Chapter : Recommendation 2.1 Adopt comprehensive bias-free policies.
Recommended Best Practices

Recommendation 2.1 Adopt comprehensive bias-free policies.

To affirm their commitment to treat everyone equitably and with respect, police departments should develop written policies that lay out expectations of bias-free police services. These policies should provide guidance on bias-free policing, implicit bias, cultural competency, and procedural justice, and they should be reinforced through academy and in-service training.

Many departments have formal policies (some of which are also reflected in their mission or values statements) that endorse fair and equal treatment of all people and that prohibit discrimination. Policies that address explicitbias should be updated and expanded to cover implicitbias as well. Departments should invite community members and stakeholders to participate in this effort to ensure that bias-free policies adequately address community concerns and comport with community views on fairness and equity. Specifically, departments should:

Identify equity and fairness as core values in their mission statements. Departmental mission and values statements set out the principles that animate external and internal activities, such as police practices, community relationships, and accountability systems. Equity and fairness should be identified in these documents as core values and perpetual goals. The Baltimore Police Department, for example, revised its mission statement after entering into a federal consent decree, or settlement agreement, to “fostering trust with community members, safeguarding life and property, and promoting public safety through enforcing the law in a fair and impartial manner.”[i]Departments should weave these principles into all other policies and training to reinforce their commitment to bias-free policing.

Provide protections for broad categories of people. Bias-free policies should describe all categories of people that officers are prohibited from discriminating against. They should also explain that discrimination and bias can be based on how a person perceivesanother’s race, ethnicity, or other specific characteristic. An officer who is biased against Muslims and unlawfully stops a Sikh man because she thinks he’s Muslim has discriminated against him. In other words, it doesn’t matter whether the person who was discriminated against identifies with a protected class or belongs to the intended target group; the discriminatory act, whoever perpetrated against, constitutes discrimination.

While most departments recognize race, ethnicity, national origin, and gender as protected classes, bias-free policies should go beyond federal and state law protections to proscribe discriminatory treatment of people from other marginalized groups.[ii]The Seattle Police Department, for example, defines bias-based policing as differential treatment of anyone of a protected class but goes on to include “other discernible characteristics” including age,disability, economic status, familial status, gender, gender identity, mental illness, housing status, sexual orientation, and veteran status.[iii]

Prohibit bias in all law enforcement decisions.  Departments should strictly prohibit bias-based policing and should clearly state how to carry out law enforcement duties without bias or engaging in prohibited conduct. They should also address the perception of bias, which is also detrimental to police-community relationships.

To prevent bias-based policing, departments should ensure that officers:

  • Conduct all law enforcement activities without discrimination and based on observable conduct or specific information that provides a legal basis for the activity.
  • Record and report demographic information for law enforcement activities, including pedestrian and vehicle stops, detentions, frisks, searches, seizures, arrests, uses of force, and complaint data, according to departments’ formal data collection processes.
  • Intervene to prevent or stop discriminatory enforcement activities.[iv]
  • Report bias-based incidents that they witness or are aware of.[v]
  • Use procedural justice principles in all interactions with community members to prevent the perception of bias.
  • Provide complaint forms and information about how to file a complaint upon request in all circumstances and make them publicly available in alternative and accessible formats.[vi]

Departments should ensure that officers do not:

  • Make any decision about any law enforcement activity based on someone’s actual or perceived race, ethnicity, national origin, religion, gender, gender identity, sexual orientation, age, disability, familial status, immigration status, veteran status, health status, housing status, economic status, occupation, proficiency with the English language, or other personal characteristic.[vii]
  • Determine reasonable suspicion or probable cause based a perceived or actual characteristic (e., profile), unless it is part of a reliable description of a specific personsuspected of a crime that includes other nondemographic identifying factors.[viii]
  • Engage in, encourage, or ignore discriminatory enforcement decisions by other officers.[ix]
  • Profile (e., take a law enforcement action against a person or group of people based on a personal characteristic), even when the officer has reasonable suspicion or probable cause to believe a violation has occurred.[x]
  • Deny police services based on someone’s actual or perceived characteristics.[xi]
  • Use discriminatory or biased language (verbal or written), or make derogatory or disparaging remarks or gestures about any discernable characteristics, including on personal social media accounts.[xii]
  • Ask or record a person’s actual or perceived sexual orientation or gender identity, or immigration status, in reports.[xiii]
  • Retaliate against anyone who reports incidents involving discrimination or bias.[xiv]

 

Procedural justice in police interactions with communities includes:

  • Being professional and polite.
  • Explaining the reason for the contact.
  • Detaining a person no longer than necessary.
  • Explaining the reason for any delay.
  • Answering the person’s questions.
  • Providing name and badge number when requested.
  • Apologizing for any inconvenience if the officer determines the person was not engaged in criminal activity.

Sources: See New Orleans Police Dep’t, Operations Manual Chapter 41.13:  Bias Free Policing 3-4 (eff. July 10, 2016), https://www.nola.gov/getattachment/NOPD/Policies/Bias-Free.pdf/; Baltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 4 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing.

 

Prohibit gender bias.  Because of the unique nature and complexity of gender bias, which acutely affects women and LGBTQ people, departments should have stand-alone policies and training to circumscribe behaviors and practices that lead to it.

Gender bias manifests in a variety of ways in policing. Female officers may not be considered for promotions because of their gender or be subject to harassment or “locker room” talk. (For more detail, see Chapter 9.) Survivors of sexual assault and intimate partner violence may have claims dismissed or not investigated.[xv]And women, especially those who work in the sex trade, may be profiled or victims of officer-involved sexual violence.[xvi]

Sexual misconduct encompasses a variety of behaviors. The International Association of Chiefs of Police (IACP) lists behaviors including, but not limited to, sexual assault and rape; shakedowns for sexual favors in exchange for not being ticketed or arrested; inappropriate or unnecessary touching during searches or pat-downs; sexual contact while on duty; and sexual harassment of coworkers.[xvii]

Departments’ failure to properly respond to allegations of sexual assault or intimate partner violence[xviii]or to adequately investigate them denies victims equal protection under the law.[xix]The under-enforcement of these cases constitutes discrimination because it disproportionately affects women and LGBTQ people.[xx]The impact is compounded by the fact that many people are reluctant to report sexual assault because they think they won’t be believed or that they’ll be shamed and blamed. When the DOJ found that the Missoula (Montana) Police Department had a pattern of inadequately responding to women’s reports of sexual misconduct, it noted that this type of discrimination erodes “confidence in the criminal justice system, places women ¼at increased risk of harm, and reinforces ingrained stereotypes about women.”[xxi]

To avoid the breakdown in confidence and legitimacy of police, departments should have policies for handling cases of sexual assault and intimate partner violence.[xxii]IACP calls for trauma-informed, victim-centered responses to and investigations of sexual assault cases. This includes clarifying all department members’ roles in these processes; adopting strategies to prevent prejudging the validity of cases; responding in a respectful, objective manner; offering survivors forensic exams and medical care; referring survivors to community-based services and sexual assault survivor advocates; and holding perpetrators accountable.[xxiii]

The DOJ, for its part, warns against determining a victim’s “credibility” based on gender stereotypes when responding to cases of sexual assault and intimate partner violence.[xxiv]To counter the effects of stereotypes on officer conduct, departments should revise policies and training to ensure that officers treat survivors with dignity and respect, use trauma-informed investigation techniques, and gather evidence in an unbiased manner.[xxv]

Sexual misconduct is a crime that should be taken seriously by department leaders.[xxvi]Yet more than half of the nation’s largest police departments have no policy addressing sexual misconduct or harassment by police officers.[xxvii]Department leaders can’t simply rely on sexual harassment policies to hold officers accountable for sexual misconduct; without proper policies, departments effectively condone misconduct.[xxviii]

The Final Report of the President’s Task Force on 21stCentury Policing (the President’s Task Force Report) and the IACP’s guide on addressing officer-involved sexual misconduct recommend that departments adopt policies to effectively prevent, detect, and ensure accountability.[xxix]Department leaders should create a culture of accountability and set priorities and expectations for officer conduct. Otherwise, negative attitudes and misconduct internally can spill over to officers’ interactions with the public and proliferate sexual misconduct.[xxx]Departmental policies should also reflect the fact that LGBTQ people are often victims of officer-involved sexual misconduct and should articulate appropriate practices, including search-and-seizure procedures, for interactions with LGBTQ people.[xxxi]

Develop stand-alone policies for fair and objective interactions with specific groups. While the principles of bias-free policing apply to interactions with all people, specific groups have unique needs. The President’s Task Force Report recommends that departments adopt policies and train officers for interactions with LGBTQ people (including whether to determine gender identity for arrest placement); the Muslim, Arab, and South Asian American communities; and immigrants and communities with limited English proficiency (LEP).[xxxii]

The New Orleans Police Department adopted a bias-free policy directed at interactions with immigrants in 2016. The policy forbids enforcement action based on actual or perceived immigration status; asking people about their immigration status; or helping with immigration enforcement unless life or public safety is at risk.[xxxiii]In 2007, the Metropolitan Police Department in Washington, D.C., implemented a policy for interactions with transgender people that defines key terms and addresses use of proper pronouns, prohibitions against using demeaning language, and proper search-and-frisk techniques (including having an officer of the gender requested conduct the search, absent exigent circumstances).[xxxiv]To build trust and legitimacy,group-specific policies and training should be developedwith input and support from members ofprotected classesandadvocacy groups that are the target of bias, as recommended bythe President’s TaskForce Report.[xxxv]

Mandate reporting of biased policing.  To properly hold officers accountable, departments should establish clear protocols for officers to report biased incidents, whether witnessed or learned about through other means. The Seattle Police Department’s Bias-Free Policing policy is a good example. It states: “Employees who have observed or are aware of others who have engaged in bias-based policing [must] specifically report such incidents to a supervisor, providing all information known to them before the end of the shift during which they make the observation or become aware of the incident.”[xxxvi]

The New Orleans Police Department establishes the same duty to report bias-based policing and also requires officers do so by the end of the shift during which it happened or they learned of it.[xxxvii]Policies should clarify that the failure to report misconduct is itself misconduct and will be disciplined accordingly.[xxxviii]To assuage fear, departments should also create safeguards to protect officers who report bias-based policing from retaliation or discipline and articulate them in policy.[xxxix]

Bias-free policies should clearly address disciplinary consequences for violations.  Discriminatory police practices are detrimental to communities and to police legitimacy. Addressing these types of violations should be departments’ highest priority, and officers should be on notice that biased behavior and enforcement activities are not tolerated and will be disciplined.

In New Jersey, the Newark Police Department, for example, notes that discipline for policy violations applies to all officers, including supervisors, and includes counseling, mediation, training, and, when warranted, termination.[xl]

[i]        See, e.g., Baltimore Police Dep’t, About Us: Mission Statement (last visited Feb. 11, 2019), https://www.baltimorepolice.org/about-department.

[ii]       As a practical matter, state laws may prohibit discrimination against broader protected classes. See, e.g.,Virginia Human Rights Act, Va. Code §§ 2.2-3900-3 (2019), https://law.lis.virginia.gov/vacodepopularnames/virginia-human-rights-act/(including childbirth or related medical conditions, age, marital status, or disability as protected classes). Police department policies, however, can provide even broader protections.

 

[iii]      See e.g., Seattle Police Department Manual Section 5.140 (eff. July 15, 2018) https://www.seattle.gov/police-manual/title-5—employee-conduct/5140—bias-free-policing.

[iv]      Newark Police Div., General Order 17-06 Re: Bias-Free Policing 5 (Sept. 19, 2017), https://npd.newarkpublicsafety.org/assets/docs/consent_decree/approved_policies/bias-free-policing-1706.pdf.

[v]       Newark Police Div., General Order 17-06 Re: Bias-Free Policing 5 (Sept. 19, 2017), https://npd.newarkpublicsafety.org/assets/docs/consent_decree/approved_policies/bias-free-policing-1706.pdf.

[vi]      SeeNew Orleans Police Dep’t, Operations Manual Chapter 41.13:  Bias Free Policing 5 (eff. July 10, 2016), https://www.nola.gov/getattachment/NOPD/Policies/Bias-Free.pdf/.

 

[vii]     See e.g., Seattle Police Department Manual Section 5.140 (eff. July 15, 2018) https://www.seattle.gov/police-manual/title-5—employee-conduct/5140—bias-free-policing.

 

[viii]     SeeBaltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 4-5 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing; Maricopa County Sheriff’s Office, Policy EB-1 Traffic Enforcement, Violator Contacts, and Citation Issuance 2 (eff. Jan. 11, 2018), https://www.mcso.org/documents/Policy/Patrol/EB-1.pdf(prohibiting bias-based profiling and requiring deputies have articulable, reasonable suspicion of a traffic violation or criminal involvement before stopping a vehicle).

[ix]      Baltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 7 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing.

[x]       Maricopa County Sheriff’s Office, Policy EB-1 Traffic Enforcement, Violator Contacts, and Citation Issuance 2, 5 (eff. Jan. 11, 2018), https://www.mcso.org/documents/Policy/Patrol/EB-1.pdf.

[xi]      SeeBell v, Maryland, 378 U.S, 226, 309 (1964) (Goldberg, J. concurring) (“[D]enying the equal protection of the laws includes the omission to protect.”) (internal quotation marks omitted).

[xii]     See, e.g., Baltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 2 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing; Newark Police Div., General Order 17-06 Re: Biased-Free Policing 4 (Sept. 19, 2017), https://npd.newarkpublicsafety.org/assets/docs/consent_decree/approved_policies/bias-free-policing-1706.pdf.

[xiii]     New Orleans Police Dep’t, Operations Manual Chapter 41.13:  Bias Free Policing 3 (eff. July 10, 2016), https://www.nola.gov/getattachment/NOPD/Policies/Bias-Free.pdf/(The prohibition against collecting information about sexual orientation or gender identity is to avoid the risk of retaliation or unauthorized disclosure of the information); seeJames Copple & Patricia Dunn, U.S. Dep’t of Justice, Community Oriented Policing Services, Gender, Sexuality, and 21st Century Policing, Protecting the Rights of LGBTQ+ Community 8 (2017), https://ric-zai-inc.com/Publications/cops-w0837-pub.pdf;See alsoNew Orleans Police Dep’t, Operations Manual Chapter 41.6.1: Immigration Status (eff. Feb. 28, 2016), http://nowcrj.org/wp-content/uploads/2016/02/NOPD-anti-bias-policing-policy-Feb-2016.pdf.

[xiv]     Baltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 6 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing.

[xv]     See, e.g., Letter from Jocelyn Samuels & Michael Cotter to Fred Van Valkenburg, Missoula County Attorney, Re: The United States’ Investigation of the Missoula County Attorney’s Office 2 (Feb. 14, 2014), https://www.justice.gov/sites/default/files/crt/legacy/2014/02/19/missoula_ltr_2-14-14.pdf(finding the Missoula County Attorney’s Office failure to respond to and investigate rape and sexual assault cases to be fueled in part by gender bias).

[xvi]     U.S. Dep’t of Justice, Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence 11, 14 (2015), https://www.justice.gov/crt/file/799316/download(noting that a woman’s involvement in sex work should not bear on the officer’s determination of her credibility or that she can’t be assaulted).

[xvii]    For a full list, see Int’l Ass’n of Chiefs of Police, Addressing Sexual Offenses and Misconduct by Law Enforcement 3-4 (June 2011), https://www.theiacp.org/sites/default/files/all/a/AddressingSexualOffensesandMisconductbyLawEnforcementExecutiveGuide.pdf.

[xviii]   SeeInt’; Ass’n of Chiefs of Police, Sexual Assault Response Policy and Training Content Guidelines 10, 21, https://www.theiacp.org/sites/default/files/all/i-j/IACP%20Sexual%20Assault%20Response%20Policy%20and%20Training%20Content%20Guidelines.2017.3.23.pdf. The International Association of Chiefs of Police lists intimate partner violence as a form of sexual assault. Id.

[xix]     SeeBell v, Maryland, 378 U.S, 226, 309 (1964) (Goldberg, J. concurring) (“[D]enying the equal protection of the laws includes the omission to protect.”) (internal quotation marks omitted). See alsohttps://www.justice.gov/crt/file/799316/downloadat 7 (“Acting on stereotypes about why women or LGBT individuals are sexually assaulted, or about how a victim of domestic violence or sexual assault should look or behave, can constitute unlawful discrimination and profoundly undermine an effective response to these crimes.”); Letter from Thomas Perez & Michael Cotter to Missoula Mayor John Engen, Re: The United States’ Investigation of the Missoula Police Department (May 15, 2013), https://www.justice.gov/sites/default/files/crt/legacy/2013/05/22/missoulapdfind_5-15-13.pdf(finding equal protection violation where department failed to provide adequate services to sexual assault victims).

[xx]     Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 Boston Coll. L. Rev.1287 (2016), https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3526&context=bclr;Estate of Macias v, Ihde, 219 F.3d 1018 (9th Cir. 2000) (“There is a constitutional right, however, to have police services administered in a nondiscriminatory manner— a right that is violated when a state actor denies such protection to disfavored persons.”); Julie Goldscheid et al., Responses from the Field: Sexual Assault, Domestic Violence, and Policing 8-9 (Oct. 2015), https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1075&context=cl_pubs.

[xxi]     Letter from Thomas Perez & Michael Cotter to Missoula Mayor John Engen, Re: The United States’ Investigation of the Missoula Police Department 12, 14 (May 15, 2013), https://www.justice.gov/sites/default/files/crt/legacy/2013/05/22/missoulapdfind_5-15-13.pdf.

[xxii]    SeeU.S. Dep’t of Justice, Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence 21 (2015), https://www.justice.gov/crt/file/799316/download.

[xxiii]   Int’l Ass’n of Chiefs of Police, Sexual Assault Response Policy and Training Content Guidelines 2, https://www.theiacp.org/sites/default/files/all/i-j/IACP%20Sexual%20Assault%20Response%20Policy%20and%20Training%20Content%20Guidelines.2017.3.23.pdf.

[xxiv]   U.S. Dep’t of Justice, Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence 10 (2015), https://www.justice.gov/crt/file/799316/download.

[xxv]    U.S. Dep’t of Justice, Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence 11-12 (2015), https://www.justice.gov/crt/file/799316/download.

[xxvi]   Phillip Stinson et. al., Police Integrity Lost: A Study of Law Enforcement Officers Arrested 22 (Jan. 2016), https://www.ncjrs.gov/pdffiles1/nij/grants/249850.pdf.

[xxvii]   Andrea J. Ritchie & Delores Jones-Brown, Policing Race, Gender, and Sex: A Review of Law, 27 Women and Crim. Just. 21, 33 (2017), http://andreajritchie.com/wp-content/uploads/2017/05/Policing-Race-Gender-and-Sex-A-Review-of-Law-Enforcement-Policies.pdf.

[xxviii]  Int’l Ass’n of Chiefs of Police, Addressing Sexual Offenses and Misconduct by Law Enforcement 5-6 (June 2011), https://www.theiacp.org/sites/default/files/all/a/AddressingSexualOffensesandMisconductbyLawEnforcementExecutiveGuide.pdf.

[xxix]   The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 28, 58 (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf; Int’l Ass’n of Chiefs of Police, Addressing Sexual Offenses and Misconduct by Law Enforcement 5 (June 2011), https://www.theiacp.org/sites/default/files/all/a/AddressingSexualOffensesandMisconductbyLawEnforcementExecutiveGuide.pdf.

[xxx]    Int’l Ass’n of Chiefs of Police, Addressing Sexual Offenses and Misconduct by Law Enforcement 4-6 (June 2011), https://www.theiacp.org/sites/default/files/all/a/AddressingSexualOffensesandMisconductbyLawEnforcementExecutiveGuide.pdf.

[xxxi]   The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 28, 58 (2015),https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

[xxxii]   The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 58 (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

[xxxiii]  New Orleans Police Dep’t, Operations Manual Chapter 41.6.1:  Immigration Status (eff. Feb. 28, 2016), http://nowcrj.org/wp-content/uploads/2016/02/NOPD-anti-bias-policing-policy-Feb-2016.pdf.

[xxxiv]  Metro. Police Dep’t, General Order PCA 501-02 Handling Interactions with Transgendered Individuals (eff. Jan. 5, 2015), https://go.mpdconline.com/GO/GO_501_02.pdf.

[xxxv]   The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 58 (2015),https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

[xxxvi]  See e.g., Seattle Police Department Manual Section 5.140 4 (eff. July 15, 2018)https://www.seattle.gov/police-manual/title-5—employee-conduct/5140—bias-free-policing.

[xxxvii] New Orleans Police Dep’t, Operations Manual Chapter 41.13:  Bias Free Policing 4 (eff. July 10, 2016), https://www.nola.gov/getattachment/NOPD/Policies/Bias-Free.pdf/;see alsoBaltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 7 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing.

[xxxviii]Newark Police Div., General Order 17-06 Re: Biased-Free Policing 5 (Sept. 19, 2017), https://npd.newarkpublicsafety.org/assets/docs/consent_decree/approved_policies/bias-free-policing-1706.pdf; Baltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 7 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing.

[xxxix]  Newark Police Div., General Order 17-06 Re: Biased-Free Policing 7 (Sept. 19, 2017), https://npd.newarkpublicsafety.org/assets/docs/consent_decree/approved_policies/bias-free-policing-1706.pdf; Baltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 6 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing.

 

[xl]      Newark Police Div., General Order 17-06 Re: Biased-Free Policing 7 (Sept. 19, 2017), https://npd.newarkpublicsafety.org/assets/docs/consent_decree/approved_policies/bias-free-policing-1706.pdf.

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