Recommended Best Practices
Recommendation 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]
Accept anonymous complaints. Departments should accept anonymous complaints, though they should let complainants know, in a noncoercive manner, that the anonymity of the complaints may hinder a full and complete investigation if investigators; this is because investigators may not be able to follow up with complainants or others with firsthand knowledge of the facts.[iv]Departments should eliminate deadlines for filing complaints and should not require a complainant’s signature, oath, certification, or affidavit for reviews and investigations, as these requirements discourage people who fear retaliation from coming forward.[v]All officers should be required to accept, document, and report any allegation of police misconduct.[vi]
Continue investigations involving uncooperative witnesses. Departments should continue investigations when complainants are anonymous or stop cooperating with the investigation or otherwise become unavailable (e.g., a woman who accuses an officer of intimate partner violence may stop cooperating with police because of her relationship with the accused officer).
Assuage fear. Departments’ training and internal guidance materials should take into account the fear people may experience when filing complaints against officers and their possible reluctance to do so. They should take steps to assuage fear and encourage community members to report misconduct, and they should provide personnel with specific strategies to ensure cooperation throughout investigations by building personal and community trust.[vii]
Develop anti-retaliation policies. Departments should protect complainants by implementing anti-retaliation policies. Community members and departments may have different views about what constitutes “retaliation.”[viii]Accordingly, department policies, training materials, and public outreach materials should contain clear definitions and provide examples of conduct that may constitute retaliation. Department leaders should seek community input to ensure that policies reflect community views and don’t disincentivize or punish people for filing complaints. Discretionary police action that might otherwise be lawful or permissible (e.g., issuing a ticket for a civil infraction) may become unlawful or impermissible if done in response to a complaint.
Disclose investigation outcomes. Once a complaint is filed, departments must have robust and independent internal mechanisms to investigate swiftly, thoroughly, and fairly. Upon conclusion, departments should make public information about complaints from membrs of the public and officer misconduct (not including minor violations such as tardiness or uniform violations), and they should do so in aggregate form as well as in relation to individual cases.[ix]Public disclosure is required in certain cases (e.g., officer-involved crimes), but broader policies that go beyond the minimum requirements foster public trust.
The extent of disclosure may be restricted by state or federal law, such as a state Law Enforcement Officer Bill of Rights (LEOBOR)[x]or restrictions regarding the disclosure of physical or mental disabilities pursuant to the ADA.[xi]Community members and officers should educate themselves about these constraints to ensure shared understanding of and expectations about disclosure practices.
Regularly assess the complaint process. Departments should ensure that intake mechanisms are effective and working as intended by regularly examining the number, sources, and types of complaints they receive and regularly communicating with community leaders and stakeholders who may be better attuned to complaint barriers or disincentives.
[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.
[iv]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, 3 (referring to CALEA accreditation standard 52.1.1); see alsoMayor Muriel Bowser, Metropolitan Police Dep’t, How to File a Citizen Complaint or Commendation, https://mpdc.dc.gov/page/how-file-citizen-complaint-or-commendation;see alsoU. Pa., Div. of Public Safety, Police Complaint Procedure, https://www.publicsafety.upenn.edu/about/uppd/police-complaint-procedure/ (advising complainants that it may not be possible to investigate anonymous complaints).
[v]The Chicago Tribune reported in 2015 that the city agency charged with reviewing misconduct complaints against Chicago Police Department officers dismissed nearly 60 percent of complaints for lack of a signed affidavit. Jeremy Gorner & Geofffrey Hing, Tribune Analysis: Cops who pile up complaints escape discipline, Chi. Trib., Jun, 13, 2015, https://www.chicagotribune.com/news/ct-chicago-police-citizen-complaints-met-20150613-story.html.
[vi]SeeDeputy 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, 3.
[vii]SeeDeputy 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 1-6.
[viii]Generally, the adverse action standard is fairly low – it involves actions sufficiently adverse to dissuade a reasonable person from making a complaint. See, e.g.,Burlington N. & Santa Fe Ry. Co.v. White, 548 U.S. 53, 67-68 (2006),( In explaining a retaliation the Court found “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”) (citing Rochon v. Gonzales, 438 F.3d 1211, 1219 (C.A.D.C. 2006)(quoting Washington v. Illinois Dep’t. of Revenue, 420 F.3d 658, 662 (C.A.7 2005)).
[ix]There may be some information that should not be made public because to protect a complainant. For example, a gay community member may file a complaint that a member made homophobic remarks to him, but may not be out to his employer or family. Yet generally, it is “good policy to make public all complaints received for the year.” 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 7.
[x]See e.g., Public Safety Officers Procedural Bill of Rights, Cal. Gov’t Code § 3300-13, https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=4.&title=1.&part=&chapter=9.7.&article=.
[xi]Americans With Disabilities Act, 42 U.S.C.A. § 12101 (West 2018).