Recommended Best Practices
Recommendation 7.13 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]To investigate officer-involved crimes or shootings, departments should:
Clarify who should investigate and prosecute. Departments and prosecutors should establish clear policies and protocols for investigating officer-involved criminal misconduct, such as excessive force, theft, planting of evidence, and sexual assault. Particularly in the case of officer-involved fatalities, protocols should include mechanisms to ensure that independent investigators are not employed by the same law enforcement agency as the officer under investigation.
Jurisdictions should consider whether decisions to prosecute will be made by the local prosecutor or a special prosecutor, such as an official in a neighboring jurisdiction or a state-level official.[v]Indeed, the Final Report of the President’s Task Force on 21stCentury Policing recommends that communities use external and independent prosecutors to investigate “cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths,” in order to “demonstrate the transparency to the public that can lead to mutual trust between community and law enforcement.”[vi]
Conduct administrative investigations during criminal investigations. Finally, departments and community members should decide how to handle administrative investigations of officers when criminal investigations are also underway. Historically, departments have suspended administrative investigations until local prosecutors decide whether to charge officers under investigation because departments don’t want to implicate officers’ constitutional right against self-incrimination. The U.S. Supreme Court ruled in Garrity v. New Jerseythat officers compelled to speak to investigators in order to avoid discipline may not have their statements — or other evidence obtained by means of those compelled statements — used against them in a criminal prosecution.[vii]In light of this ruling, departments have sought to delay administrative investigations to avoid even the slightest possibility of tainting subsequent criminal prosecutions.
However, under this approach, the administrative investigation takes so long — sometimes more than a year — that the ability to obtain reliable statements from involved officers can be seriously compromised. Another disadvantage is that accused officers (or officers involved in a lethal force incident who are not accused of misconduct) might remain paid members of the department longer than appropriate. Even if officers are placed on paid leave or reassigned to an administrative duty to avoid potential negative performance, delaying the disciplinary process nonetheless exacts a substantial drain on typically scarce government resources.
Put simply, tax dollars should not support officers who violate people’s civil rights or who commit crimes. In addition, officers may have engaged in discharge-worthy misconduct prior to the alleged criminal offenses. Keeping such officers on department payrolls corrodes community confidence in police. Finally, delayed investigations may present safety risks to others: Departments may remain unaware of, and thus unable to address, critical weaknesses in equipment, communications, tactics, or training that can contribute to dangerous incidents, thereby compromising public and officer safety.
A more recent trend is to conduct administrative investigations of lethal force incidents or alleged misconduct in a bifurcated or parallel administrative review in which compelled statements from officers (and evidence derived from those statements) are walled off from criminal enforcement authorities to avoid tainting potential criminal prosecutions.[viii]Departments in major cities, such as Los Angeles and Denver, have long followed this approach.
[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.
[v]Various entities have recommended a range of options for how to assign a special prosecutor to oversee police misconduct complaints, whether by assigning the state’s attorney general as the special prosecutor in police use-of-force cases, adopting an automatic referral model to special prosecutors overseen by the attorney general for charges involving killings of civilians or excessive use of force and similar allegations, or having local police departments agree to memoranda of understanding to investigate each other’s police misconduct complaints. See, e.g., Investigation of the use of deadly physical force by peace officers, Conn. Gen. Stat. § 51-277a (2017), https://www.cga.ct.gov/2015/pub/chap_886.htm#sec_51-277a; The Ferguson Comm’n, Forward Through Ferguson: A Path Toward Racial Equality 27 (Oct. 14, 2015), http://3680or2khmk3bzkp33juiea1.wpengine.netdna-cdn.com/wp-content/uploads/2015/09/101415_FergusonCommissionReport.pdf; Mo. Advisory Comm. to the U.S. Comm’n on Civil Rights, The Impact of Community/Police Interactions on Individual Civil Rights in Missouri 34 (June 2016), https://www.usccr.gov/pubs/docs/MOPoliceRelationsReport_Publish.pdf.
[vi]The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 21 (2015), https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.The President’s Task Force report provides two approaches for facilitating external and independent criminal investigations of fatal use of force: (1) create a multi-agency investigative body staffed by state and local investigators, or (2) referring the investigations to other jurisdictions or state agencies. Id.
[vii]Garrity v. State of N.J., 385 U.S. 493 (1967).
[viii]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 3-4.