Elimination Of Citizen Review Boards Last Bastion Of Police Accountability
(MintPress) – In December 2012, the Syracuse (N.Y.) Common Council unanimously moved to reauthorize and revamp the city’s Citizen Review Board (CRB). The board, which has existed since 1994, has been functionally dead for years, limited by the lack of cooperation from the police officers, browbeaten by powerful police chiefs and even more powerful police unions and eventually defunded in the wake of shrinking budgets.
The CRB went five years without a single fact-finding hearing. Prior to the board’s reactivation in December, the administrator of the CRB was fired by Mayor Stephanie Miner (D-N.Y.) for gross incompetence and organizational inactivity.
The opposition to the city’s Citizen Review Board is real — and shocked New Yorkers. The Syracuse Police Benevolent Association publicly went on record discouraging its members from cooperating with the CRB. To date, not one Syracuse city police officer has ever cooperated with the CRB. The chief of the Syracuse City Police Department, Frank Fowler, has formally rejected all eight recommendations for discipline from the CRB for officers found to be in dereliction of duty.
“I have the final say,” Fowler told Syracuse Post-Standard staff writer, Tim Knauss.
In a city where excessive force and officers’ failure to act are major concerns, the fact that the newly-reactivated CRB only expects to receive 70 complaints in 2013 out of more than 167,000 police calls reflect a culture in which the police feel that they are above the law.
Syracuse is not alone in its headaches over how to police the police. In St. Louis, Mo., the city currently is campaigning to wrest control of the city’s police department from the state, which has been controlled by a governor-appointed board since the Civil War.
In response to the shooting of an unarmed man in July 2012 by a police officer, citizens of Anaheim, Calif. called for the establishment of a citizen oversight committee.
And in response to that, the Anaheim Police Association has officially come out against the proposal for the citizens police oversight commission. In an email distributed in protest of the proposal, the Anaheim Police Association argues, “Anaheim Mayor Tom Tait and his supporters are attempting to weaken our police force by implementing policies and police review procedures that could jeopardize the safety of Anaheim’s families. The Orange County District Attorney’s Office and the Office of Independent Review already perform independent and objective reviews of officer-involved incidents.”
In Seattle, a federal court settlement ordered the creation of a Community Police Commission, which will ensure community involvement and help guide the court-appointed monitor. Seattle was sued for its illegal use of force, mostly against minorities and the mentally or chemically impaired. In Fullerton, Calif., a proposal for a Police Oversight Proposal Committee has been considered. This proposed committee would have subpoena power and would be instrumental in maintaining police accountability and transparency.
Mount Vernon, Va. has issued no final decision in regard to independent police oversight, despite that a proposal advocating for a citizens review board has been received more than two years ago. The issue is still unsettled, even though Mount Vernon has rejected every legislative package based on the proposal.
Joe Key is a former Baltimore police officer and is a national instructor and consultant in the use of police force and police procedure. In conversation with Mint Press, Key pointed out that while civilian review can be positive and proactive, it can only be so if it functions in cooperation with the police, instead of in oversight over the police. Key feels that in an oversight position, civilian review boards can hold the police to artificial and impossible standards, compromising the police’s ability to act.
Garrity v. New Jersey
A key part of the problem in forcing police officers to cooperate with citizens review boards is the 1967 Supreme Court decision Garrity v. New Jersey (385 U.S. 493). In this case, New Jersey cops were informed that they were to be questioned in the course of a state investigation into alleged traffic ticket “fixing.” The officers were warned that anything that they say may be used against them in a state criminal proceeding, that the officers have the right to refuse answering if the answer would incriminate them and that refusing to answer the questions presented to them would make the officers subject to removal from the force.
The Supreme Court ruled that forcing a person to choose between incrimination and losing his/her job is coercion and fundamentally denies the person of his Fifth Amendment privilege against self-incrimination and Fourteenth Amendment right to due process under the law.
As such, requiring police officers to answer for their actions without the charging of an actual offense against the officer is ruled to be unconstitutional.
The decision was voted for 5 to 4. In the dissent, the justices said: “It can hardly be denied that New Jersey is permitted by the Constitution to establish reasonable qualifications and standards of conduct for its public employees.”
“The urgency of these requirements is the more obvious here, where the conduct in question is that of officials directly entrusted with the administration of justice,” the dissent continued.
According to the Washington Post, three officers — Lt. Scott Jewell, Sgt. Rich Rochford and Deputy 1st Class James Harris — have been put on administrative leave after an incident that has now been classified as a homicide. The officers were reporting to a situation in a movie theater in Frederick County, Md. where a man with Down’s Syndrome refused to leave the theater after a screening of “Zero Dark Thirty.” A lover of law enforcement, the man was felt to be overwhelmed by the situation, having be in a situation with the very public figures he idolized so much.
The officers involved have all refused to cooperate with investigators.
Various Supreme Court cases — such as Tennessee v. Garner and Graham v. Connor — dictate that the police must act in a manner to secure the public peace, even if the action — out of context — may be seen as abusive. Key pointed out that while police action, when judged by civilian standards, may seem excessive, holding the police to civilian standards compromises the police’s obligation under the law and court rulings.
The politics of hurt feelings
A typical example of how a citizens review board is formed and ultimately treated can be found with the Atlanta Police Department. As detailed by the Atlanta Journal Constitution, the board was formed in 2006 when police officers killed 92-year-old Kathryn Johnston in her home and then planted drugs in her house to justify the murder.
The board was given a wide range of power — including investigators, subpoena power and a mandate for providing “a credible, independent and ‘safe and welcoming place’ to bring complaints and accusations of misconduct and abuse by public safety officials.” However, similar to the situation in Syracuse, the review board has been nearly strangled to death by resistance from the police.
According to the Journal Constitution: “The citizen watchdog panel is at a critical place in its so-far rocky existence, and the strain on the members is showing more and more in meetings that sometimes disintegrate into name calling, the decision to hire and then not hire a former federal prosecutor as the ACRB’s second executive director, and public complaints that the board seems too concerned with placating the police department and is sacrificing transparency.”
“‘It had the capability of having effectiveness but the city of Atlanta is a huge political machine and I don’t think it was ever strong enough to be effective,’ said Joy Morrissey, who had been on the board since its inception until May 10, when her replacement was announced. ‘I don’t know if anyone is going to allow it to be effective.’”
The Atlanta Police Department, the police union and the Atlanta Police Foundation have all argued that oversight should come in the form of reviewing and auditing the findings of completed internal investigations. “The Atlanta Police Department does not oppose accountability to the citizens it serves,” said APD spokesman Carlos Campos. “However, we have always advocated for an ‘audit’ model approach to a Citizen Review Board, rather than the current ‘investigative’ model. We believe the audit model is more effective at providing the level of departmental oversight the public is seeking.”
Citizen groups actively oppose this reasoning. “It’s obvious … that [police] want a symbolic organization. They want an organization with no teeth in it. They want a citizen review board in name only and they do not want a board that will serve as a serious checks and balances on police actions,” said the Rev. Anthony Motley of Lindsay Street Baptist, which has been a leader of efforts to fight crime in Kathryn Johnston’s neighborhood.
In judging police officers, Key adds that the police must be held to standards reasonable to another police officer, not the public. In that light, Citizens Review Boards should be trained in police procedures, according to Key. They should be free of the political agenda of whomever appointing them and they should be free of the pressure to bend to the public’s will.
The culture of intimidation
For many police forces, the culture of the department makes it difficult to correct police misconduct or even address that it exists. With the New York City Police Department (NYPD), there have been long-standing allegations that the department’s Internal Affairs Bureau range from incompetent to corrupt.
As reported by the New York Times, “Seven narcotics investigators are convicted of planting drugs on people to meet arrest quotas. Eight current and former patrol officers are charged with smuggling guns into the state. Another is charged with making a false arrest, apparently as a favor for his cousin. Three more are convicted of robbing a perfume warehouse. All these cases involved New York City police officers and unfolded or were resolved in recent months. But beyond the fact of criminal charges against those sworn to protect the public, they all had another thing in common: Each case was uncovered by an outside agency, not the Internal Affairs Bureau of the New York Police Department.”
Despite the fact that over 2,000 NYPD police officers have been arrested between 1992 and 2008, the culture of the NYPD punishes police officers who whistle-blow their fellow police officers. A common occurrence is that of Det. James Griffin, who reported that his colleagues were attempting to frame him for a botched homicide investigation.
“Within a month, Mr. Griffin said, he found the word “rat” scrawled on his locker. Another detective called him a coward and threatened to write that Mr. Griffin was a rat on every chalkboard in the building, the lawsuit claims.”
“He was told not to come to his detective squad’s Christmas party, and his money for it was refunded. In the squad room, colleagues switched desks to sit farther from him. Many stopped making eye contact with him, he said in an interview. Nobody would work with him, which affected his cases, because detectives are required to be accompanied by a partner on investigations.”
New York City’s Civilian Complaint Review Board, until recently, argued public complaints with NYPD lawyers and NYPD-appointed arbitrators. A March 2012 agreement with City Hall allowed the board to name its own case lawyers; however, the judges are still appointed by the NYPD and Police Commissioner Ray Kelly has the power to overturn any decision or recommendation he chooses.
It is felt by many that internal investigations held within the very culture that support and encourage the questioned behavior in the first place is counterproductive and — in reality — shields the police officers. However, many police departments feel that outside review committees second-guess police policies and needlessly exceed departmental criteria in judging misconduct.
In response to the question “Can the police police themselves?” the blog Improving Police offers this answer, “It is very difficult (and painful) for a police department to criticize or discipline one of its own. Why? Because in many instances of police review, those who are doing the reviewing know that ‘there but for the grace of God go I.’ This has a chilling effect especially when it comes to the use of force. Policing is a difficult job. And a community needs to support their police when they are doing a good job and ask for change and improvement when they are not.”
Regardless of individual opinion on the nature of external police oversight, there is an honest need for redress. According to the National Police Misconduct Statistic and Reporting Project, in 2010, 4,861 unique reports of police misconduct were tracked in the United States, with 6,613 law enforcement officers involved — 354 were agency heads (chiefs, sheriffs, etc.), 6,826 alleged victims involved with 247 fatalities and $346,512,800 spent in judicial settlement costs.
The largest percentage of misconduct cases involved excessive force, with sexual misconduct and fraud/theft following.
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