In our country, citizens can report police misconduct via internal complaints, criminal charges, or civil suits. Each of these legal avenues offers advantages and disadvantages.
State Criminal Charge:
In a state criminal charge, a US citizen must convince a clerk magistrate to issue a criminal complaint against the offending officer. This can be difficult; the officer is often someone the clerk knows very well. And even if the citizen can convince the clerk there is probable cause for the criminal charge, it is still up to the defense attorney to prosecute. Convincing the defense attorney to prosecute is usually difficult because any police officer criminally charged is likely a witness in the defense attorney’s other cases. In the unlikely event that the defense attorney does decide to prosecute the officer, the attorney general or another attorney will prosecute.
Federal Criminal Charge:
An excessive use of force by a police officer is a federal criminal charge. If a federal criminal charge is sustained, the charge is often effective. In a federal criminal case, the police officer is investigated by the FBI and usually prosecuted by the Justice Department. But police officers are rarely federally prosecuted.
In a civil suit, a lawyer represents you in court—usually seeking fiscal damages. And even though police officers are rarely disciplined following civil suits, damages often motivate policy changes.
This brings us to the last way US citizens can complain about police misconduct: internal complaints.
Unlike the three previous means to report police misconduct, internal complaints do not require a court appearance. For this reason, internal complaints are valuable for eliciting policy changes for misdemeanors and lapses in professionalism, in addition to criminal charges. But the very organizational structure of internal departments often compromises their investigative duties.
There are two main problems that plague internal investigations:
- Internal departments do not allow citizens to monitor investigative progress. When investigations conclude, the citizen who complained is unable to affect the result of the investigation.
- Internal departments are composed of individuals who work (either directly or indirectly) with the offending officer.
As a result of these two problems, internal investigations into police misconduct should be regarded with significant skepticism. How can investigation into police misconduct be taken seriously when the victim is not allowed to corroborate or dispute facts of the investigation? How can anyone reasonably expect that the results of an investigation led by the offending officer’s coworkers be impartial?
Call to Action:
Because internal complaints allow police departments to address misdemeanors and lapses in professionalism and do not require the legal system, internal departments should not be discarded entirely. But the two main problems mentioned above require significant changes to how internal investigations currently work.
To improve internal investigations, an impartial third party must investigate and adjudicate all citizen complaints. Already, several cities have mandated that a civilian board review all instances of alleged police misconduct, but not all of these civilian boards conduct their own investigation. Civilian oversight programs that do not independently review reports of police misconduct fundamentally miss the mark; reliance upon police investigation when evaluating police misconduct means the oversight programs are still subject to the police investigation’s own bias.
Programs like Seattle’s Office of Professional Accountability (OPA) come closer to what I have in mind but still do not go far enough. The Office of Professional Accountability is “physically and operationally independent of the SPD but within it administratively.” OPA’s position within the SPD administrative system is justified as enabling “complete and immediate access to SPD controlled data,” but when reading some of OPA’s closed case summaries I can’t help but think that even OPA is unable to completely work free of the police’s own influence.
As mentioned in the report, OPA knows that because of NE#3’s video, NE#3 was in the immediate vicinity when NE#1 performed the highly illegal chokeholds. OPA also indirectly opines that they do not believe NE#3’s claim that he did not see NE#1 use neck holds. Nevertheless, the charge that NE#3 was guilty of not reporting a violation he should have was not sustained.
This is exactly the kind of situation this kind of civilian oversight program is supposed to either outright prevent or change for the better. This is also the exact kind of situation where as a citizen, I wish I could see past the written report and see the interaction between the OPA director and the police officer he was interviewing. Was the OPA director angry with the police officer? Was the OPA director disappointed that he could not sustain the charge against his better judgement? And what were the police officer’s thoughts as he was called in for interview after interview? Did he use the interviews as opportunities for moral reflection? Or was each interview a part of a tiresome bureaucratic process that was simply taking him away from the effective administration of his justice?
The insufficiency of any response to these questions is what clearly drives the need for an impartial third party that possesses the political power to say to NE#3, “You must have seen the illegal use of force if you say you were at the location.” Because frankly, any privileging of an officer’s word above the better judgment of an OPA director smacks of a culture in which officers insidiously understand the value of their silence. To be clear, our police officers as instruments of the law are tasked with a very difficult duty; unlike our judges and lawyers, who possess the luxury of time and contemplation, our officers are called upon to act as the moral shield of the law in an instant. Mistakes are inevitable in such a position, and the demands of such a position even warrant additional legal privilege. But if our officers enter the world each day unreachable in the secret understanding of their silence, they have effectively perverted the law; it has been transformed from a shield for all supported by all to a shield for most supported by a select fraternity of relatively few.
To create an effective internal complaint department, we must partner our police departments with an impartial third party who is also capable of investigating complaints. I think law schools represent an excellent existing entity that could fulfill that role. As part of their curriculum, law students would be entrusted with the investigation of civilian complaints about law enforcement. Law professors would serve as the long-term contact between the police department and the students.