I agree with the premise
that more needs to be done to ensure police are accountable to the community they serve. There are a number of impediments that discourage this from occurring. Binding arbitration is a labor tool that
impedes accountability. The reality of binding arbitration is that decisions regarding management of a police department are removed from the Chief and put into the hands of a third party that is NOT accountable to the
community. I can give you countless horror stories of employees who won their jobs back, with back pay due to an arbitrator's ruling. The nature of binding arbitration, in practice, seems to be such that it is in the
interest of the arbitrator to make both parties happy. I once read a study that revealed most arbitrators "split the baby", and render decisions that give something to both parties irrespective of the
evidence. This is typically done to ensure that they will be selected to handle future arbitrations. Arbitration is one of the tools used to prevent the chief of police from having the final call on matters of
discipline, promotion, reassignment and other matters necessary to manage a complex organization.
Civil service boards (personnel commissions) are another tool used to impede accountability. Most civil
service boards are filled with members of the community picked by the mayor and city council. As such, they owe their allegiance to the politicians who appointed them. I am aware of notable cases where the boards have
rendered politically expedient decisions to placate specific interest groups at election time. I have seen boards that have been totally co-opted by a police officer association that donated time and money to elect the
political candidates who appointed them.
Personally, I would like to see the laws addressing confidentiality of internal investigations revised. As it stands now, virtually nothing surrounding a citizen complaint
can be shared with the public or even the person who filed the complaint. This is extremely frustrating since the public has a right and a need to know whether their police department is being run in a professional
manner. The existing blackout of information frustrates not only the citizen, but also the police administrator who is trying to inspire public confidence in the department.
Similarly the Peace Officers'
Bill of Rights can be a significant hindrance to accountability. Under this legislation, police officers are afforded rights above and beyond what other public employees receive. In fact, recent legislation establishes
a statute of limitations on complaints by insisting that a department can't discipline an officer for an act that occurred more than a year ago.
Additionally, police officer associations were successful in
getting a law enacted that forces persons seeking to file a complaint to read and sign an admonition acknowledging that they will be criminally prosecuted for filing false and malicious police misconduct complaints. One
should consider that it is also a crime for police officers to falsely and maliciously file crime reports, yet we don't require police officers to read and sign a similar admonition every time they write a crime report.
Some agencies have gone so far as to wait 48 hours after a fatal use of force incident before they even attempt to interview the officer to find out what happened. And of course, the Peace Officers' Bill of Rights
requires the interview to take place with the officer's attorney present and after they have had ample opportunity to review and dissect the evidence already brought to light. One should consider the fact that if we
encountered a civilian who had shot and killed another person and refused to give a statement or cooperate with the investigation, we would probably arrest them at the scene absent evidence to suggest the shooting was
justifiable.
Civilian review boards are only rarely effective for a variety of reasons. Much like civil service boards, they tend to be populated by appointees of elected officials who may have agendas
that are not consistent with the search for truth. Civilian review boards are not exempt from being co-opted by the police officer association. Too often, they overrule recommendations of the chief and allow officers to
return to work despite evidence of wrongdoing.
Another big factor undermining most efforts by civilian review boards efforts is the lack of resources and qualified staff allotted to them. Most boards do
not have a sufficient number of investigators to effectively investigate the number of complaints. If the personnel on the board lack credibility, skill, and judgment, the whole process suffers. Review board investigations I
have been involved with lack the detail and thoroughness to survive rigorous review of a Police Officers Association attorney.
I remember one case from an agency I used to work for that really highlighted the
shortsightedness of review board actions. A Caucasian officer was charged with excessive force and racial slurs. The officer showed up at the hearing arm in arm with an African-American woman, who sat prominently in the
front row. Sufficient evidence was presented to sustain at least some of the allegations, but the review board absolved the officer. I discussed the decision with some of the board members and they told me that they
didn't feel the officer was "guilty of racism because he had a black girlfriend." In some jurisdictions, rank and file police officers actually prefer the civilian review process because they know it is not
effective.
The ultimate tool to discipline officers for criminal conduct is the district attorney. However, even the district attorney cannot always be relied upon to be the objective prosecutor of criminal
violations committed by police officers. There is an almost incestuous relationship between the police and prosecutors. Each party knows they need the other to accomplish their normal missions. In most instances,
the prosecutors are reluctant to prosecute officers for fear of damaging this relationship. This is particularly evident during election time, when the district attorney is seeking the endorsements of the police officers
association.
However, I have also witnessed instances where the district attorney has sought to prosecute an officer to make it appear that he is tough on police misconduct. This typically occurs in real liberal
communities where the endorsement of police associations carries no weight. I like the proposed idea of a special prosecutor who police chiefs can take charges of criminal conduct to for the prosecution of police officers.
The police chief should have the authority to hire, investigate, reassign, and discipline his/her personnel. If the chief is not performing his duties in a satisfactory manner, he or she should be removed and
replaced with someone who will. I have a problem with the effort to create "shadow systems" of accountability. Chiefs of police and sheriffs get paid well to manage their departments. Why not hold them
accountable for results? If the CEO of a major corporation is promoting conduct that results in millions of dollars of liability or produces a product that their customers are not satisfied with, the CEO is removed.
Regrettably, in law enforcement the CEO keeps his/her job or is promoted and frequently has the responsibility to ensure the actions of his/her staff do not expose the city or county to costly lawsuits removed from his/her
shoulders.
I think every law enforcement agency should have a mechanism for conducting proactive integrity investigations. Large departments should have full-time units that continually conduct audits,
inspections and sting investigations on department personnel to ensure compliance with policy and ethical directives. Every department should have some mechanism to identify and address problem employees through an early
warning system. As far as I am concerned, an officer who has racked up a significant number of unsustained complaints is as much a liability as an officer with a lot of sustained findings.
Law enforcement
agencies should not only be allowed to share information about former employees as proposed in the article, but the California Commission on Peace Officer Standards and Training (POST) should be given the power to revoke peace
officer certificates for misconduct. As it stands now, the POST certificate is a lifetime certificate, even if the recipient has been convicted of a felony and is legally prohibited for being sworn officer. The Police
Officer Research Advisory Committee (PORAC) is currently fighting efforts to give POST the authority to revoke peace officer certificates.
Departments should also invest in technology to address police
accountability. For example, officers can be mandated to use digital audio recorders and videos to record all contacts with citizens. My own experience, and that of many of my peers, is that the use of these types of
technology significantly reduce the number of complaints against officers and assist in clarifying what actually transpired during a situation where a complaint has been filed.
