Breaking Rank

by Norm Stamper

  The NIJ study, which examined nine representative citizen review jurisdictions across the country, analyzes each according to its: (1) openness to public scrutiny, (2) mediation option, (3) subpoena power, and (4) right of the officer to legal representation. The Berkeley (California) Police Review Commission, for example, a Type 1 system, opens its hearings and commission decisions to the public and the media, holds general PRC meetings for the public to express concerns, issues full public reports, including interview transcripts, requires the city manager to make his or her response public after review of PRC and Internal Affairs findings. (IA’s findings and the chief’s discipline are not made public.) Berkeley’s mediation option is described as “dormant.” Its model of citizen oversight includes subpoena power. The officer has a right to legal representation both during the investigation and at the hearing.

  By contrast, hearings are private under the Minneapolis Civilian Police Review Authority, also a Type 1 system. The complainant is simply informed whether his or her complaint was sustained. The general public is invited to monthly meetings to express concerns. The chief’s discipline is made public. Mediation is an option. There is no subpoena power but officers are required to cooperate. Officers are entitled to union representation during the investigation, and legal representation during the hearing.

  San Diego employs a Type 2 system, with a twenty-three-member Citizen Review Board. All Internal Affairs investigations are reviewed by a rotating three-member panel of the board. In a collaborative, rather than “adversarial,” approach, the panel attempts to resolve disagreements directly with Internal Affairs brass. The case is not closed until the panel and the board agree with the IA finding. If the CRB disagrees with an IA finding, it appeals to the city manager. If the board disagrees with the city manager’s decision, it is authorized to appeal directly to the district attorney, the grand jury, or, in the case of alleged civil rights violations, the Department of Justice. Since its inception in 1989, the board’s “negotiations” with IA have resulted in several changes to the original department finding (I recall one in which Homicide had failed to interview a crucial witness in a fatal police shooting). Three cases have been referred to the grand jury.

  Seattle has a generally weak, hybrid form of citizen oversight, falling loosely into Type 2 and Type 3 categories. Established after I left (but responding to a mess created on my watch, a theft and attempted cover-up), the city created an Office of Professional Accountability. However, while the OPA is headed by a civilian employee who oversees internal investigations, she reports to the chief of police. A new three-person “citizen review” body is confined to reviewing only completed, redacted, randomly selected internal investigations, then reporting to the city council any “trends and patterns” it may find. Finally, there is a citizen auditor position, which was in place when I arrived in 1994. Held then by retired Superior Court Judge Terrence Carroll and now by former U.S. Attorney Kate Pflaumer, both highly respected in the community, the auditor’s position is arguably the strongest of the constellation of “review” mechanisms. But, thanks to the uncompromising opposition of the police union, Seattle’s approach to citizen oversight is scattered, inefficient, and unsatisfying to many.

  New York City has a fully independent Civilian Complaint Review Board, a Type 1 model. Created in 1993 and staffed by 164 personnel (115 investigators), it receives, investigates, and holds hearings on citizen complaints about excessive or unnecessary force, abuse of authority, discourtesy, or offensive language. It has subpoena power, access to records, and the authority to make official findings on the 4,000 to 5,000 cases it receives each year.

  At the end of 2004 there were only sixty-seven citizen review systems in place nationwide. With almost nineteen thousand local law enforcement agencies, it’s safe to say most cities have rejected the notion of independent oversight of police practices. Even where there is little or no philosophical resistance, mayors, city managers, and city councils have decided the financial costs are too high.

  Citizen oversight budgets vary greatly, predicated mostly on whether investigations are carried out by the department (then reviewed by the oversight body) or by the citizens themselves.* The “mean cost per complaint filed and investigated” in 1997 for those nine agencies studied by the NIJ? It ranged from $20,000 a year for a one-fifth-time staffer in Orange County, California, to $4,864 per month in Berkeley. New York’s CCRB costs the taxpayers $10.5 million annually (or $2,100 per investigation based on five thousand complaints per year).

  It’s not just philosophical, or financial: Cops and their unions also loathe citizen review boards because of what they’ve seen in their own cities or heard about in others: untrained, unskilled, biased investigators; degrading treatment in public hearings; investigations that drag on for months, if not years; findings unsupported by the facts.

  These were the kinds of issues on the minds of the PBA and its members who protested, violently, when in September 1992 New York Mayor David Dinkins expressed his support for the creation of the CCRB. Thousands of officers demonstrated in front of City Hall, blocking traffic to the Brooklyn Bridge and shouting racial epithets. (Rudolph Giuliani was there as an anti-CCRB protestor; he was elected mayor the following year.) It was ugly, from all accounts—not the best way to press a grievance about “public oversight.” Yet, according to Human Rights Watch, the officers were prescient in their concerns.

  HRW reports that the New York Civil Liberties Union, perhaps the strongest backer of the creation of the CCRB, soon became one of its most vociferous critics. Why? Lack of adequate funding, mismanagement, incompetence, shoddy investigations, a “guilty” finding in only .05 percent of the cases. And investigations that took forever to complete.

  The CCRB says today that it completes the average investigation in nine months (which means, of course, many take far longer). If the average consumes three-quarters of a year, you can bet that many witnesses will have forgotten what they saw or heard, or will have moved away or died or developed a motive to tell the story differently from the way they witnessed it.

  You’re a cop, out there in the elements, risking your life, delivering a service a lot of folks didn’t ask for and don’t want—some of whom let you know it by attacking you, verbally or physically. Whether you respond professionally or not, the last thing you want is to be hauled before a body of civilians, second-guessed, berated publicly, your reputation damaged, your career stalled or destroyed.

  It should come as no surprise that some people who complain about police officers lie. They don’t like cops. Or they don’t like the fact that they got caught doing something they shouldn’t have. Or they figure a complaint will bolster their defense in court. I believe that when a citizen willfully, provably lies, he or she should be prosecuted—and prepared to defend himself or herself against a civil action by the police officer. Citizen activists bemoan my position on this. They fear that taking action against a lying complainant (in all my years in the business, I met very few who fabricated complaints from whole cloth) puts a chill on the willingness of honest people to come forward. I don’t see it that way.

  If we want our frontline cops to accept, or at least not defy, citizen oversight (not a bad goal) we owe them an honest, credible system.

  One of the great frustrations arising out of citizen complaint investigations is that in a number of cases you’ll never know who was right or wrong. These situations occur when, as is often the case, there is no physical evidence to tip the scales in an unwitnessed incident. You say X, the cop says Y. What does the investigator (or the investigator’s boss) do? Labels your complaint “not sustained” (not saying it happened, not saying it didn’t happen). It’s a finding that satisfies no one. The best way to reduce the number of “not sustained” findings? Improve the quality of the investigation.

  According to its web site, New York’s CCRB investigators, all civilian, undergo “an intensive three-week training course that focuses on the CCRB’s jurisdict
ion and rules, interviewing techniques, methods for acquiring documentary evidence, structure of the police department, and patrol guide procedures. They also receive instruction on legal principles governing the use of force, search and seizure, and discourtesy.” They participate in simulations, critiquing one another’s methods and skills. In addition, they must complete a two-day police academy class, go out on a ride-along, and view tactical field demonstrations. In 2003 fourteen of its investigators participated in a two-week Internal Affairs class for NYPD’s IAB recruits. Once they’re out of school, new CCRB investigators go to work with managers who have a minimum of fifteen years’ investigative experience. These managers are drawn from such agencies as IRS (Criminal Investigative Division), DEA, Federal Defenders, and the U.S. Probation Department.

  Which all sounds terrific. But what’s the quality of the training? And who are these investigators? Are they rejects from other agencies? Who backgrounds the new investigators, and how thoroughly?

  Shoddy investigations, by definition, lack credibility in the eyes of everyone, complainants and cops alike. Further, unskilled investigators produce a disproportionately high number of those unsatisfying not-sustained findings. They just can’t figure out what happened.

  Other possible dispositions? Founded: It happened, just as the complainant said it did. Unfounded: It didn’t happen. Exonerated: It happened, but that’s life. The officer used precisely the type and amount of force you complained about but he or she was fully justified by law and policy in its use.

  In San Diego, we developed two additional findings. The first, misconduct noted, meant that the officer was innocent of the accusation but not of other, uncharged misconduct that surfaced during the investigation. Cops don’t like that one, but what are you going to do? The second was “retraining needed,” a self-explanatory finding.

  In 1992 I studied SDPD’s Internal Affairs investigations, and came away much impressed by the overall quality. I could see why the CRB had a few disagreements with our internal process, and its findings. The contrast between New York and San Diego couldn’t have been more stark. We were sustaining fully 22 percent of all excessive force complaints and 31 percent of all discourtesy complaints. But there was one significant problem: The investigators were taking way too much time to complete their cases, an average of sixty-seven days! The office goal was forty-five. I dropped it to twenty-one, and added investigators, and more training.

  I’d hate to be a cop in New York City, where my family and I would have to wait nine months to a year or more to learn what’s going to happen to me. For that matter, I’d hate to be an aggrieved citizen who filed a complaint a year ago and still hasn’t a clue about the outcome.

  As you can see, there are great variations in the types, costs, and quality of citizen reviews throughout the country. Personally, I favor a model that provides for (1) independent investigations by a paid staff of top-quality investigators; (2) subpoena power for the commission or board; (3) transparency throughout the process, including the publication of findings and the chief’s disciplinary disposition; (4) full legal representation at all stages for the accused officers; and (5) an opportunity—through mediation—to avoid the whole adversarial process where possible.

  Mediation? Let’s say you’re stopped by a police officer—the only fact not in dispute. You say the officer never told you why she stopped you; she says she did. You say she was abrasive; she claims she was polite. You say she threatened to take your kids to Child Protective Services; she asserts she said no such thing. You say . . . And on and on. Why tie up a citizen oversight panel with a case like this? Mediation should be a front-end option in all cases where the allegations do not involve excessive (physical) force, racial or other form of discrimination, sexual harassment, or criminal conduct (which would be handled as a criminal investigation anyway).

  Regardless of the model employed by a particular jurisdiction, there are certain outcomes that a successful citizen oversight system will achieve. The National Institute of Justice report does a nice job of identifying them.* Complainants report that they:

  •Feel “validated” when the oversight body agrees with their allegations—or when they have an opportunity to be heard by an independent overseer, regardless of the outcome.

  •Are satisfied at being able to express their concerns in person to the officer.

  •Feel they are contributing to holding the department accountable for officers’ behavior.

  It’s not just citizen-complainants who benefit from external oversight. The NIJ report cites law enforcement administrators who’ve found that their jurisdiction’s program:

  •Improves their relationship and image with the community.

  •Has strengthened the quality of the department’s internal investigations of alleged officer misconduct and reassured the public that the process is thorough and fair.

  •Has made valuable policy and procedure recommendations.

  And elected and appointed city officials report that public oversight:

  •Enables them to demonstrate their concern to eliminate police misconduct.

  •Reduces in some cases the number of civil lawsuits (or successful suits) against their cities or counties.

  Still, rank-and-file officers really, really do hate citizen oversight, and often for good reason. But they must understand that they are public employees. An “occupational hazard” for those who do the public’s work is that they are subject to the opinions of that public. As a police chief, I encouraged citizens to come forward with feedback, positive and negative, on all contacts with my officers (commendations, incidentally, outnumbered complaints by about ten to one).

  I believe the type of oversight system a community chooses is critical to its success, and, as I’ve said, it ought to be one with teeth. But, in the end, the competence, fairness, flexibility, and integrity of the people involved—the chief, the panel and its investigators, the union, the rank and file—are of equal if not greater importance.

  * Notice that none of the models calls for external panels to determine police discipline. That’s a good thing. Remove disciplinary authority from the chief and you neutralize his or her power to set and enforce standards of performance and conduct.

  * Using trained, professional investigators. Citizens serving on oversight commissions or boards have neither the time nor the expertise to conduct complex investigations into alleged misconduct.

  * As does Samuel Walker’s Police Accountability: The Role of Citizen Oversight (2000), which goes beyond the NIJ report in detailing approaches to community outreach, evaluation of the work of citizen panels, and anticipating and overcoming the inevitable legal and political obstacles associated with creating healthy, sustainable citizen oversight. Also highly recommended: the International Association of Chiefs of Police report “Police Accountability and Citizen Review: A Leadership Opportunity for Police Chiefs,” and the work of IACOLE and NACOLE, the International and National Associations for Civilian Oversight of Law Enforcement, respectively. I was privileged to address these citizen associations in San Diego and in Canada. As unwavering advocates of citizen oversight they can hardly be called “impartial,” but they are overwhelmingly represented by people of strong principles and integrity. I was struck by their passion for fairness for all parties.

  THE POLITICS OF POLICING

  CHAPTER 25

  EGOS ON PATROL: GIULIANI vs. BRATTON

  “MIRACLE IN MANHATTAN”

  The Screenplay

  FADE IN:

  Over the strains of the Drifters’ “On Broadway,” a MONTAGE: Times Square, Broadway between Forty-sixth and Forty-seventh. DAY and NIGHT shots, FRIGID and SWELTERING moments, too. Squeegee men, panhandlers, numbers runners, hookers in miniskirts and halter tops, a man urinating against a wall, dope dealers, cops—all interspersed with scenes of yellow tape, chalked body outlines on the sidewalks, crime headlines from the newspapers, and the urgent voices of local TV’s talking heads covering
the latest murder against background sounds of boom boxes and sirens.

  EXT. CITY STREET—NIGHT

  Recently elected Mayor Rudolph W. Giuliani has just stepped from his chauffeur-driven SUV. Across the street, his police commissioner, William J. Bratton, has just stepped from his chauffeur-driven SUV. They’re wearing identical Burberry trench coats. Neither expected to see the other.

  Giuliani

  Hey, Commish! Nice coat. What the hell are you doing out this late? Look at this shit. Can you believe it? You see why we gotta get my new crime plan up and running?

  A TV truck shows up out of nowhere. A NEWSWOMAN steps out, approaches, MICROPHONE in hand. The mayor turns to her, smiles. A bright light shines in his face, a CAMERA rolls. Giuliani, his comb-over fluffing in the wind, looks directly into the camera then back at the NEWSWOMAN.

  Hey, Julie. Nice to see you this evening. Just look at this mess. Hey, this is a good opportunity to show your viewers I’m coming after every two-bit thug on these streets—the panhandlers, the squeegee men, the dealers. If they won’t behave like decent human beings I’m going to round ’em up, write ’em up, and clear ’em off the streets.

  Reporter

  Good evening, Mr. Mayor. We just finished a piece on homicides, a couple of blocks over. I’m glad we caught you. Any chance I can have a word with our new police commissioner?

  The camera scans over to the commissioner.

  Giuliani

  Zero tolerance, my friend. That’s our philosophy. Zero tolerance of lawbreakers, scofflaws, miscreants . . .

  The camera switches back to the mayor. The reporter ignores him, addresses herself to the commissioner. The camera switches back to the commissioner.