Police misconduct and approaches to remedy

This paper was written as part of a police administration course and analyses the different approaches that can be taken toward citizen complaint and police accountability to the communities they serve. I should note that despite the comments of the police chief in the essay, the overwhelming majority of police chiefs are fantastic individuals who are driven to protect and serve their communities ethically.

CMRJ512 Assignment 3

When I was a young patrolman I remember my first police chief would respond to any and every question of the legality of departmental actions with “we’re the police, we can do whatever the hell we want!” Over the years I find myself revisiting his comment time and time again, asking myself questions of how should police be held accountable to the communities they are entrusted to serve. I am by no means alone in this question, with many other minds contemplating concepts of police accountability.

Conceptually, as the United States of America was framed around the tenets of natural law, the government exists to ensure that citizens are able to exercise freedoms while remaining accountable to citizens (Samaha, 2008). The police as an extension of the executive branch have the same responsibility and accountability to citizens; to this end several remedies have been created to address citizen grievances.

Types of Remedy

John L. Worrall in his excellent textbook on criminal procedure lists a series of remedies available for those with a grievance against law enforcement. Worrall (2007) establishes two categories of remedies as judicial and non judicial.

Judicial Remedy

The American legal system has in the past constituted an excellent system of addressing egregious misconduct at the hands of law enforcement. For instance 42 U.S.C. Section 1983 allows for lawsuits to be filed against law enforcement when they are acting under the color of law, that being working within an official capacity. Furthermore, many state torts allow for grievances to be redressed within the court system (Worrall, 2007).

Police conduct can also be criminally prosecuted under 18 U.S.C. Section 242; however, 18 U.S.C. Section 242 requires that the offending officer act with intent to deprive another individual of their rights. As with civil liability, criminal liability can and often is enforced through various state codes (Worrall, 2007).

U.S. courts have also established evidenciary rules which seek to reduce the likelihood of police misconduct. Typical application of evidenciary rules results in the exclusion of illegally obtained evidence, thereby being a deterrent to police misconduct (Samaha, 2008, Worrall, 2007).

Non Judicial Remedy

The first type of non judicial remedy is the internal review (Worrall, 2007). Internal review is performed by either an internal affairs section reporting to the chief of police or performed by the chief of police him or herself depending upon the size of the police organization (Cordner & Scarborough, 2007).

Internal review is widely recognized as a viable mechanism to combat police misconduct. The Police Executive Research Forum recognizes that properly executed internal affairs procedures results in increased citizen confidence in the police department, the ability of police administrators to monitor compliance, and the protection of due process rights for both police officers and community members (Worrall, 2007).

The other form of non judicial remedy is citizen or civilian review, which for the sake of clarity, are interchangeable terms for the same or highly similar processes; for the remainder of this discussion the term citizen review will be utilized to represent police conduct review processes that exist in whole or in part beyond the boundaries of the police department (Cordner & Scarborough, 2007, Worrall, 2007). As citizen review exists at least partially outside the police department, by nature its composition is made up of individuals with no formal connection to the police organization that they provide oversight to. In some review boards the individuals may be city council members or may be former law enforcement officers who did not serve within the jurisdiction where they provide oversight (Firman & Needle, 2000).

Types of Citizen Review

Worrall (2007) defines three types of citizen review: citizen review, citizen input, and citizen monitor. In citizen review, the board investigates, adjudicates, and eventually makes disciplinary recommendations to the chief. In citizen input, the board will investigate; however, they do not have any authority to discipline, thereby leaving disciplinary actions in the hands of the chief of police. Lastly, citizen monitor, leaves a citizen or panel in charge of reviewing the police internal affairs process and monitoring adequacy of the system on a case by case basis.

The International Association of Chiefs of Police sponsored a report on citizen review in 2000 which listed four types of citizen review: citizen review board, police review/citizen oversight, police review/citizen-police appeal board, and independent citizen auditor (Firman & Needle, 2000). The only types to truly match between Worrall and the International Association of Chiefs of Police was that of the Independent citizen auditor to the citizen monitor and that of the citizen review board to the citizen review, leaving us with two additional types of citizen review.

The fourth method of citizen review is police review/citizen oversight, which requires a citizen board to recommend disciplinary actions based on an internal affairs investigation. The fifth method is police review/citizen-police appeal, which is a traditional internal affairs structure; however, individuals who are dissatisfied with outcomes or remedies can appeal to an appellate board consisting of non police personnel (Firman & Needle, 2000).

Citizen Review Controversy

Latest figures state that very few police organizations are presently utilizing citizen review procedures. Some estimates place the percentage as low as nine percent (Worrall, 2002). One of the leading opponents of citizen review has been Geller (1985), who cites several reasons for preference of internal review over external review.

First, citizen review does not take into account the other legal options at a citizens’ disposal (Geller, 1985). As previously discussed, 18 U.S.C. Section 242, 42 U.S.C. Section 1983, the exclusionary rule, and various state codes allow civil and criminal actions to be levied in the face of police officer misconduct.

Next, citizens do not usually have an intimate understanding of police operations nor do they fully understand the operation of a citizen review board. Furthermore, Geller (1985) believes that citizen review harms officer morale and promotes the abdication of authority from low and mid level supervisors such as corporals, sergeants, and lieutenants (Geller, 1985).

Geller (1985) goes on to state that citizen review methods remove abilities of upper level police administrators to enforce conformity via discipline amongst officers. Finally, the message given by having a citizen review board is comparable to admitting police incompetence in controlling and directing their own officers (Geller, 1985).

Other researchers have postulated that citizen review boards will have the effect of increasing total numbers of complaints lodged against officers regardless of merit. This would have the effect of potentially inundating review boards and police organizations with illegitimate complaints. This assumption is invalid as it has been shown that regardless of whether internal affairs or a citizen review is utilized, the only factor to effect numbers of complaints lies in the existence of a complaint database (Worrall, 2002).

The International Association of Chiefs of Police, while recognizing the potential benefits of citizen review procedures, also acknowledges potential pitfalls. One such pitfall is officer reluctance to enter any sort of conflict even when justified; another is the potential of citizen review boards interjecting policies which are not feasible and will eventually lead to more public distrust as organizations are incapable of implementing such policies. Costs of citizen review systems can also be expensive and many police organizations are not able to expend the amounts of money necessary, nor are they able to commit the needed man hours to make such systems successful. Finally the International Association of Chiefs of Police points out that citizen review boards can become partisan political players which removes a layer of police autonomy (Firman & Needle, 2000).

Prevalence of Non Sustained Findings

With so many reasons listed to avoid the establishment of citizen review boards, one wonders why citizen review exists at all. The reason lies within the prevalence of dismissed internal affairs cases. Depending upon the particular organization, sustained findings, that being cases where the complaint against the officer was valid, can be as low as five percent, or as high as thirty percent (Boyd, Kawucha, Liederbach, & Taylor, 2007).

While such a high percentage of non sustained findings may sound particularly worrisome, it must be noted that no less than twenty percent of all internal affairs cases are dismissed because complainants are unwilling to cooperate or communicate with investigators (Worrall, 2002). Furthermore, generally another thirty percent of cases do not have sufficient evidence to support either the complainant or the officer and boil down to two opposing recollections of events (Boyd, Kawucha, Liederbach, & Taylor, 2007, Worrall, 2002).

Another story truly emerges when officers initiate a complaint against another officer. In officer initiated complaints, internal affairs cases are sustained in nearly seventy percent of all cases, more than double that of citizen initiated complaints (Boyd, Kawucha, Liederbach, & Taylor, 2007). While it could be hypothesized that internal affairs investigators are more likely to believe fellow officers to be credible witnesses, Worrall (2002) postulates that it is equally credible that police officers who bring complaints understand the need for evidence to substantiate allegations.

Police Implications

The value in citizen review methods likely does not exist in higher effectiveness of rooting out corruption within police organizations. In all likelihood, a citizen review board would be even less capable than a seasoned internal affairs investigator at obtaining usable evidence to sustain an allegation. Where citizen review does benefit police organizations is in establishing the presentation to the public of openness and accountability to the community which it serves, thereby improving relations.

With this in mind, police administrators must be cognizant that being proactive as opposed to reactive in establishing citizen accountability will behoove them as they are more likely to be able to establish the terms on which citizen accountability will take place (Firman & Needle, 2000). To this end, police administrators should begin a feasibility and cost analysis of a citizen auditor or appeal board as they would deliver essentially the same degree of independence and efficiency of traditional internal affairs systems with the added accountability and positive community relations of citizen review.

Another important step will be in the method of selection of the auditors. Minneapolis selects former law enforcement officers who did not work within Minneapolis (Firman & Needle, 2000). This method of selection for citizen review has the advantage of utilizing citizens who have an intimate understanding of police procedure which is a key obstacle most citizen review systems face.

Conclusion

The majority of police chiefs and administrators have every ambition of running a police force entirely beyond reproach; however, citizen complaint will always be an issue to contend with in a democratic society. In many regards citizen complaint is positive, as it is one facet in closing a feedback loop for police administrators, thereby allowing them to ascertain police department effectiveness (Cordner & Scarborough, 2007).

We must be mindful as well that political factors are in fact external factors which result in elected officials pressuring police administrators to stamp out misconduct. In effect, police administrators can not simply “do whatever the hell they want.”

References

Boyd, L.M., Kawucha, S.K., Liederbach, J., & Taylor, R.W. (2007). Is it an Inside job?: an examination of internal affairs complaint investigation files and the production of nonsustained findings. Criminal Justice Policy Review, 48, Retrieved from http://cjp.sagepub.com/cgi/content/abstract/18/4/353-a doi: 10.1177/0887403407303799

Cordner, G.W., & Scarborough, K.E. (2007). Police administration. Newark, NJ: Lexis Nexis.

Firman, J., & Needle, J. (2000, November). Police accountability and citizen review. Retrieved from http://www.theiacp.org/PoliceServices/ExecutiveServices/ProfessionalAssistance/Ethics/ReportsResources/PoliceAccountabilityandCitizenReview/tabid/193/Default.aspx

Geller, W.A. (1985). Police leadership in America. New York: Praeger.

Samaha, J. (2008). Criminal law 6th edition. Belmont, CA: Thomson Learning.

Worrall, J.L. (2002). If You build it, they will come: consequences of improved citizen complaint review procedures. Crime & Delinquency, 48. Retrieved from http://cad.sagepub.com/cgi/content/abstract/48/3/355 doi: 10.1177/0011128702048003001

Worrall, J.L. (2007). Criminal procedure: from first contact to appeal. Boston, MA: Pearson.

Leave a Reply

Your email address will not be published. Required fields are marked *


*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>