Recommended Best Practices
Recommendation 7.3 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.
The officer’s immediate supervisor should provide information pertinent to the disciplinary process, such as officers’ performance history; the impact the offense has on their ability to meet performance expectations; the impact on supervisors’ confidence in their ability to perform assigned duties and work with others; and mitigating factors (e.g.,unusual job or personal stressors, mental or physical impairments, etc.) or aggravating factors (e.g.,resistance to prior rehabilitation efforts, malice toward the public or colleagues, etc.).[iii]The ultimate decision, however, should come from the chief — to reinforce the organization’s core values and to avoid the appearance that supervisors are “soft” on members of their own teams.
When violations don’t concern interactions between officers and community members and are investigated at the precinct level, immediate supervisors typically take disciplinary or corrective actions, including counseling, coaching, and managing the behavior at issue. If supervisors have a demonstrated history of failing to hold subordinate officers accountable, then responsibility for corrective action should be delegated until the underlying leadership problem is resolved.
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Regulating Officer Discipline 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 protectible 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. · 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. See generally 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. |
[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.
[iii] These factors come from Douglas v. Veterans Administration and apply in virtually all civil service and labor arbitration tribunals. SeeDouglas v. Veterans Admin., 5 M.S.P.R. 280, 332 (1981), https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=253434&version=253721&application=ACROBA.