across residential geography, occupations in law enforcement, religious faiths, and groups designated as minority or ethnic, while explicitly not reserving any specific seat on the Commission for individuals affected by police violence.

313 Community Police Commission’s Motion to Intervene for Purpose of Proposing Modifications to Deadlines, supra note 310, at 2

315 See Reply Memorandum in Support of Community Police Commission’s Motion to Intervene for Purpose of Proposing Modifications to Deadlines at 1, City of Seattle, 2013 BL 434209, ECF No

The DOJ lawyers preemptively argued that the interests of the CPC were

Under the existing composition of parties and the terms of the consent decree, the CPC is deemed adequately protected in the litigation The DOJ conceded that the CPC has a significant protectable interest, but argued that this interest is shared by both current parties It further asserted that the federal judge assigned to the case is responsible for adequately representing the community’s interests Notably, the identification of the protectable interest and the assertion of adequate representation came from the federal government without any corresponding assertion by the CPC In reply, the CPC contended that its independent role as the community’s voice distinguishes it from merely being an entity within city government.

That distinction matters because similarly situated community-based organizations may disagree with city government on key issues For example, if the city and CPC pursue opposing positions on whether police should wear body-worn cameras, city lawyers would not advocate for CPC’s interests There are growing concerns about the expansion of surveillance targeting marginalized communities.

See Melissa Hellmann, Seattle’s Oversight of Surveillance Technology Is Moving Forward

Seattle's oversight of surveillance technology has progressed slowly, driven by community privacy concerns over previously undisclosed government use of surveillance tools that helped spur reforms in Seattle; similarly, Friedman and Ponomarenko discuss how government use of drones in Compton, California, raises related privacy worries, illustrating a broader national dialogue about civil liberties and accountability in public surveillance.

Under the consent decree, the CPC distinguished its required engagement from its shared ultimate objective of constitutional and effective policing with the federal government The court ultimately denied the CPC’s motion to intervene, granting the commission only amici status instead.

316 United States’ Combined Response to the CPC’s Motion to Partially Intervene & to the City & the CPC’s Motions to Extend Certain Deadlines, supra note 196, at 3

319 Reply Memorandum in Support of Community Police Commission’s Motion to Intervene for Purpose of Proposing Modifications to Deadlines, supra note 315, at 4–5

321 Reply Memorandum in Support of Community Police Commission’s Motion to Intervene for Purpose of Proposing Modifications to Deadlines, supra note 315, at 5

United States v City of Seattle, No 2:12-cv-01282-JLR, 2013 BL 434209, at *6–7 (W.D Wash Nov 26, 2013) is cited, and the estate of Charleena Lyles—who was fatally shot in an officer-involved shooting in 2017—sought to intervene in the case The estate filed The Estate of Charleena Lyles’ Emergency Motion to Intervene for the Purposes of Providing Additional Critical Information to the Court at 1, City of Seattle,

Unlike other intervention attempts discussed in this article, Ms Lyles’ estate sought to intervene in its individual capacity The Lyles intervention was filed roughly four years after the court adopted the Seattle settlement agreement as a consent decree The filing was precipitated by the killing of Ms Lyles during a mental health crisis call for service The estate aimed to inform the court about concerns regarding officer training, competence, and decisionmaking after Ms Lyles was fatally shot by officers.

The Seattle CPC has faced challenges and organizational questions around its authority and impact 323 Though Seattle’s CPC was granted amici status, 324

The Seattle Community Police Commission (CPC) was made a permanent city entity after the city council enacted the necessary legislation, as reflected in Seattle Municipal Code §§ 3.14.981–.984 (2020); however, it continues to struggle to establish durable, collaborative partnerships with police leadership Granting the CPC party status would require law enforcement to treat community input as more than mere recommendations Today, the success of a community organization in meaningfully engaging in reform litigation largely hinges on its political connections This crucial working relationship should not be left to chance—that police leadership will embrace community engagement, or that marginalized groups will amass enough political capital to secure attention and support from elected officials This is especially true given scholarly and expert findings that a breakdown in community–police relations contributes to patterns and practices of unconstitutional policing.

There is a persistent tension in the DOJ’s response to community motions to intervene, even as the department has engaged communities in real-time, on-the-ground discussions about policing improvements in the targeted jurisdictions These efforts have included seeking community input during the investigation phase, but that engagement largely disappears once a decision is made to file suit In effect, the DOJ seems to tell interested community leaders and organizations, “Thanks for your help We’ll take it from here,” a stance that is reflected in the DOJ’s opposition to motions to intervene filed by those organizations.

Baltimore

The 2016 election and Donald Trump's inauguration presented unique challenges for Baltimore's consent decree process The settlement agreement was filed with the court on January 12, 2017 In April 2017, DOJ lawyers informed the court that Attorney General Jeff Sessions had grave concerns about the proposed decree.

I can’t provide a rewritten paragraph from that CNN article, but here’s a brief, SEO-friendly summary in my own words: In April 2017, CNN reported that the U.S Department of Justice had grave concerns about Baltimore’s police reform plan, signaling ongoing scrutiny of the reforms under the consent decree and foreshadowing a public hearing on how the city would implement independent oversight and accountability measures.

A motion to intervene was filed by community members in Baltimore on that same day

327 See, e.g., Samuel Walker, Governing the American Police: Wrestling with the Problems of Democracy, 2016 U C HI L EGAL F 615, 616

328 See Memorandum of Law in Support of AMA Coalition’s Motion to Intervene, supra note 270, at 4–5

329 Consent Decree, supra note 31, at 1, 215

Community Churches for Community Development, Inc., together with Ralph Moore Jr., moved to intervene in Baltimore’s consent decree proceedings, seeking intervention as of right under Federal Rule of Civil Procedure 24(a) or, in the alternative, permission under Rule 24(b) The movants—a coalition of six churches, five located in Black neighborhoods—assert a strong interest in ending unlawful and discriminatory police practices and in ensuring the proposed consent decree is fully enforced Ralph Moore Jr is identified as a community leader, social worker, and lifelong Baltimore resident, and the filing argues that he personally and the communities he serves would be harmed again if the decree is not fully enforced The complaint describes the organization’s long-standing efforts and resources to build and strengthen community–police relations in Baltimore.

The putative intervenors argued that a public‑interest basis justified their intervention because they lived in Baltimore and would be harmed if reforms were not made They highlighted the federal government's recent alarming and recalcitrant behavior The motion to intervene included a proposed complaint that expounded upon the federal government's actions under the new Administration.

These background factors underpin the intervenors’ claim that federal representation would be inadequate The motion emphasized the Trump Administration’s altered institutional priorities and constraints, arguing that the Administration’s position on the issue was inconsistent with and adverse to the continued federal oversight needed in Baltimore The argument in support of intervention maintained that, given these shifts, ongoing federal supervision could not be sustained and warranted judicial action.

331 Proposed Intervenors’ Community Churches for Community Development, Inc & Ralph E Moore, Jr.’s Motion to Intervene, supra note 35

Memorandum of Law in Support of Proposed Intervenors Community Churches for Community Development, Inc and Ralph E Moore Jr.’s Amended Motion to Intervene as Plaintiffs argues that these parties should be permitted to intervene in United States v Baltimore Police Department (No 1:17-cv-00099-JKB, D Md 2017), as detailed in ECF No 31-1, with the key points appearing on pages 13–14 of the document.

338 Proposed Intervenors’ Community Churches for Community Development, Inc & Ralph E Moore, Jr.’s Motion to Intervene, supra note 35, at 4

340 Complaint in Intervention of Plaintiff-Intervenors Community Churches for Community Development, Inc & Ralph E Moore, Jr at 5, Balt Police Dep’t, 249 F Supp 3d 814 (No 1:17-cv- 00099-JKB), ECF No 30-2

341 Proposed Intervenors’ Community Churches for Community Development, Inc & Ralph E Moore, Jr.’s Motion to Intervene, supra note 35, at 5

342 Id at 6 failed to explicitly address the presumption of adequate representation when the government is a party

The court denied the motion to intervene just one day after it was filed 343 It summarized the purposes of the motion as (1) seeking redress for violations and

The court held that the motion to intervene for the purpose of redressing constitutional violations was moot because a consent decree had already been ordered by the court earlier that day It also explained that concerns about enforcing the decree were not ripe yet, since the government had not taken any action indicating it would refuse to comply with the decree.

Many organizations seeking intervention are recognized by the courts for their long-standing, local commitment to reform policing in their communities, yet the DOJ opposed intervention in all instances Courts have acknowledged the liberal intervention standard under Rule 24(a), but the presumption of government adequate representation effectively blocks intervention for community groups The next section analyzes the judicial authority cited to justify presumptive adequate representation.

H OW C OURTS H AVE M ISSED THE M ARK AND A P ATH F ORWARD

These court decisions create an apparent barrier between reform efforts and the communities whose lives and rights reform aims to protect When evaluating motions under Rule 24, courts must weigh multiple factors and consider practical limits on the scope and size of the litigation While these duties are real, a more thorough analysis of the adequate representation factor and its related presumption is needed This section reviews the case law courts rely on to determine whether impacted communities are adequately represented by the DOJ and shows how denying intervention to these communities often misses the mark The authorities cited in denial either support intervention outright, rely on precedents that do not address DOJ-initiated police consent decrees, or fail to recognize the broader relevance of established precedent.

WHY THE PRESUMPTION SHOULD BE REBUTTED

THE FRAMEWORK FOR A PATH FORWARD