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| Matthew Segal |
Last month, the Trump administration took a wrecking ball to federal oversight of police misconduct. Via a press release, it announced that it is scuttling proposed consent decrees concerning police misconduct found by the Biden administration in Louisville and Minneapolis, and that it is ending Biden-era investigations of several other police departments.
Under Biden, the U.S. Department of Justice had initiated 12 pattern-or-practice investigations of state and local law enforcement agencies. The Trump DOJ might abandon all of them.
Ironically, while the federal government retreats from its own findings of police misconduct, state governments cannot simply ignore those findings. In fact, they may be legally obligated to act on them. That's because the Biden-era DOJ findings may have triggered significant legal obligations for state and local prosecutors under the Brady rule.
The findings uncovered serious misconduct in several jurisdictions: excessive force, including the use of police dogs on compliant individuals, in Memphis and Louisville,[1] unlawful body cavity searches in Mount Vernon, New York,[2] and sexual assault in Worcester, Massachusetts.[3] Those are the kinds of abuses that the Trump DOJ seems poised to disregard.
That is regrettable. Not only will the Trump DOJ's actions allow past misconduct to go unaddressed, but they could also invite future misconduct by signaling to state and local law enforcement that, if they misbehave, the Trump administration will look the other way.
But even if the federal government does nothing about police misconduct described in its own reports, state governments might have to act. Under the Brady rule, which is shorthand for a suite of legal obligations, state prosecutors might have to assess and disclose police misconduct found by the DOJ. And if they don't, state courts might make them.
The Brady rule originates with a 1963 decision in Brady v. Maryland.[4] There, the U.S. Supreme Court held that the U.S. Constitution's due process guarantee requires prosecutors to disclose material, exculpatory evidence — that is, evidence tending to suggest that the defendant may be deserving of lesser punishment, or is not guilty at all.
Since then, the Brady rule has expanded. The Supreme Court later clarified in 1972, in Giglio v. U.S., that Brady material includes evidence that a prosecution witness may be untrustworthy.[5]
The Brady rule applies with special force to evidence held by police officers and other government agents who help prosecutors secure convictions. In the 1995 case of Kyles v. Whitley, the Supreme Court held that prosecutors must "learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."[6]
In other words, the Brady rule imputes police knowledge to prosecutors, making prosecutors legally responsible for disclosing police misconduct — even if officers try to cover it up.
What is more, state law can impose additional disclosure obligations on state prosecutors. These obligations may arise from state constitutions, state rules of criminal procedure, and state ethics rules.
Consequently, under the Brady rule, as soon as police officers commit misconduct, state prosecutors have an "inescapable" obligation to disclose that misconduct to criminal defendants prosecuted with the help of those officers.[7] And for good reason. Disclosing police misconduct may help defendants avoid being wrongfully convicted based on false allegations. Disclosure obligations might even deter police misconduct because they tell officers and prosecutors that, if officers misbehave, it will be harder to call them as witnesses.
Of course, prosecutors can't spend all their time looking for police misconduct evidence, particularly if they have no reason to believe it exists. But when a law enforcement agency like the DOJ issues a thorough report finding police misconduct, it puts state prosecutors on notice that police misconduct occurred, that it might have gone undisclosed, and that they need to disclose it to the people they seek to convict and imprison on the say-so of those officers.
The only state Supreme Court to have considered the issue has unequivocally concluded that a DOJ pattern-or-practice report triggers Brady obligations.
In 2024, in Graham v. District Attorney of Hampden County, a case brought by public defenders and the American Civil Liberties Union, the Massachusetts Supreme Judicial Court held that a 2020 pattern-or-practice report concerning the Springfield Police Department — the only such report during Trump's first term — triggered the Brady rule for a county district attorney who uses Springfield officers to secure convictions.[8] The court therefore ordered the district attorney to obtain and disclose "all categories of documents known to have been reviewed by the DOJ."[9]
That ruling's logic applies equally to other states where the DOJ has issued pattern-or-practice reports.
For example, in its June 2024 report on the Phoenix Police Department, the DOJ found excessive force, unlawful arrests and discrimination against Black, Hispanic and Native American people.[10] According to the DOJ, Phoenix officers even "sought to justify serious charges with false evidence."[11] Those findings aren't just troubling — they are legally significant. They place prosecutors on notice that police misconduct might have tainted criminal cases and that they need to notify defendants of that misconduct.
Nothing the Trump DOJ does now can erase that obligation. The misconduct has already been documented. So, even if the DOJ retracts its own reports, the proverbial cat is out of the bag
None of this justifies the Trump DOJ's decision to shirk its own responsibility to conduct police oversight. But it would be a mistake to think that the federal government is the only entity with an oversight role. The Brady rule makes state prosecutors responsible for disclosing police misconduct to the people they prosecute.
In jurisdictions where the DOJ issued pattern-or-practice reports, that rule should be strictly enforced.
Matthew Segal is a co-director at the ACLU's State Supreme Court Initiative.
Disclosure: Segal, the ACLU and the ACLU of Massachusetts represented several plaintiffs in Graham v. District Attorney of Hampden County.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] U.S. Dep't of Justice, Investigation of the Memphis Police Dep't and the City of Memphis at 1–3, 14–19 (Dec 4, 2024), available at https://www.justice.gov/crt/media/1379096/dl?inline; U.S. Dep't of Justice, Investigation of the Louisville Metro Police Dep't and Louisville Metro Government at 1–3, 11–18 (Mar. 8, 2023), available at https://www.justice.gov/archives/opa/press-release/file/1573011/dl.
[2] U.S. Dep't of Justice, Investigation of the Mount Vernon Police Dep't at 2–3, 13–18 (Dec. 12, 2024), available at https://www.justice.gov/crt/media/1379866/dl.
[3] U.S. Dep't of Justice, Investigation of the Worcester Police Dep't and the City of Worcester, Massachusetts at 1–2, 16–23 (Dec. 9, 2024), available at https://www.justice.gov/crt/media/1378896/dl.
[4] See Brady v. Maryland
, 373 U.S. 83 (1963).[5] See Giglio v. United States
, 405 U.S. 150 (1972).[6] Kyles v. Whitley
, 514 U.S. 419, 437 (1995).[7] Id. at 438.
[8] Graham v. District Attorney for the Hampden Dist.
, 493 Mass. 348, 350, 371 (2024).[9] Id. at 350.
[10] U.S. Dep't of Justice, Investigation of the City of Phoenix and the Phoenix Police Dep't at 4–6 (June 13, 2024), https://www.justice.gov/crt/media/1355866/dl?inline.
[11] Id. at 76.