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Several high-profile police shootings and uses of force in early 2020 renewed discussions about law enforcement accountability and reform. In November 2020, voters in several localities approved municipal and county ballot measures designed to hold the police accountable and improve public safety. Some of these referenda reorganized municipal and police priorities, while others sought to empower civilians to oversee agency policies and practices. In a short series, I will explore and explain the legal mechanics underlying the police accountability measures approved last November.
Police accountability efforts are designed to improve “what the police do and how they perform,” argues Samuel Walker, an emeritus professor of criminal justice at the University of Nebraska at Omaha. Walker characterizes police accountability as having two levels or prongs. On the one hand, there is “agency-level accountability[,]” which encompasses “the performance of law enforcement agencies with respect to controlling crime and disorder and providing services to the public.” On the other hand, there is “individual-level accountability[,]” which “involves the conduct of police officers with respect to lawful, respectful, and equal treatment of citizens.” Walker classifies individual-level accountability procedures into two subgroups: mechanisms that are “internal” to law enforcement agencies, such as internal misconduct investigations and use-of-force policies, and those that are “external” to agencies, such as third-party oversight commissions and review boards.
I begin this series by detailing recent efforts to implement and expand civilian oversight, which can serve as an external or internal accountability mechanism.
What Is Civilian Oversight, and Why Does It Exist?
Civilian oversight is a “governmental function” performed by one or more non-sworn persons that is generally designed to hold the police accountable. Oversight agencies are equipped with various powers that allow them to perform their accountability function, which can include tracking police activity, appraising agencies’ policies and procedures, and investigating alleged misconduct. Presently, no national or state laws mandate civilian oversight. Instead, such functions and bodies are often implemented by cities and counties by way of amendments to local charters or by local ordinance.
Civilian oversight is not a recent invention. It has existed, in some form or another, in the United States since the late 1800s. By some estimates, over 200 oversight bodies currently operate in the U.S. In November 2020, voters in at least 10 cities and counties approved measures either adding civilian oversight bodies to governmental charters or expanding the authority of existing oversight bodies.
Although some law enforcement agencies have implemented civilian oversight preemptively to address and ameliorate concerns about impropriety and misconduct, many recent civilian oversight additions or authority expansions have come on the heels of public allegations of police wrongdoing. For example:
- The County of Los Angeles instituted its Special Counsel, an agency auditor/monitor, in 1993, following the 1992 release of the Kolts Report, a holistic review of the agency’s policies and practices that revealed “deeply disturbing evidence of excessive force and lax discipline.”
- The City of Chicago empaneled its Police Accountability Task Force to examine the Chicago Police Department and the Independent Police Review Authority following the 2014 shooting of Laquan MacDonald. The task force presented its findings in April 2016. Two city ordinances have recently worked their way through the city’s legislative process to implement a civilian oversight body with expanded authority to monitor the department’s administration and policies.
- The Los Angeles Police Department (LAPD) instituted an Office of Constitutional Policing and Policy after the City of Los Angeles had formally entered into a consent decree with the U.S. Department of Justice following the Rampart Area Corruption Incident. The Office of the Inspector General, established to review and evaluate specific LAPD activities and processes on behalf of and under the direction of the Board of Police Commissioners, was created by voters subsequent to the Rodney King incident in 1991 and the release of the Christopher Commission Report later that year.
Notwithstanding the different triggers for implementation, the National Association for Civilian Oversight of Law Enforcement (NACOLE) cites five common goals of civilian oversight that it has generally observed across agencies and oversight models:
- “Improving public trust”
- “Ensuring accessible complaint processes”
- “Promoting thorough and fair investigations”
- “Increasing transparency”
- “Deterring police misconduct”
Whether civilian oversight mechanisms effectively further these goals is unclear. NACOLE notes that “there is currently no consensus on how to measure organizational performance in the field of civilian oversight.” Although civilian oversight is intended to build “trust and respect between the police and [the] community served, [ensure] constitutional policing, and [e]nhance public safety[,]” not all civilian oversight mechanisms are constructed with equal legal authority, which may influence each respective body’s effectiveness. Depending on an agency’s design or “model,” the body may be equipped with more or less sweeping, invasive or scrutinizing legal authority. Most bodies track one or more of the following models: investigatory, auditing/monitoring or review. Below, I explore how the models work and their respective limitations.
The Investigatory Model
Some civilian oversight bodies are chartered to investigate misconduct complaints. Civilians might be hired “in-house” within the law enforcement agency or as an external apparatus or board to investigate misconduct. Each investigative oversight body may possess different legal authority, and it’s worth parsing the specifics of each model.
External Civilian Investigators
In general, external civilian investigators can accept complaints, interview witnesses, “make findings” on misconduct allegations and recommend discipline. Boards might investigate different types of misconduct, including allegations of excessive force, force resulting in injury or sexual misconduct. According to Merrick Bobb, the former Special Counsel to the Los Angeles County Board of Supervisors, “investigative models of police oversight are premised on the view that unregulated internal police investigations of citizen complaints are often biased or otherwise not trustworthy.” Barbara Attard and Kathryn Olson, former NACOLE presidents, have noted that civilian “investigative authority strengthens an oversight agency’s influence” by, among other things, “classify[ing] complaints” and neutrally framing misconduct. These entities might “either completely replace” internal investigation processes or “duplicate” existing internal processes.
The models for investigatory bodies’ legal authority splinter in three main ways.
First, only some investigatory bodies are equipped with administrative subpoena power or the power to mandate compliance with civilian-led investigations. Subpoenas might permit investigatory bodies to conduct more effective investigations by requiring both law enforcement and non-law enforcement witnesses to appear and testify, or by compelling the production of agency records. These powers are relatively common among civilian oversight agencies but are hardly ubiquitous. In a survey of 41 civilian oversight bodies, the Department of Justice, in conjunction with the Major Cities Chiefs Association, found that roughly 40 percent and 45 percent of the bodies had power to subpoena witnesses and records, respectively.
Voters recently embraced efforts to expand the legal reach of investigatory bodies. In November 2020, San Diego voters approved Measure B, which “dissolve[d] the San Diego Community Review Board on Police Practices and replace[d] it with a Commission on Police Practices.” The old board was tasked with reviewing in-custody deaths, officer-involved shootings and misconduct complaints. The new board, on the other hand, is empowered to investigate misconduct allegations and has subpoena power to compel witness testimony and production of documents. Similar efforts to equip civilian bodies with subpoena authority were also approved in Portland, Oregon.
Second, some boards or commissions are equipped with final disciplinary or decision-making authority, but others can merely make nonbinding recommendations to the agency’s final decision-making authority or chief of police. Notwithstanding the San Diego Commission’s expanded legal authority, for example, the charter amendments make clear that the San Diego Chief of Police retains final disciplinary authority. By contrast, Portland’s charter amendment equips its oversight board with the ability to “issue disciplinary action up to and including termination for all sworn members and the supervisors thereof within the Portland Police Bureau.” Other law enforcement agencies have adopted hybrid systems involving split disciplinary systems. In San Francisco, the chief of police’s discretionary disciplinary authority is limited to cases where the punishment would amount to “10-day suspension[s]” or less, whereas the San Francisco Police Commission “holds all greater disciplinary power, including the power to hear appeals from the chief’s disciplinary decisions.”
Third, an oversight body’s investigatory domain can be limited by complaint type. Take a recent survey by the Department of Justice and the Major Cities Chiefs Association. In 33 of the 41 civilian oversight entities surveyed, the oversight body had authority to review “all” types of external complaints, including excessive force, use of force, courtesy, profiling, improper arrest and driving. However, other boards might have jurisdiction over only specific categories of complaints.
Investigative bodies might also differ amongst each other in other important, albeit more granular, ways. First, oversight authority might be shared among civilian boards or groups. For example, San Francisco splits investigative authority among two civilian groups that work in conjunction with one another: the San Francisco Police Commission, a civilian oversight body that sets department policy, conducts disciplinary hearings, and imposes discipline in select cases; and the Department of Police Accountability, a civilian-staffed agency of 20 investigators who serve under the commission. Second, in some cases, board members might be directly involved in investigation by “roll[ing] out to critical incidents[,]” whereas other boards rely on civilian staff to conduct the investigations for them. Finally, agencies may differ with regard to appeals processes, investigation “timelines,” and access to peace officer personnel records.
In-House Civilian Investigators
In addition to, or in place of, an external investigatory board or inspector general, law enforcement agencies frequently have internal affairs apparatuses staffed by sworn personnel who are charged with investigating misconduct. Some departments have found ways to integrate civilians into these in-house processes.
Some departments opt for the “bottom-up” model, where civilians perform the investigative work. Conversely, some departments use the “top-down” model, where a civilian leads a department’s internal affairs apparatus. These civilian leaders can coordinate investigations, approve conclusions, and recommend action to the department head. The Seattle Police Department has embraced the “top-down” model by hiring a civilian to lead its internal affairs office.
The Auditing/Monitoring Model
Civilian oversight isn’t limited to the permutations discussed above. Oakland and San Francisco voters, for example, recently approved charter amendments that implemented inspectors general, or independent civilian authorities who holistically review agencies’ policies or investigation processes. Similarly, voters in Pittsburgh and San Jose recently approved measures adding auditing functions to existing civilian oversight bodies or expanding existing auditing functions. What is auditing and monitoring, and how does it differ from the investigatory work highlighted above?
Some auditors just review the internal misconduct investigative process, to “ensure that the investigation remains thorough, fair, accurate, and effective.” But other auditors have a decision-making and approval role. For example, between 2001 and 2014, the Los Angeles County Sheriff's Department charged the Office of Independent Review (OIR), a body of civilian attorneys, with monitoring the department’s internal affairs unit. The OIR was required to certify any investigation before completion, and it could join in on ongoing investigations by “interviewing witnesses, responding to crime scenes, and reviewing tangible evidence and relevant documentation.” San Jose voters recently expanded the powers of the San Jose Independent Police Auditor, which functions like Los Angeles’s OIR, albeit with different authority. The police auditor role was originally created “to provide an additional review of Internal Affairs to make sure their investigations were fair, thorough and complete.” Other auditors, however, lack review authority and can only observe investigations, identify areas for improvement, and pass on nonbinding recommendations to decision-makers.
Monitors primarily conduct holistic and sweeping reviews of agency policies and training. Monitors are generally “granted full access to police department records and given wide-ranging authority to report on all aspects of departmental policy and to advocate for systemic reform.” The monitor does not ordinarily possess decision-making authority and may make its findings and recommendations publicly available.
Monitoring may vary in terms of its scope, duration and independence. First, a monitor’s review authority might be tailored to specific aspects of policing, like ensuring a department’s policies and practices are constitutional, or it might be aimed at identifying “systemic” trends within a department. Second, monitoring might be undertaken independently or voluntarily, or it might be compelled. One of the most prominent examples of continuous, voluntary auditing and monitoring was the Los Angeles County Sheriff’s Department’s Special Counsel, who “report[ed] to the [Los Angeles County Board of Supervisors] and issue[d] public reports concerning the progress of the Sheriff's Department in managing the risk of police misconduct.”
If an agency declines voluntary monitoring and misconduct persists, despite an unfavorable civil rights judgment, a court might require monitoring. In 2001, the City of Los Angeles entered into a consent decree with the U.S. Department of Justice’s Civil Rights Division. The agreement required the LAPD to institute some form of continuous monitoring. In response, the LAPD created what is now referred to as the Office of Constitutional Policing and Policy, whose civilian head continuously monitors the department to ensure its policies comport with the Constitution and to report on systemic patterns and practices.
In contrast to those examples of continuous monitoring, some bodies are empaneled to temporarily audit or monitor. Following repeated complaints of misconduct and the 1991 Rodney King incident, then-Los Angeles Mayor Tom Bradley formed the Christopher Commission, a civilian group tasked with examining the LAPD’s structure, training policies, and disciplinary and complaint systems. Unlike the Office of Constitutional Policing and Policy, the Christopher Commission was established on a temporary basis to evaluate the department’s policies and issued its report in late 1991.
Hybrid Auditing/Monitoring Models
San Francisco County voters recently approved a measure creating an inspector general (IG) for the San Francisco County Sheriff’s Department. San Francisco County’s IG is charged, in part, with reviewing and investigating complaints against sworn personnel, investigating in-custody deaths, making disciplinary recommendations, and developing a use-of-force policy and incident review procedure.
San Francisco County’s inspector general model is similar to that of other agencies. For example, in 2013, the New York City Council enacted Local Law 70, requiring New York City’s Department of Investigation, an independent investigatory agency, to appoint an inspector general “who would investigate, review, study, audit and make recommendations relating to the operations, policies, programs and practices of NYPD[.]” The Office of the Inspector General for the NYPD, in conjunction with the Department of Investigation, has released several reports on NYPD’s policies and practices in recent years, including an analysis of NYPD’s response and handling of the large New York City protests following George Floyd’s death in June 2020, and a report on NYPD’s handling of interactions with persons experiencing mental health crises.
The Review Model
Civilian oversight boards that use a review model do not generally investigate misconduct complaints or audit agency policies. Instead, these entities “evaluate completed internal affairs investigations, hear appeals, hold public forums, [and] make recommendations for further investigation[.]” In other words, these boards make sure internal investigations are being thoroughly run. These boards’ authority is also generally limited to passing on recommendations, taking in and passing on civilian complaints and “gather[ing] and review[ing] public input.” In contrast to the other models, some review bodies might serve as an appellate body for citizens “dissatisfied with the outcome of their [misconduct] complaint[.]”
Common Limitations and Criticisms
Civilian oversight mechanisms face certain common legal limitations.
Access and Transparency vs. Privacy
Tension can exist between the interests of oversight entities, on the one hand, and police unions and law enforcement advocates, on the other: The former might prefer sweeping and expansive access to agency records to identify misconduct and systemic issues, whereas the latter might seek to preserve officers’ privacy. Take, for example, a recent disagreement between the Los Angeles Police Protective League (LAPPL), LAPD’s rank-and-file union, and the department’s inspector general. The two parties disagree over whether the IG can legally personally attend board of rights or disciplinary proceedings. The Los Angeles City Charter does not expressly authorize the IG to observe such disciplinary proceedings, but the IG contends that the charter implies authority to conduct “in-person observations[.]” The Los Angeles Police Protective League (LAPPL), LAPD’s rank-and-file union, disagrees with this position, arguing that physical access to the board of rights remains impermissible under a 2006 California Supreme Court decision. The 2006 decision involved access by the press to records from an administrative appeal of peace officers wherein the court held that such records are confidential pursuant to California Penal Code Section 832.7
It’s not just police unions’ objections that prevent oversight agencies from obtaining access to records. A recent report by New York’s Department of Investigations, for example, cited the NYPD Office of Inspector General's difficulty in obtaining NYPD records. However, the report also recognized that access might be curtailed by laws limiting the disclosure of “personal information of suspects and arrestees,” and that access evinces other concerns regarding “the City’s attorney-client privilege” and informants' safety. Access to office personnel records has remained a contentious issue in New York City. On February 16, the Second Circuit Court of Appeals refused New York public safety and corrections unions’ request to keep misconduct records from public disclosure.
A separate dispute looms regarding the extent of oversight bodies’ authority to impose discipline and department policies. Many civilian oversight bodies lack disciplinary authority and, instead, merely recommend discipline to agency heads. Agency discretion over whether or not to follow such recommendations has in some instances triggered complaints from civilian oversight proponents that bodies’ ability to hold police accountable is less than effective. For example, New York City’s three civilian oversight bodies cannot compel NYPD to change its policies or discipline officers. In a recent report, NYPD’s IG cited that “in 2018, the [New York City] Police Commissioner concurred 52% of the time in the discipline recommended in substantiated cases[.]”
Some cities have attempted to challenge the status quo by creating oversight bodies with decision-making power. However, controversy can and has followed the suggested establishment of these more empowered oversight boards.
One such dispute arose in Chicago. The city’s temporary Police Accountability Task Force contended that “barriers to imposing discipline” might “dilute” oversight bodies’ findings and thus fail to improve accountability. The task force also argued that, to be effective, civilian oversight “system[s] should identify and investigate police misconduct and then impose appropriate punishment.” The Chicago City Council’s Committee on Public Safety is currently entertaining ordinances that propose a civilian oversight commission. Disagreement over the legislation centers around the extent of the potential commission’s authority over the chief of police and department policies. The Chicago Sun Times claims that, prior to being elected Chicago’s mayor, Lori Lightfoot demanded “that then-Mayor Rahm Emanuel empower a civilian oversight board to fire the police superintendent and establish police policy[.]” As mayor, however, Lightfoot has drawn criticism for seeking to retain control over department policy. Chicago’s current impasse illustrates the challenges that can sometimes come with trying to bolster the power of civilian oversight authorities.
In contrast, Portland remains a pioneer among cities with civilian oversight bodies. There, voters in November 2020 passed a charter amendment giving its oversight body, among other powers, the ability to make final and binding disciplinary determinations. Proponents viewed the amendment as “a necessary step to rebuild Portlanders’ trust in the police, [which] will ultimately lead to a more stable and better-funded oversight system.” Others opposed the measure, citing, among other concerns, that the measure violates the police union’s bargaining entitlements.
Although proponents of increased authority have cited a present lack of complete effectiveness to justify expansion, there are equal and opposing forces against such an increase. Discipline processes can face opposition from officers and law enforcement advocates out of a fear that existing processes are unfairly stacked against officers. A Harvard Kennedy School of Government study noted that existing disciplinary “[p]rocesses and outcomes often do not appear to be fair to employees.” Concerns about fairness and due process might persist or be exacerbated if civilian oversight boards were equipped with disciplinary authority. For example, in February 2021, the Oakland Police Commission, a civilian body designed to “oversee the Oakland Police Department’s policies, practices, and customs to meet national standards of constitutional policing” terminated its police chief without cause. In a subsequent lawsuit, the former Oakland chief contended that she was “never offered ... an administrative hearing as required under the Peace Officer’s Bill of Rights ... [or] an opportunity to appeal the city’s decision before a neutral decision maker.” It is unclear whether placing existing processes in civilian hands would ameliorate concerns about fairness and process.
Knowledge of Subject Matter
Police unions have also criticized oversight mechanisms for entrusting civilians who may not “have the technical background or professional experience to conduct complex investigations into allegations of officer misconduct[.]” Some argue that an inexperienced civilian might also raise fairness and process concerns. There’s also the argument that outsourcing internal investigations and review work to non-department personnel deprives officers of valuable opportunities to gain experience in conducting personnel investigations, which might in turn limit officers’ awareness of internal misconduct. Because “[a] robust internal affairs process can result in investigators and supervisors who are more committed to ensuring a police culture of integrity and accountability within their own organization[,]” some civilian oversight models might, in theory, be less effective at improving accountability than existing internal processes.
Conversely, NACOLE notes that civilians might be “less willing to challenge an officer’s account of events [than] a peer investigator or a police supervisor[,]” which might also hamper an oversight body’s effectiveness.
Too Much Oversight
More oversight bodies is not always better. New York’s Department of Investigations, an independent law enforcement agency, noted that New York City’s three civilian oversight agencies that have overlapping authority might result in conflict, flood “the NYPD and public in information[,]” and cause confusion with respect to reporting, which DOI suggests could potentially impact the bodies’ effectiveness as accountability mechanisms. It’s not hard to imagine critics leveling a similar argument against the City of Los Angeles’s multiple oversight mechanisms.
The Future of Civilian Oversight
The Department of Justice has estimated that around 18,000 law enforcement agencies are currently operating in the United States, which makes the 200-plus active oversight bodies a mere drop in the bucket. Although the November 2020 ballot measures reflect continued efforts to reform agencies, those efforts pale in comparison to the vast number of agencies in the United States that are operating without oversight.