To demonstrate a commitment to fair, safe, and effective policing at the highest professional standards, department leaders should adopt fact-finding and disciplinary processes that are just, thorough, transparent, and timely
IntroductionPart 1Part 2Recommended Best Practices
Introduction
Police officers have extraordinary power — and enormous discretion over how and when to wield it. When justified, they have the authority to surveil members of the public, to use force against them, and to deprive people of their liberty. To riff on the old adage, with power comes the responsibility to exercise it appropriately — as well as the expectation that abuse of power (through misconduct or inappropriate or deficient performance) will be identified and addressed with appropriate discipline.
If officers — or their supervisors — fail to meet this responsibility, they should be held accountable. Accountability is central to fair, safe, and effective policing; it deters misconduct and heals communities if officers violate law or policy. Officers, and departments, should be held accountable for performing in a way that complies with federal, state, and local laws, departmental policies, and community values. Doing so sends a message to communities that unjust and unconstitutional conduct is not tolerated and will receive swift discipline. It builds public trust and, in turn, strengthens the legitimacy of police departments and the criminal justice system at large. A lack of accountability, in contrast, weakens the relationship between police and the people they serve, undermining departments’ efforts — and the ability of the entire justice system — to protect and preserve public safety.
Strong accountability systems also strengthen departments from within. Police departments, like all professional organizations, flourish when employees know what is expected of them and understand the consequences if they fail to meet expectations. Officers are also more likely — and more motivated — to consistently make good decisions if they know that leaders and colleagues are also accountable for their actions.
This chapter takes a comprehensive look at how to create robust internal and external accountability systems. Internal accountability mechanisms include rules, policies, and practices that ensure that department members are held responsible for their conduct. External mechanisms exist outside of departments, such as civilian oversight boards[i]and independent prosecutors who hold officers accountable for misconduct.
[i]See National Association for Civilian Oversight of Law Enforcement, NACOLE, Building Public Trust Through Police Accountability and Transparency, FAQS, https://www.nacole.org/faqs (last visited Feb. 19, 2019) (describing the functions and benefits of civilian oversight agencies).
Holding Police Accountable
Fair, safe, and effective, policing requires the highest standards of professionalism, a commitment to justice, and strong, trusting relationships with communities. Most officers are skilled, principled, and compassionate; those who aren’t — whether by intention or not — damage relationships with communities, tarnish fellow officers’ reputations, jeopardize departments’ ability to deliver community policing, and weaken the nation’s criminal justice system.
To demonstrate a commitment to fair, safe, and effective policing at the highest professional standards, department leaders must adopt fact-finding and disciplinary processes that are just, thorough, transparent, and timely. In jurisdictions where officers have a vested right to employment through civil service or union contracts, departments are required to accord officers due process by giving them the opportunity to respond to charges of misconduct and offer evidence that may mitigate the gravity of violations. In cases where misconduct is criminal, it is even more important to hold officers accountable and to discipline or terminate them as appropriate, while ensuring the accused their constitutional protections.
Essential elements of accountability systems include:
Intake systems. Departments need multiple, easily accessible means for community members to lodge complaints about misconduct and/or inadequate police services. Casting the broadest net possible enables departments to identify potential problems at the earliest opportunity and to affirm their commitment to community and internal feedback. Intake requires careful tracking, training for those who receive complaints, and safeguards to ensure that community members are not dissuaded from voicing concerns about police operations or individual officers. For example, departments should implement policies forbidding officers from retaliating against people who file complaints.
Classification and assignment. Departments need systems for prompt, neutral assessment of the type of conduct or performance implicated in a complaint, followed by swift assignment to appropriate units for investigation. In some instances, complaints may allege criminal conduct, which requires additional attention to safeguards and constitutional protections. In other cases, complaints may allege misconduct punishable by discipline, which should be referred to an administrative investigation unit, such as an internal affairs (IA) unit, or to an outside civilian agency, such as a community/civilian review board (CRB) tasked with investigation. Minor infractions, such as tardiness or uniform and equipment violations, should be referred to supervisors for prompt corrective action.
Timely, full, impartial investigations.Investigations of all types of misconduct must be swiftly pursued to follow the facts where they lead. Detailed investigative procedures are necessary to ensure integrity, transparency, and confidence in the investigation process.
Fair resolution and decision-making. Complaints of misconduct or poor police service may require remediation beyond personnel investigations and discipline. Community members may have suffered economic or personal injury that can be addressed via mediation or restorative justice practices. Fair, prompt resolution enhances community trust, especially when community members tell friends and family members about officers’ willingness to accept responsibility, take appropriate steps to address misconduct, and pledge to do better.
In cases where early mediation or resolution is not practical, personnel investigations must be adjudicated in a manner that is consistent, fair, and compliant with legal and policy requirements. If evidence supports a finding of misconduct, decision-makers should say so and proceed with fair, predictable discipline, even if they expect the officer to appeal the decision. By the same token, if evidence exonerates the officer, decision-makers should not hesitate to say so,even if it disappoints or angers some in the community.There will always be concerns about whether professional organizations — including police departments — meaningfully hold employees accountable. To alleviate these concerns and strengthen community trust in police, departments should include communities in the investigation and adjudication processes. Outside participation addresses concerns about the so-called “code of silence” — a practice in which officers conceal wrongdoing to protect or support colleagues. It may also broaden the perspective of department leaders who seek to meet community needs. Community voices may, for example, prompt leaders to address legal and policy violations as well as “lawful but awful” behaviors through training, changes in tactics, and additional support.
Early intervention systems. Along with disciplinary systems, departments need nonpunitive systems to identify and rectify problematic performance. Such systems, which vary widely in sophistication, are known as early intervention systems (EISs). At a minimum, an EIS should provide supervisors and leaders with data to help them identify and assist officers who may be at risk of injury, career burnout, or violation of legal or policy standards. Interventions, such as counseling, training, or referral to an employee assistance program (EAP), are designed to fit officers’ performance and professional needs. EISs are not a substitute for accountability; rather, they provide an extra means for supervisors and managers to make nuanced, fact-based decisions about how to create and grow a workforce of productive, fair, and principled professionals.
Best Practices in Accountability
Like other professional organizations, police departments should have robust accountability systems to ensure that officers are operating properly and serving the community safely and effectively. Because of the vast powers and discretion afforded police, departments must should officers responsible when they do not. To do so, they should implement systems to identify, address, correct, discipline, and prevent misconduct.
How a department receives and responds to misconduct complaints is a critical part of police accountability systems, whether complaints come externally from community members or internally from department personnel. The guidance below identifies the issues that should be addressed when tackling accountability in law enforcement.
Recommended Best Practices
Recommended
Best Practices
7.1 Create transparent, effective processes to receive and respond to external misconduct complaints.
External complaints come directly from community members. To address misconduct, department processes should not discourage people from filing complaints. Specifically, departments should:
Implement transparent processes for filing complaints. Complaint processes should be simple, and information should be easily available in alternative and accessible formats. People should be able to file complaints in person, by phone, or online.[i]Information about how to file complaints should be available in many forms and places (e.g., at police stations, court houses, schools, online, and on officer contact cards) and in multiple languages, and it should be accessible to people with disabilities (e.g., in locations that are physically and technologically accessible and compliant with the Americans with Disabilities Act [ADA]).[ii]A clear and simple complaint process helps ensure that departments don’t miss out on valuable community input.[iii]
[i]Deputy Chief Beau Thurnauer, Best Practices Guide, Int’l Ass’n of Chiefs of Police, Smaller Police Dep’ts Technical Assistance Program, Internal Affairs: A Strategy for Smaller Police Dep’ts, https://www.theiacp.org/sites/default/files/2018-08/BP-InternalAffairs.pdf at 3.
[ii]In Washington, D.C., for example, the Metropolitan Police Department’s Office of Police Complaints provides complaint forms in nine languages and in audio on its website. Mayor Muriel Bowser, Office of Police Complaints, Complaint Forms and Brochures, https://policecomplaints.dc.gov/node/161132.
[iii]Deputy Chief Beau Thurnauer, Best Practices Guide, Int’l Ass’n of Chiefs of Police, Smaller Police Dep’ts Technical Assistance Program, Internal Affairs: A Strategy for Smaller Police Dep’ts, https://www.theiacp.org/sites/default/files/2018-08/BP-InternalAffairs.pdf at 2.
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7.2 Create transparent, effective processes to receive and respond to internal misconduct complaints.
While facilitating complaints from community members is critical to accountability, departments also need processes that allow department employees, including officers, to easily report misconduct and file complaints.
Create a “duty to report” for officers. Officers should have an affirmative duty to report possible misconduct to supervisors or to a centralized internal affairs bureau or its equivalent. (Internal affairs units investigate allegations of officer misconduct and criminal conduct.) This duty should be emphasized in recruiting, academy training, and continuing education to make clear that the department does not condone officer silence, or broader codes of silence, and that failure to report may jeopardize employment. For example, the Los Angeles Police Department’s (LAPD) Policy Manual states:
The reporting of misconduct and prevention of the escalation of misconduct are areas that demand an employee to exercise courage, integrity, and decisiveness. ¼An employee’s obligation to report and prevent misconduct begins the moment the employee becomes a member of the Los Angeles Police Department. Police officers, because of their status as peace officers, have an even greater responsibility to report and prevent misconduct.[i]
[i]L.A. Police Dep’t, Employee’s Duty to Report Misconduct, 1 LAPD Policy Manual Section 210.46, http://www.lapdonline.org/lapd_manual/volume_1.htm#210._EMPLOYEE_CONDUCT (emphasis added).
Read More7.3 Delineate policies about how and by whom misconduct complaints are investigated.
Because not all misconduct is equal, departments should have protocols in place for addressing varying degrees of it. Misconduct ranges from minor infractions, such as tardiness, to serious crimes, such as assault and theft. Departments should develop internal protocols to respond to various types of misconduct based on their size, organizational structure, and available resources, such as whether they have dedicated internal affairs investigators.
Upon reviewing complaints, department leaders should authorize certain types of infractions to be investigated at the precinct-level (referred to in some departments as “districts”), while more serious allegations should be investigated by internal affairs units.[i]Relatedly, departments should implement internal quality control systems, such as authorizing internal affairs investigators to review and audit investigations at the precinct or division level, and tapping external entities, such as oversight bodies, to review the work of internal affairs specialists.[ii]Departments can also implement other mechanisms to enhance integrity, such as “intake stings” to test whether officers comply with policy when taking complaints.
[i]See, e.g., U.S. Dep’t of Just., Office of Community Oriented Policing Serv., Standards and Guidelines for Internal Affairs: Recommendations from a Community of Practice 31 (2003), https://ric-zai-inc.com/Publications/cops-p164-pub.pdf (recommending that internal affairs units investigate all “officer-involved shootings, in-custody deaths, alleged constitutional violations, allegations of racial profiling or discriminatory policing or racial prejudice, dishonesty, drug use, sexual misconduct, cases handled for other jurisdictions, interagency cases,[] cases referred directly by the agency head or command staff,” “all administrative investigations of allegations of misconduct that are likely to result in litigation against the agency or its members,” and, “[u]nless there is a specialized unit to handle internal complaints by employees of discrimination, sexual harassment, and other unlawful employment practices”).
[ii] SeeNational Association for Civilian Oversight of Law Enforcement, Building Public Trust Through Police Accountability and Transparency, FAQS https://www.nacole.org/faqs.
Read More7.5 Create transparent, effective processes for conducting misconduct investigations.
Regulating Officer Discipline
Officer discipline is regulated by laws constraining what departments can and can’t do. The standards or processes for investigating or disciplining police officers arise out of state civil service rules or state/local labor relations laws that permit employees to form or join unions and negotiate collective bargaining agreements (CBAs) with their employers. These rules and laws typically provide that non-probationary employees have a continued right to employment absent good cause for discharge or discipline.
The Supreme Court has viewed this general right as a protectable property interest subject to due process protections, such as notice of an employer’s intent to impose discipline and a fair opportunity to dispute the charges of misconduct or present mitigating evidence in support of lighter discipline. More specifically, the employee must be accorded an informal opportunity to respond prior to the imposition of discipline and a formal opportunity to appeal the discipline once imposed. See generally Loudermill v. Cleveland Bd. of Educ., 470 U.S. 532 (1985).
Beyond these due process rights, state/local law or union contracts may govern other aspects of the disciplinary process, such as:
- Who may conduct police misconduct investigations.
- Time limitations for initiating or completing a misconduct investigation.
- Whether or when accused officers may view the complaints against them.
- Provide their name and badge number in writing on a business card as they are disengaging from the stop.
- Time, place, and manner restrictions on the conduct of investigations.
- The process for challenging discipline through civil service appeal, labor arbitration, or other administrative processes.
Such standards may arise out of standards for police discipline processes. At least 14 states have enacted so-called LEOBOR (law enforcement officer bill of rights) laws. Thus, local communities seeking to improve their local agencies’ accountability processes should begin with an understanding of already existing legal constraints, such as LEOBOR laws, civil service rules, and union contracts. Some states, such as Maryland and Illinois, are considering amending their LEOBOR laws to increase officer accountability.
Source: Hager, Blue Shield: Did You Know Police Have Their Own Bill of Rights? The Marshall Project (April 27, 2015), https://www.themarshallproject.org/2015/04/27/blue-shield.
When officers are accused of violating a department rule or policy, departments should investigate fairly, thoroughly, and in a timely manner. All departments are required to follow the employment laws in their own jurisdictions, but they should also incorporate the following components into their own accountability and disciplinary systems. Specifically, departments should:
Conduct timely investigations. Ideally, investigations should be completed within six months.[i]The New Orleans Police Department requires officers to initiate investigations no later than 14 days after they receive a complaint and to complete investigations no later than 60 days after the date of initiation.[ii]The Albuquerque Police Department requires administrative investigations to be completed within 90 days[iii]and all critical incident investigations to be completed within two months.[iv]If an investigation is not completed within the specified period, investigators must get approval for an extension from the internal affairs commander and department chief.[v]
Timeliness — and clear timelines — enhance justice and trust. They allow community members to see complaints resolved and, when appropriate, discipline applied on anticipated timeframes. Officers who are falsely accused, meanwhile, can take some comfort in the fact that their cases will be resolved by a certain date. Moreover, swift adjudication reduces the loss or destruction of evidence, as witnesses disappear or forget details, as physical items deteriorate, or as complainants change their minds or reverse course (e.g., when a sexual assault survivor decides to stop cooperating). Timely investigations can have a deterrent effect, too, as swift remedial measures improve behavior and deter future misconduct.
Departments with backlogged investigations should make plans to clear them, which can be done via outside counsel or mediation programs if permitted by law or union contract.[vi]At the same time, new investigations should be completed within stated timeframes; indeed placing new cases at the bottom of the list only perpetuates the problem). Department leaders should also set clear expectations (if not requirements) regarding the length of time that each investigatory phase should take.
[i]See, e.g., MCC §2-78-135, https://www.chicago.gov/content/dam/city/depts/copa/general/COPAOrdinance.pdf, (requiring that investigations be completed within six months and notification to the Mayor, Superintendent, complainant, involved employee, and other officials, the reasons for the failure to complete the investigation).
[ii]The New Orleans Police Department requires that an investigation for alleged employee misconduct be initiated within 14 days of the supervisor receiving the complaint and completed within 60 days of the initiation of the investigation. New Orleans Police Dep’t Manual, Ch. 52.1.1, Misconduct Complaint Intake and Investigation 16:83, 19:98 (March 18, 2018), https://www.nola.gov/getattachment/NOPD/Policies/Chapter-52-1-1-Misconduct-Intake-and-Complaint-Investigation-EFFECTIVE-3-18-18.pdf. A 60-day extension may be granted by the City Civil Service Commission.
[iii]Albuquerque Police Dep’t Admin. Orders, Review of Completed Administrative Investigation Cases 4 (June 6, 2016), http://documents.cabq.gov/police/standard-operating-procedures/3-44-review-of-completed-administrative-investigation-cases.pdf.
[iv]Albuquerque Police Dep’t Prof’l Accountability Bureau Orders, 7-2 Critical Incident Review Team (CIRT) 21 (June 7, 2016), http://documents.cabq.gov/police/standard-operating-procedures/7-02-critical-incident-review-team-cirt.pdf.
[v]Albuquerque Police Dep’t Prof’l Accountability Bureau Orders, 7-2 Critical Incident Review Team (CIRT) 21 (June 7, 2016), http://documents.cabq.gov/police/standard-operating-procedures/7-02-critical-incident-review-team-cirt.pdf.
[vi]See, e.g., Interim Chief Administrator Patricia Banks, Chicago Civilian Office of Police Accountability, COPA Looking ahead to 2018 (Dec. 29, 2017), https://www.chicagocopa.org/copa-looking-ahead-to-2018/.
Read More7.7 Integrate the principles of procedural justice into disciplinary processes.
Procedural justice involves four principles: (1) fair processes, (2) transparency, (3) providing opportunity for voice, and (4) impartial decision-making.[i]Departments should adhere to these principles by establishing fair systems with clear disciplinary processes. Specifically, departments should:
Promote internal fairness. If officers believe their supervisors’ actions and disciplinary decisions are fair and understandable, they’re more likely to accept, support, and comply with those decisions.[ii]The lack of clear, definitive, and advance knowledge about disciplinary systems leaves officers and supervisors uncertain about what to expect when infractions or misconduct occurs. This creates a culture of unfairness, results in processes that appear arbitrary and unjustified, and erodes officers’ trust in supervisors. Officers who work in such systems are more likely to mirror corrosive institutional cultures when they interact with community members. On the contrary, internal procedural justice leads to externally just behavior toward communities because it promotes fairness and respect.[iii](For more detail, see Chapter 9.)
[i]Community Policing Dispatch, The e-newsletter of the COPS Office, Organizational Change through Decision Making and Policy: A New Procedural Justice Course for Managers and Supervisors 8, Issue 4 (Apr. 2015), https://cops.usdoj.gov/html/dispatch/04-2015/a_new_procedural_justice_course.asp.
[ii]Community Policing Dispatch, The e-newsletter of the COPS Office, Organizational Change through Decision Making and Policy: A New Procedural Justice Course for Managers and Supervisors 8, Issue 4 (Apr. 2015), https://cops.usdoj.gov/html/dispatch/04-2015/a_new_procedural_justice_course.asp.
[iii]Community Policing Dispatch, The e-newsletter of the COPS Office, Organizational Change through Decision Making and Policy: A New Procedural Justice Course for Managers and Supervisors 8, Issue 4 (Apr. 2015), https://cops.usdoj.gov/html/dispatch/04-2015/a_new_procedural_justice_course.asp.
Read More7.8 Use early intervention systems to track officer behavior and address officer needs and deficiencies at the earliest opportunity.
To hold officers accountable, departments should thoroughly and impartially investigate misconduct allegations; identify problem behaviors and poor performance; and mete out consequences. As at any workplace, departments also need nondisciplinary systems to track officer performance objectively over time and to identify potentially problematic behaviors as early as possible.
Officers may fail to meet performance expectations for a variety of reasons, such as insufficient knowledge of the issue at hand (e.g., the nuances of a newly revised policy), deterioration of skills (e.g., insufficient tactical or de-escalation training), or personal stressors (e.g., substance dependency, family conflicts, or insufficient sleep). Supervisors should therefore identify and respond to possible problems at the earliest opportunity to help officers meet professional expectations, develop professionally, and avoid more serious misconduct. Such approaches (which are sometimes multi-tiered) may include referral to an employee assistance program, training, mentoring, and/or other professional growth programs.
Read More7.12 Expand the role of community/civilian review boards and independent monitors in discipline.
When departments receive a complaint from an officer or community member, they should apply efficient and just mechanisms for conducting investigations and handing down discipline. To build community trust and amplify community voices, jurisdictions should involve nondepartment personnel such as independent investigators, community/civilian review boards, and independent monitors or auditors in the disciplinary process.
Oversight bodies such as community/civilian review boards signal to members of the community that they have the power to affect outcomes in instances of serious misconduct. But to conduct a meaningful investigation, these individuals and entities require appropriate expertise, adequate staff and funding, and clearly defined roles. This requires a serious commitment of resources, as at the Office of Police Complaints (OPC) in Washington, D.C. Since 2001, the OPC has been staffed with personnel who receive and investigate public complaints regarding key areas of misconduct, including harassment, inappropriate language or conduct, retaliation, unnecessary or excessive force, discrimination, and officers’ failure to identify themselves during interactions.[i]
[i]D.C. Office of Police Complaints, About Office of Police Complaints, https://policecomplaints.dc.gov/page/about-office-police-complaints.
Read More7.13 Establish clear protocols for determining who investigates and prosecutes officer-involved crimes and shootings.
In practice, police misconduct can be prosecuted by local, state, or federal officials, each of which has its own advantages and disadvantages.
- Local authorities.These authorities are often best positioned to quickly respond and investigate, but there is an inherent possibility of conflict — or at least the appearance of conflict — given the close relationships that can exist between local prosecutors and police officers.[i]
- State authorities. Depending on the state, these authorities may not have the legal authority, experience, or ability to intervene in an investigation of officer misconduct in a timely fashion.
- Federal authorities. These entities, such as the Civil Rights Division of the DOJ or local U.S. attorneys’ offices, often have expertise, resources, and greater independence, but their jurisdiction is sharply limited to willful civil rights violations.
Evidence shows that prosecutions of officers, particularly for killing unarmed people, rarely result in officer convictions.[ii]There are many reasons for this, from the legal complexities of finding excessive use of force when the law sets a low bar to juries’ reluctance to convict officers for decisions made under potentially dangerous circumstances.[iii](For more detail, see Chapter 5). The prosecution and conviction of Jason Van Dyke, the officer who killed Laquan McDonald in 2014, is one of the few instances where an officer was held accountable for murder by jury verdict.[iv]
[i]SeeAmari L. Hammonds, et al., Stanford Law School, Stanford Criminal Justice Ctr., At Arm’s Length: Improving Criminal Investigations of Police Shootings 12-13 (Oct. 2016), https://law.stanford.edu/wp-content/uploads/2016/09/At-Arms-Length-Oct-2016.pdf(citing Kate Levine, Who Shouldn’t Prosecute the Police, 101 Iowa L. Rev. 1447, 1470-71 https://ilr.law.uiowa.edu/assets/Uploads/ILR-101-4-Levine.pdf); Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Colum. L. Rev. 749, 758-67 (2003); Rachel E. Barkow, Federalism and Criminal Law: What the Feds Can Learn from the States, 109 Mich. L. Rev. 519, 545-65 (2011), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1165&context=mlr.
[ii]SeeKimberly Kindy & Kimbriell Kelly,Thousands Dead, Few Prosecuted, Wash. Post (Apr. 11 2015), https://www.washingtonpost.com/sf/investigative/2015/04/11/thousands-dead-few-prosecuted/?utm_term=.6926938baf0d (“Among the thousands of fatal shootings at the hands of police since 2005, only 54 officers have been charged”); Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De-Escalation, Preseizure Conduct, and Imperfect Self-Defense, 2018 U. Ill. L. Rev. 629, 635 (March 13, 2018),https://illinoislawreview.org/wp-content/uploads/2018/03/Lee.pdf(“Despite the increased number of prosecutions in recent years, it is still the case that law enforcement officers are rarely convicted.”); Roger Goldman, Importance of State Law in PoliceReform, 60 St. Louis U. L. J.363, 377 (2016), https://www.slu.edu/law/law-journal/pdfs/issues-archive/v60-no3/roger_goldman_article.pdf(noting that between 2005 and 2015, there were only fifty-four indictments of policeofficers despite approximately 1,000 police shootingsper year); Zusha Elinson & Joe Palazzolo, PoliceRarely Criminally Charged for On-Duty Shootings: Research Shows 41 Officers Were Charged With Murder or Manslaughter for On-Duty Shootings Over 7 Years, Wall St. J.(Nov. 24, 2014), https://www.wsj.com/articles/police-rarely-criminally-charged-for-on-duty-shootings-1416874955?mg=prod/accounts-wsj.
[iii]SeeJoseph P. Williams, Why Aren’t Police Prosecuted? Experts say different standards, and laws protecting police, raise the bar for prosecution, U.S. News & World Rep. (July 13, 2016), https://www.usnews.com/news/articles/2016-07-13/why-arent-police-held-accountable-for-shooting-black-men.
[iv]SeeMegan Crepeau et al., Jason Van Dyke taken into custody after jury convicts him of 2nd-degree murder, aggravated battery for each of 16 shots, Chi. Trib, Oct. 5, 2018, https://www.chicagotribune.com/news/local/breaking/ct-met-laquan-mcdonald-jason-van-dyke-verdict-20181005-story.html.
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