Source: https://www.fbi.gov/investigate/civil-rights (FBI Website)

The New Age of Police Reform – Part 3

Accountability and transparency are prominent features of modern police reform. Yet, the concepts and structures for holding police accountable trace back to the origins of modern democratic police service in London, UK. A key motivation for creating public police service was the lack of accountability afforded by private police services – the watchman model. With Americans’ deeply embedded concerns over governmental excesses, layers of oversight have been imposed on police departments and agencies over U.S. history. The modern digital age poses new challenges and opportunities for police agencies to earn public trust through transparency. Modern technologies also pose serious obstacles to important due process in accountability of police services.

The public’s trust in police has been at the core of police reform movements going back to the Metropolitan Police Act of 1829 in London. Police accountability and transparency is an essential character of democratic policing principles. Today, both communities and police departments have much greater opportunities for transparency. Although technological advances for both citizens and police enhance transparency, the accountability factor becomes more complex. Transparency without due process impedes true accountability. The public must have confidence in the integrity of due process in police accountability.

Technologies, such as the ubiquitous use of cellphone cameras, speed of uploads to social media, and the proliferation of social media, all converge to eclipse due process for police actions in the global court of public opinion. The speed and global scope by which citizen “reporters” can publicize media and commentary also challenges mainstream journalistic ethical standards. Simply, there is no due process in the court of public opinion. As the public loses trust and confidence in judicial and departmental due process, the court of public opinion becomes more virulent.

Separation of Powers & Judicial Oversight

Under the constitutional doctrine of separation of powers, the three branches of government (executive, legislative, and judiciary) have separate and distinct, but overlapping responsibilities that serve as checks and balances. Police – whether federal, state, local, territorial, or tribal – are within the executive branch of their respective jurisdictions. (Two notable exceptions are the U.S. Supreme Court Police and the U.S. Capitol Police.) The courts regularly review the actions and omissions of all law enforcement agencies and personnel. Judicial review of police is the longest enduring form of police oversight in the U.S. justice system.

The common law principle of stare decisis, the precedence of judicial decisions on future litigation, is a powerful tool the courts have over police policy, practices, training, organizations, and procedures. There are many examples in which appellate and federal court decisions have changed the course of policing nationwide. The U.S. Supreme Court has altered police procedures by applying constitutional interpretations that affected the legality of evidence. The landmark cases of Mapp v. Ohio (367 U.S. 643, 1961) and Miranda v. Arizona (384 U.S. 436, 1966) applied U.S. Constitution protections through the exclusionary rule, denying admissibility of evidence obtained through warrantless search (Mapp) or self-incriminating statements without opportunity of access to legal counsel. Both cases, imposed national changes to police search, booking, and interview procedures. At the time, these landmark federal cases also strengthened the U.S. Supreme Court’s stare decisis over the state courts, and thus local police departments, through the selective incorporation doctrine of the U.S. Constitution’s Bill of Rights. Both cases dramatically changed police procedures, resulting in strong judicial oversight of police action and advancing constitutional protections.

Federal and state courts have issued binding decisions affecting police use of force policies, training, and procedures. Two of the most prominent governing lawful deadly force standards relevant to modern reform considerations are Tennessee v. Garner (471 U.S. 1, 1985) and Graham v. Connor (490 U.S. 386, 1989). The U.S. Supreme Court, in Garner, set police use of deadly force parameters in fleeing felon situations. Clarifying a 1973 case that addressed excessive use of force, the court ruled in Connor that an objective reasonableness standard is to be used in reviewing all police use of force cases by expanding the applied interpretation of Fourth Amendment protection against unlawful seizure. Also in the Connor case, the court set forth the prongs for determining reasonably proportionate police use of force. Subsequent cases have refined aspects of police use of force policies, training, and procedures to include addressing the introduction of electronic control devices (e.g., Taser®).

Important judicial rulings that bring to light past police officer misconduct and dishonesty are found in the cases of Brady v. Maryland (373 U.S. 83, 1963) and Giglio v. United States (405 U.S. 150, 1972). These landmark rulings, together with other relevant cases, establish a due process requirement for prosecutors to disclose exculpatory and material evidence, even that which may be favorable to the defendant’s case. In Giglio, the court applied Brady rule logic to clarify that the prosecutor’s duty to disclose information about the prosecution’s witnesses, including police witnesses. Material information under the Brady/Giglio duty-to-disclose rule includes police personnel records related to the witness-officer’s integrity and credibility. To be clear, under Brady/Giglio, prosecutors can still call police officers with tarnished credibility to testify. The defense will have information with which to impeach the officer’s credibility under cross examination, and the jury is afforded the opportunity to weigh the value of the officer’s testimony in light of the derogatory information. Defense may also use Brady/Giglio information in motions to suppress testimony or evidence. In cases where the tarnished or questionable officer is the principal witness or an affiant to a warrant, the officer’s credibility may weaken or dismantle the prosecution’s case.

Over the years since Giglio, prosecutors have had to account for officer credibility in deciding prosecutorial and trial strategies. In 2018, St. Louis (MO) Circuit Attorney Kim Gardner announced the decision that her office would no longer accept criminal cases from over two dozen city police officers. A statement from the St. Louis Circuit Attorney’s office observed that “A police officer’s word, and the complete veracity of that word, is fundamentally necessary to doing the job. Therefore, any break in trust must be approached with deep concern.”

The U.S. Department of Justice’s (DOJ) Giglio Policy established a requirement for DOJ agencies to research and disclose potential impeachment information of its employees, including law enforcement officers and agents, to assist U.S. attorneys upon request. DOJ defines potential impeachment information as including a number of credibility-related matters such as integrity-related misconduct findings or pending misconduct allegations as well as information that suggests bias for or against a defendant. The Brady/Giglio rule is a powerful tool for police leadership and prosecutors to work together in ensuring police personnel uphold the highest standards of honesty and integrity throughout their careers.

There is no statute of limitations on the Giglio impeachment information. Some prosecutors maintain lists of police officers deemed unfit as material witnesses. Often referred to as Brady or Giglio lists, an officer may be placed on such a list based on an assistant prosecutor’s subjective interpretation of the rule or an ongoing administrative investigation. Some departments have used the prosecutor’s uncredible-officer list as a pretext for removal. In one such case in Mountain Terrance Police Department (WA), the terminated officer successfully sued to recover his job and a $815,000 settlement for wrongful termination based on the prosecutor’s listing of the officer.

With 18,000 state and local police departments and federal law enforcement agencies, the standardized application of case law across police policies, training, and procedures with the power of judicial oversight – in the form of evidentiary exclusion and legal redress through litigation – provides strong accountability of police practices. However, the courts’ power to impact police procedures is, by design, reactionary. A case must be brought before the court with jurisdictional venue and case appealed to sufficient level (i.e., U.S. Court of Appeals, State Supreme Court, or U.S. Supreme Court) to have broad influence.

Standards in law enforcement training generally require officers and agents to demonstrate their understanding of the case laws behind the agencies’ policies and procedures through testing and practical application in training. For most agencies, the frequency of in-service training cycles is insufficient to ensure uniform, consistent application. Departmental leadership, particularly among first line supervisors, is a critical part of the judicial oversight through ensuring officers’ continued knowledge of applicable case law and insisting on officer performance in conformity.

Qualified Immunity – Legal Battles Ahead

The doctrine of qualified immunity for public officials has a controversial history. The origins of the qualified immunity trace to a 1967 U.S. Supreme Court case brought under the Title 42 U.S. Code §1983 federal statute, updated from the Civil Rights Act of 1871, that opened the federal courts for redress of violations of civil rights under “color of law.” By virtue of the Civil Rights Act of 1871, the federal courts were afforded jurisdiction over violation claims involving state and local government actors through the equal protection clause of the 14th Amendment of the U.S. Constitution as well as opening the way for selective incorporation of the Bill of Rights.

In 1967, the case of Pierson v. Ray (386 U.S. 547) stemmed from a 1961 arrest and mixed convictions/dismissal of charges for failure to obey segregation rules at a bus station in Mississippi (MS). The MS statute upon which the charges were based was subsequently found to be unconstitutional in a separate case and after the Pierson arrests. The U.S. Supreme Court held that a qualified immunity existed for the municipal police justice and the arresting officers based on the prongs of acting in good faith and with probable cause pursuant to a statute they believed to be valid at the time. Chief Justice Warren, in writing the majority opinion, noted that common law “never granted police officers an absolute and unqualified immunity.”

Subsequent Supreme Court decisions have clarified, and to some degree confused, the doctrine with an objectively reasonable criteria (Harlow v. Fitzgerald457 U.S. 800, 1982) and clearly established law (Pearson v. Callahan555 U.S. 223, 2009) criteria. In the 1987 U.S. Supreme Court ruling in Anderson v. Creighton (483 U.S. 635, 1987), the court noted that “qualified immunity protects, ‘all but the plainly incompetent or those who knowingly violate the law’.” The court added:

We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials – like other officials who act in ways they reasonably believe to be lawful – should not be held personally liable.

This is an important point applied to “other officials,” as the court stated. For example, the Medical Malpractice Immunity Act (Title 10 U.S.C. §1089) provides personal liability protection for federal medical personnel from tort claims arising from their performance of official duties. The act provides for the U.S. government to be substituted as defendant. Drawn from the Federal Tort Claims Act (28 U.S.C. Part VI, Chapter 171 and §1346), a limited waiver of the common law doctrine of sovereign immunity is established, permitting defendant substitution to protect federal officials from personal liability from tort claims brought against their performance in official capacity. An important distinction between the qualified immunity doctrine and statutory liability protections is the legislative action of passing a bill versus the U.S. Supreme Court, in essence, creating a law from the bar.

Today, the qualified immunity doctrine, applied to police, is under considerable scrutiny. Although the U.S. Supreme Court continues to apply qualified immunity in applicable rulings, many legal scholars believe the doctrine is judicial overreach. In the 2017 U.S. Supreme Court case of Ziglar v. Abbasi (137 S.Ct. 1843), Justice Clarence Thomas wrote in his concluding opinion, “Our qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.” Thomas was questioning the Supreme Court’s creation of an immunity protection where it is not clear any existed under law. Thomas added:

Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Qualified immunity is an affirmative defense that must, in most cases, be raised by the defendant-public official. In claiming a qualified immunity defense, the defendant must show that their actions and decision making at the time of the event meet the criteria established in case law.

The Justice in Policing Act of 2020 is a bill that passed the U.S. House of Representatives but failed to be taken up by the U.S. Senate. This act calls for eliminating the qualified immunity defense by amending 42 USC §1983 to read, in part, “It shall not be a defense or immunity to any action brought under this section [§1983] against a local law enforcement officer or a State correctional officer” (Sec. 102).

In Colorado, the Enhanced Law Enforcement Integrity Act of 2020 strikes the qualified immunity defense in civil actions alleging deprivation of rights. The statute also provides that the “peace officer’s employer shall indemnify its peace officers” unless the employer determines that the officer did not act in good faith and reasonable belief that the action was lawful. If the officer’s department determines not to indemnify the officer, the officer is personally liable for 5% of the judgement or settlement or $25,000, whichever of these is less. The statute also provides that if the officer is unable to pay their portion of the judgement, the department or insurance will satisfy the judgement. Lastly, if the civil judgement arises from a criminal violation that results in an officer’s conviction, the department is not required to indemnify the officer for the judgement or settlement. 

Police & Independent Oversight Boards

Police accountability through oversight boards is a well-established approach for developing and strengthening public consent. Civilian oversight of police services in the United States traces back to the 1920s when the Los Angeles Bar Association created a Committee on Constitutional Rights comprised of volunteer attorneys responsible for investigating complaints of police misconduct. In the post-World War II period, citizen oversight became more common in major cities, such as the Philadelphia Police Advisory Board (PAB) and Compliant Review Board (CRB) of Washington Metropolitan Police in the 1950s.

The trend for creating and supporting civilian oversight withered in the 1960s. Then, the 1969 Kansas City Office of Civilian Complaints revived civilian oversight, which has continued to grow dramatically into the 21st century. According to the National Association of Civilian Oversight of Law Enforcement (NACOLE), there are over 200 civilian oversight boards across the nation. The United Nations and many countries have adopted civilian oversight models as global best practices toward police accountability. The African Commission on Human and People’s Rights adopted a resolution in 2006 urging member nations to establish civilian oversight boards through standardized guidance of the African Policing Civilian Oversight Forum (APCOF).

Despite there being over 200 civilian oversight boards, the U.S. has no national standards for police oversight boards. In 2018, the U.S. Department of Justice, Office of Community Oriented Policing Services (COPS) and the Major City Chiefs Association (MCCA) hosted a roundtable with 21 police agency representatives from the U.S. and Canada to develop an overview of various civilian oversight models. The Civilian Oversight of the Police in Major Cities report reflects three primary models: The Investigative Model, The Review Model, and The Auditor Model. They also noted that, although many civilian oversight boards could be characterized with the three models, many others did not fit any model. The report also identified six optimal objectives for civilian oversight boards: foster transparency, promote independence, strengthen accountability, enhance public trust and legitimacy, engage the community, as well as “demystify” police internal affairs investigative processes.

Current trends are expanding the powers of some civilian oversight boards. On 28 October 2020, Virginia Governor Ralph Northam signed two bills authorizing localities to create civilian law enforcement review boards, with subpoena powers and binding authority over disciplinary decisions involving department police officers. Similar laws and ordinances in other states are expanding oversight board authorities with some creating layers of oversight boards. Many police collective bargaining units (unions) are expressing opposition to more civilian board empowerment, particularly granting subpoena power to compel officers to testify.

Many police unions assert that compelled officer testimony threatens to undermine the department’s investigative integrity and violates some union contracts. NACOLE points out that, while oversight boards need the ability to obtain information in order to perform the community’s oversight function, obtaining and using subpoena authority poses special challenges. Enforcing civilian board subpoenas in a court of law can be a costly, time consuming process. The 1967 U.S. Supreme Court case of Garrity v. New Jersey (385 U.S. 493) limits departments’ abilities to compel statements from police officers in administrative investigations.

In August 2020, the New Jersey Supreme Court struck down a Newark City ordinance empowering the Civilian Complaint Review Board’s (CCRB) subpoena authority in investigating police misconduct cases. While committing to continue to fight for CCRB to have subpoena power, Mayor Ras Baraka stated that the New Jersey attorney general modified statewide policies governing police internal affairs units requiring the release of certain investigative records to civilian oversight boards. The CCRB is New Jersey’s only civilian oversight board today.

Like many other aspects of police reform, the roles and authorities of civilian oversight boards are dynamic. There are many stakeholders involved with the question of due process protections as a core constitutional right of the accused officer.

Role of the Federal Government in Police Accountability

The federal government’s role in national police reform is another major issue today. The federal government is taking ever-increasing roles in state and local policing oversight. The U.S. Department of Justice (DOJ) is principally responsible for oversight and federal assistance to improving police practices. The DOJ’s oversight is principally in the form of legal actions brought under suspected patterns-and-practice violations, and discrimination “under color of law” violations among other authorities. The DOJ’s Civil Rights Division (CRT) litigations can lead to court ordered settlement and consent decrees in which DOJ oversees monitor teams in verifying the progress of covered police departments in implementing corrective actions. DOJ also provides wide-ranging technical assistance, principally through the Community Oriented Policing Services (COPS) Office, in the form of working groups, training, equipment, as well as research and studies publications. COPS also manages a grants program to support improving policing capabilities. Other DOJ support to state and local law enforcement includes data collection and reporting, with grants program, out of the Bureau of Justice Statistics and other DOJ elements.

In the 21st century, the DOJ has increased the volume of investigations to look into allegations of police departments’ patterns and practices of unconstitutional or otherwise unlawful conduct.  The DOJ Civil Rights Division reports that existing and new police reform agreements more than doubled between 2011 and 2016. According to a 2018 DOJ Office of the Inspector General (OIG) report on DOJ Civil Rights activities, the DOJ achieved an 84% settlement rate in patterns and practice cases involving police departments between 2011 and 2017. These case settlements result in court-ordered consent decrees enabling DOJ and the court to oversee corrective reforms.

Evidence-based police performance improvement and transparency require data collection, analysis, and reporting. The Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322) includes a provision requiring the U.S. attorney general to gather police officer use of force data. The act further stipulates a use limitation that the data collected are for research and statistical purposes and must be devoid of victim and officer identities.

The Justice in Policing Act of 2020 devotes considerable attention to national collection of police performance, patterns, and practices data. In section 118, the bill would require federal, state, and local agencies to collect and submit to DOJ incident data that include race, ethnicity, age, and gender of officers, agency employees, and members of the public involved. Additionally, the bill would require the DOJ to create and manage a National Police Misconduct Registry. The federal, state, and local police agencies would be required to report data on credible complaints, complaints pending review, complaints involving disciplinary action, and complaints in which the officer is exonerated with each category – breaking out use of force incidents separately. Also, the bill would require reporting on all officer terminations, lawsuits, and settlements with use of force situations broken out in the data.

Under the Police Reporting Information, Data, and Evidence (PRIDE) portion of the Justice in Policing Act, the use of force incident quarterly reporting requirement would include “use of a firearm, Taser, explosive device, chemical agent (such as pepper spray), baton, impact projectile, blunt instrument, hand, fist, foot, canine, or vehicle against an individual.” Extensive incident details would be required to be reported, including rationale for why courses of action were not taken. Other provisions of the bill’s reporting requirements include specific incident details, which in aggregate would require considerable departmental staff resource to achieve compliance.

The Justice of Policing Act, as passed in the House, makes no distinction as to size of the department. Even very small police departments, less than 10 employees, would have the reporting requirement or risk loss of or inability to apply for DOJ grant funding. Police agencies have long recognized the importance of data analysis applied in policy and training changes. Many departments publish internal police performance data to the public in building trust through transparency. In July 2020, Montgomery County Police Department (MCPD) published a report entitled “Local Policing Data and Best Practices” to meet Maryland’s Community Policing Law, which will be effective in February 2021. MCPD points out that “policing data is warranted to evaluate and monitor for constitutional and community policing.”

The calls for improving national policing data collection and information sharing is bipartisan. The president’s Commission on Law Enforcement and the Administration of Justice, created in January 2020, highlights the need to develop better national data collection and transparency. The commission is charged with, among other initiatives, reviewing current systems and evaluating gaps in data collection and utilization with a focus on a National Incident-Based Reporting System and Use of Force reporting. In June 2020, President Donald Trump signed the Safe Policing and Safe Communities Executive Order (EO) 13896 in part directing the DOJ to create and maintain a database of use of force incidents and police decertification actions. The EO adds that the data is to be shared across federal, state, local, and tribal law enforcement agencies.

U.S. Courthouse and Post Office, Courtroom, New Bern, NC (Library of Congress)

Source: U.S. Courthouse and Post Office, Courtroom, New Bern, NC (Library of Congress)

Police Decertification Information Sharing

Most states certify police officers who are authorized with arrest powers within that state. Standards for requisite training, background check criteria, certification processes, and decertification processes are most often managed or overseen at the state level. State requirements vary considerably, though. Some states such as New York, California, and Massachusetts lack authority to decertify police officers. However, in the four states that lack full police officer certification and decertification authority, private security guards are required to hold state certification or licensure. Federal law enforcement officers are not nationally certified, but rather authorized by their employing agency with law enforcement authorities under the agency’s authority, which is removed when a person leaves the authorizing agency. States like Massachusetts are working to strengthen certification and training standards oversight. As Massachusetts addresses legislation to create a state Police Officer Standards and Training (POST) system, a 2019 study by the state auditor noted that as many as 30 police departments may not meet state POST standards for training requirements.

In states with police officer certification, many do not require departments to initiate decertification with the state authority when an officer is terminated, even for cause, from employment. This enables a terminated officer, or officer who resigns in lieu of termination, to carry their active police officer certification while shopping for another job in law enforcement. To add complications to the decertification issue, termination information is subject to widely varying privacy protections accorded by the states. A former police officer, fired for cause, can be hired by another department void of access to cause for release from previous agency and start working immediately because their peace officer certification remains valid.

Calls for a national decertification database have been raised for a number of years. The International Association of Directors of Law Enforcement Standards and Training (IADLEST) has served as a certifying body for state POST training since well before its name change in 1987. The DOJ COPS awarded IADLEST a grant in 2020 to promote certification standards in all states, compliance by local departments, and expansion of IADLEST’s National Decertification Index database. Some states already maintain decertification lists and some make those lists public, like Connecticut’s POST Council.

Conclusion

Improving and strengthening public trust and police legitimacy in the digital age is complex. Greater use of citizen oversight boards and leveraging digital tools to collect and share improved data opens opportunities for greater public awareness. Better collection, analysis, and application of policing data is essential for informing the public as well as developing and explaining evidence-based reforms. Lastly, the digital age provides excellent information sharing opportunities about police misconduct-based personnel removals. Certification, like licensure in other professions, should apply nationally uniform standards for decertification while permitting the states to retain their sovereign authority over police services.

The challenges rest in developing and implementing sound legislation, policies, and strategies that respect and preserve every employee and person’s right to due process while improving public trust in police performance.

This article is Part 3 of a four-part series on New Age of Police Reform. The next part will provide an overview of some of the intergovernmental challenges in police reform:

Joseph W. Trindal

As founder and president of Direct Action Resilience LLC, Joseph Trindal leads a team of retired federal, state, and local criminal justice officials providing consulting and training services to public and private sector organizations enhancing leadership, risk management, preparedness, and police services. He serves as a senior advisor to the U.S. Department of Justice, International Criminal Justice Training and Assistance Program (ICITAP) developing and leading delivery of programs that build post-conflict nations’ capabilities for democratic policing and applied modern investigative techniques. After a 20-year career with the U.S. Marshals Service, where he served as chief deputy U.S. marshal and ERT incident commander, he accepted the invitation in 2002 to become part of the leadership standing up the U.S. Department of Homeland Security as director at Federal Protective Service for the National Capital Region. He serves on the Partnership Advisory Council at the International Association of Directors of Law Enforcement Standards and Training (IADLEST). He also serves on the International Association of Chiefs of Police, International Managers of Police Academy and College Training. He was on faculty as an instructor at George Washington University. He is past president of the InfraGard National Capital Region Members Alliance. He has published numerous articles, academic papers, and technical counter-terrorism training programs. He has two sons on active duty in the U.S. Navy. Himself a Marine Corps veteran, he holds degrees in police science and criminal justice. He has contributed to the Domestic Preparedness Journal since 2006 and is a member of the Preparedness Leadership Council.

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