Breaking Rank (53 page)

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 jurisdiction 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.