The Challenge of Police Accountability
by Fred Persily, CAHRO Executive Director

I believe we've reached a point in history where justice demands more restrictions on the rights of police officers in order to protect the general welfare of all the people. How we arrived at this point is not too difficult to understand. The politicians and legislators who write and pass the laws, and the governors who approve the laws and appoint judges, found that by promising to get tougher on crime by providing more power to police they could get the votes necessary to be elected. Police officers were given their own "bill of rights" to ensure they had extraordinary protection from charges of wrongdoing. Police departments were given generous grants to buy exotic weapons, gases, sprays and equipment. Perhaps more important were court decisions that relaxed stringent requirements needed to justify police shootings.

Unfortunately, as a result of laws protecting police, an officer who abuses his authority and is disciplined can enjoy a long career by making use of the protections that are available and even transfer from one department to another without fear that information in his/her personnel file will be transmitted.

Today, there is another phenomenon heightening tensions between low-income people who live in urban areas and police.  The migration of upper-middle class populations into inner cities being encouraged by elected officials.  This is being seen by some officers as a license to intimidate and harass low-income members of the inner cities, particularly youth. Police scandals in Oakland, New York and perhaps Los Angeles are examples of officers who interpreted the comments by elected officials and the media as a license to take charge of communities by any means necessary.
The traditional response to police scandals has been to create civilian commissions. While the motivation is laudable, in practice the commissions are only as effective as the support they receive from the police chief, the city and county executives, and/or the ultimate authority charged with disciplining officers.  Even commissions that have a reputation for being well designed and adequately funded have lost credibility with the public when their well-founded recommendations have been overturned or ignored by a police chief, a police commission, or some other authority such as a personnel commission. 

Legal and political protection of police officers has been effective too often in protecting those who use force excessively and are liabilities to their departments and the public they serve. The shooting of a homeless woman who threatened an officer with a screwdriver and the shooting of an innocent, unarmed Black man in his own apartment lobby illustrate just how far the law has come to support senseless shootings by armed officers. The defenses raised to protect officers who engage in wrongdoing are ruining the credibility of the vast majority of officers who are dong a good job. They also are making the job of police chief or sheriff an at-risk position since it is ultimately he or she who is held to blame by the public for the wrongful actions of the officers who are viewed as out of control.

It is time to balance the scales of justice to ensure police are responsible to the public they serve.  Here is how:

Provide the police chief or sheriff with the ultimate responsibility for disciplining any officer for cause following appropriate due process investigations.

It is unfair to hold police chiefs and sheriffs responsible for the conduct of the officers who serve under them without giving them the tools to mete out discipline.  Conversely, chiefs or sheriffs who try to protect an officer who commits wrongdoing should also be held accountable for their unwillingness to act.

Enact legislation that defines peace officers as having a distinctive level of trust and authority that merits making criminal convictions, sustained findings of the use of excessive force, and other criminal acts committed by them while on duty public record.

This would prevent officers from being able to leave their record at their last place of employment and continue their career unhampered. It also would make the public aware of findings against an officer rather than being left in the dark as to whether anything was done as a result of a complaint.  Police administrators who want to improve relations with the communities they serve would likely welcome this change.

Enact legislation to prevent an officer from aiming or discharging a deadly weapon at someone unless there is no other reasonable alternative to prevent a wrongful death and redesign peace officer training to reflect the new standard.

There is a great deal of enthusiasm for officer survival training.  The trainees get caught up in the excitement of having an opportunity to make quick life and death decisions that usually result in their drawing and firing their weapons.  It is often the highlight of a series of training modules.  Unfortunately, it is also the part of training that has led to tragic errors on the street that have left innocent people dead. 

Training on de-escalating tense situations, reducing stress, and conflict resolution- the bread and butter of police work- do not get the attention given to officer-survival exercises.  Training to de-escalate tension will take on new importance if the trainee is aware that drawing his or her weapon will be seen as a highly risky event that should occur only if there is an inability to resolve a situation without a likely loss of life.

Establish an independent prosecutor at the state level, who, at the request of a city or county, can conduct investigations of allegations of wrongdoing within a law enforcement agency and bring prosecutions.

Too often local prosecutors are in a no-win situation when there is a charge of officer wrongdoing. They are viewed correctly by the community as being in a cozy relationship with the police department.  It is the nature of the work that police and prosecutors work together.  There are working relationships and also friendships that naturally develop among members of both agencies. Thus, an attorney who is charged with prosecuting a police officer may not in law face a conflict of interest, but in the eyes of the public and in the eyes of his or her acquaintances there is a conflict. 

The state attorney general may not have a conflict politically, but as the chief law enforcement officer of the state, the attorney general may find it difficult to take on a high profile case and risk alienating those in law enforcement who can provide him/her with key endorsements needed to sustain a political campaign.

An independent prosecutor would avoid these pitfalls and could provide public credibility to a fair investigation.

In the meantime cities and counties with civilian review mechanisms would be well advised to consider building in an evaluation component to measure their effectiveness in identifying wrongdoing, making an appropriate finding and having their finding sustained to provide some assurance that they are part of the solution and not part of the problem.