Shielded from Justice: Police Brutality and Accountability in the United States
Citizen Review Mechanisms
Following high-profile police brutality cases, or a series of such cases, communities often demand an external "check" on their police departments. Such calls may also follow investigations finding that the internal systems for holding officers accountable are inadequate. Citizen review agencies are often created - or reorganized - as a result.85
By 1997, thirty-eight of the fifty largest U.S. cities (76 percent) had some form of citizen review.86 Of the fourteen cities examined by Human Rights Watch, all the police forces except those in Providence and Washington, D.C. had provisions for some form of external or citizen review.
The idea of citizen review is simple: history has shown that police are not able or willing to police themselves in a manner acceptable to the public. The public, in turn, believes that independent investigators will be more fair and objective.87 An external review mechanism provides an independent forum where victims or witnesses of abuse may file complaints or testify at hearings to give their account of what took place. One of the first independent commissions to call for external review was the Kerner Commission, assembled by President Lyndon Johnson in 1967 following racial tensions and riots. More recently, the 1992 report of the St. Clair Commission, tasked with reviewing Boston's police force, agreed that the police should police themselves but that, "given the disturbing results of our case review and the profound lack of confidence and trust the community expressed inthe department's current methods of handling citizen complaints we believe that the public must be given access into the system for it to work properly."88
Effective external review requires the review of police files about specific incidents, the ability to compel police cooperation, and the obligation to provide comprehensive periodic reports to the public about the types of complaints received, trends, and recommendations made to the relevant police department.89 Citizen review units must also have independence, civilian control, and some role in disciplinary proceedings.
When review agencies become involved in high-profile, divisive cases, public support is key. In Philadelphia, for example, the civilian review agency has been under attack from police organizations since its inception, yet with support from community activists and concerned city council members, it has successfully fought off legal challenges. With this in mind, the leadership of the oversight system must actively educate the community about the merits of civilian oversight. This education must demonstrate that citizen review is useful; only with public support will external review agencies be able to survive during political or funding disputes.
Furthermore, an essential component of the work of any modern review agency should be making concrete policy recommendations to police administrators about how to prevent abuses from occurring in the first place (through improvements in recruiting and training and clearly articulated policies) and how to respond to abuses once they do occur (through fair and consistent disciplinary actions, assistance in criminal prosecutions, where warranted, and repeated emphasis in word and deed that abuse will not be tolerated). In cities where review agencies have pushed for specific reforms and seen them implemented - as has happened occasionally in Portland, San Francisco, and Minneapolis - trust in both the review agency and the police department has been enhanced.
An increasingly popular method of citizen review is the appointment of an auditor who does not investigate individual complaints but reviews procedures for investigating charges of excessive force and other allegations and recommends policy changes. Portland, San Jose (California), Los Angeles County, and the city of Los Angeles, through its newly created Office of the Inspector General, areamong the cities that use this form of review.90 Following reports of the alleged torture of a Haitian immigrant in New York City in August 1997, and the subsequent public uproar, discussions regarding the creation of an auditor to review brutality investigations were renewed.
One positive aspect of auditor systems is that they avoid the backlog problem experienced by many review boards with broad mandates to examine each complaint and conduct hearings. But there are negative aspects as well: auditors can do little to assist an individual who wishes to file a complaint but is hesitant to approach police officers. Auditors usually do not conduct independent investigations or hold hearings. So, while they play an important oversight role, auditors need to be supplemented by review agencies carrying out other essential parts of police oversight.
Some experts support a more comprehensive tripartite oversight system. On the one hand, an auditor or inspector general's office would identify problematic practices and policies, recommend reforms, monitor implementation of its recommendations, participate in disciplinary hearings, and report to the public on the outcome of disciplinary proceedings. On the other hand, an independent fact-finding body would investigate individual complaints and participate in investigations of high-profile incidents. In addition, a city administrator would provide information and track civil lawsuits relating to police misconduct.
Few believe that citizen review mechanisms alone are the solution to the problem of police brutality. In the end, police administrators and their political superiors are responsible for the actions of officers. But, as former New York Police Commissioner Ray Kelly observed, external review "keeps the department's feet to the fire."91 Review agencies can provide important information to police administrators about management problems that might otherwise go unnoticed, and they provide information to the public about police actions to prevent, or respond appropriately to, violations. Without public knowledge and scrutiny, reforms will not normally take place. It is rare, indeed, for a police department, on its own initiative and without public pressure, to take steps to improve police conduct and enhance accountability for officers who commit human rights violations. For this reason alone, citizen review is essential.
In most cases, police departments and officers, usually through their union representatives, strenuously oppose the creation of citizen review mechanisms,claiming that the external reviewers will undermine police authority to handle officer misconduct, know nothing about how police departments or officers operate, and harbor political, anti-police motivations. Opposition to the creation of external review has taken the form of public demonstrations, legal challenges, and pledges of non-cooperation.
Police opposition to citizen review mechanisms is reflexive, even in cases where a police department has been plagued by scandal or when the proposed review mechanism is carefully designed to avoid infringing upon police administrators' ability to investigate or discipline officers. Police abuse expert John Crew has noted three stages in police union resistance to citizen review: "over my dead body"; advocating for the weakest possible external review if its creation becomes politically inevitable; and legally challenging any review unit once created and effective.92 This response has often further undermined public trust or respect for police departments.
In recent years, New York and Philadelphia have witnessed orchestrated and strenuous opposition to citizen review. When former New York City Mayor David Dinkins supported an independent civilian complaint review board in September 1992, police protested and engaged in actions that, according to a police department report, were "unruly, mean-spirited and perhaps criminal."93 The officers' protest, sponsored by the police union, involved thousands of officers demonstrating at City Hall, blocking traffic to the Brooklyn Bridge, with some reportedly shouting racial epithets about then-Mayor Dinkins, who is black, while Dinkins's political opponent, current Mayor Rudolph Giuliani, who is white, participated in the protest.94
In addition to opposing the independence of New York's Civilian Complaint Review Board (CCRB), the police department has often refused to accept its findings or has stalled action on the board's recommendations beyond the statute of limitations, ensuring impunity for officers that the CCRB has found responsible for misconduct. These tactics led one of the board's key backers to declare, "What did we create here? We created a monster. People have to remember, I drafted thislegislation [to create the new board]. But we failed."95 Joel Berger, formerly of the city's Corporation Counsel office, asks, "What is the point of having a CCRB if the final product, discipline of officers, does not happen?"96 Police Commissioner Howard Safir has acknowledged that CCRB findings are not given much weight; during the independent CCRB's first three-and-a-half years, only 1 percent of all cases disposed of led to the disciplining of a police officer, and out of 18,336 complaints, there has been just one dismissal of an officer stemming from a CCRB-substantiated case.97
In Philadelphia, the Police Advisory Commission, also created in 1993, has been vociferously opposed by the Fraternal Order of Police (police officers' union), which has filed several lawsuits challenging the legality of the PAC and its operations.98 Defending its existence against these lawsuits has occupied a great deal of the commission's first few years. During the PAC's hearings on a high-profile police brutality case, Fraternal Order of Police members disrupted the hearing room with shouts of "Kangaroo, kangaroo!"99
One common tactic by opponents of citizen review is to decry shortcomings in the agency's performance while ignoring factors beyond the agency's' control, such as lack of financial and political support. In Washington, D.C., the Civilian Complaint Review Board was abolished in 1995 due to lack of funds and an enormous backlog of cases; the board's pending cases were transferred back to the police department, which was later unable to provide Human Rights Watch with the status of investigations in the majority of cases transferred to it. In Atlanta, the Civilian Review Board has a limited mandate, minimal staff, and remains one of the best-kept secrets in the city, since it lacks the means to promote communityawareness of its work. In New Orleans, where police brutality and corruption have been undisputed, the city's review agency is under-utilized and ineffective.
Other police departments and their supporters have successfully avoided citizen review. Until the long-delayed appointment of an inspector general in 1996, the Los Angeles Police Department had no operational review agency at all. Providence, despite having one of the highest per capita rates of complaints according to a 1991 Justice Department report, has no external check.100 Some of the cities we examined have weak review agencies, due to either poor leadership within the agency or weak mandates, while other cities have settled for "appeals boards" that respond to individuals who are not satisfied with the police department's own investigation but do not receive or investigate complaints.
Of the cities examined, Portland's Police Internal Investigations Auditing Committee (PIIAC) and Minneapolis's Civilian Police Review Authority (CRA) - though imperfect - seemed to be working productively with their respective police departments. The PIIAC's role is limited to reviewing the police department's internal investigations, rather than the broader duties assigned to many review agencies. (The PIIAC is actually the city council, and the PIIAC's paid staff auditor is part of the mayor's office. PIIAC staff work with designated "citizen advisors" in reviewing internal investigations conducted by the police department's Internal Affairs Division.) At the time of our investigation, PIIAC's citizen advisors seemed to have good relations with relevant police officials, and, in addition to conducting reviews as stipulated in its mandate, PIIAC had successfully identified and promoted necessary reforms and seen them carried out in some instances.
Minneapolis's CRA provides an external check by receiving and investigating complaints. After a shaky start, the CRA appears to function well under the leadership of a strong executive director. The CRA emphasizes mediation of some complaints to avoid a backlog of minor cases, publishes useful reports, and makes policy recommendations. The CRA proposed, for example, the creation of a disciplinary table that seeks to limit supervisors' arbitrary decisions by clarifying what punishment officers face for different disciplinary offenses. This reform was carried out. Even with its positive aspects, however, the CRA's procedures are cumbersome and result in only a small percentage of allegations making their way to a hearing for full consideration of their merits.
Although at the time of our on-site investigation, in 1995, Los Angeles had no external review entity, and San Francisco's Office of Civilian Complaints (OCC) was experiencing rapid turnover in its executive director position, during theintervening period there have been positive changes. The inspector general post in Los Angeles has been filled, and her reports have impressed many police abuse experts in the city by highlighting continuing shortcomings and challenging department leaders to make reforms. In San Francisco, the current OCC director has a long history in civil rights activism and has received high marks from observers there. It would appear that, as in police departments themselves, leadership counts when the effectiveness of review mechanisms are judged. Communities must have faith in their proper operation for them to be effective, and leadership is crucial to winning this confidence.
The other citizen review agencies examined either had strong mandates but weak practices (as in New Orleans, New York's CCRB, and the now-abolished CCRB in Washington, D.C.) or are weak both on paper and in practice (Atlanta, Boston, and Indianapolis). Chicago's Office of Professional Standards is an odd mix: it has a large civilian staff and investigators who are not part of the Chicago police force, but the OPS itself is part of the police department, so that the appearance is not one of independence. Community activists and attorneys complain that, even with independent investigators, the OPS often conducts substandard investigations and can be biased in favor of officers.
Measuring the success of these review mechanisms is difficult. Some observers point to a drop in complaints as a gauge of success, but many different factors may explain a drop in complaints; for example, a community may become discouraged by an external review body's delays or lack of power and cease using the mechanism because it is, or appears, ineffectual. A drop in complaints could result from poor communication with affected communities, or from complaint forms that are available only in English or only at an inconvenient or intimidating location. On the other hand, while an increase in complaints may mean a jump in abuses, it may also demonstrate a successful community outreach effort and a belief that the external check will make a difference in the way cases are handled.
Review mechanisms could also be judged by their "sustained" rate - the percentage of abuse complaints that are found substantiated.101 For example, a citizen review expert found, in studying seventeen law enforcement agencies, that internal affairs divisions sustained about 12 percent of brutality complaints (filed by citizens and other police personnel, with the latter sustained at a higher rate typically)compared to a 19 percent sustained rate for citizen review oversight agencies.102 Unfortunately, many internal affairs units examined in this report did not know, or would not provide, sustained rates, and in other cases, sustained rates are made available but not broken down by type of complaint. For these reasons, identifying an average sustained rate for internal affairs units in this report is not possible.
At the same time, judging a review agency by its sustained rate can be misleading. As noted by citizen review expert Prof. Samuel Walker, some review agencies do such a poor job in communicating their mission to affected communities that they are able to have a high sustained rate because they receive a very small number of complaints. In Atlanta, the civilian review office has a very low profile and has reviewed only a handful of cases; if, for example, it examined four cases and it sustained two, it would have a 50 percent sustained rate, which is hardly an indicator of its success. Furthermore, if police departments do not accept the review agencies' findings or act on them through disciplinary sanctions against offending officers, the sustained rate means very little as an accountability tool.
Perhaps the best way to judge citizen review mechanisms is by the amount and quality of information they provide to the public and the quality and implementation of their disciplinary and policy recommendations. If successful, the review mechanisms serve as a check on police departments by applying consistent pressure for improvements in policies and practices. They also aid these departments by highlighting trends in abuse or areas needing attention that may otherwise go unnoticed for long periods. When police departments realize that review agencies can be important tools for better police administration - and when their resistance to the review agencies ends - significant improvements are possible.
Though seriously flawed in many respects (as described below in the New York chapter), New York's Civilian Complaint Review Board in its semi-annual reports does provide detailed statistics relating to the race, gender, and age of the complainant and the involved officer and precinct. It also provides tallies of disciplinary sanctions, although there is no way to ascertain from the information provided which offender was disciplined. By providing the public with a general idea of the number of officers being disciplined for misconduct, including humanrights violations, during a given time period, it is doing more than many of the citizen review agencies examined.103
86 Nearly all English-speaking countries have mechanisms for the external review of police complaints. Samuel Walker, Citizen Review Resource Manual, (Washington, D.C.: Police Executive Research Forum, 1995), p. 4, citing Andrew Goldsmith, Complaints against the police: the trend toward external review, (Oxford: Clarendon Press, 1991).
87 Civilian review expert Prof. Samuel Walker defines citizen review as a procedure for handling citizen complaints about police officer misconduct that, at some point in the process, involves people who are not sworn officers.
99 These hearings concerned the August 1994 death in custody of Moises DeJesus. "Kangaroo courts" are tribunals disregarding or parodying existing principles of law. Paul Maryniak, "Philadelphia's story," Pittsburgh Post-Gazette, April 21, 1996.
102 Eileen Luna, "Accountability to the community on the use of deadly force," Policing by Consent, (publication of the National Coalition on Police Accountability based in Chicago, IL), December 1994.
© June 1998
Human Rights Watch