Revisiting Who Is Guarding the Guardians?
A Report on Police Practices and Civil Rights in America
Acknowledgments
The Commission proceeding was organized and the report was written under the supervision of Acting General Counsel Edward A. Hailes, Jr. Project team leader Joseph Manalili* and attorney-advisors Kim Ball, Deborah Reid, Joyce Smith, and Audrey Wiggins performed preliminary research and planning for the proceeding. Additional assistance was provided by the Public Affairs Unit through its deputy chief Marcia Tyler and editor David Aronson. Further assistance was provided by Kimberly Alton, special assistant to the staff director. Clerical support was given by legal secretary Pamela Moye and administrative assistant Carolita Little of the Public Affairs Unit. Project team leader Joseph Manalili and attorney-advisors Deborah Reid, Jenny Kim Park, Joyce Smith, and Audrey Wiggins drafted the report. Attorney-advisors Kim Ball, Barbara de La Viez, Michael Foreman, Emma Gonzalez-Joy, and Bernard Quarterman conducted the legal sufficiency review. The report was prepared for publication by Dawn Sweet. The Commission acknowledges with gratitude the tremendous contributions of the selected experts to this important project.
* No longer with the Commission
111
Contents
Executive Summary ...... vii
1. Introduction ...... 1 Commission Reports ...... 4 Briefing ...... 5
2. Recruitment, Selection, and Training for Police Work ...... 6 Recruitment ...... 7 Selection ...... 9 Training ...... 10 Cultural Sensitivity ...... 11 People with Mental Disabilities ...... 11 Gay, Lesbian, Bisexual, and Transgendered Community ...... 13 Use of Force ...... 13 Racial Profiling ...... 15 Community Policing ...... 20 Consent Decrees ...... 23 Promotion and Retention ...... 24 Conclusion...... 24 Findings and Recommendations ...... 24
3. Internal Regulation of Police Departments ...... 28 Policies to Reduce Incidents of Unnecessary Deadly Force ...... 28 Statistics on the Use of Deadly Force ...... 28 Connecticut...... 28 California ...... 28 Illinois ...... 28 Washington, D.C ...... 29 Legal Standards ...... 29 Policies on the Use of Deadly Force ...... 29 Factors That Influence Use of Deadly Force Policies and Incidents ...... 30 Training ...... 33 Routine Encounters between Police Officers and the Community ...... 34 Stop, Question, and Frisk ...... 34 Racial Profiling ...... 35 Internal Mechanisms to Monitor and Control Racial Profiling ...... 38 Internal Investigations and Dispositions ...... 39 Mechanisms for Detecting Officer Misconduct ...... 39 Previous Reform Efforts ...... 39 Current Approaches ...... 40 Barriers to Effective Internal Investigations ...... 41 Conclusion...... 43 Findings and Recommendations ...... 44
v 4. External Controls ...... 46 City Government ...... 46 Reforms in City Government Oversight of Police Misconduct ...... 47 Barriers to Effective City Government Control of Police Misconduct...... 48 State Prosecutions and Federal Oversight...... 50 State Prosecutors ...... 50 Special Prosecutors ...... 50 Federal Government Oversight ...... 52 Civilia n Review Boards ...... 53 Previous Reform Efforts ...... 54 Current Approaches and Policies ...... 55 Barriers to Effective Civilian Oversight...... 59 Conclusion...... 62 Findings and Recommendations ...... 62
5. Remedies and Legal Developments ...... 64 Civil Actions by Victims of Police Misconduct ...... 64 Civil Remedies under State Law ...... 64 Civil Remedies under Federal Law ...... 65 Criminal Prosecution of Police Misconduct ...... 67 Federal Civil Rights Enforcement...... 67 Pattern or Practice Lawsuits against Recalcitrant Police Departments ...... 67 Crime Control and Safe Streets Act...... 69 Withholding Federal Funding from Agencies That Engage in Discriminatory Practices ...... 70 Collection of National Statistics on Police Misconduct ...... 70 Legislative Developments on Racial Profiling ...... 71 Federal Legislative Developments ...... 71 State Legislative Developments ...... 72 Conclusion ...... 72 Findings and Recommendations ...... 72
Statements Chairperson Mary Frances Berry, Vice Chairperson Cruz Reynoso, and Commissioners Christopher F . Edley, Jr., Yvonne Y. Lee, Elsie M. Meeks, and Victoria Wilson ...... 75 Commissioner Russell G. Redenbaugh ...... 77
Appendix A Commission publications concerning police practices and civil rights since Who Is Guarding the Guardians? ...... 83
vi Executive Summary
For almost 20 years, the U.S. Commission on Civil Rights has been at the forefront of the police practices debate. Through its seminal report titled Who Is Guarding the Guardians? and numerous subsequent reports, the Commission has made important recommendations to improve the quality of police protection while ensuring the protection of civil rights for all Americans. The Commission has consistently endeavored to underscore these connected goals. Law enforcement work is undeniably difficult. Officers must constantly be aware of the pressures to reduce crime and make arrests, while balancing concerns about officer safety and the constant stress of making split-second decisions that could mean the difference be tween life or death. The Commission applauds the efforts of many law enforcement agencies to improve themselves by increasing diversity among the ranks of officers, developing new training methods on the use of force, and bolstering their internal affairs divisions. Many police departments have also worked to strengthen their relationships with communities of color and have updated their policies in order to adequately respond to the needs of an ever changing constituency. Some police departments have drastically reduced crime and funda mentally changed the communities in which they serve. Indeed, the Commission found that cities like New York City and Los Angeles, for example, have made great strides in lowering crime rates. These departments have not developed into "world-class" forces, however, due to lingering concerns over the number and types of police misconduct charges they must ad dress. Regrettably, their crime reduction achievements often have come at a significant cost to the vulnerable communities in greatest need of police protection. Reports of alleged police brutality, harassment, and misconduct continue to spread throughout the country. People of color, women, and the poor are groups of Americans that seem to bear the brunt of the abuse, which compounds the other injustices that they may suffer as a result of discrimination against their racial, ethnic, gender, or economic status. In their eagerness to achieve impor tant goals such as lowering crime, some police officers overstep their authority, trample on individuals' civil rights, and may cause entire communities to fear the same people they hired and trusted to protect them. Based on the Commission's research, the problem of police misconduct has affected every facet of police culture and policies. Perpetrators can come from any race, ethnicity, or gender, but all police officers are essentially trained by the same law enforcement methods that fail to adequately address cultural diversity and civil rights. Moreover, although law enforce ment agencies may significantly reduce crime and the number of police shootings, these im provements come at a terrible price. Incidents of police officers committing crimes, engaging in racial profiling, and harassing individuals continue to make the headlines. The Commission has a long history of examining the police in their administration of jus tice and has made numerous recommendations to improve law enforcement as a whole. Many of the Commission's recommendations have been implemented and have positively affected those communities. Despite this fact, reports of abuse and misconduct seem to be incessant, and they typically prompt a complex series of responses: community leaders cry out for change; law enforcement agencies assert that they are doing their job; federal investigators evaluate rogue police officers and entire departments; politicians debate about policies that purport to be tough on crime, yet strong on civil rights. What emerges from these opposing accounts is the need for a reasoned, systematic approach to honestly and sufficiently address police misconduct, once and for all.
Vll By supplementing Guardians and its other related reports, the Commission hopes that this publication will move the apparent conflict between law enforcement and civil rights objectives toward a meaningful resolution. Through its findings and recommendations, the Commission presents a comprehensive set of guidelines and objectives to remedy police mis conduct, which law enforcement agencies, both federal and state, should fully implement. Some of the Commission's key findings and recommendations have been previously made in other reports. For example, the Commission reiterates the need to increase diversity in all law enforcement agencies-from the officer patrolling the street to the precinct captain. There is also a continuing need to implement successful models of community policing and to improve police officer training so that it will encompass cultural sensitivity issues and the proper use of force. In addition, the Commission makes findings and recommendations on the issue of racial profiling that need to be given the highest priority in order to confront this pressing contem porary problem. It has been established that racial profiling exists in many areas of law en forcement. However, profound differences exist between the perceptions of the police and the public, particularly with regard to people of color. People of color and other civilians often conclude that law enforcement officers disproportionately target their communities because of misperceptions about their racial and ethnic backgrounds, rather than crime patterns or citizen complaints. In contrast, many law enforcement officers view race and ethnicity as ap propriate elements of proper police investigations. Despite efforts to monitor racial profiling, some police officers and officials resist collecting statistics on alleged suspects' race or ethnic ity. It is clear that modified policing techniques, based on facts rather than myths about communities of color, would begin to remedy many of the current problems surrounding this issue. The collection of racial profiling data is needed to examine the extent of its use, to en act legislation to prosecute those who utilize it, and to realize the total elimination of this practice in law enforcement.
Recruitment, Selection, Promotion, and Retention Law enforcement personnel generally do not reflect the communities they serve. There continues to be a serious underutilization of people of color and women, as well as bilingual officers. Although police forces have tried to implement affirmative action policies, they have been unable to accomplish or sustain diversity. Several reasons account for this problem. Re cruitment efforts do not specifically target women and people of color. Despite attempts to attract members of these groups, many people of color and women continue to have negative perceptions of law enforcement. Within law enforcement agencies, claims of sexual and racial harassment, disparity in pay, and low job satisfaction make police careers unattractive. Additionally, the selection process for police officers often contains biases that, in effect, eliminate candidates of color and noncitizen permanent residents. The Commission recommends, among other things, that law enforcement agencies:
• Develop creative strategies to increase diversity at all levels. • Improve public perception of the police to attract more applicants. • Encourage recruits to have college degrees. • Eliminate biases in the selection system. • Revise recruitment and selection methods.
The Commission finds that the promotion and reward systems of many law enforcement agencies are seriously flawed. The emphasis on certain questionable crime reduction strate gies may negatively affect civil rights by encouraging officers to engage in unlawful practices in the hopes of gaining a promotion. Indeed, racial profiling may be encouraged by this re-
Vlll ward system because communities of color are frequently targeted as "high-crime areas." To remedy this situation, law enforcement agencies should:
• Re-evaluate their retention and promotion processes, recognizing that a system of re wards that promotes crime prevention over the protection of civil rights should be re placed with one that incorporates and reinforces the two concerns. • Seek ways to improve the promotion rate for officers of color .
Training Good basic training on diversity issues, especially at the earliest stages of law enforce ment careers, would significantly improve the overall effectiveness of officers. In contrast, inadequate training usually reveals itself during the most precarious circumstances: when officers are responding to a volatile crime scene or in the process of making an arrest, and are called upon to make instantaneous, life-altering decisions. -
• Effective training must incorporate contemporary issues such as cultural sensitivity, use of force, racial profiling, and community policing into basic crime prevention methods. • Members of the community should be involved in the training process, so that divergent views and perspectives might be represented. • Consent decrees with the federal government may also be used to force recalcitrant police departments to comply with federal mandates to improve their training practices.-
Internal Regulation of Law Enforcement Agencies Law enforcement agencies should police themselves primarily because they possess the tools to internally change policies and practices. The Commission finds problems, however, with the internal regulation of the use of deadly force, racial profiling, as well as misconduct investigations and dispositions. Presumably, all police departments seek to reduce the unnecessary use of deadly force. But different jurisdictions have varying interpretations of the legitimate use of deadly force and the legal standards of reasonable behavior. Civilian deaths caused by police error con tinue to mount, and it is increasingly evident that officers need clear guidance from their chiefs of police and immediate supervisors on the use of excessive force, as well as internal misconduct policies and disciplinary procedures related to that behavior.
• Police officials should construct a uniform policy on the use of deadly force. • Intensive training should be provided on a continuing basis to guide officers' discretion.
Internal affairs divisions, charged with investigating allegations of police misconduct and resolving complaints, increasingly lose credibility and effectiveness when they are accused of unequally disciplining the same types of offenses, taking too long to investigate complaints, being unable to break through the code of silence among police officers, failing to keep the public apprised of complaint dispositions, and lacking computerized data systems to track needed information on misconduct incidents.
• Police administrators and lAD officials should routinely examine their disciplinary pro cedures in order to improve the overall effectiveness of internal affairs divisions.
l.X External Controls City officials continue to hold the most influence over how external review procedures are conducted. They guide the overall attitude of their officers regarding police misconduct is sues.
• Officials at every level of city government should make a concerted effort to eliminate all forms of police misconduct. • Complete cooperation among government entities and police representatives is necessary to ensure the success of any policy or program designed to address police misconduct. • Officials should encourage the development of external oversight devices such as civilian review boards, independent auditors, and solicitor s general. • The use of federal monitors to oversee police misconduct issues should be enhanced, es pecially in light of the federal civil rights statutes that are in place to address these is sues. • Local law enforcement agencies should be encouraged to cooperate with the efforts of fed eral monitors.
State prosecution of police misconduct cases is not effective primarily because district or county attorneys rely heavily upon the support and cooperation of police departments.
• The appointment of an independent or special prosecutor assigned solely to police mis conduct cases would increase the frequency and quality of those investigations and prosecutions.
Civilian review boards continue to play an important role in the external oversight of po lice misconduct; however, most boards have little or no investigative or disciplinary powers.
• Subpoena power must be granted to all civilian review boards. • Civilian review boards should be endowed with disciplinary authority over investigations of police abuse incidents.
Remedies and Legal Developments The passage of the Violent Crime Control and Law Enforcement Act, which authorizes the Attorney General to bring civil actions against state and local law enforcement agencies that have engaged in a pattern or practice of constitutional rights violations, has been an impor tant development since the publication of Guardians. However, the Justice Department has not been adequately funded to realize the full authority provided under the act. Moreover, the act fails to provide for a private right of action by individuals injured by police miscon duct.
• Resources must be allocated to fund federal investigations into systemic police misconduct. • Individuals should be afforded legal standing to sue for equitable and injunctive relief against police departments engaging in misconduct.
Criminal remedies should be pursued in every police misconduct case when there is suffi cient evidence to support the charges. Through vigorous criminal prosecution of accused po lice officers, the federal government can work to remedy the problem of police misconduct. Aggressive federal government tactics could also have a profound effect on the deterrence of further police abuses. But federal prosecution of police officers has been impeded by the pro vision of 18 U.S.C. § 242, which requires that an allegation of official misconduct be sup ported by evidence showing that the accused officer acted with a "specific intent" to violate
X the person's civil rights. In light of the hindrance that this restrictive standard imposes on federal prosecutions,
• Congress should amend § 242 to remove the "specific intent" requirement. • Federal racketeering laws may serve as alternative methods to pursue criminal charges against offending officers. • The Justice Department should be properly funded to collect statistics regarding racial profiling. • The Traffic Stops Statistics Study Act of 1999 should be enacted to further the efforts of that data collection.
Conclusion Police misconduct has a deleterious effect on virtually every aspect of our society. Most importantly, police brutality tears violently at the fabric of our nation, leaving in its after math a distrustft:l and divided community. To improve the effectiveness of our police de partments and to decrease tensions between the police and the public, we must find innova tive methods to combat police misconduct in all its destructive forms. The Commission hopes that through the collective efforts of the police, the public, and our government, we will someday experience a strengthened bond and a mutual respect between the police and the communities they serve.
Xl
CHAPTER 1 Introduction
The report by the U.S. Commission on Civil In 1997, the beating and assault of Abner Rights titled Who Is Guarding the Guardians?1 Louima while in custody in a New York City remains a major publication on police practices precinct stunned the country.3 and civil rights almost 20 years after its release. In 1998, two New Jersey state troopers Many of its findings and recommendations still opened fire into a van with three Mrican Ameri ring true today. The present publication seeks to can and one Hispanic male passengers on the build on the groundwork created by Guardians New Jersey Turnpike. The van was allegedly and is not intended to replace Guardians or its speeding at a rate of 19 miles per hour above the research and analysis, which remain relevant to 55-miles-per-hour speed limit.4 The troopers the examination of current police practices. With claimed that the 11 shots fired into the van were this report, the Commission seeks to achieve two in self-defense. 5 goals: (1) expand upon the principles and find Four other New Jersey state troopers escaped ings outlined in Guardians, and (2) explore how federal prosecution for opening fire into a car in police practices have evolved since the publica 1999 after the driver failed to stop for an alleged tion of Guardians. traffic violation. The driver allegedly led the po Despite major improvements in police prac lice on a 15-mile chase. The evidence was insuf tices since Guardians, reports of alleged police ficient to sustain federal criminal civil rights misconduct and abuse continue to spread through claims.6 the nation. As a major policy issue, police miscon duct has not disappeared, but rather gained more of a spotlight since Guardians with the advent of a "At the 70th Precinct house, officers pulled down [Louima's] pants and led him to the bathroom, where they issues such as racial profiling. The following sto sodomized him with the [toilet] plunger and then jammed ries represent a fraction of the incidents that have the handle in his mouth." "New York City Police Accused of led up to the publication of this report. Sexual Assault" (quoting Louima, The Associated Press, The mere mention of the name "Rodney King" Aug. 13, 1997,
wounded and his passenger was shot in the leg. The U.S. attorney's investigation consisted of a review of the grand for a victim bleeding to death while they altered the crime jury transcripts, interview with one witness, and review of scene." Ibid. See also Peter Y. Hong, Tina Daunt, "Parks photographs and a video. Based on the investigation, the Drops His Opposition, Commits LAPD to Decree," The Los U .S. attorney found insufficient evidence to charge the offi· Angeles Times, Sept. 21 , 2000,
3 officers and a reduction of crime in many com rights and constitutional principles. Such inci munities: the persistence of police misconduct. dents often leave blameless, upstanding persons For example, the fact that 11 people were shot with emotional scars, if not physical injuries. down by police officers in New York City in 1999 These scars and injuries cause these individuals compared with 41 in 1990 does not remove the to remain apprehensive about the prospect of specter of impending doom that visits ordinary future adverse encounters with police officers. law-abiding people of color during street encoun Left with no assurances that effective discipli ters with police officers in the city. The errant nary actions will be taken or reforms imple behavior of a few abusive police officers, even in mented, the injured individuals maintain linger the absence of police shootings, can often destroy ing doubts about the objectivity of persons who cooperative and strategic alliances between police wear badges, carry guns, and make critical departments and the communities they serve. judgments about who is and who is not a crimi When some citizens perceive and experience the nal suspect. police being unfair, inequitable, harsh, and/or ar As the Cato Institute determined in a report bitrary, and moreover, when these citizens come about New York City's Street Crime Unit that from groups that have historically experienced was released in 2000, "experience has shown unfair and inappropriate police behavior, such that stop-and-frisk tactics unnecessarily endan perceptions and experiences deride the very con ger the police, the suspect, and bystanders. Poli cept of fair and equitable treatment under the cymakers in New York and elsewhere should law and erode the bonds of civil society.20 discontinue the freewheeling stop-and-frisk This is not to say that the laudatory reduc searches and restore the constitutional standard tion in fatal shootings by police officers is unim of probable cause without delay."2 1 portant. The recorded decreases in police shoot The Commission recognizes and reiterates ings exhibit a mean~ngful illustration of the pro that the adverse actions of some officers are not gress that law enforcement departments can representative of all law enforcement profes achieve when reform efforts are targeted and sionals. Law-abiding officers should not have to emphasized in training and professional disci pay for the crimes committed by a few whose pline for the use of deadly force. It is significant, actions are memorialized in news headlines. The however, that cultural training practices and problem of police misconduct, however, is too per uniformly employed discipline are lacking in vasive and complex to be reduced to simply blam other important areas of police work. Additional ing a few rogue law enforcement officers. It is im police reforms are required to reduce civil portant to note that the problem of police miscon rights violations where they continue to occur duct is not limited to white officers but may in in the course of complex police investigations clude officers of color. Indeed, police practices and and in response to questionable crime reduction policies as a whole, which include training, use of strategies. deadly force, oversight, and the police culture, For example, a compelling case can be made contribute to the problem. Correcting these issues for providing better training and harsher disci and addressing community concerns are the only pline to law enforcement officials to prevent offi legitimate means of ensuring the protection of the cers from transgressing constitutional require civil rights of all Americans. ments for initiating a legal stop based on indi vidualized suspicion. Currently, an urgent need COMMISSION REPORTS exists to halt the frequent police practice of dis Since the publication of Guardians, the proportionately stopping individuals of color Commission has remained in the forefront of based on statistical probabilities and demo examining police misconduct and its effect on graphics. Racial profiling compromises civil civil rights. It has published more than 20 re ports since Guardians discussing these issues
20 Sandra Bass, assistant professor, University of Maryland, statement before the U.S. Commission on Civil Rights, Na tional Police Practices and Civil Rights Briefing, June 16, 21 Timothy Lynch, "We Own the Night: Amadou Diallo's 2000, transcript, p. 15 (hereafter cited as Police Practices Deadly Encounter with New York City's Street Crimes [sic] Briefing Transcript). Unit," Cato Institute, Mar. 31, 2000, p. 8.
4 and made numerous recommendations on how to Justice Research Institute in Philadelphia. He is best address police misconduct.22 a retired New York City police officer. Dr. Fyfe is A review of these reports reveals that the the co-author of Above the Law: Police and the problems discussed in Guardians decades ago Excessive Use of Force. He has a B.S. from the persist despite many calls for change. The Com John Jay College of Criminal Justice at the City mission repeated many of the recommendations University of New York (CUNY) and an M.A. it made in Guardians on improving police prac and Ph.D. in criminal justice from the State tices and protecting civil rights in its subsequent University of New York.24 reports. The problems, however, continue with Robert Louden is director of the Criminal no end in sight to the constant barrage of police Justice Center and Security Management Insti misconduct reports. This led the Commission to tute at John Jay College of Criminal Justice at conduct a briefing and ask several experts on po the City University of New York. He is also an lice practices to provide an update on what has adjunct member of the sociology department and happened since Guardians and where the future the department of law, police science and criminal lies with regard to how our guardians perform justice administration at CUNY. Dr. Louden is a their jobs and serve our country while still pro 21-year veteran of the New York City Police De tecting constitutionally guaranteed civil rights. partment. He received a B.A. from Baruch College and an M.A. from John Jay College. He received BRIEFING an M.A. and Ph.D. in philosophy from CUNY.25 On June 16, 2000, the Commission gathered Charles Ogletree is the Jesse Climenko Pro a group of experts on police issues to examine fessor of Law at Harvard University School of police misconduct and recommend changes that Law. His research interests include public de would be appropriate for present-day problems. fender systems, standards of competence for Dr. Sandra Bass, Dr. James Fyfe, Dr. Robert counsel, and criminal justice administration. Dr. Louden, Dr. Charles Ogletree, and Mr. Hubert Ogletree is co-author of Beyond the Rodney King Williams were the five panelists invited to dis Story-An Examination of Police Conduct in Mi cuss current police practices in the United States nority Communities. He received a B.A. and and their effect on civil rights. Their expert M.A. in political science from Stanford Univer presentations and previous Commission reports sity and a law degree from Harvard University served as bases for the present publication. School of Law.26 Sandra Bass has been an assistant professor Hubert Williams is president of the Police at the University of Maryland in the Depart Foundation, an independent nonprofit research ment of Criminology and Criminal Justice since and technical assistance organization dedicated 1998. Prior to her association with the Univer to the improvement of police practices. As presi sity of Maryland, Dr. Bass was a policy analyst dent, Mr. Williams is a leading advocate for pro and doctoral fellow at the Rand Corporation, fessional standards and uniform practices in po where she conducted research from 1997 to 1998 licing. A 30-year veteran of policing, he became on early childhood violence prevention. She one of the youngest chief executive officers of a taught courses at the University of Maryland in major police department on the Newark police advanced policing. Dr. Bass has a Ph.D. in politi force from 1974 to 1985. Mr. Williams has a B.S. cal science from the University of California at from the John Jay College of Criminal Justice and Berkeley. She has written numerous articles on a J.D. from Rutgers University School of Law. He police and minority communities.23 was a research fellow at Harvard University James Fyfe is a professor of criminal justice School of Law, Center for Criminal Justice, and is and senior public policy research fellow at the a graduate of the FBI National Academy.27 Temple University Center for Public Policy. Dr. Fyfe is also the project director of the Crime and 24 Ibid., p. 6. 25 22 See appendix A. Ibid. 26 23 Chairperson Mary Frances Berry, Police Practices Brief- Ibid., P· 7. ing Transcript, pp. 5--S. 27 Ibid., pp. 6-7.
5 CHAPTER 2 Recruitment, Selection, and Training for Police Work
The U.S. Commission on Civil Rights has racial and ethnic tensions in America, then noted in several reports that law enforcement director of population and policy research for the agencies can implement two actions to help pro University of Louisville, William O'Hare, testi tect civil rights: increase the recruitment and fied that people of color accounted for approxi hiring of women and people of color from the mately two-thirds of the total population growth communities being served and train officers not from 1980 to 1990.5 Professor O'Hare deter only in police work but also in community r ela mined that people of color had increased by tions, cultural sensitivity, and the importance of around 32 percent, and Caucasians had in diversity. As discussed below, most police de creased by about 4 percent. s partments have not implemented these recom Professor O'Hare also identified Asian Ameri mendations, to the detriment of the communities cans, Pacific Islanders, and Hispanics as rapidly they serve. growing groups of residents. Between 1980 and The American population is more ethnically 1990, the number of Asian Americans doubled, diverse now than at the time VVho Is Guarding the increasing by six million from 1980 to 1998.7 The Guardians? was published. In April of 1980, the Hispanic population increased by over 50 per U.S. Census Bureau accounted for 226,546,000 cent, adding 15 million people to that population Americans.1 By 1990, the number of Americans had increased by more than 22 million.2 In July 1998, the Census Bureau reported that the data reflect the self-classification of the respondents, or how population had grown by another 21 million,3 the individual perceives his or her own racial identity. 1999 Census Statistics, p. 5. See also Bureau of the Census, Sta increasing the total number of residents by more tistical Abstract of the United States: 1982-83, 103rd ed., p. than 43 million since 1980. As the general popu 3 (hereafter cited as 1982 Census Statistics). In 1980, if a lation grew, so did the relative numbers of each resident of "mixed racial parentage" was unable to provide a ethnic group.4 At a 1992 Commission hearing on single response to the race identification question, then the race of the mother was used. Ibid., p. 3. If a single response for the racial identity of the mother could not be provided,
1 Bureau of the Census, Statistical Abstract of the United then the first race reported by the respondent was used. States: 1999, table 12, "Resident Population-Selected Ibid. This practice varies fl"Dm 1970 when the race of the Characteristics, 1790 to 1998, and Projections, 2000 to respondent's father was used. Ibid. The 1990 census in 2050," 119th ed. (1999), p. 14 (hereafter cited as 1999 Census cluded an "other" racial category with a provision for a Statistics). The total listed above represents the addition of write-in classification. 1999 Census Statistics, p. 5. the total number of males and the total number of females. 5 U.S. Commission on Civil Rights, Racial and Ethnic Ten 2 Ibid. The total listed above represents the total number of sions in American Communities: Poverty, Inequality, and males and the total number of females reported in April Discrimination-A National Perspective, May 1992, p. 94. 1990 minus the total number of males and females reported G Ibid. Professor O'Hare attributed the rapid increase in the in April1980. population of people of color, in part, to immigration. 3 Ibid. The total listed above represents the total number of "Roughly speaking, about 75 percent of the Asian and Pacific males and the total number of females in July 1998 minus Islander growth in the 1980s was due to immigration, and the total number of males and the total number of females about half of the Latino growth in the 1980s was due to im reported in April1990. migration. A lot of people don't realize that almost a sixth of the African American population growth was due to immi 4 Perhaps one of the strongest indicators of the change in gration from Africa and the Caribbean." Ibid., p. 95. the American population is the difference in racial data used by the U.S. Census Bureau. The Census Bureau's racial 7 Ibid. 6 between 1980 and 1998.8 Mrican Americans sions that serve Native Americans must expand grew by more than 12 percent, increasing that efforts to recruit Native Americans.14 Even in group by seven million from 1980 to 1998.9 the small town of Caruthersville, Missouri, Aleut, Eskimo, and Native American residents where the general population is predominately grew by approximately one million.1o black and Hispanic, almost 80 percent of the po lice officers are white, which some community RECRUITMENT members believed contributed to the "abusive The lack of diversity in the ranks of law en attitudes toward black residents."l5 forcement officers continues to be a major prob The experts at the Commission's June 2000 lem with police departments throughout the briefing on national police practices and civil country. In 1981, the Commission found that the rights echoed the call for increased diversity. "serious underutilization of minorities and women Charles Ogletree suggested that the Commission in local law enforcement agencies continues to continue to focus its attention on diversity in the hamper the ability of police departments to func recruitment, selection, and training of law en tion effectively in and earn the respect" of the forcement officers.16 He opined that the solution communities they serve, thereby increasing the to repairing the public's perception of the police likelihood of tension and violence .11 is to encourage Mrican Americans, Hispanics, This observation stands true today as re Asian Americans and Pacific Islanders, Ameri vealed in hearings throughout the nation and can Indians, and women to become officers, so documented by several Commission reports. In that the communities of people of color will begin Chicago, the Commission found a "significant to see a police force that "looks like us."l7 under-representation of minorities and women" James Fyfe, professor of criminal justice at among police officers, particularly those who Temple University, similarly stated that the first speak other languages.IZ A 1995 briefing held in issue to be addressed should be how police hiring Washington, D.C., revealed that careful recruit standards have changed since the publication of ment and selection procedures would improve Guardians. 1B He said that at the time Guardians diversity in the police force and officers' ability was published, police departments hired on the to deal with community members without resort basis of very objective standards: "white males ing to discriminatory practices or harassment.l3 who are a certain height and who could lift a Examining the justice system in South Dakota certain amount of weight and who had 20-30 as it relates to Native Americans, the Commis corrected vision."l9 Since then, police hiring sion found that the Federal Bureau of Investiga standards have changed radically, and conse tion and other U.S. Department of Justice divi- quently the composition of police departments has changed.ZO Dr. Fyfe said police departments
8 Ibid. are more diverse today; the Philadelphia Police 21 9 Ibid. The total listed above represents the total number of Department is 22 percent female, and the po- African American people reported in July 1998 minus the total number of African American people reported in April 14 South Dakota Advisory Committee to the U.S. Commis 1980. sion on Civil Rights, Native Americans in South Dakota: An IO Ibid. The total listed above represents the number of Erosion of Confidence in the Justice System, March 2000, p. American Indian, Eskimo, and Aleut people reported in July 40. 1998 minus the total number of American Indian, Eskimo, 15 Missouri Advisory Committee to the U.S. Commission on and Aleut people reported in April1980. Civil Rights, Race Relations in Pemiscot County, October 11 U.S. Commission on Civil Rights, Who Is Guarding the 1994, pp. 23~24 . Guardians? October 1981, p. 5 (hereafter cited as USCCR, 16 Charles Ogletree, statement before the U.S. Commission Guardians). on Civil Rights, National Police Practices and Civil Rights 12 U.S. Commission on Civil Rights, Racial and Ethnic Ten Briefing, June 16, 2000, transcript, p. 14 (hereafter cited as . sions in American Communities: Poverty, Inequality, and Police Practices Briefing Transcript). Discrimination, Volume III: The Chicago Report, September 17 Ibid., p. 15. 1995, p. 149. 18 James Fyfe, Police Practices Briefing Transcript, p. 20. 13 U.S. Commission on Civil Rights, Racism and Sexism in 19 Ibid. Local and State Law Enforcement Agencies Briefing, Octo ber 1995, transcript, p. 3 (hereafter cited as Racism and 2o Ibid. Sexism Briefing Transcript). 21 Ibid. 7 lice departments in Baltimore, Memphis, New positions such as lieutenants and captains.28 ark, and New Orleans average 7 percent non Additionally, some law enforcement agencies white officers.22 such as Los Angeles, which increased diversity, While acknowledging that the increase in di could not maintain it, leading to high attrition versity is impressive, Sandra Bass noted that rates among women and officers of color.29 more should be done. She promoted the idea of Many reasons exist for this lack of interest by taking diversity goals a step further, recom women and people of color in joining and re mending that police organizations become cul maining in police departments. One is that the turally competent by recognizing and responding recruitment efforts of police departments are in a systematic way to the diversity of their con often too broad and fail to target minority groups stituency by ensuring that this diversity is rep and women. Some departments, when formulat resented and respected within their own organ ing a recruitment plan and advertising program, izational structure and culture. 23 A culturally fail to consult leaders of communities from competent police organization could develop the which they seek new recruits. This may partly means for delivering public services that respond account for why underrepresented groups tend to the diversity of its community.24 to shy away from becoming police officers. Indeed, Robert Louden advocated that a ma Another reason for the lack of interest ap jor study be done to determine how to increase pears to be that these groups do not look favora diversity. In particular, he suggested the study bly upon the police force. As discussed in look at municipal and local policing as opposed Guardians almost 20 years ago, many women to departments in large cities or federal law en and people of color have negative perceptions of forcement agencies.25 Hubert Williams, however, police officers. 30 Indeed, James Fyfe explained at thought more modest steps should be taken and the briefing that for a long time the "social or noted that the Presidential Commission on Law der" of things has held people at the bottom; Enforcement recognized that some police per therefore, "anyone who is at the bottom of the sonnel problems might be rectified if interested social totem pole has absolutely got to resent the applicants could learn about the profession at a police because they are seen as the people who younger age.26 are keeping them in their place, whether it is Although diversity has been recognized as an Mrican Americans or Catholics in Belfast or ideal that should be achieved, the Commission Muslims in the former Yugoslavia."31 This per has found that its realization has been, at best, ception hampers recruitment, especially when it difficult.27 Indeed, even when some police de is reinforced by statistics showing low rates of partments made real efforts to increase diver hiring, high levels of attrition, and lack of oppor sity, they were unable to achieve their desired tunity for advancement of women and officers of results. In Chicago, for example, although uni color.32 versal support existed for a diverse police force In Washington, D.C., the Commission learned and great progress had been made in accom that many residents in the Hispanic community plishing that goal, the Chicago Police Depart viewed police departments as "symbols of op ment had a "significant under-representation of pression."33 The Commission found that in Los minorities in comparison with other city de Angeles a "deep and long-standing schism" ex- partments," especially with regard to leadership
28 Illinois Advisory Committee to the U.S. Commission on Civil Rights, Police Protection of the African American Community in Chicago: An Update, June 1999, p. 37. 22 Ibid., p. 21. 29 U.S. Commission on Civil Rights, Racial and Ethnic Ten 23 Sandra Bass, Police Practices Briefing Transcript, p. 17. sions in American communities: Poverty, Inequality, and 24 Ibid., p. 18. Discrimination, Volume V.· The Los Angeles Report, May 1999, p. 89 (hereafter cited as USCCR, Los Angeles Report). 25 Robert Louden, Police Practices Briefing Transcript, p. 18. 30 USCCR, Guardians, p. 11. 26 Hubert Williams, Police Practices Briefing Transcript, pp. 70-73. 31 Fyfe, Police Practices Briefing Transcript, p. 59. a2 Ibid. 27 See generally Commission reports dealing with police practices listed in appendix A. aa Racism and Sexism Briefing Transcript, p. 3. 8 isted between communities of color and the po scandals.4 1 These two factors alone make it very lice.34 In fact, officers of color suffered the same difficult to recruit people for police work. discriminatory behavior, including racial slurs, Dr. Fyfe pointed out another contributing offensive comments, unjustified stops, and har problem: significant differences between urban assment, from fellow officers as that experienced and suburban police departments. A major point by civilians.as Moreover, female officers reported of tension appears to be the pay disparity be that sex discrimination and harassment oc tween the two. Police officers in the suburbs are curred within police departments, which many paid more than urban police officers. In fact, Dr. cited as primary reasons for leaving the force.36 Fyfe considered the poor pay of urban police offi Negative perceptions of law enforcement are cers as a civil rights issue: "the low salaries of not confined to local departments but also ex urban police officers have no doubt had a delete tend to federal agencies. A recent lawsuit filed rious effect on the quality of police-citizen inter by African American Secret Service agents al action on inner-city streets."42 He advocated in leges that officers of color cannot break the creasing salaries for urban police officers be "glass ceiling" in their respective departments cause higher salaries attract people with profes and/or agencies. Ten current and former agents sional skills.43 He testified that during the past filed a federal class action suit in May 2000 al nine years he has watched suburban police de leging that "they were denied promotions, given partments achieve the higher standards of the dead-end assignments, unfairly disciplined, and profession while city police departments have subjected to repeated racial slurs in what they not, and that this phenomenon is due to the fact called a long-standing hostile work environ that "you get what you pay for."44 ment."37 Since the suit was filed, the plaintiffs' attorneys said the remaining Secret Service SELECTION agents have suffered reprisals, "including forced In its reports, the Commission found several transfers to jobs with less responsibility and problems with the selection process for hiring warnings by senior officials to some of the black police officers, notably with regard to citizen agents that their careers could be in jeopardy as ship, psychological evaluation, and background a result of the class-action lawsuit."38 J ennell investigations. In Guardians, for example, the Walker Clark, who left the Secret Service after Commission found that selection standards did six years of service, stated, "The Secret Service not accurately measure qualities actually re cannot just say it was one office or a personality quired for adequate performance as a law en thing. We were in different offices with different forcement officer.45 This factor contributed to the supervisors. It's pretty pervasive."39 perpetuation of a "nonrepresentative police Other factors seem to dissuade people from force" by disproportionately disqualifying people joining the police force. James Fyfe stated that of color and women applicants.46 Overall, biases "the desirability of the police job is inversely re seemed to exist within many recruit selection lated to the state of the economy."40 He said ur systems.47 ban policing is at an all-time low due to recent In areas with large immigrant populations, many people of color cannot apply to become of ficers because they lack U.S. citizenship despite 34 USCCR, Los Angeles Report, p. 76. 35 Ibid. 36 Ibid., p. 77. 41 Ibid., pp. 21-22. 37 Bill Miller, "Black Agents Sue Secret Service; Federal 42 Ibid., p. 23. Class Action Suit Alleges Bias in Hiring, Promotion Prac tices," The Washington Post, May 3, 2000,
9 having lived in the country for decades.48 In par works with them to create a safe and orderly ticular, Hispanic and Asian Americans and Pa society. Proper training on appropriate interac cific Islanders may be presumed ineligible re tion with constituents, including the use of force, gardless of their citizenship status. The citizen is the cornerstone of police-community relations. ship factor may largely account for the racial Twenty-first century police practices must mani and ethnic disparity among officers. fest sensitivity to the increasingly changing At the briefing, Robert Louden noted that one communities being served to fully realize police of the selection factors, educational attainment, departments' mandate to serve and protect. must be reviewed.49 He called for a better edu Scholars have had a variety of opinions re cated police force. However, citing a Law En garding appropriate training. In Guardians, the forcement Management Administrative Statis Commission found that training programs tics report, he stated that for major police de should give sufficient priority to "on-the-job partments in the country, only 1 percent require training, programs in human relations, and a four-year degree and 8 percent require a two preparation for the social service function of po year degree as a prerequisite for selection.so Im lice officers."55 Later reports focused on the bi proving the educational attainment of police re ases and prejudices in the training process that cruits would result in a more professional police may affect police-community relations. One force and put a more "culturally competent offi commentator suggested that a value system ex cer on the street," he said.51 Echoing testimony isted that made officers "act like oppressors."5G from James Fyfe, Dr. Louden said one way to do James Fyfe stated that a better way to define so would be to increase police salaries to encour the police is to understand that they are there to age college graduates to join the police.52 maintain order and not necessarily to look for The Commission also discovered that with criminals.57 He suggested this philosophy should regard to selection, the police misconduct prob pervade police training programs. He empha lem is, in part, a function of the personality type sized that nondiscriminatory behavior at basic attracted to police work. Thus, screening out training would make a significant impact since those applicants predisposed to such behavior officers at the early stage in their careers are serves an important purpose with regard to civil "eager and receptive," and such training would rights.53 Interviews, background checks, and "stay with them throughout their careers."58 psychological testing enable departments to de Sandra Bass noted that inadequate training tect individuals with the propensity to trans plays a role in situations where some police offi gress.54 However, the problems inherent in these cers choose to refrain from intervening in poten examinations tend to eliminate women and peo tially controversial situations, particularly in ple of color from candidacy. The lack of psy large public gatherings where a possibility exists chologists of color, biases in evaluating candi that aggressive police action will create a violent dates of color from urban areas versus white reaction.s9 She cited the sexual attacks on candidates living in the suburbs, and the subjec women at a parade in New York and her per tive nature of the entire process all play roles in sonal experience at an Oakland, California, pub building bias into the selection system. lic lake where police officers allegedly failed to respond to calls for help because of their concern TRAINING that the crowd might react violently.so Robert A well-trained law enforcement professional Louden discussed the same incident and sur deals effectively with community members and mised that the problem stemmed not from train ing inadequacies, but from the failure of police
48 See ibid., p. 12, fn. 24. 49 Louden, Police Practices Briefing Transcript, p. 32. 55 Ibid., p. 23. 5o Ibid., p. 33. 56 Racism and Sexism Briefing Transcript, p. 3. 51 Ibid., p. 32. 57 Fyfe, Police Practices Briefing Transcript, p. 59. 52 See Fyfe, Police Practices Briefing Transcript, p. 34. 58 Ibid. 53 USCCR, Guardians, p. 18. 59 Bass, Police Practices Briefing Transcript, p. 77. 54 Ibid. so Ibid. 10 supervisors to control the officers and deploy Mental retardation and mental illness are them into action.GI He remarked: "I think super distinct conditions. Thus, law enforcement offi vision at that point in time was the key. You cers should not treat members of those commu know, who was guarding the guardians?"62 nities alike.ss As stated in the Commission report Sharing the Dream: Is ADA Accommodating All? CULTURAL S ENSITIVITY police should anticipate a dramatic increase in Many law enforcement agencies do not pro involvement with persons with disabilities as the vide adequate cultural sensitivity training to trend toward full integration and participation for new recruits and veterans. Indeed, problems people with mental disabilities continues.s7 have occurred when police departments created The Law Enforcement Resource Center their own cultural sensitivity training courses (LERC) formulated a training program titled without community input. Some did not use out "Police and People with Disabilities," which dis side experts or community leaders to formulate cusses mental illness and retardation.ss The the learning materials or lectures. For example, LERC instructed trainees that "approximately at a Commission hearing on police practices and ten million Americans ... experience some emo civil rights in New York City, testimony indi tional or mental disturbance serious enough to cated that training materials designed to reduce require treatment. As a law enforcement officer or eliminate racial, religious, and sexual stereo you will certainly encounter mentally ill indi types were often laced with negative and poten viduals in the course of your work."G9 The LERC tially offensive stereotypes. 63 Input from com also reported that approximately 3 percent of munity leaders, as well as ethnic and religious Americans are developmentally delayed or men groups, could eliminate many of the limitations tally retarded.70 found in training programs across the country. Some commentators believe the expectation However, many police departments have insisted of law enforcement to easily recognize people on developing t heir own training programs on the with mental impairments is unrealistic. At a use of force and cultural sensitivity without the hearing held by the Commission, Hennepin insight and assistance of civic leaders. County (Minnesota) Police Department senior human resources representative Jim Ramna PEOPLE WITH MENTAL DISABILITIES raine testified that the American Medical Asso An issue not specifically addressed in ciation reported that general practitioner doctors Guardians is how· the police are trained to inter "are more likely not to diagnose someone who act with people with mental impairments. Police has a mental illness . . . than to identify that officers, with limited or no training, often con person with bipolar disorder or depression. So if fuse the mentally retarded as drunk, mentally you look at that premise, the people who are ill, or drug addicts.G4 One commentator noted: working as professional doctors in the field can't identify somebody who has a mental illness, I Mental retardation should not be confused with men think it's really challenging to expect that police tal illness. Mental retardation is lower than average intellectual functioning and is a lifelong condition. Mental illness is an emotional disorder that can often be treated.65 66 Most people with mental retardation live independently in the community and may not appear to have a significant 61 Louden, Police Practices Briefing Transcript, p. 85. disability. USCCR, ADA Report. 67 62 Ibid., p. 86. Ibid. (Davis, People With Mental Retardation in the Criminal Justice System, p. 2). Law enforcement activities 63 USCCR, Police Practices in New York City, p. 29. are covered by Title II of the ADA. Title II requires state 64 U.S. Commission on Civil Rights, Sharing the Dream: Is and municipal governments to make all activities, programs, ADA Accommodating All? October 2000 (hereafter cited as and public transportation accessible to persons with disabili USCCR, ADA Report) (citing Leigh Ann Davis, People With ties. 42 U.S.C. 12131-12165 (1990). Mental Retardation in the Criminal Justice System (Arling 68 Law Enforcement Resource Center, Police and People ton, TX: The Arc, October 1995), p. 2). with Disabilities, pp. 11-27. 65 Law Enforcement Resource Center, Police and People 69 Ibid., p. 11. with Disabilities: Facilitator's Guide (Minneapolis, MN: Law Enforcement Resource Center, 1996), pp. 11-27. 70 Ibid., p. 25. 11 officers can do that based on an encounter."71 such an agreement is to alleviate police interac Nevertheless, law enforcement officers must re tion with mentally impaired persons unless po ceive instruction on how to communicate effec lice intervention is absolutely required.76 In tively with people with mental impairments those situations where officer involvement is when able to identify them. necessary, then the human service agency can The LERC recommends to police officers the provide expert assistance.77 following guidelines for interaction with the The following story is an example of unfortu mentally retarded: (1) fully explain who you are, nate consequences when law enforcement offi why you are there, and your expectations of the cers have not been instructed on how to commu subject; (2) ask the subject directly, if you sus nicate with people with mental disabilities. In pect he or she may be developmentally delayed; 1996, Deborah Stagg of Ithaca, New York, "was (3) use simple language, avoiding slang terms known around town as a woman so disturbed and "yes or no" questions (subjects may give you that she had once delivered her own baby by cut the answer they think you want to hear); (4) dis ting her womb open with a penknife."78 Ithaca cuss on e issue at a time, asking questions to en police officers arrived at Ms. Stagg's apartment sure the subject understands; (5) develop an ac in response to a call from neighbors that she was cord between you and the person; and (6) remain "screaming and raving alone in there."79 Ms. patient and calm.72 The Arc, a national organiza Stagg "bolted from her barricaded bathroom and tion of and for people with mental retardation stabbed (Ithaca) Inspector Michael A. Padula in and related disabilities and their families, rec the neck" with a steak knife.so The remaining ommends the following to law enforcement offi officers opened fire on Ms. Stagg.Sl Both Inspec cers who deal with the mentally retarded: (1) tor Padula and Ms. Stagg died as a result of the request the person repeat each phrase of a injuries they sustained during the incident.s2 Miranda warning in his or her own words to en The Memphis (Tennessee) Police Department sure understanding and not parroting, and (2) developed "one of the most effective programs" videotape interviews.73 for teaching municipal police departments on The LERC offers the following separate how to effectively handle calls with emotionally guidelines to police officers on dealing with men disturbed persons. 83 The "Memphis Plan" re tally ill persons: (1) remain calm and nonthreat quires police officers to form Crisis Intervention ening; (2) be tactfully truthful; (3) inquire about Teams and receive special training from mental medications (ascertaining the types of medica health experts on how to handle crisis situations tions prescribed to the subject and when they and de-escalate any violence. The Crisis Inter were last administered to aid in assessing the vention Team is dispatched to defuse volatile situation); (4) be alert, as the behavior may be situations and transport mentally disturbed unpredictable; and (5) remember that most men people to local mental health crisis centers tally ill people are not a threat.74 The recom rather than police stations.s4 The model devel mended long-term solution for police interaction oped by the Memphis Police Department has with people with mental disabilities involves been adopted by other police departments across what the LERC calls "networking" or inter agency agreements between law enforcement and human service providers.75 The purpose of 76 Ibid. 71 USCCR, ADA Report (citing Ramnararine testimony, U.S. 77 Ibid. Commission on Civil Rights, Americans with Disabilities Act 78 Laurie Goodstein, "Trying to Prevent the Next Killer Hearing, Nov. 12-13, 1998, p. 81). Rampage," The New York Times, Sept. 6, 2000, p. Al. 72 Ibid., p. 26. 79 Ibid. 73 Ibid. (citing The Arc, A Police Officer's Guide). See also 80 Ibid. Leigh Ann Reynolds, Understanding Mental Retardation: 1 Training for Law Enforcement (Arlington, TX: The Arc, 8 Ibid. 1998). 82 Ibid. 14 Ibid., p. 12. 83 Ibid. 75 Ibid., p. 14. 84 Ibid. 12 the country.ss The police department in Ithaca, documented incidents of anti-GLBT violence by New York, implemented the Memphis Plan with law enforcement officers in the USA (up from 42 a variation that addressed prevention. Police in 1997)."9° The committee also reported that po resources are used to follow-up on people with lice officers allegedly selectively enforce and en chronic problems who refuse treatment.86 For trap gay Americans.91 The alleged entrapment example, Lieutenant John Saul of the Ithaca occurs when undercover police officers approach Police Department and social worker Terry Ga gay men and then charge them with lewd con rahan persuaded a "paranoid factory worker who duct.92 wanted the police to investigate 'mind intrusion Some police departments incorporate nonho machines' that he insisted were planted in his mophobic instruction in their diversity training. home and workplace" to enter into treatment.B7 For example, the New York City Police Depart Recent history brought the term "suicide by ment's Executive D-evelopment Program for cop" into discussions on police practices. Am high-ranking officers offers an optional course on nesty International defines "suicide by cop" as issues involving law enforcement officers with "incidents in which suicidal individuals have gays and lesbians. 93 overtly provoked the police into shooting them."ss One such incident occurred in Denver, USE OF FORCE where a young man, distraught over the breakup Officers with limited experience tend to rely with his girlfriend, "ran towards an officer with on force to achieve order.94 At a 1992 Commis a kitchen knife in his hand yelling 'shoot me, sion hearing in Washington, D.C., then shoot me.' "89 Effective training on how to handle chairman of the Metropolitan Police Labor all situations with emotionally disturbed persons Committee of the Fraternal Order of the Police, under the Memphis Plan would also assist offi Officer Gary Hankins, concluded that "when of cers with encounters with suicidal individuals. ficers don't have that kind of confidence, don't have the knowledge they need about alterna GAY, LESBIAN, BISEXUAL, AND tives, [they] may resort to their authority or the TRANSGENDERED COMMUNITY color of their authority to hide their fear ."95 The headlines have not been filled with ac In Guardians, the Commission found that counts of abuse against members of the gay, les "[t]raining in the use of deadly force is essential bian, bisexual, and transgendered (GLBT) com but usually insufficient and subject to ambigui munity at the hands of law enforcement. Never ties."96 Recent headlines have been filled with theless, as integration of this community grows, tales of minorities allegedly suffering injuries, police officers will encounter openly gay, bisex indignities, and even death at the hands of police ual, and transgendered Americans. The Commit officers. 97 As a result, there has been a trend to tee United Against Violence is one of few organi zations collecting data on police-community rela tions with GLBT people. In 1998, the committee 9o Ibid., p. 17. reported that "[it] received information on 51 91 Ibid. 92 Ibid.
93 USCCR, Police Practices in New York City, p. 33 (citing 85 Ibid. The report lists the following municipal police de Task Force on New York City Police/Community Relations: partments as implementing the Memphis model for han Report to the Mayor, March 1998, pp. 64-65). dling calls from emotionally disturbed persons: Albuquer 94 U.S. Commission on Civil Rights, Racial and Ethnic Ten que, New Mexico; Portland, Oregon; Seattle, Washington; sions in American Communities: Poverty, Inequality, and and Waterloo, Iowa. Discrimination, Volume I: The Mount Pleasant Report, .1993, 86 Ibid., p. AlB. The article lists Los Angeles, California, and p. 31 (hereafter cited as USCCR, Mount Pleasant Report). Birmingham, Alabama, as cities that have paired law 95 Ibid. (citing Officer Gary Hankins, Fraternal Order of enforcement with social workers. Police, testimony, Hearing Before the U.S. Commission on 87 Ibid. Civil Rights, Washington, D.C., Jan. 29-31, 1992, transcript, 88 Amnesty International, United States of America: Race, vol. 2, p. 266) (hereafter cited as USCCR, Mount Pleasant Rights and Police Brutality, no. AMR51/147/99 (September Hearing Transcript). 1999), p. 11. 96 USCCR, Guard_ians, p. 29. 89 Ibid., quoting an August 1999 Denver Post report. 97 See the stories summarized in the introduction. 13 train officers on how to avoid the use of deadly explained that these types of incidents cause law force. One example comes from Montgomery enforcement agencies to ask, "How can we do County, Maryland. In a Memorandum of Agree things differently?"105 He opined that although ment between the U.S. Department of Justice incidents of persons being shot by police will not and the Montgomery County Police Depart be eliminated, alternative approaches should be ment,98 the police department must integrate used before officers take "more affirmative "incident de-escalation techniques" into its train physical action."lOS "Maximizing safety for the ing program.99 officers, we're trying to figure out can we do it in Governor John Rowland of Connecticut de a-if you will-a kinder, gentler way before we veloped a Law Enforcement Council that re have to revert to the final use of force," he ported its findings on police use of deadly said.107 force.too Although the council concluded that Even within the ranks of police departments, there "is no evidence that officer-involved shoot perceptions vary regarding the consistent use of ings are not effectively and fairly investigated" physical force. One report found that 31.1 per in Connecticut, it also made recommendations cent of officers agree that police are not permit regarding the use of force.1o1 The recommenda ted "to use as much force as is often necessary" tions of the council include the following: (1) es in making arrests.1os Even more law enforce tablish a statewide policy on the use of deadly ment officers (42.9 percent) agree that "always force; (2) emphasize the use of nondeadly force following the rules is not compatible with getting by providing equipment effective in controlling the job done."109 However, officers do believe that aggressive behavior but not lethal to persons; police seldom "use more force than is necessary and (3) implement procedures that reveal an to make an arrest."llO officer's predisposition to use excessive force.1o2 The majority of our nation's police force be Some experts find value in exploring alterna lieve officers do not "always report serious tive methods to diffuse potentially volatile situa criminal violations involving abuse of authority tions. Dr. Louden said policy changes sometimes by fellow officers."111 Most police officers (52.4 occur in response to a critical incident.l03 He re percent) also agree that "it is not unusual for a called a case in which a citizen was shot and police officer to turn a blind eye to improper killed by a police tactical team.l04 Dr. Louden conduct by other officers."ll2 When the statistics are divided based on race, officers disagree. Most white officers (95 percent) 98 Memorandum of Agreement between the U.S. Depart ment of Justice (DOJ), Montgomery County, Maryland, the Montgomery County Department of Police, and the Frater I05 Ibid. nal Order of Police, Montgomery County Lodge 35, Inc., lOG Ibid. executed on Jan. 14, 2000. The agreement was executed 107 Ibid. under the authority given to the DOJ in Title VI of the Safe Streets Act under, Title VI of the Omnibus Crime Control 108 David Weisburd, Rosann Greenspan, Edwin Hamilton, and Safe Streets Act of 1968. The DOJ may investigate com Hubert Williams, and Kellie Bryant, Police Attitudes To plaints of alleged discrimination by law enforcement agen ward Abuse of Authority: Findings from a National Study, cies and attempt to resolve those matters through nonad National Institute of Justice, May 2000, p. 2 (hereafter cited versarial means. Implementation of Title VI of the Civil as Weisburd and others, Police Attitudes Toward Abuse of Rights Acts of 1964, 28 C.F.R. §§ 42.101-42.112 (1999). See Authority). The percentage in the text is the total of those also Implementation of § 815(c)(l) of the Justice System officers who answered that they strongly agree or agree with Improvement Act of 1979, 28 C.F.R. §§ 42.201-42.215 the statement. (1999). 109 Ibid. The percentage in the text is the total of those offi 99 Montgomery County Police Department Agreement, sec. cers who answered that they strongly agree or agree with VII (B). the statement. uo Ibid., p. 3. Sixteen percent of officers answered that po 100 Rachel Gottlieb, "A New Look at Deadly Force; Special Panel Urges Policy Changes; Skeptics Say Racial Tensions lice never use more force than necessary to make an arrest; Will Remain," The Hartford Courant, Dec. 16, 1999, p.Al. 21.7 percent answered that police "sometimes, often or al· ways" use more force than necessary to make an arrest. 101 Ibid. 111 Ibid., p. 5. 102 Ibid. 112 Ibid. The percentage in the text is the total of those offi· 103 Louden, Police Practices Briefing Transcript, p. 36. cers who answered that they strongly agree or agree with 104 Ibid. the statement.
14 do not believe police are more likely to use safety issues "but [an officer's unrealistic con physical force against blacks and other minori cern for his or her own safety] is a form of un ties than against whites in similar situations.113 healthy paranoia that in my experience has The majority of black and other minority officers caused some impressionable young officers to (69.5 percent) believe persons who look like become too quick on the trigger."t22 them are more likely to receive physical force from police.114 The officers were also divided re RACIAL PROFILING garding their views on the use of physical force Racial profiling was not discussed in Guardi on persons of different socioeconomic classes. ans but has become a major problem throughout When asked if police officers are more likely to the nation. Attitudes and theories on racial pro use force against poor people than against mid filing vary considerably. Both law enforcement dle-class people in similar situations, 91.2 per professionals and scholars voiced their opinions cent of white officers disagreed,ll5 while 71.6 at the Commission's briefing on how the beliefs percent of black and other minority officers of individuals are not easily shed when they agreed.116 Nearly all law enforcement supervi carry their badges. sors (97.3 percent) agree "good first-line supervi Commission Chairperson Mary Frances sion can help prevent police officers from abus Berry asked whether racial profiling issues are ing authority.''117 Most supervisors (54.5 percent) related to training_123 In response, James Fyfe also agree that police department policy should maintained that when he was a witness for the be no stricter than the law.us public defender in Glouchester County, New Dr. Fyfe expressed concern at the Commis Jersey, racial profiling was a matter of official sion's June 2000 briefing on national police prac policy and training.124 In that case, the munici tices and civil rights about the militarization of pal police department used a training video the police force. 119 The basis for this concern was where a Jamaican American officer "talked rooted in the new vernacular of law enforcement, about Jamaican posses" and "included scenes including "street survival," "edged weapons," and from the old Jimmy Cliff movie, The Harder "zones of safety."l20 Dr. Fyfe opined that some They Come."l25 The video, Dr. Fyfe said, "pointed police officers are distracted from their focus on out that Jamaicans can be identified because resolving the problems they were hired to solve they wear dreadlocks. But that lots of Jamaicans by an unrealistic concern for their own safety.121 have gotten wise to the fact that the police iden He conceded that officers should be aware of tify them on the basis of dreadlocks so a lot of them don't wear dreadlocks. So, what the mes sage I got out of that was any black man was fair 113 Ibid. The percentage in the text is the total of those offi cers who answered that they strongly disagree or disagree game."l26 This example shows that officers of with the statement. color are capable of engaging in racial profiling.
J 14 Ibid. The percentage in the text is the total of those offi The perpetuation of stereotypes encourages an cers who answered that they strongly agree or agree with "us versus them" mentality that can infect any the statement. police department. As a result, even the most 115 Ibid. The percentage in the text is the total of those offi objective officer of color can look at a person of cers who answered that they strongly disagree or disagree 27 with the statement. color with insolence and suspicion, he said.l 116 Ibid. The percentage in the text is the total of those offi cers who answered that they strongly agree or agree with the statement. 122 Ibid., p. 31.
117 Ibid., p. 11. The percentage in the text is the total of 128 Chairperson Mary Frances Berry, Police Practices Brief those supervisors :who answered that they strongly agree or ing Transcript, p. 78. agree with the statement. 124 Fyfe, Police Practices Briefing Transcript, p. 79. I IS Ibid. The percentage in the text is the total of those su 125 Ibid. pervisors who answered that they strongly agree or agree with the statement. 126 Ibid. 1 119 Fyfe, Police Practices Briefing Transcript, p. 29. 27 Charles Ogletree Jr. and others, Beyond the Rodney King Story: An Investigation of Police Conduct in Minority Com 120 Ibid. munities (Boston: Northeastern University Press, 1995), p. 121 Ibid. 121. 15 Some experts believe that such attitudes are The American Civil Liberties Union issued a not accidental but result from a history of op special report in June 1999 which argued that pression. Hubert Williams testified that the fun racial profiling should be viewed in its proper damental role of the police is to equitably enforce historical context.135 It found that "[p]olice abuse and uphold the rule of law without regard to against people of color is a legacy of African race, ethnicity, or socioeconomic status.12s Nev American enslavement, repression, and legal ertheless, Mr. Williams explained that the na inequality." During the National Advisory Com tion's history involves a legal order that "has not mission on Civil Disorders (the Kerner Commis only countenanced but sustained slavery, segre sion) hearings in the fall of 1967 "one of the gation, and discrimination, and the fact that po complaints lodged repeatedly was 'the stopping lice were bound to uphold that order set a pat of Negroes on foot or in cars without obvious ba tern for police behavior and attitudes towards sis.' "136 minority communities that has persisted until The ACLU report indicates that a U.S. Drug the present day."129 The enforcement of laws Enforcement Administration (DEA) special agent that are mechanisms for discrimination further developed the first profile in the early 1970s.137 divides police officers and the community. As The special agent developed a drug courier pro stated by Mr. Williams, the obligation of police to file while assigned to the Detroit Metropolitan enforce unjust laws, as during the Jim Crow era, Airport.l38 By 1979, the agent's drug courier pro perpetuates the legacy of fear and mistrust in file was in use at more than 20 airports. The minority communities.l30 components of the DEA drug courier profile were Mr. Williams added that the responsibility for behavioral, not racial. Some of the characteris racial profiling should be placed directly with top tics included in the profile were: "Did the person police personneJ.l31 He stressed the importance appear to be nervous? Did he pay for his airline of enforcing departmental regulations through ticket in cash and in large bills? Was he going to out the upper levels of police management, as or arriving from a destination considered a place well as among the rank-and-file members.l32 By of origin of cocaine, heroin or marijuana? Was he doing so, it would reduce the incidence of racial traveling under an alias?"l39 profiling. For example, while discussing the war The previously color-blind profile changed on drugs, considerably. In 1982, the Reagan administra tion intensified its war on drugs by establishing every indicator of drug use outside of those police sta the Task Force on Crime in South Florida. Then tistics, like the NIDA household surveys, and emer Vice President George Bush managed the task gency hospital room entrants, ... shows a completely force whose mission was "to intensify air and sea different breakdown in terms of who the drug users in operations against drug smuggling in the South this country are. The police statistics tell you that the Florida area."140 By 1985, the Florida Depart great majority of drug users are African Americans and minorities.133 ment of Highway Safety and Motor Vehicles joined in the war on drugs in the state and de In other words, Mr. Williams believed that racial veloped guidelines titled "The Common Charac profiling could be, in part, the result of police teristics of Drug Couriers." Troopers were in- departments trying to demonstrate that they have made a significant number of arrests in don't consider this to be big numbers. I think this is a small combating the drug problem in America.l34 percentage of officers." Ibid. 135 David A. Harris, "Driving While Black: Racial Profiling on Our Nation's Highways; An American Civil Liberties 128 Williams, Police Practices Briefing Transcript, p. 49. Union Special Report," American Civil Liberties Union, 129 Ibid., pp. 49-50. June 1999,
141 Ibid. ported by oath or affirmation, and particularly describing 142 USCCR, Los Angeles Report, p. 29 (citing David Shaw, the place to be searched, and the persons or things to be "Chief Parker Molded LAPD Image- Then Came the seized." !d. 1960's," The Los Angeles Times, May 25, 1992, p. Al). See 148 !d. generally Joseph Gunn, assistant deputy mayor, city of Los Angeles, letter to U.S. Commission on Civil Rights, May 15, 149 U.S. Commission on Civil Rights, Racial and Ethnic Ten 1998. The tenures ofLAPD police chiefs Brown, Reddin, and sions in American Communities: Poverty, Inequality, and Murdoch immediately followed Chief Parker's. Chief Gates Discrimination, Volume VI: The New York Report, December became chief of police after Chief Murdoch's tenure. USCCR, 1999, p. 106 (citing Terry v. Ohio, 392 U.S. 1, at 21 (1968)) Los Angeles Report, p. 29, n. 138. (hereafter cited as USCCR, New York Report). 143 Ibid. (citing Independent Commission on the Los Angeles 150 Whren v. U.S., 517 U.S. 806, 819 (1996). Police Department, Report of the Independent Commission 151 ld. on the Los Angeles Police Department, 1991, pp. 98-99) 1s2 !d. at 808. (hereafter cited as Christopher Commission Report). 153 !d. "Their [the MPD officers) suspicions were aroused 144 USCCR, Los Angeles Report, p. 29 (citing Shaw, "Chief when they passed a dark Pathfinder truck with temporary Parker Molded LAPD Image"). license plates and youthful occupants waiting at a stop sign, 146 Ibid. (citing Christopher Commission Report, pp. 99-100). the driver looking down into the lap of the passenger at his See also Shaw, "Chief Parker Molded LAPD Image." right. The truck remained stopped at the intersection for 146 USCCR, Los Angeles Report, p. 29, fn. 142 (citing Daniel what seemed an unusually long time-more than 20 sec E. Georges-Abeyie, "Symposium: Law Enforcement and onds. When the police car executed a U-turn in order to Racial and Ethnic Bias," Florida State Uniuersity Law Re head back toward the truck, the Pathfinder turned suddenly view, vol. 19 (Winter 1992), p. 717). to its right, without signaling, and sped off at an 'unreason able' speed. The policemen followed, and in a short while 147 U.S. CONST., amend. IV: "The right of the people to be overtook the Pathfinder when it stopped behind other traffic secure in their persons, houses, papers, and effects, against at a red light." !d. unreasonable searches and seizures, shall not be violated, 1 and no warrants shall issue, but upon probable cause, sup- 64 !d. at 808-09. 17 Court determined that the Fourth Amendment's In 1999, William Brewer, then-director of the emphasis on the reasonableness of a search and Department of Public Safety for the Oglala Sioux seizure allows certain actions to be taken regard Tribe, agreed that some police officers engage in less of the subjective intent.I55 racial profiling.162 Mr. Brewer stated that many The Whren decision does not extend to the residents were afraid to drive into the next town sidewalks to allow officers to randomly stop pe because "[c]hances are they're going to get pulled destrians. In Florida v. J.£,156 the U.S. Supreme over."163 Court determined that the anonymous tip re At a 1999 community forum sponsored by the ceived by a Miami-Dade police officer that a South Dakota Advisory Committee to the U.S. young black man was at a bus stop, wearing a Commission on Civil Rights, former Rapid City plaid shirt and carrying a gun was insufficient to (South Dakota) Police Chief Thomas Hennies stop and frisk the defendant fitting that descrip explained that prejudices and racism exist tion_I57 The Court determined that the detention among all people, including law enforcement of J.L. was unlawful because (1) the officer did officers.l64 Mr. Hennies recalled: not observe any unusual conduct upon which he could reasonably conclude that criminal activity When I first became a policeman here, if you found a may be afoot, and (2) there were no indicia of drunk Indian downtown, you'd put him in a garbage reliability of the tip_158 Thus, the law remains can. And when he got out, he was sober enough to that without probable cause, individuals' right to leave, and that's just the way things were. I can tell be secure in their persons, houses, papers, and you if those things do occur [today), and I'm not so naive as to say never, but if they do occur, they will be effects must not be breached. dealt with because we are trying to make a differ According to Charles Ogletree, the African ence.165 American community does not want to choose between public safety and civil rights.l59 He ar At a 1992 Commission hearing in Washing gued, "They don't want to have to sacrifice their ton, D.C., members of the Latino community and rights to walk in the streets and to avoid profil other D.C. residents testified regarding police ing, while insisting that they have security in conduct allegedly targeted to the Latino commu their communities, and I don't think that be nity. They reported the pervasive nature of mis cause of your race you should have to make that conduct and insensitivity from the Metropolitan compromise."lGO Police Department.166 An attorney who worked As the Commission stated previously: with the Latino community testified that "mem bers of the Latino community may be subject to One of the real problems with many forms of "profil police misconduct ... at any time, notwithstand ing'' is that the characteristics that are typically com ing their socioeconomic status, language skills, piled tend to describe a very large category of pre profession, location, or even their conduct."I67 sumably innocent persons. This point was expressly recognized by the United States Supreme Court in Another attorney testified that such slurs as Reid u. Georgia, 448 U.S. 438 (1980). Indeed, using "spic" and "wetback" were commonly used by profiles that rely on racial or ethnic stereotypes is no better, and in many respects is far worse, than allow ing individual officers to rely on inchoate and un particularized suspicions or "hunches," which is clearly not permitted under Fourth Amendment ju 162 South Dakota Advisory Committee, Native Americans in risprudence.161 South Dakota, p. 26. 163 Ibid. 164 Ibid. The South Dakota Advisory Committee community 155 Id. at 807, 813-16. forum entitled "Native Americans and the Administration of 166 120 S. Ct. 1375, 146 L. Ed.2d 254 (2000). Justice in South Dakota" was held in Rapid City, SD, on Dec. 6, 1999. At the time of the forum, Hennies had been 157 Id. elected to the South Dakota State Legislature. 168 Id. 166 Ibid. 159 Ogletree, Police Practices Briefing Transcript, p. 10. 166 USCCR, Mount Pleasant Report, p. 20. 160 Ibid. 167 Ibid. (citing Daryl Veal, attorney, Fulbright & Jaworski, 161 USCCR, New York Report, p. 106. Mount Pleasant Hearing Transcript, vol. 2, p. 12). 18 police officers at that time.l68 Several Latino activity. This perception creates the profile that witnesses testified about alleged false arrests, results in more stops of minority drivers."I75 This harassment, demeaning language, and excessive cycle repeats despite the statistic that 80 percent force from officers.I69 One young Latino mantes of cocaine users are typically "middle-class, tified that a Latino officer allegedly approached white suburbanite[s]."l76 him while sitting in front of a school, told him to Dr. Fyfe expressed the view that law en leave, choked, and beat him.11o In another case, forcement training and policy issues tend to dic while parking a friend's car, officers allegedly tate how officers perform when confronted with pulled their guns, verbally abused, and accused split-second decisions. 177 Dr. Fyfe spoke specifi the young Latino driver of stealing the car.l71 cally about the Amadou Diallo casel78 and said The officers allegedly left without an apology every officer with whom he spoke believed he after checking the witnesses' identification and would react in the same manner in those four or the car's papers.l72 five seconds.l79 "[T]he question in that case has Some law enforcement officials have sup always been where the liability lies rather than ported using ethnicity as part of the determina whether the liability existed," he said. ISO tion to detain a citizen if "objective crime trend Many officers (48.8 percent) admit that they analysis validates the use of these characteris are more likely to "arrest a person who displays tics as 'risk factors' in predicting and responding what he or she considers to be a bad attitude."ISl to criminal activity."l73 The data used in support Law enforcement officers (88.9 percent) deny of such statistics may mirror the stereotypes of that they are "more likely to use physical force those reliant upon these statistics. When police against blacks and other minorities than against rely on arrest data that they have generated as a whites in similar situations."l82 But the story is result of targeted drug enforcement efforts, such much different when the officers' answers are statistics can create a self-fulfilling prophecy.l74 split by race. When officers were asked if "police According to an ACLU report, Driving liVhile officers often treat whites better than blacks and Black, law enforcement officers look for "drugs other minorities," most black and other minority primarily among Mrican Americans and Latinos officers (74.7 percent) agreedl83 and most white [and consequently] they find a disproportionate officers (88.2 percent) disagreed.l84 number of them with contraband. Therefore, During the Commission's briefing on national more minorities . are arrested, prosecuted, con police practices, Dr. Fyfe posed the question of victed, and jailed, thus reinforcing the percep whether it is appropriate to criminalize profes- tion that drug trafficking is primarily a minority
175 Harris, "Driving While Black." 168 Ibid. (citing Juan Milanes, attorney, D.C. Latino Civil 176 Ibid. Rights Task Force, Mount Pleasant Hearing Transcript, vol. 2, p. 17). 177 Fyfe, Police Practices Briefing Transcript, p. 85. 169 Ibid., pp. 20-21. 178 Ibid. Dr. Fyfe testified for the accused police officers in the Diallo case. See introduction for more information on the 110 Ibid., p. 21 (citing Emilio Chavez, Mount Pleasant Hear Diallo case. ing Transcript, vol. 2, pp. 103-04). The witness testified that 17 he was sitting in front of the Bell School when an officer told 9 Ibid. him to move. The witness asked him if he was prohibited 180 Ibid. from being there. The officer allegedly answered in the af 181 Weisburd and others, Police Attitudes Toward Abuse of firmative, threw the witness against the wall, and choked Authority. The percentage in the text is the total of those him. The witness testified that the officer did not handcuff officers who answered that they strongly agree or agree with him because he felt "sorry'' for the witness and did not want the statement. to see him deported. Also, the officer allegedly told the wit ness that he "should change." Ibid. 182 Ibid. The percentage in the text is the total of those offi cers who answered that they strongly disagree or disagree 171 Ibid. (citing Omar Centurian, Mount Pleasant Hearing with the statement. Transcript, vol. 2, pp. 82-83). 183 Ibid., Exhibit 7. The percentage in the text is the total of 172 Ibid. those officers who answered that they strongly agree or 173 Interim Report of the State of New Jersey Police Review agree with the statement. Team Regarding Allegations of Racial Profiling, Apr. 20, 184 Ibid. The percentage in the text is the total of those offi 1999, p. 56. cers who answered that they strongly disagree or disagree 174 Ibid., p. 58. with the statement.
19 sional mistakes by the police, as in the Amadou ongoing problems, and improve the overall qual Diallo case. He concluded that racial profiling is ity of life."l91 a policy and training issue.l85 Sandra Bass The Community Oriented Policing Services stated cultural competence is more than how (COPS) office was created by Attorney General many people of color are hired and p:romoted and Janet Reno to implement and promote commu the number of hours of diversity training.I86 Cul nity policing.192 The COPS office declared that turally competent organizations not only under 105,000 community policing officers were funded stand and consistently respond to their constitu and 30,000 grants were awarded to more than encies, but also ensure diversity by representing 12,000 law enforcement agencies, covering 87 and respecting the community within their own percent of the country. In fact, some reports in organizational structure and culture .187 dicate that crime has dropped to its lowest level since 1968.193 A benefit of the COPS program, COMMUNITY POLICING and a critical part of its legacy, has been its focus on training. The COPS regional network of "The police department is the place where the training institutes across the country has criminal justice system and the community con trained officers in areas including building part verge. "188 nerships within the community, supporting vic tims of domestic violence, and problem-solving. Community policing requires a partnership COPS has also made a substantial contribution between law enforcement and citizens. The to numerous police integrity initiatives and is implementation of community policing programs continuing to develop additional resources to is oftentimes a result of "a forced change rather strengthen this critical area.l94 than voluntary movement."189 The Bureau of Sandra Bass said research has shown fear of Justice Assistance defines community policing as punishment and obtaining a favorable outcome "a collaboration between the police and the com were not the most important factors for the pub munity that identifies and solves community lic's perception of fairness in the American jus problems. With the police no longer the sole tice system.l95 "[T]he belief that they were guardians of law and order, all members of the treated fairly, equitably, and respectfully were community become active allies in the effort to more critical indicators for determining overall enhance the safety and quality of neighbor satisfaction with criminal justice agents, like the hoods."I90 The Community Oriented Policing police, and positively affected their decision to Services Division of the U.S. Department of Jus voluntarily comply with the law in the future."l96 tice defines community policing as "proactive, Thus, law enforcement treating residents with solution-based, and community driven." It occurs respect deters crime and may prevent future when "a law enforcement agency and law crime problems_I97 abiding persons work together to do four In the 1970s, the Los Angeles Police Depart things: arrest offenders, prevent crime, solve ment instituted a version of community policing known as the "Basic Car Plan."198 Under the
191 U.S. Department of Justice, Office of Community Ori ented Policing Services,
Report on Police (Washington, D.C.: Government Printing 209 Ibid. Office, 1973), p. 157). 210 Ibid., p. 68 (citing Los Angeles Police Department, "Cul 199 Ibid. tural Awareness for Law Enforcement: Living and Working 200 Ibid. (citing Gerald Woods, The Police in Los Angeles: in Our Diverse Society'' (course materials), 1996, p. 1). For Reform and Professionalization (New York: Garland Pub example, many Central and South American immigrants lishing, 1993), pp. 310-12). may be reluctant to talk to police because of the differing 201 Ibid., p. 1. After the Rodney King incident (see introduc functions and activities of law enforcement in those coun tion for details), Warren Christopher headed an independent tries. Ibid., p. 167. commission mandated to "examine any aspect of the law 211 South Dakota Advisory Committee, Native Americans in enforcement structure in Los Angeles that might cause or South Dakota, p. 26. contribute to the problem of excessive force." Ibid. (citing 212 Ibid. Christopher Commission Report, p. ii). 213 Ibid., p. 27. 202 Ibid., p. 30 (citing Christopher Commission Report, p. 100). 214 USCCR, Police Practices in New York City, p. 33 (citing Howard Safir, police commissioner of the city of New York, 203 Ibid. testimony before the U.S. Commission on Civil Rights on 204 Ibid. Police Practices and Civil Rights in New York City, Hearing, 20~ Ibid. New York, NY, May 26, 1999, p. 194 (hereafter cited as New York Police Practices Hearing Transcript). Safir testified 206 Ibid., p. 160. that the City University of New York, Columbia University, 207 Ibid. and St. Johns University collaborated on the cultural diver 208 Ibid., p. 93 (citing Racial and Ethnic Tensions in Ameri sity training. Ibid. Safir also testified that the Columbia can Communities: Poverty, Inequality, and Discrimination University director of the African Studies Institute, Dr. Los Angeles Hearing, June 15-17, 1993, transcript, p. 118). Manning Marable, advised on the curriculum. Ibid. 21 stereotypes, avoiding stereotypical language, department's community policing efforts.222 The and discussions with community leaders about Ford County program, called Community Educa their concerns.215 tion Opportunity, performed the following ser At the Commission's briefing, Dr. Louden vices (1) conducted individual assessments of discussed his involvement in New York's Street youth to identify problems, (2) referred youth to wise program.216 The Streetwise program deals appropriate community agencies, and (3) as with "language, cultural, and people issues."217 signed a mentor. 223 Sheriff Learning said the The curriculum was developed by police academ program is a "good gang prevention approach ics, anthropologists, foreign language professors, that uses parent groups."224 "cultural people," and "police people" to remove Another county in Kansas tried to bridge the stereotypes from police training.218 The course gap between law enforcement and the Hispanic provides in-depth information on the culture and community. Then-Finney County (Kansas) sher language of five groups of Americans: Hispanic, iff, Grover Craig, reported that his department African/Caribbean, Chinese, Haitian, and Rus "encourages" officers to be bilingual_225 Sheriff sian.219 Craig stated the department issued some com At a Commission-sponsored 1995 community munity bulletins in Spanish.226 forum on race relations in rural Kansas, Dodge Some scholars of community policing suggest City (Kansas) Police Chief Oakley C. Ralph de that a benefit of the practice is a reduction in the fined community policing as a "partnership" be possibility that law enforcement will engage in tween the community and law enforcement.zzo gross forms of corruption, such as extortion. Sta Through a community policing funding grant tistics also support the belief that community received by the Dodge City Police Department, policing increases the chance that law enforce one officer: (1) conducts community surveys ment will engage in softer forms of corruption, where residents identify issues requiring resolu such as receiving free lunches, professional dis tion, (2) coordinates the community policing pro counts, or "gifts of appreciation."227 gram, (3) provides training in community polic ing philosophy, and (4) develops closer commu nity relations.22l 222 Ibid., p. 12 (citing Kansas Advisory Committee, Kansas At the community forum, Ford County (Kan Race Relations Transcript, pp. 377-78). Sheriff Learning sas) Sheriff Arlyn Learning discussed the "youth managed the Ford County jail at the time of the community forum. Ibid. out-of-school suspension program" as part of the 223 Ibid. 224 Ibid. 215 Ibid. (citing Safir, New York Police Practices Hearing 225 Ibid. (citing Kansas Advisory Committee, Kansas Race Transcript, pp. 158-60). Relations Transcript, pp. 382-84). At the time of the com 216 Louden, Practices Briefing Transcript, p. 37. munity forum, Sheriff Craig had been in his position for 25 217Jbid. years and had 37 years of experience as a Jaw enforcement officer. 218 Louden, Police Practices Briefing Transcript, p. 38. See 226 Ibid. also USCCR, Police Practices in New York City, pp. 32-33. The course is titled Streetwise Language, Culture and Police 227 Weisburd and others, Police Attitudes Toward Abuse of Work in NYC. Ibid. Authority, p. 7 (citing David Weisburd, Jerome McElroy, and 219 Ibid. (Safir, New York Police Practices Hearing Tran Patricia Hardyman, "Maintaining Order in Community Ori script, pp. 159-60). ented Policing," in Police and Policing, ed. Dennis J. Kenney (New York: Praeger, 1989)). It was also suggested that com 220 Kansas Advisory Committee to the U.S. Commission on munity policing had no effect on police corruption. Ibid. Civil Rights, Race Relations in Rural Western Kansas Nationally only 7.1 percent of officers believe that commu Towns, June 1998, p. 11 (citing Kansas Advisory Committee nity policing increases the risk of corrupt behavior. Of the to the U.S. Commission on Civil Rights, Community Forum law enforcement officers ques tioned regarding the effect of on Race Relations in Rural Kansas Towns, Garden City, community policing on the use of excessive force, 50.9 per Dec. 13-14, 1995 (hereafter cited as Kansas Advisory Com cent believe that the practice decreases the use of excessive mittee, Kansas Race Relations Transcript), pp. 348-49). force. Weisburd and others, Police Attitudes Toward Abuse 221 Ibid. The text of the report does not identify the source of of Authority, p. 8. When that sampling of officers is divided the funding for the grant received by the Dodge City Police by race, the answers vary; 1.2 percent of white officers be Department. At the time of the Kansas community forum, lieve community policing increases the number of incidents Police Chief Ralph had been an officer for 32 years and the involving excessive force while 10.5 percent of black and chief of the Dodge City Police Department for 25 years. Ibid. other minority officers join in that contention. Ibid., p. 10.
22 At the Commission's briefing, Dr. Fyfe re for officers.zaa Culturally competent organiza sponded to an inquiry regarding the rewards for tions deliver services that respond to the diver police officers who participate in preventing sity of their constituency, whether the diversity crime.zza Dr. Fyfe reported that making arrests is in race, ethnicity, sexual orientation, lan for possesory offenses has become a police guage, or gender.239 goal.229 Dr. Fyfe shared that a former law en forcement partner found that "the problem with CONSENT DECREES policing is that there is no credit for prevents."230 Training may be changed as a result of con According to Hubert Williams, African sent decrees that law enforcement agencies en Americans are only 13 percent of the drug-using ter into with the federal government. The Jus population but are arrested at a rate five times tice Department, under the Violent Crime Con greater than white Americans.231 Mr. Williams trol and Law Enforcement Act of 1994,240 may noted that discriminatory enforcement of laws enter into consent decrees with municipal police against any minority community undermines departments alleged to engage in a "pattern or the ability of law enforcement to engage persons practice" of conduct that infringes upon the civil in partnership for policing.232 Information vital rights of its persons, as afforded by federal, for crime control does not filter to police without state, and locallaws.241 A city does not have to community participation and support.233 Dr. admit to any violations to enter into a consent Louden added that people should be taught how decree.242 Training is one of many areas within to respond when detained by law enforcement.234 which the Justice Department may negotiate "We train cops how to stop people. We don't tell with local police departments in consent decrees. people how to be stopped," he said.235 An example of some of the areas covered by Professor Larry Hajime Shinagawa of So such agreements can be found in the consent noma State University in California participated decree between the United States and the New in the Sonoma County Police Department train Jersey State Police (executed December 30, ing focusing on police relations with the Asian 1999).243 The decree appointed an independent American and Pacific Islander community.236 monitor to review and evaluate training offered Professor Shinagawa found the training to be by the New Jersey State Police regarding motor fragmented and noted that diversity training vehicle stops.244 It required police academy edu must reflect the changing realities of the juris cators to receive training in adult learning skills, diction.237 Diversity training should be holistic, leadership, teaching, and evaluation.245 It fur broad-based, and have a comparative approach ther provided that "all recruits and troopers" shall continue mandatory in-service cultural di versity training, including "interactions with 228 Chairperson Berry and Vice Chairperson Reynoso, Police persons from different racial, ethnic, and reli Practices Briefing Transcript, pp. 68-69. gious groups, persons of the opposite sex, per 229 Fyfe, Police Practices Briefing Transcript, p. 69. sons having a different sexual orientation, and 230 Ibid. Dr. Fyfe did not identify the former partner to persons with disabilities; communication skills; whom he referred. and integrity and ethics, including the duties of 281 Williams, Police Practices Briefing Transcript, p. 50. Mr. Williams did not cite a source for the statistical information. 2a2 Ibid., p. 52. 238 Ibid. 233 Ibid. 239 Bass, Police Practices Briefing Transcript, p. 18. 284 Louden, Police Practices Briefing Transcript, p. 100. 240 The Violent Crime Control and Law Enforcement Act of 235 Ibid. 1994 is discussed in-depth in chapter 5. 236 California Advisory Committee to the U.S. Commission 241 42 U.S.C. 14141 (Supp. IV 1998). on Civil Rights, Community Concerns about Law Enforce 242 I d. ment in Sonoma County, May 2000, p. 21. Professor Shina· gawa participated in the training from 1992 to 1994. 243 Ralph Siegel, "Two experts selected to monitor State Police," The Associated Press State & Local Wire, Mar. 29, 237 Ibid. (citing California Advisory Committee to the U.S. 2000. Commission on Civil Rights, Police Practices and Police· Community Relations in Sonoma County Forum, Santa 244 Ibid., 'II 94. Rosa, CA, Feb. 20, 1998, transcript, p. 25). 245 Ibid., 'II 99. 23 truthfulness and reporting misconduct by fellow crimes and therefore, they should be arrested in troopers, the importance of avoiding misconduct, greater numbers.253 professionalism, and the duty to follow civilian complaint procedures and to cooperate in mis CONCLUSION conduct investigations."246 In sum, the problems reported 20 years ago persist with very little meaningful change over PROMOTION AND RETENTION time, and other problems, such as racial profil James Fyfe said at the briefing that police ing have developed. Despite repeated recom departments have a problem retaining high mendations to make significant internal changes quality personnel in municipal police depart that would considerably curb police misconduct ments because candidates perceive other law and improve police-community relations, few enforcement agencies, such as the Federal Bu police departments seem to have fully adopted reau of Investigation, the Drug Enforcement the Commission's recommendations, resulting in Agency, and state police departments, as chal continued abuse of civilians at the hands of po lenging and prestigious, while considering mu lice officers. Police departments throughout the nicipal policing as a "poorly paid, low status, and nation must improve diversity within their eventually corrupting endeavor."247 He recom ranks, incorporate cultural sensitivity into their mended current personnel problems of urban training and police culture, and work closely police departments should be investigated.248 with the communities they serve to create a new The experts discussed the promotion and re partnership. New developments such as racial ward system at the briefing and found it to be profiling could be curbed if police departments seriously flawed. Robert Louden argued that a addressed basic structural and systemic prob major problem with police departments today lems. Continued disregard of these recommenda stems from their reward systems.249 Currently, tions will only aggravate current problems while departments reward officers for activities such further disenfranchising the very communities as arresting people and seizing large quantities that most need police protection. of narcotics.zso However, the system neglects other activities and it fails to "see the value in CHAPTER 2: FINDINGS AND RECOMMENDATIONS selling to the public the other services that [offi The Commission reiterates its fmdings and cers] do."251 Dr. Louden did not describe what recommendations set forth in Guardians and those other services might be, but the system subsequent police practices reports, many of does not recognize them favorably. In other which have not yet been realized. words, the perception of "good" police work and "bad" police work must be revised. Recruitment Dr. Bass explained that the reward system Finding 2.1: The lack of diversity in the and racial profiling affect each other. She sug ranks of law enforcement officers continues to be gested that racial profiling might be encouraged a major problem with departments throughout by the reward system.252 Dr. Bass cited the the country. The serious underutilization of peo Rampart Division case in Los Angeles as an ex ple of color and women will continue to prevent ample of how the incentives structure, which police departments from functioning effectively. rewards police officers based on their numbers of Finding 2.2: Some police departments have arrests, may actually promote the perception been unable to maintain diversity even though among some officers that certain people commit specific actions have been taken to increase mi nority representation. Several reasons account for 246 Ibid., '11100. this problem. Recruitment efforts are not specifi 24 7 Ibid., 'II 21. cally directed to communities of color and women. 248 Ibid. A negative perception of police officers and police 249 Louden, Police Practices Briefing Transcript, p. 62. departments persists. Claims of harassment and 250 Ibid. oppression along with low job satisfaction, espe- 251 Ibid., p. 63.
252 Bass, Police Practices Briefing Transcript, p. 75. 253 Ibid., pp. 75-76.
24 cially the disparity in pay, account for only a Some law enforcement agencies receive fewer fraction of the barriers to attracting people of applications from people of color and women color and women to law enforcement. than white men. Moreover, biases may exist that Finding 2.3: A large percentage of law en eliminate candidates of color during the applica forcement officers live outside the communities tion process, including within background checks they serve. Employing police officers who live in and psychological testing. the jurisdictions they patrol would create famili Finding 2.6: The selection process contains arity between the residents and the officers. Of several problematic requirements. Many com ficers would learn more about the local commu munities of color include noncitizen residents nities, have a greater stake in safe neighbor who are ineligible for police work. The lack of hoods, and gain understanding and respect from psychologists of color, biases in evaluating can residents. Community input is necessary to ef didates from the urban areas versus white can fectuate real change within police departments. didates from the suburbs, and the subjective na Finding 2.4: Programs such as the NYPD's ture of the process all play roles in building bias Cadet Corps and Explorers programs have in into the selection system. creased minority recruitment into the force. Finding 2. 7: Some law enforcement agencies Reconunendation 2.1: As was recom require that new cadets have at least 60 college mended in Guardians and several subsequent credits and at least a 2.0 grade point average. reports, law enforcement agencies should de Although laudable, a more stringent require velop and implement affirmative action plans so ment should be instituted to professionalize the that ultimately the agencies reflect the composi police force. A professional police force would tion of the communities they serve. Increased develop officers who possess sound judgment, hiring of city residents would greatly contribute good reasoning abilities, knowledge of law, and to that effort. the maturity to deal effectively with the people Reconunendation 2.2: As discussed in pre they serve. vious reports, all law enforcement agencies Reconunendation 2.4: Law enforcement should evaluate and revise their recruitment agencies should encourage all new police re plans. They must increase the numbers of appli cruits to have a college degree. They should also cants and cadets from local communities of color. build closer ties with local colleges and universi Large cities with large minority populations ties to recruit cadets, provide career guidance, should institute aggressive affirmative action and utilize faculty in their training programs. programs. They should also establish permanent Additionally, programs such as the NYPD's Ca minority recruitment units with adequate fund det Corps and Explorers groups should be cre ing. At a minimum, they should increase their ated in major American cities with low minority preference points for local residents. representation. Reconunendation 2.3: At each and every law enforcement agency, more people of color, bilin Training gual personnel, and resident officers should be Finding 2.8: Good basic training on diversity hired. Incentives such as hiring bonuses should be issues would make a significant impact on law instituted to encourage applications from these enforcement personnel at the earliest stage in individuals. Public perception of local police de their training and stay with them throughout partments should be improved. Involving com their careers. Inadequate training reveals itself munity leaders at every stage in the selection and at the time when officers have to make quick recruitment process would assist departments in and life-altering decisions. fully implementing these recommendations. Cultural Sensitivity Selection Finding 2.9: Training is essential in develop Finding 2.5: As discussed in previous re ing good police officers. Cadets may not receive ports, the disproportionate representation of enough training time and experience, especially people of color and women in law enforcement diversity training. Some law enforcement agen stems, in part, from the application process. cies use training materials with offensive and
25 prejudicial racial, ethnic, religious, sexual, and be tested on the material. Law enforcement gender stereotypes. Such materials exacerbate agencies should make it imperative that police racial and ethnic tensions by oversimplifying officers receive training on how to interact effec and generalizing facts about the communities tively with the disabled community. that are served. Additionally, sexual harassment Recommendation 2.6: Municipal police de training is often inadequate. partments should implement some variation of Finding 2.10: The quality of instructors con the Memphis Plan and partner with local social ducting diversity and sexual harassment train services offices for training and assistance with ing and the number of instructors of color need interaction with people who have mental dis improvement. Poor instruction leads to harmful abilities. misunderstandings among trainees. Further, Recommendation 2.7: Community cultural trainees do not take such training seriously. leaders and scholars should be consulted in all Some training academies fail to use outside ex phases of law enforcement diversity training, perts and community leaders to formulate cur including course implementation. Police depart riculum. Many departments include diversity ments should mandate annual diversity training training as part of their police academy curricu for all officers, regardless of rank. lum with no supplemental or follow-up training. Finding 2.11: Basic police training is inade Use of Force quate to address officer interaction with people Finding 2.13: Law enforcement officers with with mental disabilities. Trained medical profes limited experience tend to resort to using force sionals have difficulty diagnosing mental illness; before implementing nonviolent alternatives therefore, it is unrealistic to expect police officers more than experienced officers. When abuses of to always be able to discern if someone has a men law enforcement authority occur, they are sel tal impairment, especially from one encounter. dom reported. Finding 2.12: Only a few law enforcement Recommendation 2.8: Police departments agencies incorporate nonhomophobic instruction should implement de-escalation procedures that into their diversity training curriculum. As gays, offer officers alternatives to use of force, particu lesbians, bisexuals, and transgendered individu larly deadly force, in diffusing potentially vola als (GLBT) become more mainstreamed, the tile situations. need for such training grows. Recommendation 2.5: Based on these Racial Profiling ideas, appropriate police training remains an Finding 2.14: Racial profiling persists imperative for all law enforcement agencies, par throughout the United States and is an egre ticularly courses focusing on cultural sensitivity. gious violation of civil rights. Some law enforcement agencies should strength Finding 2.15: Law enforcement officers may en their diversity training and sexual harass stop cars with probable cause that the traffic ment programs. As the characteristics of Ameri codes have been violated. Some officers, how can residents continue to evolve, law enforce ever, engage in racial profiling or the practice of ment should become increasingly aware of the initiating contextual stops with no individual unique characteristics of the various racial and ized suspicion of criminal conduct. ethnic groups and gain an appreciation for their Finding 2.16: Communities of color do not cultures. They should include members of the want to choose between public safety and civil local communities in developing courses. rights. Negative stereotypes embedded within train Recommendation 2.9: To break the cycle of ing materials should be eliminated. Materials racial profiling, law enforcement should apply should explore the meaning of racism, sexism, the Florida v. J.L. test to these racial profiles. bias, oppression, stereotyping, peer pressure, Indeed, without some reliable tip or individual and related concepts. Implementing training on ized suspicion of criminal conduct, the officer appropriate interaction with the GLBT commu does not have the legal authority to detain any nities as part of diversity training would be ap citizen. States should pass legislation against propriate for many jurisdictions. Trainees should the practice of racial profiling similar to those
26 enacted or introduced in California, Pennsyl into consent decrees with the U.S. government vania, New Jersey, and Oklahoma. allows an independent monitor to review and Recommendation 2.10: Officers guilty of evaluate training and other policies. These con engaging in racial profiling must be subject to sent decrees eliminate expensive and lengthy sanctions up to and including personal liability. litigation and address the immediate concerns of The Violent Crime Control and Law Enforce local community members. ment Act of 1994 (VCCLEA) empowers the At Recommendation 2.14: Those law enforce torney General to bring civil actions against ment agencies targeted by the U .S. Department state and local law enforcement agencies that of Justice as engaging in a pattern or practice of are found to engage in a pattern or practice of misconduct violating civil rights should immedi depriving persons of the rights endowed to them ately begin negotiating consent decrees to pre by the Constitution of the United States.254 Upon vent further abuses and infringements on civil a finding that an officer persists in engaging in rights. racial profiling after explicit warnings to cease, Recommendation 2.15: The U.S. Depart then he or she should be subject to individual ment of Justice should be fully funded to support liability. Individual liability would be an effec review of local law enforcement agencies for pos tive deterrent to profiling. sible violations of the VCCLEA. Recommendation 2.11: Police departments should institute a zero tolerance policy against Promotion and Retention racial profiling. Any officer found to engage in Finding 2.20: The promotion and reward racial profiling should be subject to immediate system of many law enforcement agencies is se dismissal from the police force. riously flawed. As discussed in previous reports, having officers of color in command-level posi Community Policing tions improves police-community relations and Finding 2.17: Community policing occurs decreases the likelihood of police misconduct. when a law enforcement agency and law-abiding However, officers of color have difficulty reach people work together to arrest offenders, prevent ing command levels. There may be biases built crime, solve ongoing problems, and improve the into the process such as pressuring officers to overall quality of life in the community. Good produce summonses, arrests, and seizures while police-community relations deter crime. neglecting to provide incentives for officers who Finding 2.18: Effective diversity training is protect individuals' civil rights. This encourages essential to successful community policing. Po officers to engage in unlawful and illegal prac lice-community relations are tainted when police tices. Some retaliation by law enforcement agen officers lack understanding about the cultures of cies against officers who report such misconduct the department's constituency. may occur. Further, the pressure harms police Recommendation 2.12: Community polic relationships with local communities. ing should be instituted in all local law enforce Finding 2.21: Racial profiling may be en ment agencies. couraged by some aspect of the reward system. Recommendation 2.13: Law enforcement Recommendation 2.16: Law enforcement agencies should mandate supplemental diversity agencies should evaluate their retention and training that incorporates changes to the com promotion process to determine what biases ex munities patrolled. Local community leaders ist in the system and seek ways to improve the should be consulted and used as resources for promotion of officers of color and avoid racial that training. profiling. A system of rewards should be imple mented that rewards crime prevention and not Consent Decrees simply arrests. Finding 2.19: Consent decrees are useful in Recommendation 2.17: Claims of retalia eliminating a pattern or practice of police mis tion should be investigated vigorously, and de conduct that infringes upon civil rights. Entering partments doing such investigations should be properly funded and empowered with the appro priate authority to be effective. 254 42 U.S.C. 14141 (Supp. IV 1998).
27 CHAPTER3 Internal Regulation of Police Departments
In 1973, the National Advisory Commission Connecticut on Criminal Justice Standards and Goals Task In December 1999, the Governor's Law En Force on Police observed that "[n]o police agency forcement Council issued a report on improving could maintain internal order if employee mis the public's confidence in investigations of police conduct were rampant, just as it could not main shootings in the state of Connecticut. The report tain social order if public anarchy were ram noted that "there were five fatal shootings by pant."l However, in contemporary times, na police in 1998; four each in 1995, 1996 and 1997; tional law enforcement agencies still face the one in 1994; six each in 1992 and 1993; and two challenges of preventing, monitoring, and ad each in 1990 and 1991."3 Among other recom dressing police misconduct incidents. mendations, the council advised that the state Several methods that are used to maintain should implement a standard policy on the use of internal order in police departments include re deadly force, educate the public on police train ducing incidents of unnecessary deadly force, ing in the use of deadly force, and mandate that identifying substantiated civilian complaints of law enforcement agencies provide a greater re police misconduct, monitoring routine encoun sponse to legitimate public concerns on the use ters between the police department and the pub of deadly force.4 lic, conducting internal investigations, and rec ommending discipline for officer misconduct. California Accordingly, this section of the report provides According to Los Angeles Police Department an overview of how various police departments reports, since 1994, LAPD officers have shot 37 in the United States are addressing these pri people who exhibited symptoms of mental ill mary issues. ness-25 ofthem were killed.s
POLICIES TO REDUCE INCIDENTS OF Illinois UNNECESSARY DEAD~Y FORCE In Chicago, while the number of police related shootings declined between 1998 and Statistics on the Use of Deadly Force 1999, the number of individuals killed by police The number of police shooting incidents that resulted in the death of civilians differs through out the nation.2 The following is a small sample creased dramatically in 14 major cities over the past five years." Ibid. of statistics from various jurisdictions: 3 "Law Enforcement Council's Recommendations Not Yet Fully Adopted," The Associated Press State & Local Wire, BC cycle, Hartford, CT, Feb. 16, 2000. "Six people were fatally shot in 1999 by police officers in Hartford (where two deadly 1 U.S. Commission on Civil Rights, Who Is Guarding the shootings occurred), Meriden, North Branford, New London Guardians? October 1981, p. 35, n. 1 (hereafter cited as and Clinton. A seventh man was killed by FBI agents in USCCR, Guardians). Bridgeport." Ibid. 2 See also Diane Carman, "Deadly Force Out of Hand," The 4 Ibid. Denver Post, Oct. 5, 1999, p. Bl. The author refers to a Hu man Rights Watch study which maintained that "incidents s Steve Berry and Josh Meyer, "Mistakes Seen in LAPD of police brutality, including shoving, beating and manhan Shootings of Mentally Ill," The Los Angeles Times, Nov. 7, dling suspects as well as unjustified shootings, have in- 1999, p. Al. 28 gunfire was approximately the same.s There clude[d] that such force may not be used unless were 16 fatalities in 1999 and 15 in 1998.7 it is necessary to prevent the escape and the offi cer has probable cause to believe that the sus Washington, D;C. pect poses a significant threat of death or serious In the 1990s, District of Columbia police offi physical injury to the officer or others."l4 cers shot and killed more individuals per resi dent than any other major U.S. city police force.8 Policies on the Use of Deadly Force However, police shootings fell by almost 66 per At the Commission's June 2000 briefing on cent when compared with 1998 data. "[SJince police practices, James Fyfe, professor of crimi January 1999, D.C. police have shot 11 people nal justice at Temple University, discussed the four fatally--<:ompared with 32 shootings-12 development of a police standard of care, which fatal-in 1998. Although District police killed is now comparable to a "reasonableness" stan fewer people in shootings in 1999, the percent dard. He maintained that at the time the Com age of those shot by police who ultimately died mission published Guardians in 1981, there remained about the same."9 were no policies on policing, and it has been dif ficult to encourage police administrators to de Legal Standards velop these strategies.15 One contributing factor The 1985 U.S. Supreme Court case of Tennes to the development of a police standard of care see v. GarnerlO remains as controlling legal au was the U.S. Supreme Court case of Monell v. thority on law enforcement agencies' use of New York Department of Social Services.l6 The deadly force. In Garner, the Court was asked to Court in Monell observed that civil rights viola decide the constitutionality of a Tennessee stat tions committed by a public employee can im ute that stated, "If, after notice of the intention pose liability on the employer, if it can be shown to arrest the defendant, he either flee[s] or forci that the employee was poorly trained or poorly bly resist[s], the officer may use all the neces supervised and those deficiencies caused the vio sary means to effect the arrest.''11 The Court ex lations.17 amined whether deadly force could be used to According to Dr. Fyfe, this case changed po avert the escape of an unarmed alleged felon. 12 lice departments' perspectives: "[i]f you look at Specifically, the Court recognized that when po what goes on in the civil courts today you'll see lice officers use deadly force to apprehend a sus that there is a police standard of care."lB He ob pect, a Fourth Amendment "seizure" has taken served that the International Association of place. As a result, deadly force is only constitu Chiefs of Police (IACP),. which resisted policy tional if it is "reasonable."13 The Court also "con- making in 1980, has developed guidelines for
6 Todd Lighty, "Shootings by Police Drop Off Sharply," The additional policy guidance from local police departments. Chicago Tribune, Jan. 6, 2000, p. 1 (hereafter cited as Ibid., p. 89. Lighty, "Shootings"). 14 471 U.S. 3 (emphasis added); see id. at 12, 15. The Garner 7 Ibid. Court essentially eliminated the prevailing "fleeing felon" 8 Cheryl W. Thompson and Phuong Ly, "Shootings by D.C. common law rule, which had permitted law enforcement Police Decline 66 Percent in 1999," The Washington Post, authqrities to use deadly force to subdue suspected escaping Jan. 1, 2000, p. B1 (hereafter cited as Thompson and Ly, felons. See also Stephen Beaven, "When to Shoot: A Split "D.C. Police"). Second Call-Deadly Force is Officer's Last Resort," Indian 9 Ibid. Police Chief Charles Ramsey indicated that a new apolis Star, Mar. 15, 2000, p. Al. Police training in the use lethal force policy and more police training and supervision of force began to change after the Garner ruling. This was are reasons for this decline. also due to an emphasis on nonviolent options to physical confrontations. Ibid. 10 471 U.S. 1 (1985). 15 James Fyfe, statement before the U.S. Commission on 11 !d. at 4-5 (citing TENN. CODE ANN. § 40·7-108 (1982)). Civil Rights, National Police Practices and Civil Rights 12 471 u.s. 3. Briefing, June 16, 2000, transcript, p. 25 (hereafter cited as 13 Id. at 6-7; see also Gregory Howard Williams, "Control Police Practices Briefing Transcript). ling the Use of Non-Deadly Force: Policy and Practice," Har 16 436 u.s. 658 (1978). vard BlackLetter Journal, vol. 10 (1993), p. 79. The author 17 See Monell, 436 U.S. 694-95. notes that determining whether a suspect's seizure meets the constitutional standard of "reasonableness" requires 18 Fyfe, Police Practices Briefing Transcript, p. 25. 29 governing police activity, and the Commission on officer.25 The state of Florida mandates a slightly Accreditation has created police department less stringent standard of requiring a law en administration standards.l9 Dr. Fyfe noted that forcement officer to "reasonably believe [that any the IACP and the Commission on Accreditation level of force is] . . . necessary to defend himself or standards are irrefutable in court and have be herself or another from bodily harm while mak come the standard of care.zo ing the arrest."26 Law enforcement entities have created poli cies on the use of deadly force that incorporate Factors That Influence Use of Deadly Force the federal "reasonableness" standard and state Policies and Incidents mandates. Despite this incorporation, police de A number of variables, such as a police chiefs partments have varying interpretations of what stance on internal misconduct policies, the pre policies satisfy the "reasonableness" require ferred forms of restraint methods, and type of ment.21 For example, in Tennessee, the Metro ammunition police officers use, can affect police Davidson County Police Department's policy departments' perspectives and policies on deadly permits officers to use deadly force when they force. For example, a 1991 American Civil Liber reasonably believe "the action is immediately ties Union report, Police Brutality and its Reme necessary to prevent death or serious bodily in dies, examined how police officers perform their jury of a human being, including the officer."22 duties in the field. The study determined that Similarly, the Indianapolis Police Department their performance is "heavily influenced by the guidelines were amended in August 1999 to in leadership of their department.. .. When inci dicate that police officers "must not fire under dents of brutality, misconduct or racism occur, conditions that would subject others to possible the chiefs immediate reaction to these incidents injury or death, except to preserve life or prevent will have a great impact on whether the incident serious bodily injury."23 In the District of Colum will be repeated in the future."27 Further, "[t]he bia, officers can employ "only that force that is tone can be conveyed by the detection and pun reasonably necessary to effectively bring an inci ishment of misconduct, but more positively by dent under control, while protecting the lives of reinforcing appropriate conduct."2B the officer and others."24 Lastly, the Lakeland This perspective was also emphasized in a (Florida) Police Department requires its officers survey by the Police Foundation that revealed to use deadly force when faced with the "imme the impressions of 925 randomly selected Ameri diacy" of a threat of death or serious injury to an can law enforcement officers from 121 police de partments on the abuse of police authority. Ac cording to the survey, approximately 85 percent 19 Ibid., p. 26. of the respondents "agreed or strongly agreed 20 Ibid. that a police chiefs strong position against the 21 See USCCR, Guardians, p. 156. In 1981, the Commission abuse of authority can make a big difference in found that police guidelines on the use of deadly force are often ambiguous. deterring officers from abusing their author ity."29 Almost 67 percent of the respondents also 22 Kathy Carlson, Dorren !Gausnitzer, and Thomas Gold smith, "Deadly Force Training Under Scrutiny," The Ten nessean, Apr. 25, 2000, p. lA (hereafter cited as Carlson, !Gausnitzer, and Goldsmith, "Deadly Force"). According to 25 Rick Rousos, "Officers Have Strict Policy on Use of Force," Sergeant Bob Allen, a 19-year police veteran of the Metro The Ledger, Dec. 23, 1999, p. Bl. Davidson County Police Department, the department does not have a "shoot-to-kill" policy for using deadly force. "We 26 FLA. STAT. § 76.05(1) (2000). shoot to stop the threat. ... When the threat stops and the 27 The Police Foundation, Police Use of Force: Official Re subject is under control, the force is stopped." Ibid. ports, Citizen Complaints, and Legal Consequences, vol. I, 1993, p. 27 (hereafter cited as Police Foundation, Use of 23 Beaven, "When to Shoot." Indianapolis police can only use deadly force after all other options have been considered and Force) (citing American Civil Liberties Union, Police Brutal ity and its Remedies, 1991, p. 6). utilized. Ibid. 28 Ibid. 24 Thompson and Ly, "D.C. Police." The District of Columbia Metropolitan Police Department's policy provides a four-part 29 David Weisburd, Rosann Greenspan, Edwin Hamilton, "use-of-force continuum" that ranges from presence and Hubert Williams, and Kellie Bryant, Police Attitudes To verbal persuasion, hand-control procedures, protective ward Abuse of Authority: Findings from a National Study, weapons (e.g., using tactical batons), to deadly force. National Institute of Justice, May 2000, p. 6.
30 indicated that first-line supervisors play an im to jail. We felt this control hold was far superior to portant role in preventing police officers from banging someone over the head with a PR-42 baton.33 abusing their authority.ao The types of restraint methods that police of Local Los Angeles officials and community fleers use should also be considered in a depart residents questioned the LAPD's use of choke ment's use of deadly force protocol. In 1981, the holds between 1975 and 1982, when 16 people nation's law enforcement authorities and local died after being subdued by these restraints.34 In communities were confronted with examining response, the LAPD's leadership supported the effectiveness of techniques used to restrain eliminating the department's use of the "bar-arm and subdue suspects. During that time, a con chokehold," while continuing to employ the troversy arose throughout the United States "modified carotid" restraint.35 Ultimately, the over the employment of the chokehold, which Los Angeles Police Commission suspended the was a primary method of subduing individuals department's use of both choke holds, but permit that sometimes resulted in their deaths.a1 As an ted the modified carotid to respond to a threat of example, the "modified carotid" was one of the serious injury or death.36 upper body control techniques that were used by In addition to these restraint methods, the the Los Angeles Police Department in the early type of ammunition that law enforcement agen 1980s.32 According to former LAPD Chief Daryl cies issue to their officers has also become a Gates, source of public concern. Most police depart ments in the United States started out using [a]pplied correctly, from behind, a police officer places standard-issue, or "full metal jacket," bullets in his bicep[s] and forearm on either side of the suspect's weapons.37 According to Rich Weaver, secretary neck, pressing the carotid arteries and cutting off the and treasurer of the Detroit Police Officer's As flow of blood to the brain for a split second. The indi sociation, who researched types of ammunition vidual goes limp. You handcuff him and cart him off for the Detroit Police Department, "[t]he full metal jacket bullets often go clean through a person's body with enough force to cause damage 30 Ibid. to other people."38 Additionally, Dr. Fyfe dis
31 See Daryl F. Gates and Diane K. Shah, Chief" My Life in cussed the death of Amadou Diallo, an unarmed the LAPD (New York: Bantam Books, 1992), p. 246; see also African immigrant, and reinforced the effect of Amnesty International, "United States of America: A Brief full metal jacket ammunition: ing for the UN Committee Against Torture," no. AMR 51156/00, May 2000,
[PRISM's] computer is loaded with 107 scenarios that 53 Ibid. officers might walk into, such as "Garage Rape," "School Violence" and "Traffic Stop." Each scenario 54 Tony Perry, "California and the West: San Diego Police has four or five variations. An officer will often face Chief Vows Focus on Non Lethal Weapons," The Los Angeles Times, Feb. 23, 2000, p. A3. two variations of the same scenario that call for two entirely different reactions . . . . Sometimes the bad 55 Ibid. Previously, only sergeants had access to Tasers, guys (in the training scenario) give up peacefully. ... while use of the beanbag shotguns was restricted to the SWAT team. The department plans on using more police Newkirk can even change a scenario in midstream to dogs, a more realistic video training simulator on subduing make the actors more passive or aggressive. "I can combative suspects without employing weapons, and pepper spray projectiles. Ibid. 49 Ibid. 56 Nancy Calaway, "Deadly Force by Police Debated Nation 50 Ibid. (citing Worden, "The 'Causes' of Police Brutality"; wide," Arlington (TX) Morning News, July 11, 1999, p. A1 Donald J. Black and Albert J. Reiss Jr., Patterns of Behavior (hereafter cited as Calaway, "Deadly Force Debated"). See in Police and Citizen Transactions: Field Surveys III, Stud Carlson, Klausnitzer, and Goldsmith, "Deadly Force." A 19- ies in Crime and Law Enforcement in Major Metropolitan year police veteran of the Metro Police Department in Ten Areas, vol. 2 (Washington, D.C.: Government Printing Of nessee maintained that police officers are instructed to aim fice, 1967)). at a suspect's midsection in order to prevent injuries to by standers and to end the threat that the suspect poses. Ibid. 5t Lighty, "Shootings." The department also asked the John But see Maria Elena Fernandez, "Grant Plan Targets D.C. Marshall Law School to review its policies on police chases Police Training, Federal Panel Would Study Use of Force," and use of deadly force. Ibid. The Washington Post, May 5, 1999, p. A14. According to 52 Ralph Ellis, "A 'Game' of Life-and-Death Law Enforce Representative Jose E. Serrano (D-NY), most police depart ment," The Atlanta Journal and Constitution, Nov. 26, 1999, ments in the nation do not adequately teach use of force p. D10. policies. Ibid.
33 may result in injuries to, but not the death of an The SL6 provides enough force to knock someone alleged suspect.57 down and cause bad scrapes and bruises, but not Other police departments are also using enough to kill. Instead of being stored at the station nonlethal methods to restrain suspects. Accord house, the two machines Kirkland bought in January ride around in the supervisors' patrol cars so that ing to University of Portland criminologist Nick there are two SL6 launchers on the streets of Kirk McRee, nonlethal weapons reduce the possibility land 24 hours a day.63 that police officers will use deadly force.ss In Boston, Police Commissioner Paul F. Evans an ROUTINE ENCOUNTERS BETWEEN POLICE nounced in March 2000 that patrol supervisors OFFICERS AND THE COMMUNITY would begin to be trained to use a nonlethal weapon, "the Super Sock," which shoots pellets Stop, Question, and Frisk wrapped in fabric to incapacitate suspects.59 Po The Fourth Amendment of the U.S. Constitu lice officers, however, are skeptical of the Super tion protects individuals against unreasonable Sock's effectiveness. Captain William Broderick, searches and seizures by law enforcement offi president of the police union, said rank-and-file cers. It provides that: members are not convinced the device is the best method to address those street encounters that [t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable require force. 60 searches and seizures, shall not be violated, and no Kirkland (Washington) Police Department of warrants shall issue, but upon probable cause, sup ficers also shared this perception of the effec ported by oath or affirmation, and particularly de tiveness of beanbag launching devices. The po scribing the place to be searched, and the persons or lice department's tactical team has had access to things to be seized. 64 launchers that shoot beanbags filled with shot for the past seven years.Bl Lieutenant Eric Olsen Generally, for police officers to search or seize explained that this system was not accurate, and an individual or his or her property, this intru only nine SWAT members were trained to use it. sion must be made pursuant to a warrant based Instead, the Kirkland Police Department em upon probable cause. The U.S. Supreme Court ploys a "Sage SL6" device that shoots a cham examined a limited exception to the Fourth pagne-cork-shaped polyurethane projectile at Amendment's probable cause requirements in 240 feet per second.62 the case of Terry v. Ohio.65 Terry permitted a police officer to briefly detain an individual, and
57 Calaway, "Deadly Force Debated." question and frisk him or her, to determine if the 58 Sarah E. Richards, "Kirkland Police Seek Less Lethal person possesses a dangerous weapon. As a re Weapons," The Seattle Times, July 21, 2000, p. Bl. But see sult, the Court concluded that the appropriate ibid. "Such tools [nonlethal weapons] are useful, especially constitutional standard should be a less strin in a volatile situation, but they're not foolproof, warned Cap gent standard of "reasonable suspicion," instead tain Bruse Vestal, head of training at Bellevue [Washington 66 Police Department]. 'We've had people shot with (the baton), of probable cause. This "reasonable suspicion" and it doesn't do anything,' he said, adding that a weapon's must be based on the existence of some wrongdo effectiveness depends on an assailant's mental capacity." ing, as "the police officer must be able to deline- Ibid. 59 John Ellement and Francie Latour, "HUB Police to Get Training on Pellet-Bag Weapon," The Boston Globe, Mar. 8, heart are potentially fatal. However, 'the SL6 has not been 2000, p. B3. Specifically, the Super Sock is a shotgun shell linked with any deaths since it became available in 1992,' that ultimately fires a high-impact pellet bag. said John Klein, president of Sage Control Ordnance, based so Ibid. Captain Broderick noted that the Super Sock's in Michigan." Ibid. manufacturer warns that striking an individual in the tho 63 Ibid. rax and other areas of the body could be fatal. 64 U.S. CONST. amend. IV. See Camara v. Municipal Court, 61 Richards, "Kirkland Police Seek Less Lethal Weapons." 387 U.S. 523, 528 (1967). The framers of the Constitution 62 Ibid. " 'This gives us the tool to fill in the gaps between drafted the Fourth Amendment "to safeguard the privacy pepper spray and/or a nightstick, or, God forbid, a gun,' said and security of individuals against arbitrary invasions by [Lieutenant) Olsen. 'This allows an officer to stand back 15 governmental officials." Id. to 20 yards from a guy waving a knife around.' Officers are cs 392 U.S. 1 (1968). trained to shoot at large muscular portions of the body, such as the buttocks or thighs, since direct hits to the head or 66 Terry, 392 U.S. 20- 22. 34 ate specific and articulable facts" that support essential to a law enforcement investigation and the government's intrusion. The officer must not does not result in unequal application of state rely upon "inchoate and un-particularized suspi laws. However, the Constitution does not permit cion or [a] 'hunch.' "67 police officers to stop, question, and frisk indi Subsequently in Florida v. Royer,68 the Su viduals based solely on their race.74 Despite this preme Court explained that police officers do not ruling, the United States Federal Court of Ap infringe upon an individual's constitutional peals for the Second Circuit maintained in rights if they approach an alleged suspect in a Brown v. Oneonta75 that when race is a part of public location and inquire whether he or she the description of an alleged suspect, it can be would be willing to answer some questions. 69 used as a legitimate basis for questioning indi However, the Court further held that: viduals of that race or ethnicity.76
[t]he person approached . . . need not answer any Racial Profiling question put to him; ... he may decline to listen to Members of ethnic and racial groups have the questions at all and may go on his way.. . . He historically maintained that law enforcement may not be detained even momentarily without rea authorities view them with increased suspi sonable, objective grounds for doing so; and his re 77 fusal to listen or answer does not, without more, fur cion. Stops and frisks have been justified based nish those grounds . . .. If there is no detention-no on legal precedent, which allowed the use of an seizure within the meaning of the Fourth Amend alleged suspect's race and also granted further ment-then no constitutional rights have been in deference to police officers' interpretations of fringed.70 whether reasonable suspicion and probable cause have been established.78 This heightened Moreover, the Court determined in Whren v. suspicion routinely results in an increased prob United States, 71 that it is reasonable for a police ability of people of color being subjected to stops, officer to stop a motorist when the officer has questioning, and/or arrests on the nation's high probable cause to believe the civilian has com ways, public str eets, and college campuses, as mitted a traffic violation. Hence, when the offi cer concludes a traffic violation has occurred, 74 United States v. Brignoni-Ponce, 422 U.S. 873 (1975). The there is no Fourth Amendment violation of un Court determined that the appearance of Mexican ancestry reasonable searcJ:!.es and seizures. n does not furnish reasonable belief for questioning the occu Secondly, neither the equal protection clause pants of a car in search of illegal aliens. 75 195 F.3d 111 (2d Cir. 1999), reh'g denied, 203 F.3d 153 (2d of the Fourteenth Amendment73 nor the Fourth Cir. 1999). Amendment prevents the use of race when it is 76 195 F.3d at 119. 77 U.S. Commission on Civil Rights, Racial and Ethnic Ten 67 ld. at 21, 27. Further, the Court indicated that a search sions in American Communities: Poverty, Inequality, and must be "strictly circumscribed by the exigencies which jus Discrimination, Volume I: The Mount Pleasant Report, 1993, tif[ied] its initiation." ld. at 26. pp. 20-30 (hereafter cited as USCCR, Mount Pleasant Re port) (describes the historic tension between the Latino 68 460 U.S. 491 (1983). community and the Metropolitan Police Department in 69 l d. at 497. Washington, D.C.); Illinois Advisory Committee to the U.S. 70 Id. at 497-98. But see United States v. Cortez, 449 U.S. Commission on Civil Rights, Police Protection of the African 411 (1981); United States v. Sokolow, 490 U.S. 1 (1989). The American Community in Chicago, 1993, pp. 13, 27-31 (in Supreme Court began to grant greater deference to police cludes witnesses' testimonies on frequent incidents of al officers' assessments of alleged criminal activity as a foun leged police brutality and the Jack of police protection in dation for the required degree of reasonable suspicion. black neighborhoods in Chicago); USCCR, Los Angeles Re port, pp. 150-58 (reviews the relationship between immi 71 517 u.s. 806 (1996). grant populations and the Los Angeles Police Department); 72 Id. at 809-10. see South Dakota Advisory Committee to the U.S. Commis 73 U.S. CONST. amend. XIV. In relevant part, the equal pro sion on Civil Rights, Natiue Americans in South Dakota: An tection clause of the 14th Amendment provides: "No state Erosion of Confidence in the Justice System, March 2000, pp. shall make or enforce any law which shall abridge the privi 2-3 (provides an overview of testimony from Native Ameri leges or immunities of citizens of the United States; nor can community members of alleged administration of justice shall any state deprive any person of life, liberty, or prop violations). erty, without due process of law; nor deny to any person 78 David Cole, "The Color of Justice," The Nation, Oct. 11, within its jurisdiction the equal protection of the laws." I d. 1999, p. 12. 35 well as in retail stores and airports. 79 Mrican sequently included in Asian gang mug books and Hispanic Americans have been stopped with without the knowledge or consent of the youths' such frequency that these instances have com parents or guardians_sa Currently, however, ra monly been coined as "driving while black" on cial profiling against Asian Pacific Americans highways and "flying while black or Hispanic" in has taken the forms of governmental investiga airports. so As an example, in Maryland, tions and prosecutions that question their loyal ties to the United States.84 This scrutiny is pri blacks were 70 percent of those stopped and searched marily the result of the Wen Ho Lee case, in by Maryland State Police from January 1995 through which Mr. Lee, a scientist and an American citi December 1997, on a road where 17.5 percent of the zen of Taiwanese descent was charged with 59 drivers and speeders were black. New Jersey reported counts of mishandling secret computer data at that 77 percent of those stopped and searched on its the Los Alamos National (nuclear weapons) highways were black or Hispanic, even though only 13.5 percent of the drivers were black or Hispanic. a! Laboratory.ss As a result, Asian Pacific Ameri-
In addition, Asian Pacific Americans have In 1996, the Anaheim Police Department wrongly detained contended that law enforcement officers have Yong Ho Choi for two days on suspicion of killing California Highway Patrol Officer Don Burt Jr. Another Asian man detained or searched them without justification. was later arrested and convicted for the murder. As a result, In California, it is alleged that police authorities Mr. Choi filed suit in federal district court and alleged that have stopped and photographed many Asian he was a victim of racial profiling. Although the lower court American youth.s2 These photographs were sub- dismissed his claim, the U.S. Court of Appeals for the Ninth Circuit subsequently ruled that there was sufficient evi dence to begin a trial on whether the police department 79 See generally ibid.; Christy Hoppe, "Race Disparity Found violated Mr. Choi's civil rights. in Traffic Stops," The Dallas Morning News, Oct. 4, 2000, p. 83 Toma, Telephone Interview. Mr. Toma described how Al; Mary Allen and Christopher Munsey, "Do the Police Garden Grove, California, law enforcement officers routinely Stop Too Many Minoritiesr' The Capital (Annapolis, MD), stop Asian teenagers, accuse them of being members of May 9, 1999, p. A1; Tammerlin Drummond, "It's Not Just in Asian gangs, photograph them without their parents' New Jersey: Cops Across the U.S. Often Search People Just knowledge or consent, and ultimately do not arrest them. Because of their Race, A Study Says," Time, June 14, 1999, 84 H. Josef Hebert, "Energy Probe Finds Racial Profiling in p. 61. Wake of Wen Ho Lee Case," The Associated Press State & 80 Lara-Erik Nelson, "Changing the Profile at Customs," The Local Wire, Jan. 20, 2000, BC cycle (hereafter cited as Daily News (New York), Oct. 15, 2000, p. 43; Michael Hebert, "Energy Probe"). Gougis, "Improbable Cause," New Times Los Angeles, Sept. 7, 2000, Features Section. In May 1999, LAPD officers 85 Bob Drogin, "How FBI's Flawed Case Against Lee Unrav stopped Carlos Gonzalez, a 28-year-old Hispanic math eled," The Los Angeles Times, Sept. 13, 2000, p. AL Mr. Lee teacher in South Central Los Angeles, while he was driving was fired from his job at Los Alamos, spent approximately a 1994 red Mustang convertible. Mr. Gonzalez was not 277 days in jail, and was viewed as a convicted terrorist or asked for his license, registration, or proof of insurance. He spy. His proposed plea agreement would arrange for him to was also not informed why he had been stopped. According plead guilty to the felony of one charge of unlawful retention to Mr. Gonzalez, the police officers asked him for his name; of national defense information. The remaining charges when he replied, "they told him he was lying, unsnapped the would be dropped, and he would not receive any penalties. holsters holding their service pistols, and handcuffed him." However, before this agreement occurred, "Lee was indicted He was ultimately given a ticket for going 38 miles an hour on 59 charges and arrested ... Dec. 10, [1999) for allegedly in a 25-mile zone, on a 900 foot long street that has three transferring top-secret nuclear weapon data to unsecured speed bumps. Ibid. computers and portable tapes at Los Alamos. . . . The weapon data were not formally classified when Lee copied 81 Cole, "The Color of Justice." See also Thomas Zolper, "Mi them . . . . Thixty-nine of the charges, all carrying life sen nority Traffic Stops Still Highest On Turnpike-Statistics tences, alleged that Lee acted with intent to harm the Rekindle Racial Profiling Debate," The Record (Bergen United States and to aid a foreign power. Seven of the tapes County, NJ), June 28, 2000, p. Al. "The statistics also show could not be located, despite what the FBI said was one of that minorities are far more apt to be arrested than whites, the largest searches in its history. Lee's lawyers claimed compared to their numbers in the population. For example, that he destroyed the tapes but offered no proof.. .. Lee's 57 percent of those arrested on all state highways were mi lawyers sent letters to the Justice Department shortly be norities even though they account for only 26 percent of New fore he was indicted, specifically offering to let him take a Jersey's population, according to census figures." Ibid. polygraph test to answer questions about the tapes. The 82 Robin Toma, Esq., human relations consultant, Los Ange offer was ignored.... In early 1999, [Robert Vrooman, then les County Human Relations Commission, telephone inter head of counterintelligence at Los Alamos] repeatedly testi view, Aug. 6, 1996 (hereafter cited as Toma, Telephone In fied in closed-door sessions before the House and Senate terview); see also Richard Marosi, "Trial Ordered on Racial Intelligence committees and several investigative review Profiling Claim," The Los Angeles Times, Aug. 9, 2000, p. Bl. boards. Their message: No espionage had occurred and Lee 36 can scientists and engineers at various nuclear against the U.S. Customs Service_ss Similarly, laboratories in the United States report that one such allegation of racial profiling and viola their employers and colleagues have unfairly tions of various constitutional protections origi scrutinized their actions, as well as created hos nated from Janneral Denson, an African Ameri tile work environments replete with anti-Asian can Florida woman: jokes, lack of promotional opportunities, and lower compensation for comparable work.BS [Ms.] Denson was handcuffed and taken to Jackson Furthermore, law enforcement agencies' le Memorial Hospital in Miami by Customs agents who gitimate national security concerns about terror searched her luggage at Fort Lauderdale/Hollywood ism and narcotics trafficking have also provided International Airport when she was returning from Jamaica. After finding nothing in her suitcases, [her an opportunity for racial profiling, particularly lawsuit] . . . claims she was held at Jackson Memorial against American citizens of Middle Eastern and where, for three days, she was shackled to a bed, de Latin American descent. Customs agents at the nied calls to her family or a lawyer, and forced to take Miami, Chicago, and Newark, New Jersey, air a laxative she said might hurt her unborn child. ports, which are ports of entry for international Denson was never charged with a crime. Twelve days travelers, have been accused of almost exclu after her release, her son was born prematurely.59 sively selecting, detaining, and frisking people of color.B7 Black female travelers who arrived at In contrast to those who contend that police O'Hare Airport in Chicago alleged they were re authorities engage in racial profiling, law en peatedly subjected to unwarranted strip searches. forcement officials maintain that their criminal As a result, they flied a class action lawsuit justice research and experience are the basis for their use of race, ethnicity, and gender to create a characteristic "profile" of an individual likely to commit a certain type of crime, such as drug trafficking. This perspective was reflected in had been unfairly targeted because he is Chinese Ameri comments from a New York City police official, can." Ibid.; see generally Sasha Talcott, "UC Lab Employee Tells What It's Like Being an Asian at Work," Daily Califor who indicated that police officers stop and ques nian uia U- Wire, Aug. 30, 2000 (hereafter cited as Talcott, tion members of the public whose identities "UC"). match crime victims' descriptions of suspects_9o 86 Talcott, "UC." Dorothy Ng, a civil engineer and an Ameri Other authorities recognize that some of this can citizen who is employed at the University of California and managed Lawrence Livermore National Laboratory, was born in Hong Kong. She maintains that she is hesitant to visit her homeland because her colleagues may question 88 Gardiner, "Executive"; see also Pat Milton, "Raymond her allegiance to the United States; Hebert, "Energy Probe." Kelly, Head of the U.S. Customs Service," The Associated But see Jason Ma, "Feinstein Speaks on Asian American Press State & Local Wire, Oct. 21, 2000, BC cycle, New York. Issues: Says Racial Profiling Did Not Occur in Labs," The "In 1998 [Amanda] Buritica, a teacher from Port Chester, Ethnic NewsWatch-AsianWeek, Feb. 2, 2000, p. 9. Califor N.Y., was returning from a Hong Kong vacation. When a nia Senator Dianne Feinstein responded to a request from San Francisco Customs inspector noticed that she was a San Francisco's Asian American community leaders for as native of Columbia, she was searched, X-rayed, given laxa sistance in arranging bail for former Los Alamos scientist, tives and held 22 hours. No drugs were found; she won a Wen Ho Lee. "I would urge everyone not to jump to conclu $400,000 settlement." Ibid. sions . . .. I truly believe in my heart of hearts that racial pro 89 "Customs Defines Criteria for Airport Drug Searches," filing has not been the case here ...." Senator Feinstein also Sun-Sentinel (Fort Lauderdale, FL), Aug. 12, 1999, p. Al stated that Mr. Lee's incarceration in solitary confinement (hereafter cited as "Customs Defines"). without bail was "a very unusual prerequisite in our system 90 Howard Safir, NYPD police commissioner, testimony be of justice." Ibid. fore the U.S. Commission on Civil Rights on Police Practices 87 Nelson, "Changing the Profile at Customs"; Beth Gar and Civil Rights in New York City Hearing, May 26, 1999, diner, "Executive Files 'Racial Profiling' Complaint Against transcript, p. 165 (hereafter cited New York Hearing Tran Customs," The Associated Press, Nov. 17, 1999, a.m. cycle, script). ''We do not select our suspects, as they are identified New York (hereafter cited as Gardiner, "Executive"). Yvette not by us but by the victims. We deploy our officers where Bradley, a black female traveler who arrived at Newark violent crime occurs, and we question individuals who fit the (New Jersey) International Airport reported that she and description of crime suspects. This is basically strategy im eight of the nine other African American female passengers plemented without regard to race or ethnicity but, rather, as on a flight from Jamaica, West Indies, were subjected to a part of our commitment to eradicate crime in every body and baggage searches, while white passengers were not neighborhood in the city." Ibid. See also Rudolph Giuliani, stopped or searched. New York Hearing Transcript, p. 49.
37 nation's police chiefs and law enforcement offi a staff attorney is consulted . ..."95 Furthermore, cers equate "good police work" as questioning the agency established that Customs inspectors' anyone who somehow does not fit into the 1m handbooks should be revised to include new poli mediate surroundings.91 cies on personal search methods; a significant number of supervisors who exhibited managerial In a poor neighborhood, sometimes that's the person difficulties at the Miami, Atlanta, and Chicago driving a car with a shiny paint job and no dents. airports should be transferred; and a working [T]he National Black Police Association director and a relationship should be created with the agency, former patrol officer, saw it every time he was as the FBI, and the CIA. 96 signed a white cop as his partner. When you would Other law enforcement entities have initiated ride with one of these ignorant people, they would say, ''I'm going to pull this black guy over because he dialogues with their respective local communi looks like he's doing something suspicious .. . ." ties to educate people on what to anticipate when they are approached by a police officer. For [David Harris, a University of Toledo law professor example, in Buffalo, New York, several Buffalo and another leading expert on racial profiling] says police officers participated in a diversity training Blacks and minorities are just going to look "out of workshop sponsored by the Erie County Chiefs place" more often in a white-majority society . .. This of Police and the National Conference of Com isn't about racism. This is about institutional prac munity and Justice.97 Members of the public con tices. Officers don't do this because they are racist. tributed to this forum by asking questions relat They do it because they think it's a way to stop ing to traffic stop procedures, receiving informa crime.92 tion on eliminating stress when stopped by the Internal Mechanisms to Monitor and Control police, and viewing a video on perspectives of Racial Profiling police and community relations_98 Although controversy exists as to whether the Moreover, although police departments in nation's law enforcement and investigating au seven states have begun to collect internal sta thorities routinely stop, question, frisk, and/or tistics on the race of individuals stopped by the arrest members of ethnic and racial groups police, there is no national initiative to require without sufficient justification for alleged legal every state to do so, due to resistance from law violations, it is apparent that people of color are disproportionately subject to greater police scru 95 Ibid. But see Michael Arena, "New Body Scanners at Air tiny. Accordingly, the U.S. Customs Service re ports Proving to be Revealing," Newsday, Dec. 30, 1999, p. cently indicated that it had no specific policy on A6. "International travelers who are suspected of smuggling determining which travelers should be stopped drugs or carrying weapons are being offered the body scan (a for questioning or frisks.93 The agency subse new high-tech scanner that can see through passengers' quently instituted several policy changes that clothing and search for contraband with an x-ray image that shows the naked body) as an alternative to a physical pat increased discoveries of drugs and contraband by down when they pass through ports of entry at airports 23 percent, while decreasing the number of across the country.... [P]rivacy advocates say the capability searches it performed by 70 percent in 1999.94 to show the full external contours of the body, including male and female private areas, is an 'electronic strip search' that Specifically, "[a] supervisor must approve a per erodes constitutional protections." Ibid. sonal search or a pat-down [of a traveler]. If an 96 Ibid.; see also "Customs Defines." "The agency is institut X-ray or a more intrusive search is necessary, ing a system based on criteria that focus on a passenger's the highest ranking port supervisor must au behavior and such factors as whether the suspect has given thorize the transfer to a hospital, and only after inconsistent answers to an inspector's questions, is the sub ject of an intelligence report or has been detected by a drug sniffing dog.... [T]he agency will no longer detain airline travelers suspected of smuggling narcotics for more than 91 Gougis, "Improbable Cause." four hours without specific approval of a federal magistrate." 92 Ibid. Ibid. 93 Milton, "Raymond Kelly." U.S. Customs Service Commis 97 Harold McNeil, "A Plea for Calm Between Police and Pub sioner Raymond Kelly revealed that in the past, individual lic," The Buffalo News, June 21, 2000, p. B1; see also Darla Customs inspectors decided which passengers could be de Carter, "Guidance Offered on Stops by Police," The Courier tained. Ibid. Journal (Louisville, KY), Aug. 23, 2000, p. BL 94 Ibid. 98 McNeil, "A Plea for Calm Between Police and Public."
38 enforcement organizations.99 Nevertheless, sev the media attention surrounding this contro eral studies show that people of color are dispro versy, then-Mayor John V. Lindsay appointed a portionately stopped and questioned more fre panel, the Knapp Commission, to investigate the quently than whites.10o matter.l05 Concomitantly, Police Commissioner Patrick V. Murphy had begun to initiate radical INTERNAL INVESTIGATIONS AND DISPOSITIONS reform measures in the NYPD, which included Police departments conduct their own inquir strengthening the internal affairs division: ies into alleged police misconduct, primarily through their internal affairs divisions (lADs), [He] made its work the job of all commanders by es which are charged with providing consistent and tablishing decentralized field internal affairs units secure investigation strategies and issuing dis and by creating an integrity officer position in every 101 department precinct and squad. He authorized the positions of complaints. In addition, the Inter lAD to conduct "integrity tests"- phoning in fictitious national Association of Chiefs of Police (IACP) complaints against officers to determine whether su recommended that the lADs monitor investiga pervisors discouraged or ignored complaints, for ex tions of civilian complaints against police offi ample-and made public examples of those who failed cers.Ioz Although the IACP maintained that first these tests. He created an Internal Affairs "field asso line police supervisors could address minor mis ciates" program that recruited anonymous officers to conduct complaints, the most optimal situation report surreptitiously on any misconduct they wit would also allow !ADs to review these inci nessed at work. His lAD investigators and field asso dents.I03 ciates identified "corruption hazards" in each of the city's seventy-five police precincts and held command ers, integrity officers and supervisors accountable for Mechanisms for Detecting Officer Misconduct making certain that officers did not fall prey to them. Previous Reform Efforts In short, and although his department's major prob Internal affairs divisions of the nation's police lem was money corruption rather than brutality, departments have seen reforms due to reports Murphy used his three and a half years in office to from various police review commissions, inci create an environment that loudly and clearly con dents of alleged police misconduct, community demned abusive police conduct, those who engage in it, and-equally important-those who tolerate it.106 pressure, and strategic police management. In 1968, the New York City Police Department was In the early 1990s, the Boston Police De at the center of a corruption scandal that in partment's leadership and management were volved merchants and builders paying police of analyzed in the St. Clair Commission report. ficers to avoid compliance with administrative This report uncovered various barriers to effec codes and Sunday "blue laws."104 As a result of tive policing and made several recommendations
99 Gougis, "Improbable Cause." 105 100 Ibid.; see generally ibid. The author discusses a number Skolnick and Fyfe, Above the Law, p. 178. of studies. For example, Professor John Lambert of Temple 106 Ibid., p. 180 (emphasis in original); see Gottlieb, "13 Po University researched driving and traffic stops on the New lice Suspensions"; see also George James, "New York Calls Jersey Turnpike from 1988 to 1991. He found that despite a for Precincts to Control Police Monitoring," The New York similar rate of traffic violations, "only 13.5 percent of the Times, June 15, 1995, p. Al. The prevention of police corrup cars had a black driver or passenger, [and) nearly 35 percent tion continued to be a goal of New York City officials in the of the traffic stops-and 73 percent of the arrests-involved 1990s. In 1995, Mayor Rudolph W. Giuliani and Police blacks." Ibid. Commissioner William J . Bratton announced a new initia 101 USCCR, Guardians, pp. 58-59, 71-74. tive to provide police precinct commanders with direct re sponsibility for investigating their subordinates. Internal 102 Ibid., p. 59 (citing International Association of Chiefs of Affairs inquiries about rank-and-file staff would also be pro Police, Managing for Effective Police Discipline: A Manual of vided to precinct commanders. Previously, information Rules, Procedures, Supportive Law and Effective Manage about lAD investigations was exclusively accessible to the ment (2d rev. ed., 1977}, p. 48). lAD. But see Gottlieb, "13 Police Suspensions." In 1986, 103 Ibid. Chief Anthony Bouza, who had been an NYPD commander, 104 Jerome H. Skolnick and James J. Fyfe, Above the Law: commented on the field-associate program. "I don't see evi Police and the Excessive Use of Force (New York: The Free dence of its success . .. If it was really working, the union Press, 1993}, p. 178; see Martin Gottlieb, "13 Police Suspen would be hysterical, cops would be abusing officers they sions: Lessons of '68," The New York Times, Sept. 25, 1986, think are field associates, and there would be a lot more p. B4. uncovering of crime." Ibid. 39 relating to the department's internal affairs di ment acknowledged the existence of disparate vision. The study found that the lAD had inade treatment and began using a revised disciplinary quate record-keeping and documentation, con system to correlate misconduct violations with ducted haphazard inquiries and hearings of po consistent disciplinary options.l12 Sergeants and lice misconduct allegations, and caused lengthy other immediate supervisors also no longer have investigative delays.107 The report revealed: discretion in addressing minor complaints; they must now forward all misconduct allegations to Given the Internal Affairs Division's ... failure to the department's headquarters. However, critics routinely provide thorough and timely investigations of this new system indicate police investigators of alleged misconduct, and the fact that the depart are not sufficiently investigating serious miscon ment sustains less than 6 percent of complaints duct complaints, due to their current focus on against officers, it is no surprise that the overwhelm minor offenses.u3 ing majority of community residents we spoke to have little confidence in the department's ability or will Similarly, Deputy Chief John Martinez of the ingness to police itself. The lAD reports to the com Dallas Police Department, who supervises the missioner, and its shortcomings adversely reflect on department's lAD, instituted an initiative to ro his performance.1oa tate investigators assigned to its lAD, in order to address allegations of disparate treatment based Furthermore, the St. Clair Commission's re on race in disciplining police officers.u4 This view of lAD files also found a pattern of com plan was a response to a discrimination settle plaints of excessive force against a small number ment reached with a Dallas police officer, Ser of police officers, who remained on the police geant Lee Bush, as well as a federal probe into force.l09 The report recommended the lAD's in the department's disciplinary practices.u5 Dep vestigative process be revised and a community uty Chief Martinez is also considering imple appeals board be created to review lAD investi menting penalty ranges for specific complaints of gations.uo police misconduct, which would change the cur rent practice of police supervisors resolving dis Current Approaches cipline incidents on a case-by-case basis.116 The Throughout the nation, various impressions exist regarding the effectiveness of the internal affairs divisions of police departments. In the EEOC concluded ... [that] the Department violated civil Baltimore Police Department, police officers rights laws by retaliating against officers who accused the Department of racism." Ibid. have asserted that their disciplinary process was 112 Ibid. "unfair, retaliatory, and treated blacks more 113 Ibid. But see ibid. "'We may be spending more time with harshly than whites." lll As a result, the depart- day-to-day rules infractions,' said Major Odis L. Sistrunk, Jr., who is in charge of making sure punishment is consis tent. 'But we would not have the organization we can be 101 "St. Clair Report," The Bosum Globe, Jan. 15, 1992, p. 24. proud of if we didn't handle the smaller things. Just because 1os Ibid. we go a year without finding a police officer who took money from a drug dealer doesn't mean they aren't out there.... 109 Ibid.; see also Maggie Mulvihill and Joseph Mallia, "Cop Faces Brutality Rap-Second Lawsuit Filed Against Officer but it doesn't mean we aren't interested in cleaning our own who Beat Colleague," The Boston Herald, Apr. 29, 1999, p. house.' " Ibid. 32. "A Boston police officer found liable in the vicious beat 114 Dave Michaels, "Dallas Police Rotating Internal Affairs ing of a fellow officer has been charged in a federal lawsuit Duties," The Dallas Morning News, July 2, 2000, p. A29. with brutality a year later against a nightclub patron. The 115 Ibid. "Sergeant Bush was a recruiter in the personnel suit, filed last week, claims that officer David C. Williams division in 1997 when he wrote a letter to former Chief Click was allowed to remain on the street even as he faced previ that accused supervisors of trying to stop him from receiving ous brutality complaints because police brass ignored re a commendation and complaining that black officers were forms .... The suit charges that the highly touted St. Clair not allowed to travel as frequently as whites and Hispanics. Commission report recommending Internal Affairs reforms Commanders suspended him for two days after investigating has been virtually ignored by police." Ibid. his claims and determining that he had made them up . . .. 110 Ibid. The Community Appeals Board could also request In April of 2000, the city agreed to pay ... Bush $300,000 that the lAD conduct additional investigations of com plus back pay, purge his personnel file and promote him to plaints. sergeant to settle the officer's discrimination claim." Ibid.
111 "Rooting Out Wrongdoers Among City Protectors," The 116 Ibid. Some department sources maintain that this discre Baltimore Sun, Jan. 28, 1999, p. Al. In December 1998, "the tion results in minority police officers being more harshly 40 initiative also would install new software in the received an update on police-related tort claims lAD to give investigators an improved method of filed against the city of Sacramento from the po monitoring the disposition of discipline cases.ll7 lice department or other city legal officials since Observers in · other jurisdictions maintain 1985.121 However, the chief of police and a Sac that lADs routinely spend a lengthy period of ramento city attorney then explained that Cali time to investigate civilian complaints of police fornia state regulations prohibit a public disclo misconduct. sure of internal affairs cases.t22 One strategy for alleviating the public's un In 1998, the [Prince George's County Maryland Po certainty of the lADs' role in investigating civil lice) Department's IAD completed 75 investigations of ian complaints is occurring in Austin, Texas. In cases in which civilians alleged that officers used ex May 2000, civil rights advocates and police union cessive force, harassment or abusive language. On officials reached a compromise in determining average, the investigations took 427 days to complete public access into the activities of the Austin before the results were turned over to the Prince George's Citizen Complaint Oversight Panel, an inde lAD, which currently investigates all civilian pendent review board that monitors allegations of complaints and refers disciplinary decisions to police misconduct. the chief of police.123 The proposed plan requires that a city-hired police monitor be notified of all In contrast, the department needed only 191 days to civilian complaints. In addition, the police moni investigate complaints in 1995, according to a report tor would have full access to lAD files and can released by the oversight panel [in September of participate in witness interviews.t24 Previously, 1999). The investigations have taken longer and public access to a police officer's personnel file longer each year since then, rising to 280 days in 1996 would only be permitted if the lAD validated a and 339 days on av~rage in 1997.... us civilian complaint against the officer. Secondly, in some jurisdictions, the role and effectiveness of lADs are unclear to the general Barriers to Effective Internal Investigations public and to local officials. The Detroit Police According to Hubert Williams, director of the Department's lAD does not inform the public Police Foundation, internal accountability of po about its investigations. In addition, the number lice departments is considered to be more effec and types of lAD complaints are not public in tive in monitoring police conduct.t25 A 1977 Po formation, and there are no standardized com lice Foundation study revealed that the lack of systemwide data hinders police departments plaint forms. 119 Similarly, during a City Council meeting in 1998, the Sacramento City Council throughout the nation from developing innova heard accounts from many citizens who had tive training programs and enforcement poli complaints involving alleged police miscon cies.126 Mr. Williams indicated that a subsequent duct.12o City Council members said they had not 1998 Human Rights Watch report found a need for data on police misconduct and mechanisms to address these incidents. This report also found disciplined than their white counterparts for similar infrac that an oversight system was needed that held tions. 117 Ibid. The initiative also includes expediting IAD investi gations of complaints. 121 Ibid. us Craig Whitlock, "Police Take More Time to Probe Com 122 Ibid. plaints," The Washington Post, Oct. 6, 1999, p. A3. See Mat thew Dolan, "Internal Affairs-When Citizens File Com 123 Jason Spencer, "Police Plan is Result of Trade-Offs," The plaints About Officers," The Virginian-Pilot (Norfolk, VA), Austin American-Statesman, May 30, 2000, p. Bl. May 18, 1999. The Portsmouth (Virginia) Police Depart 124 Ibid. But see ibid. Civil rights advocates were disap ment's lAD is now focusing on reducing delays in completing pointed with the compromise plan. They preferred that it investigations. Ibid. include the establishment of an independent review board 119 Human Rights Watch, "Shielded From Justice: Police with subpoena powers, a jury trial environment for each Brutality and Accountability in the United States,"
Mr. Williams also remarked that police de 132 Ibid., pp. 70-71. partments used to consider themselves as the 133 Ibid., pp. 71-72. 134 Ibid., p. 72. 127 p. Ibid., 53. 135 Ibid., pp. 104-05. 128 Ibid., p. 54. 136 Charles Ogletree, Police Practices Briefing Transcript, 129 Ibid., p. 55. pp. 43-44. 130 Ibid., p. 56. 137 Ibid., p. 44. 131 Ibid., p. 60. t38 Ibid.
42 city's residents were happy with the police, Dr. employment is made, who may be prone to use Ogletree cautioned against using such statistics unnecessary excessive force, and training police to support the position that there is no problem officers on appropriate ways of using both deadly with police misconduct.l39 He added that while and nonlethal methods of force. The Commission communities may have problems with their local recognizes that while some progress has been police departments as a whole, the individual made, particularly in employing specialized "Officer Friendly" who is well known throughout training methods and curricula on the use of the neighborhood may be highly respected and force, other obstacles remain (e.g., inequitable accepted by community residents.140 Finally, Dr. dispositions and time-consuming lAD investiga Ogletree recommended that these issues of tions). community policing and others should be exam Routine encounters between police officers ined more closely, perhaps in closed-session and members of the public have now become un meetings with the law enforcement community, fortunate opportunities for alleged racial profil and not in response to a crisis.l4l ing. Current legal precedent permits the use of James Fyfe then provided a discussion on race to justify stopping civilians when it is an arbitration boards that review police disciplinary essential factor in a law enforcement investiga actions. He said the boards are a disaster and he tion. Contemporary case law also grants defer did not "know of any police chief who would not ence to police officers' interpretations of what like to get rid of them."l42 Dr. Fyfe suggested constitutes reasonable suspicion and probable that the Commission examine the effects of arbi cause to stop and question civilians they suspect tration boards as the fmal step in the discipli of wrongdoing. Furthermore, institutional law nary process. He stated that in New Jersey, enforcement practices tend to view people of Pennsylvania, and Massachusetts, arbitration color as "outsiders" who are likely to have com boards have eroded the ability of "right-minded, mitted an offense, which results in a dispropor well-meaning" police chiefs to manage their tionate number of them becoming the focus of agencies appropriately.143 law enforcement authorities' inquiries and in vestigations. CONCLUSION Lastly, police departments' internal affairs Successful internal management of the na divisions continue to investigate alleged police tion's police departments will depend on how misconduct and provide disposition of sustained well law enforcement authorities can reduce in complaints. Previous police reform movements cidents of unnecessary deadly force, effectively emphasized the need for lADs to provide accurate design and utilize civilian complaint procedures, record-keeping, rapid disposition of complaints, as well as monitor internal investigations. Al and appropriate procedural inquiries into allega though police use of deadly force is regulated by tions of misconduct. Current strategies reflect legal constraints and internal law enforcement these goals. lADs also face the problems of equi guidelines, unnecessary fatalities of civilians and tably imposing discipline for all police officers who police officers continue to occur throughout the commit offenses, regardless of their race and gen nation. In addition, incidents of excessive deadly der; and efficiently managing problem officers and force could be reduced by clear policy stances on those police officers who have knowledge of their misconduct guidelines and infraction disposition fellow officers' wrongdoing. Ultimately, effectively from police administrators, selective use of cer addressing these concerns will contribute to the tain restraint methods of alleged suspects, iden internal order of the nation's law enforcement tifying those police candidates, before an offer of agencies.
139 Ibid., pp. 42-45. 140 Ibid., p. 46.
14 1 Ibid., p. 47. 142 Fyfe, Police Practices Briefing Transcript, p. 30. 143 Ibid., p. 31. 43 CHAPTER 3: FINDINGS AND RECOMMENDATIONS People of color and other civilians have clear opinions about being stopped, investigated, Reducing Incidents of Unnecessary frisked, or searched by police authorities without Deadly Force justification. In contrast, law enforcement offi Finding 3.1: In Guardians, the Commission cers tend to view the use of an alleged suspect's recommended that police officers should con race and ethnicity as appropriate police work. As tinue to be trained in the use of deadly weapons, stated in its report Police Practices and Civil as well as report discharges of firearms within Rights in New York City, the Commission de 24 hours of the occurrence.144 The Commission fines racial profiling as the detention, interdic continues to support these recommendations. tion, or other disparate treatment of an individ However, current police policies in local jurisdic ual based on racial or ethnic stereotypes that has tions have varying interpretations as to what the effect of treating persons of color differently constitutes a legitimate use of deadly force in from other persons.l45 Police departments have order to satisfy the federal "reasonableness" also been resistant to collecting statistics on al standard delineated in Garner. leged suspects' race or ethnicity in order to Recommendation 3.1: Federal, state, and document possible instances of racial profiling.146 local law enforcement authorities should conduct Recommendation 3.3: Continuing dialogue further analysis to determine whether a uniform between law enforcement entities and the public policy can be constructed for their respective in is required to establish an understanding of ternal departments on the use of deadly force. what constitutes racial profiling. The nation's Finding 3.2: Unnecessary deaths of civilians police authorities should begin to redefine ap and police officers continue. Police officers re propriate policing techniques that do not target quire clear guidance from their chiefs of police any particular race or ethnicity, yet accomplish and first-line supervisors on internal misconduct overall law enforcement objectives such as crime policies and disciplinary procedures on the use of prevention. In addition, police departments excessive force. In addition, a significant number should begin to document instances of racial pro of police departments have begun to employ hol filing that are routinely generated by specific low point bullets as their preferred type of am police officers. This information should become munition, in spite of public opposition. Training part of the officer's personnel file and be re in nonlethal and deadly use of force methods is viewed for performance evaluation and disci usually part of police departments' curricula. pline purposes. Moreover, the Commission rec Recommendation 3.2: The Commission ommends that law enforcement agencies estab strongly encourages the establishment of routine lish a departmental system of records to permit policy guidance from chiefs of police and first the consistent collection and evaluation of data line supervisors on the use of excessive force, as to determine whether racial profiling is occur well as informing police officers of corresponding ring, and if so, when and why. disciplinary procedures for those who commit these offenses. Secondly, law enforcement agen cies should initiate a series of routine public fo rums that discuss topics that concern members of the public, e.g., current restraint methods and use of hollow point bullets. These forums may 145 U.S. Commission on Civil Rights, Police Practices and alleviate public concern and inform police de Ciuil Rights in New York City, August 2000, p. 106, fn. 134. partments of anticipated police issues. 146 See also USCCR, Mount Pleasant Report, p. 144. Previ ously, the Commission recommended that the Fed~ral Bu reau of Investigation be "directed to collect, classify, and Routine Encounters between Police Officers publish nationwide statistics on police abuse incidents and and the Community: Racial Profiling discipline of officers for use in law enforcement administra Finding 3.3: There appear to be differences tion and management and to facilitate more accurate as in perspectives of when racial profiling occurs. sessment of the extent of police abuse in the United States. Data collection should include race, ethnicity, sex, and age of offenders; race, ethnicity, resident status, sex, and age of victims; arrest information; type of injury; and type of 144 USCCR, Guardians, p. 156. weapon or force involved." Ibid. 44 Internal Investigations and Dispositions their disciplinary procedures and dispositions to Finding 3.4: lADs continue to be charged ensure equitable treatment for all police officers, with investigating allegations of police miscon and adjust their policies accordingly. In addition, duct and providing disposition of complaints. discussions should take place among rank-and However, their effectiveness is being hampered file police officers, police officials, and union rep by complaints of unequal measures of discipline resentatives to address the code of silence issue for officers who have committed the same types and its ultimate impact on internal regulation of of offenses, 147 lengthy investigations, the "code of police departments. These discussions should silence" among police officers, the lack of public also include a focus on how the code of silence knowledge about police misconduct complaints has a negative impact on both the public's safety and their dispositions, and the lack of computer and the well-being of fellow law enforcement ized data systems that may assist in collecting officers. Lastly, sufficient resources should be needed information on misconduct incidents. made available to lADs to provide them with the Recommendation 3.4: Police administra mechanisms to perform their duties effectively. tors and lAD officials should routinely examine
147 See also USCCR, Los Angeles Report, p. 212. The Com mission found that rank-and-file LAPD police officers con tend that they are punished more severely than command officers for similar infractions, which affects the overall mo rale of the department; USCCR, Guardians, p. 159. The Commission determined that efforts to discipline wayward police officers is hindered by ultimately recommending these officers for departmental awards and promotions.
45 CHAPTER4 External Controls
Most police departments around the country government officials and a lack of adequate in have an internal affairs division that is respon dependent civilian review. sible for investigating misconduct allegations and disciplining officers.1 But internal review CITY GOVERNMENT measures have not always proven effective. Crit City officials at various levels of government ics disagree with the notion of the police "polic continue to exercise great influence over how ing" themselves and find such a system to be external review procedures are conducted. As inherently flawed and lacking in objectivity. the Commission found in Guardians, "the chief Consequently, many citizens and civic organiza executive officer (mayor or city manager) or his tions support aggressive external controls as the designee is not only granted the power to ap most effective means to combat police miscon point and dismiss the chief of police at will but duct and brutality. sets the tone for the conduct of the entire force."3 In Who Is Guarding the Guardians? the Some mayors, police chiefs, and police commis Commission documented several problems that sioners are more involved in law enforcement existed nationwide with the external review of matters than others. Generally, larger munici police misconduct.2 Unfortunately, many of the palities with higher crime rates tend to have same concerns expressed in Guardians remain government officials who demonstrate greater unresolved. Some city government officials con concern and control over police department af tinue to negatively influence the relationship fairs. In these cities, the mayor, police chief, and between the public and the police in their juris police commissioner will often determine the dictions. Despite the Commission's recommenda extent to which the battle against police brutal tions, most civilian review boards remain without ity will be waged. Hubert Williams, president of disciplinary power or meaningful authority over the Police Foundation, explained, "Most police internal investigations into police misconduct. chiefs are honest and have integrity, but they Although federal, state, and local officials fail due to an ignorance of what is occurring in have instituted some changes that have affected their own departments."4 According to the Hu the way in which police misconduct cases are man Rights Watch, "police brutality will only handled, most communities studied by the subside once higher-ranking police officials judge Commission since Guardians was issued in 1981 their subordinates-and are judged them do not show any marked improvement in the selves-on their efforts to provide sufficient and oversight of local police departments. Many consistent oversight."5 The following section ex- communities share two central issues related to the correction and elimination of police miscon duct: ineffective monitoring by federal and state 3 Ibid., finding 4.1, p. 160.
4 U.S. Department of Justice, National Institute of Justice, Police Integrity: Public Service With Honor, National Insti I See chapter 3 for a complete discussion of internal controls tute of Justice and Office of Community Oriented Policing of police misconduct. Services, January 1997, p. 33. 2 U.S. Commission on Civil Rights, Who Is Guarding the 5 Human Rights Watch, "Shielded from Justice: Police Bru Guardians? October 1981 (hereafter cited as USCCR, tality and Accountability in the United States," June 1998, Guardians).
6 U.S. Commission on Civil Rights, Racial and Ethnic Ten system to track problem officers; holding the po sions in American Communities: Poverty, Inequality, and lice chief more accountable for disciplinary deci Discrimination, Volume V.· The Los Angeles Report, May sions, and tightening control of anti-gang 1999, p. 22 (hereafter cited as USCCR, Los Angeles Report). units."17 Therefore, as demonstrated in Los An 7 Ibid., p. 32. geles, the concerted efforts and cooperation of a Ibid., p. 33. Chief Bernard Parks succeeded Chief Williams city government and police officials can dramati in 1997. See Terry McDermott, "Behind the Bunker Mental ity; Professional, Aggressive Policing Made LAPD a Global cally change the manner and effectiveness of Model," The Los Angeles Times, June 11, 2000, p. Al. external controls on police misconduct. 9 USCCR, Los Angeles Report, p. 37.
10 Ibid., pp. 36-37. For example, police officers' use of the II USCCR, Los Angeles Report, p. 39. baton declined from 15 percent of all uses of force to 2 per 12 Ibid. cent in 1995. Katherine Mader eventually left her position as inspector general, reportedly due to her frustration 13 Doug Shuit, "Mayor Vows Tracking System for Officers," caused by unreasonable limitations on her authority. Ac The Los Angeles Times, May 8, 2000, p. B3. Richard Riordan cording to one source, Mader was told that she was limited and Bernard Parks succeeded Tom Bradley and Willie Wil in what she could investigate and restricted to having access liams as the mayor and police chief of Los Angeles, respec only to aggregate data, not individual case files. She was tively. even instructed that she could not speak to the civilian Po 14 Ibid. lice Commission that manages the department, but instead 15 Editorial Writers Desk, "Rampart: Seizing an Opportu could report only to its executive director. See Erwin nity," The Los Angeles Times, Sept. 18, 2000, p. B6. Chemerinsky, "Learning the Wrong Lessons from History: Why There Must be an Independent Counsel Law," Widener 16 Ibid. Law Symposium Journal, vol. 5 (2000), p. 8. 17 Ibid. 47 Other municipalities around the nation have creasing support from the City Council and other also been credited with changing the attitude of city leaders.23 And in the cities of Portland and law enforcement regarding police misconduct Seattle, which have existing auditors, officials issues. For example, in New Orleans, Mayor are considering the development of civilian re Marc Morial and Police Superintendent Richard view boards to supplement the auditor's over Pennington have been recognized for their com sight of police misconduct.24 The use of these in mitment to ending police abuses within the de dependent authorities could provide an addi partment.1B During their tenure, an integrity tional level of oversight that would increase pub division was established to uncover police cor lic confidence in the integrity of police discipli ruption.19 This initial effort demonstrates Mayor nary systems. Morial's interest in addressing police misconduct in New Orleans. Barriers to Effective City Government Similarly, in Prince George's County, Mary Control of Police Misconduct land, the police chief, John Farrell, promised to In cities where officials are less involved in "root out corrupt and brutal officers with a series the external control of police misconduct the of initiatives designed to restore confidence in public is more likely to have a strained relation the troubled force, including the immediate in ship with the police. According to the Human stallation of video cameras in patrol cars and the Rights Watch, in each ofthe 14 major cities that appointment of an FBI agent to oversee discipli the organization examined, "police leadership on nary affairs."20 this issue is lacking. Most high-ranking police Some cities are testing the idea of using an officials ... seem uninterested in vigorously pur independent auditor or inspector general to re suing high standards for treatment of persons in view police brutality cases and to recommend custody."25 In Hampton, Virginia, and Wichita, appropriate action directly to police department Kansas, for instance, information about internal authorities. In July 2000, officials in Omaha, investigations of complaints and disciplinary Nebraska, met with civic leaders and community actions against officers was not made available members to discuss the possibility of appointing to the public.zs The Commission has observed an auditor who would have the authority to ask that this practice fosters distrust and animosity that a deputy police chief or the police chief in between police officers and the communities they vestigate a police misconduct complaint fur serve. Similar sentiments were evident through ther.21 Inspectors general or auditors are cur out communities in Chicago, South Dakota, Ne rently in use in Portland, Oregon; San Jose, vada, Wisconsin, New York, and California, California; Los Angeles County; and the city of where many citizens expressed the view that Los Angeles.22 The San Jose auditor, Teresa there is simply no effective disciplining of the Guerrero-Daley, explained that at the time of police.27 Thus, wjthout meaningful oversight by her appointment in 1993, she was met with re sistance from the former police chief and the po 23 Rick Ruggles, "Do Police Auditors Have an Impact?" The lice union, but since then she had received in- Omaha-World Herald, July 26, 2000, p. 1. 24 Ibid.
18 Human Rights Watch, "Shielded from Justice," Police 25 Human Rights Watch, "Shielded from Justice," Police Administration, The Key to Reform. Administration, The Key to Reform. 19 The United States Conference of Mayors, "New Orleans 26 Virginia Advisory Committee to the U.S. Commission on Mayor Marc Moria! Reelected," Feb. 13, 1998,
49 forms of external controls being developed by Four reasons that local prosecutors may city governments will have in bringing an end to choose not to pursue a case against a police offi the problem of police misconduct. cer accused of misconduct, even though the evi dence may support such prosecution, include: STATE PROSECUTIONS AND FEDERAL OVERSIGHT State prosecution of police misconduct has • the traditionally close relationship between been criticized as being infrequent and ineffec district or county attorneys and police offi tive, in part, because local prosecutors are reluc cers, who usually work together to prosecute tant to prosecute the officers upon whom they criminals; must rely for the investigation and prosecution • difficulties in convincing grand juries and of criminal cases.ss As the Commission found in trial juries that a police officer did not Guardians, "[t]he criminal law is a limited vehi merely make an understandable mistake, cle for preventing or deterring police misconduct. but committed a crime; Nonetheless, vigorous prosecution of such cases • special proceedings that, in some jurisdic by local prosecutors is essential."37 In most police tions, provide additional protections for police abuse cases, however, local prosecutors decline officers accused of criminal behavior; and to bring criminal charges, often with the expla • lack of information about cases that could be nation that the officers' use of force was "justi prosecuted or systems for reviewing possibly fied."38 Under these circumstances, many citi prosecutable cases.s9 zens have lost faith in the ability of their local governments to discipline the police, and instead These obstacles can prevent state prosecutors have begun to seek aggressive federal interven from being as aggressive in their pursuit of abu tion to curb police misconduct. sive officers as they are with civilians who have been accused of committing a crime. Without an State Prosecutors additional layer of analysis of the facts, most State prosecutors around the country have officers who face criminal allegations will avoid been criticized for taking a tough approach to any type of meaningful prosecution. the prosecution of civilian defendants but being more lenient and sympathetic when the accused Special Prosecutors is a police officer. Biases a prosecutor may hold As Louis Schwartz, professor at the Univer in favor of a particular defendant will typically sity of Pennsylvania, determined in his study on conflict with his or her ability to pursue a fair police violence, "the District Attorney's office has and just outcome. This is particularly true in the not been, and, in the nature of things, could not case of police brutality because the accused is be, an effective instrument for controlling police 4 often the same person that the county or district violence." 0 Local prosecutors' offices face "a attorney relies upon for help in the investigation hopeless conflict-of-interest" in handling police and prosecution of criminal defendants. violence complaints because, in most cases, the district attorney's office must investigate the defendant's allegations of brutality against the 36 USCCR, Los Angeles Report, p. 117. police while simultaneously investigating the 37 USCCR, Guardians, finding 4.2, p. 160. police charges against the defendant.41 Accord as See, e.g., U.S. Commission on Civil Rights, Policing in ing to Peter Davis, professor of law at Touro Col Cincinnati, Ohio: Official Policy us. Civilian Reality, Janu· lege, the "symbiotic relationship" that the police ary 1981, pp. 37-39. At the time the report was issued, no Cincinnati police officer had ever been prosecuted for as share with local prosecutors "virtually guaran- sault against a civilian while on duty. Similarly, in Chicago, between 1982 and 1992, local and federal prosecutors prose· 39 Human Rights Watch, "Shielded from Justice," Local cuted only six police officers for abuse of citizens. Five of the Criminal Prosecution. six were acquitted, and the sixth was convicted of a misde· 4 meanor. U.S. Commission on Civil Rights, Racial and Eth 0 Louis B. Schwartz, "Complaints Against the Police: Ex nic Tensions in American Communities: Poverty, Inequality, perience of the Community Rights Division of the Philadel and Discrimination, Volume III· The Chicago Report, Sep phia District Attorney's Office," University of Pennsylvania tember 1995, p. 137 (hereafter cited as USCCR, Chicago Law Review, vol. 118 (1970), pp. 1023--24. Report). 41 Ibid.
50 tees that no local district attorney-in Philadel prosecutor.49 Later, at a hearing before the Con phia, Los Angeles, or elsewhere-will pursue gressional Black Caucus in Washington, D.C., police brutality prosecutions vigorously."42 Michael Zinzun, executive director of the Coali The appointment of a special prosecutor to tion Against Police Abuse, also called for the pursue criminal charges against officers on the creation of independent prosecutors to investi state level may help to eliminate the "conflict of gate and prosecute police misconduct under a interest"43 that plagues local prosecution of po national review board.SO Similarly, Erwin lice misconduct cases. In its reports on police Chemerinsky, professor at the University of practices in Los Angeles and New York, the Southern California, strongly recommended the Commission recommended that a special prose creation of a permanent special prosecutor to cutor be assigned to investigate high-profile po investigate and prosecute wrongdoing by Los lice brutality cases.44 In Los Angeles, for in Angeles police officers. 51 stance, the Commission found that "[t]he district Testimony at the Commission's hearing on attorney's reliance on police cooperation for police practices in New York indicated that "the prosecuting crimes conflicts with its duty to independence of a special prosecutor is neces prosecute police misconduct."45 More than a year sary to ensure that where credible evidence ex after the Commission's report was issued, a re ists to support a charge against an officer, that port initiated by the police union in Los Angeles charge is pursued in as vigorous a fashion as reiterated the need for a permanent special possible."52 The results from the poll conducted prosecutor to investigate misconduct.46 In Janu by New York's City Council further demonstrate ary 1993, California State Senator Art Torres that most city residents desire more objectivity introduced a bill creating a special prosecutor to in police misconduct cases. 53 investigate and prosecute misconduct complaints In rural municipalities, where the local against peace officers.47 The bill, which was ul prosecutor and police department may share a timately defeated, was intended to negotiate the particularly close relationship due to the rela legitimate interest of the district attorney's office tively small size of their jurisdictions, there may in cultivating police cooperation with the public's be an even greater need for independent review interest in vigorous prosecution of police mis by an objective, unbiased prosecutor. A state law conduct.48 In June 1996, a group of 25 relatives in Nebraska, for example, requires that a grand of people killed by law enforcement officers held jury meet and a special prosecutor be appointed a demonstration in front of the district attorney's each time someone dies in police custody. 54 In office and then made their way to the Board of Louisville, Kentucky, and Beckley, West Vir Supervisors meeting to lobby for an independent ginia, local prosecutors requested that special prosecutors be appointed to investigate police brutality allegations due to conflicts of interest 42 Peter L. Davis, "Rodney King and the Decriminalization in those cases. 55 Removing the prosecution of of Police Brutality in America: Direct and Judicial Access to the Grand Jury as Remedies for Victims of Police Brutality When the Prosecutor Declines to Prosecute," Maryland Law Review, vol. 53 (1994), p. 291. 49 Ibid.
43 A "conflict of interest" is generally defined as "a situation 50 Ibid. in which regard for one duty tends to lead to disregard of 51 Erwin Chemerinsky, "Learning the Wrong Lessons from another." BLACK'S LAW DICTIONARY 299 (6th ed. 1990). History: Why There Must be an Independent Counsel Law," 44 See U.S. Commission on Civil Rights, Police Practices and Widener Law Symposium Journal, vol. 5 (2000), p. 15, n. 29.
Civil Rights in New York City, August 2000, recommenda· 52 USCCR, Police Practices in New York City, finding 4.13, p. tion 4.13, p. 84 (hereafter cited as USCCR, Police Practices 84. in New York City); USCCR, Los Angeles Report, recommen dation 4.7, p. 219. 53 C.J. Chivers, "Approval and Wariness in Poll on Police," The New York Times, Sept. 15, 2000, p. B9. 45 USCCR, Los Angeles Report, finding 4.7, p. 219. 54 Angie Brunkow, " 'Tainting' Fear Stalls Kruse Case," The 46 Leon Drouin Keith, "Report Calls for Special Prosecutor Omaha World-Herald, Aug. 18, 2000, p. 19. for LAPD, Change in Culture," The Associated Press State & Local Wire, Sept. 12, 2000. 55 James Zambroski, "The Firing of Louisville's Police Chief; Community Groups, Activists Decry Police Department 47 Ibid., p. 118. Actions," The Courier-Journal (Louisville, KY), Mar. 3, 2000, 48 Ibid. p. A13. 51 police abuse cases from the confines of local A 1993 Commission report on police practices in county or district attorneys' offices could in the Mount Pleasant area of Washington, D.C., crease the number of investigations and convic emphasized the need for federal intervention, tions in misconduct cases, and concomitantly, stating, "The Federal Government can contrib increase public confidence in the disciplinary ute significantly to remedying the problems of process. police abuse by the identification and prosecu The appointment of a special prosecutor, tion of abuse cases."GO But in South Dakota, for however, does not guarantee that police officers instance, one resident explained, "[We] are regu accused of wrongdoing will be prosecuted and lated by city, county, tribes, State, Federal, BIA ultimately punished. In many cases, the special [Bureau of Indian Mfairs]. All these agencies, prosecutor is another county or district attorney but no one can protect us, but yet they regulate selected from a neighboring jurisdiction that us and they prosecute us when there is a crime may be subject to the same biases and partiality against a non-Indian."Gl Several community as the original prosecutor. In Denver, for exam· leaders and residents of Los Angeles also main ple, public uproar over a police officer pistol tained that the federal government's posture had whipping a suspect during his arrest caused been one of "inaction and neglect."62 These sen Denver District Attorney Bill Ritter to request a timents reflect a widespread frustration with the special prosecutor to look into charges of police failure of government entities to remedy police brutality.56 The special prosecutor, Arapahoe misconduct. County District Attorney Jim Peters, ruled that Nevertheless, federal prosecutors or other in no excessive force was used and that police fol dependent federal agency representatives may lowed accepted methods of subduing culprits.5 7 A be able to monitor police abuse cases in a man week later, however, Denver Mayor Wellington ner that local prosecutors cannot, and without Webb said he was not satisfied with the special the accompanying conflicts of interest that in prosecutor's findings and ordered further review hibit local prosecutions. Federal monitors have of the case.ss Thus, the conflict of interest that been called to oversee increasing numbers of po can arise due to the close relationship that lice departments across the nation, particularly prosecutors generally share with police officers in cities where there have been one or more is not necessarily alleviated by the substitution high-profile brutality cases. For example, New of another prosecutor. It can be argued that the York City has had an ongoing battle between the most effective special prosecutor in police abuse city's administration and federal prosecutors, cases would come from outside the ranks of the who plan to file a lawsuit seeking an independ law enforcement community. ent monitor of the police department.63 Follow-
Federal Government Oversight together to injure, threaten, or intimidate a person in any Federal oversight of state prosecutions in po state, territory or district in the free exercise of his or her lice brutality cases may afford an even greater civil rights, and 18 U.S.C. § 242 {1994 & Supp. IV 1998), level of accountability. As discussed in Guardi which makes it a crime for a person acting under color of effective prosecution of police misconduct any law to willfully deprive a person of his or her civil ans, rights. Further, under the 1994 Crime Bill, 42 U.S.C. § cases should involve the collective efforts of local 1414l(a) (1994), the Justice Department has the authority to officials and the federal government, through file civil suits against law enforcement agencies that engage the U.S. Department of Justice, which is respon in a pattern of misconduct. These statutes and their related cases will be discussed more extensively in chapter 5. sible for enforcing the nation's civil rights laws. 59 so U.S. Commission on Civil Rights, Racial and Ethnic Ten sions in American Communities: Poverty, Inequality, and 66 Mike McPhee, "Suit Promised in Police Chase Suspect's Discrimination, Volume I- The Mount Pleasant Report, Civil Rights Violated," The Denver Post, Feb. 17, 2000, p. B5. January 1993, p. 38 (hereafter cited as USCCR, Mount Pleasant Report). 67 Ibid. 61 South Dakota Advisory Committee, Native Americans in 58 Ibid. South Dakota, p. 35. 59 USCCR, Guardians, p. 115. The Department of Justice 62 USCCR, Los Angeles Report, p. 203. prosecutes police misconduct under several civil rights stat utes, including 18 U.S.C. § 241 (1994 & Supp. IV 1998), 63 Mike Claffey and John Marzulli, "Deal Near on Cop which makes it unlawful for two or more persons to agree Probe," The Daily News (New York), July 6, 2000, p. 5. 52 ing an extensive probe that was sparked in 1997 ery County, Maryland; Orange County, Florida; by the Abner Louima sodomy-torture incident,64 and Eastpoint, Michigan, a suburb of Detroit.n the U .S. attorney's office in Brooklyn concluded According to John Ginger, a federal monitor that there was a pattern of brutality in the New assigned to Pittsburgh, the federal government York City Police Department and that only the does not purport to substitute the judgment of full force of the federal government could bring its monitors for that of local police administra about systemic changes in the police culture.65 tors, but rather "the government is simply ask The federal government proposed a consent de ing for 'good management.' "72 But many officers cree that would be enforced by a federal judge. have expressed strong opposition to federal in Under such an agreement, the federal govern tervention of any kind. Michele Papakie, a police ment would monitor how the NYPD investigates spokeswoman in Pittsburgh, explained that complaints of police brutality, and the city would some officers had not accepted changes required face costly lawsuits if it failed to comply with the under the consent decree the city signed in terms of the consent decree.66 Despite negotia 1998_73 She also said the federal monitor's pres tions with the Justice Department, New York ence makes officers uncomfortable.74 This "un City Mayor Rudolph Giuliani reportedly refused comfortable" relationship between federal offi to sign the consent decree and prefers a "less cials and local law enforcement, however, may formal" agreement.67 Federal prosecutors are produce the necessary changes that will elimi considering a lawsuit against the city, since it nate, or at the very least, decrease the frequency appears there is little chance of reaching a set of police misconduct and brutality cases. Regard tlement. as less of one's view on the issue of federal over The Justice Department also concluded a sight of police misconduct cases, the reforms that four-year investigation into allegations that the have resulted from investigations and other ac Los Angeles Police Department has routinely tions pursued by the Justice Department have employed excessive force and violated the rights had a considerable impact on police practices of minorities.69 At the time of this report, federal around the country. officials were negotiating with the Los Angeles city government in the hopes of reaching an CIVILIAN REVIEW BOARDS agreement on the 80-plus recommendations pro As a result of the perception that city, state, posed by the Justice Department to reform the and federal agencies have failed to address po police department.70 In addition, the Justice De lice misconduct adequately, many communities partment has investigated police misconduct are turning to independent civilian review issues in other municipalities around the nation, boards to investigate allegations of police abuse. including New Jersey; Steubenville and Colum The civilian (or citizen) complaint process is a bus, Ohio; Pittsburgh, Pennsylvania; Montgom- method of reviewing, processing, and investigat ing citizens' complaints of alleged police miscon duct. Most major cities have some measure of 64 Abner Louima is a Haitian immigrant who was sodomized civilian oversight in place, but in many areas no by a New York City police officer with a toilet plunger inside such external civilian control exists. It is appar of a Brooklyn precinct house. All four officers charged with ent, however, that civilian review boards are participating in the attack have since been convicted and imprisoned for their acts. See USCCR, Police Practices in New York City, pp. 6-7. 71 Bill Lann Lee, Acting Assistant Attorney General of the 65 Claffey and Marzulli, "Deal Near on Cop Probe." Civil Rights Division, U.S. Department of Justice, testimony 66 Ibid. before the U.S. House Subcommittee on the Constitution, 67 Ibid. Oversight Hearing on the Civil Rights Division, Washington, 68 Goldiner, "Rev. Al Presses Reno," p. 8. At the time of this D.C., Federal News Service, July 12, 2000. writing, negotiations were ongoing between New York City 72 Mark Schaver, "Investigations Show What Louisville Can and the Justice Department. Ibid. Expect; Police under eye of Justice; U.S. seeking similar 69 Leon Drouin Keith, "Report Calls for Special Prosecutor actions from cities," The Courier-Jourrwl (Louisville, KY), for LAPD, Change in Culture," The Associated Press State & July 2, 2000, p. Al. Local Wire, Sept. 12, 2000. 73 Ibid. 1o Ibid. 74 Ibid. 53 critical to the success of external controls over men's Benevolent Association, which is the rank police misconduct. Civilian review boards pro and-file police union, maintained that the mem vide a means of maintaining internal regulation bers of the review board were too liberal and of police practices and evaluating a police offi would consequently not be supportive of police cer's performance.75 Regardless of whether a ci officers' experiences and perspectives.so The as vilian's complaint is valid, a system of review for sociation and other authorities then launched an allegations of misconduct can affect the public's advertising campaign that urged New Yorkers to perception of a police department's efficiency vote to abolish the civilian review board on an and its reputation.76 upcoming referendum.81 As a result, civilian re view boards were rejected in the boroughs of Previous Reform Efforts Queens, Staten Island, and Brooklyn. Manhat Various factors caused an increased level of tan voters, who were primarily liberal whites review of police departments' activities through and minorities, sustained the establishment of a out the nation. In the 1960s, the outcry for civil civilian review board for their borough.B2 ian oversight of police departments was often Alderman Carl 0 . Snowden recalled growing amplified as the result of increased tensions be local support in the late 1970s for a civilian re tween minority communities and the police, civil view board in Annapolis, Maryland, when two unrest, alleged and actual incidents of police black men were fatally shot and community misconduct, and political intervention.77 For ex residents voiced their objections.B3 Although the ample, after the civil unrest of August 1965 in review board was not established, primarily due the Watts and South Central Los Angeles com to resistance from law enforcement authorities munities of California, the McCone Commission the Annapolis City Council created the Annapo issued several findings and recommendations lis Human Relations Commission. The commis relating to the causes of the riot to then sion was empowered to investigate allegations of California Governor Edmund G. (Pat) Brown. discrimination from city employees and entities, The McCone Commission determined that "the but not complaints of police misconduct.B4 civilian oversight body of the LAPD existed as a mere figurehead, controlled by [LAPD] Chief Parker .. . (and] that the citizens' complaint pro Culture Society and a board member of the American Civil Liberties Union .. .. [F]our civilians were recommended by cedure did not satisfy public needs. . .."78 an eleven-member panel chaired by a former Republican A year after the Watts riots in California, Attorney General, Herbert Brownell, Jr. All three police New York City Mayor John V. Lindsay ap representatives had law degrees, and one had been a special pointed a seven-member Civilian Complaint Re agent of the FBI for 25 years. Minority group members in cluded two blacks, one of them a Deputy Commissioner of view Board (CCRB) in July of 1966. Three of the Police. One member was a Puerto Rican." Ibid., p. 221. See civilian review board members were high Donna De La Cruz, "Report: CCRB Ineffective in Monitoring ranking police officers.79 However, the Patrol- Police Misconduct," The Associated Press, State & Local Wire, Dec. 30, 1999, Thursday p.m. cycle (hereafter cited as De La Cruz, "CCRB Ineffective"). In 1953, the original civil 75 USCCR, Guardians, p. 50. ian oversight board comprised entirely high-ranking police 76 Ibid., p. 50; see Brett Martel, "Lawmaker s Hope Police officials. will Back Creating Citizen Review Boards," The Charleston 80 Ibid., p. 221; see Tara L. Senkel, "Civilians Often Need Gazette, Feb. 13, 1999, p. A2. Protection from the Police: Let's Handcuff Police Brutality," 77 See Lorraine Ahear, "Police at Odds Over Debate of Re New York Law School Journal of Human Rights, voL 15 view Board," News & Record (Greensboro, NC), June 26, (1999), p. 416. 1994, p. Al. "The boards, usually created as the result of a 81 Skolnick and Fyfe, Above the Law, p. 221. "The most racial incident or police scandal, can recommend discipli widely posted, most effective, and most alarming placard nary action to a police chief but cannot impose discipline showed a young girl fearfully leaving a subway exit onto a themselves." Ibid. darkened street. Its text: 'The Civilian Review Board must 78 Gerald Woods, The Police in Los Angeles: Reform and be stopped? Her life, your life, may depend on it.'" Ibid. Professionalization (New York: Garland Publishing, 1993), 82 Ibid., pp. 221-22. p. 238. 83 Amy Argetsinger, "Bid Stalls for Police Oversight: Call for 79 Jerome H. Skolnick and James J . Fyfe, Above the Low: Civilian Panel Gets a Tepid Reception," The Washington Police and the Excessive Use of Force (New York: The Free Post, Jan. 30, 1997, p. Ml. Press, 1993), pp. 220-21. "[The] seven-member board was headed by Algernon D. Black, who is a leader of the Ethical 84 Ibid. 54 Some local government entities eventually The New York City Police Department did not began to be more supportive of the public's de oppose the establishment of a civilian review mand for civilian oversight of police departments board until 1992, when Mayor Koch's successor in subsequent decades. In St. Paul, Minnesota, was in office.89 During this time, Mayor David although approximately six city task forces sup· Dinkins transformed New York City's civilian re· ported civilian review of the police since the view board into an independent entity, separate 1960s, the mayoral administrations and police from the police department. ln response to this chiefs did not support the concept.86 In 1993, the proposal, New York's police officers staged adem Police Civilian Internal Affairs Review Commis onstration to show their lack of support for the sion was finally approved by St. Paul's City mayor's initiative.90 The board was composed en· Council and the Police Federation.ss tirely of civilian mayoral staff. The CCRB is now Similarly, in Louisville, Kentucky, coalitions composed of 13 mayoral-appointed members.91 of community residents have advocated for the creation of a civilian review board since the late Current Approaches and Policies 1960s and early 1970s. Because of lack of sup In communities across the country, the public port from the entire membership of the Louis has complained about a lack of credibility among ville Board of Aldermen, these efforts were not internal investigations of police nrisconduct and successfu1.87 Recently, there have been renewed the need for external oversight by local citi grassroots efforts to establish a civilian review zens.92 Police abuse expert Lynne Wilson stated, board in Louisville: "Police misconduct is a matter of strong public interest ... citizens, not police department offi Now, for the first time in 30 years ... there is a real cials, are the ultimate arbiters of what police possibility that civilian oversight can become a real behavior is acceptable in a democratic society."93 ity. The change has come because lots of citizens have Professor David Harris of the University of Toledo worked hard-talking to aldermen and organizations. Law School echoed this sentiment, stating, .. . [B]ecause we now have four very strong African American aldermen who are determined on this is sue-and, unlike the situation in the early '70s, they whether we're talking about police agencies or gov have two staunch white allies on the Board of Alder ernment institutions of another kind, accountability men. Right now, we need an aroused citizenry to con is a uniquely American idea . .. The Declaration of vince Mayor Armstrong not to veto the legislation and Independence should be seen as a proclamation that thus go against the. 73 percent of public opinion (ac the principle of accountability will stand in this coun· cording to The Courier-Journal Bluegrass State Poll) try and nobody will stand for government without it. that favors independent investigation.... 88
89 Skolnick and Fyfe, Aboue the Law, p. 223. In the 1980s, New York City Mayor Ed Koch so Ibid. "The reactions included a demonstration by 10,000 created a civilian review board that included the off-duty police officers, many of whom engaged in rowdy and same number of police and civilian members. threatening behavior, blocking the Brooklyn Bridge, rough ing up reporters and cameramen, and demeaning the mayor and passers-by in the ugliest racist terms. Ironically, the 85 Conrad deFiebre, "Board Members Picked to Review In early public reactions tallied in the unscientific man-in-the ternal Probes of St. Paul Police," The Star Tribune (Minnea street polls of radio and television news shows suggest that polis, MN), Sept. 17, 1993, p. B5. the vile police conduct at this demonstration has convinced 86 Ibid. "The board will direct and review investigations of even the formerly most staunch supporters of the police that officers by the Police Department's internal affairs unit, Dinkins is correct in his argument that the police should not make findings of fact, and recommendations of discipline to be permitted to review their own conduct." Ibid. the police chief." Ibid. 9! Senkel, "Civilians Often Need Protection from the Police," 87 Anne Braden, "Civilian Review-An Overdue Step," The p. 416. "The Mayor selected five members, the City Council Courier-Jottrnal (Louisville, KY), May 7, 2000, p. D3. Anne recommended five members, one from each borough, and the Braden is a civil rights leader in Louisville, Kentucky. She is Police Commissioner selected three members." Ibid. a member of the board of the Kentucky Alliance Against 92 See USCCR, Los Angeles Report, p. 120; Nevada Advisory Racist and Political Repression. See ibid. During this time, Committee, Police-Community Relations in Reno, p. 24; the city ordinance that would have created a civilian review USCCR, Chicago Report, pp. 108-n9. board had the sole support of the only African American 93 Lynne Wilson, "The public's right of access to police mis member of the Board of Aldermen. conduct files," Police Misconduct and Ciuil Rights Law Re 88 Ibid. port, vol. 4, no. 7 (January-February 1994).
55 And the Constitution enshrined the idea of account complaint review policies and providing sug ability as a cornerstone of our government ... [it is] gested changes to these procedures.99 everything to every democratic country.94 Other defmitions of civilian oversight exist. There are numerous forms of civilian over In the "Civilian Review" (or Berkeley, California) sight. One of the most common classifications is model, an entity that is independent from the defined by a four-tiered system:95 police department investigates and reviews civil ian complaints and then recommends appropri • Class One . Review agencies have the great ate disciplinary action to the chief of police .too est discretion. Nonsworn staff members per The "Civilian Input" approach authorizes civil form tasks such as receiving complaints, pre ian staff of the police department to investigate liminary fact-finding, reviewing investiga excessive force complaints, while the chief of po tive reports, and recommending disciplinary lice is responsible for issuing disciplinary ac procedures. This is the most common type of tion.101 Lastly, the "Civilian Monitor" system civilian review in the 50 largest cities in the grants a separate agency the duty to mediate 96 country. and examine civilian complaints from those in • Class Two. Class Two civilian review dividuals who were not satisfied with the police boards are less autonomous than Class One department's investigation and disposition of structures. Police officers are responsible for misconduct allegations.102 investigating civilian complaints. Civilians, Several participants of the Commission's or a committee that contains some percent briefing on national police practices commented age of civilians, review the police officers' re on the effectiveness of civilian complaint review ports and then provide a recommended out boards and new efforts being made toward their 97 come to a law enforcement authority. improvement. For example, James Fyfe, a pro • Class Three. Police department personnel fessor of criminal justice at Temple University, investigate and review civilian complaints. explained that in 1981, there were no successful The department's internal affairs division civilian complaint review boards.I03 By the early then advises a police department official of 1990s, however, more than 30 of the 50 largest its recommended course of action for the police departments had established some form of complaint. Civilians may be included as civilian review.I04 Robert Louden described the members of an appellate board, which re importance of establishing a continuing dialogue views appeals of the internal affairs divi between police departments and their communi sion's decisions. The appellate board can ties in order to improve relationships and pre then provide alternate recommendations to vent crime.I05 He applauded experimental pro the departmental official.9S grams that tried innovative approaches, such as • Class Four. Third-party auditors are re the regional policing institutes, which are sponsible for analyzing police departments'
99 Ibid.; see Jason Spencer, "Police Plan is Result of Trade Offs," Austin American-Statesman, May 30, 2000, p. Bl. The 94 Professor David Harris, remarks given at the Congres civilian oversight board in Richmond, California, employs a sional Black Caucus' Discussion on Law Enforcement Ac full-time autonomous investigator to examine almost all the countability: Safe Streets & Sacrificing Civil Liberties, complaints against police officers. Ibid. Washington, D.C., Sept. 15, 2000
56 funded by the COPS program of the Justice De America's "war on drugs," which has dispropor partment. lOS This program creates a partnership tionately affected minorities in urban areas.n s between the local police department, a college or As a result, relationships between people of color university, and a citizens' group. The project and the police have eroded, and minorities have seeks to create a dialogue among the partici lost faith in the criminal justice system. But po pants in hopes of resolving policing issues and lice officers still see the benefit of strong rela working together for solutions.l07 tionships with neighborhood residents: "a recent Dr. Louden also encouraged continued fund Police Foundation survey found that over 95 ing of community policing programs. 10B In New percent of the rank-and-file police officers be York, he helped create the Streetwise program, lieve that the most effective way to control crime which addresses "cultural issues, language is is by working with citizens and communities."114 sues and people issues."l09 The curriculum, de Thus, in the future, cities across the nation may signed by teams of police trainers, academics, develop innovative approaches to civilian over foreign language professors, anthropologists, sight of police misconduct, in a continuing effort and others, eliminates the use of stereotypes in to increase public confidence in the integrity of police training and incorporates more realistic law enforcement. portraits of community members.llO In addition, Civilian review of police misconduct cases is Dr. Louden mentioned that several international intended to be an effective, unbiased method of law enforcement academies had been or would controlling police abuse, and it exists in the ma be opened in four countries: Hungary, Panama, jority of the nation's largest cities.115 Citizens of Thailand, and South Africa.lll municipalities that lack any form of civilian Finally, Hubert Williams informed the Com oversight are rallying with increasing urgency mission that there is a need for accountability of for the creation of such review boards, especially the police, who are charged with fairly upholding in the wake of repeated police abuse incidents. laws.ll2 He discussed the role of the police in According to news reports, Peoria, Illinois; Nor folk, Virginia; the town of Brunswick, in Jack sonville, Florida; and Huntington, West Virginia; 106 Ibid., P• 37. are just a few of the cities that have suffered 107 Ibid. from the effects of police brutality, which usually 108 Ibid. lead to strained relationships between the police 109 Ibid., pp. 37-38. and the communities they serve. us Despite these llO Ibid., pp. 37-39. concerns, many city leaders remain resistant to 111 Ibid., pp. 37-38. See also ibid., pp. 38-41. They seek to the idea of civilian "interference" with law en· bring American police practices to emerging democracies. forcement. As discussed earlier, Representative One outcome from these academies is the Human Dignity and Police Program, which facilitates a discussion on human Michael McAlevey of Bangor, Maine, explained dignity among the police and community members. The that he did not oppose civilian review of the find program examines human rights, police abuses, and solu· ings of an investigation into police misconduct, tions to developing better relations. Dr. Louden hoped this but that trained law enforcement professionals program would be marketed throughout the world, particu· should conduct the actual investigation.u7 In larly in the United States. He also mentioned his involve· ment with the creation of a new police force and police sys· tern in Northern Ireland. An intensive study was done of this divided society with its divided policing. Although very 113 Ibid. different from the United States, certain issues are shared lt4 Ibid., p. 52. between the two countries: diversity with regard to gender, religious diversity (analogous to the racial diversity in the 11s USCCR, Chicago Report, p. 108. United States), and civilian overview of police forces. Dr. 116 Pam Adams, "Peoria Police Need Outside Oversight," Louden noted: "Sometimes we have to kind of look back at Copley News Service, Sept. 20, 2000; Meredith Kruse, "Me· somebody else to see what we have got going here." Ibid. To diator Seeks To Bridge Gap In Police Relations," The Virgin· that end, he believed a comprehensive study of police prac ian-Pilot, Sept. 8, 2000, p. Bl; Terry Dickson, "Recall Bid on tices should be done in the United States. It should involve a Mayor of Brunswick," The Florida-Times Union, Aug. 3, collaboration among social scientists, behavioral scientists, 2000, p. Al; Editorial, "Unfair 'Pr ofiling' Young Blacks," The and the police. Ibid. Charleston Gazette, Aug. 30, 2000, p . 4A. ll2 Hubert Williams, Police Practices Briefing Transcript, p. 11 7 Emmet Meara, "Legislative Panel Nixes Civilian Review 51. Board," The Bangor Daily News, Jan. 11, 2000.
57 Charleston, West Virginia, State Police Superin ine and correct their own activities.l23 For exam tendent Gary Edgell expressed the view that the ple, the 1998 fatal shooting of Shirley Ansley, a police review board was sufficient to oversee 56-year-old unarmed mentally ill woman, by an complaints of police misconduct.llB The Frater officer of the Jacksonville (Florida) Sheriffs Of nal Order of Police in Louisville, Kentucky, fice prompted local residents to renew their re sought an injunction against the city's civilian quests for a civilian review board.l24 Further- review ordinance, in an effort to ''nip it in the bud." One member said, "We would rather try to 123 Geov Parrish, "Calling for a Crackdown," The Seattle get it declared illegal now before it gets Weekly, June 29, 2000, p. 26; Skolnick and Fyfe, Aboue the started."ll9 Law, p. 224; Edward Fitzpatrick, "Complaints About Cops Rise," The Times Union (Albany, NY), Feb. 8, 1998, p. Al. Skeptics of these civilian complaint boards Alice P. Green, executive director of the Center for Law and contend that while they provide residents with a Justice, indicated that many residents will not file a com means of expressing their views of the local po plaint against a police officer due to their fear of reprisal or lice department, the civilian complaint process their lack of information about the complaint system. See Edward J . Littlejohn, "The Civilian Police Commission: A rarely results in any modifications in police Deterrent of Police Misconduct," Uniuersity of Detroit Jour practices.12o For example, residents of Portland, nal of Urban Law, vol. 59 (1981), pp. 5, 8; Steven Gray, Connecticut, protested a proposal to amend the "Demand for Oversight-Citizen Groups Want Role in town's charter in order to create a police com Probes of Police," The Wa.shington Post, Dec. 16, 1999, p. Ml. "Many Montgomery [County, Maryland,) residents want mission. The proposed police commission would . , . a fully-empowered independent board charged with in be charged with reviewing civilian complaints vestigating complaints against police officers. The demand and police officer grievances, hiring and firing made by the NAACP (National Association for the Ad officers, and negotiating union agreements.l21 vancement of Colored People], the American Civil Liberties Union and 10 other organizations persists despite the par Although there is no formal system in Portland tial results of a three-year U.S. Justice Department investi for addressing citizen complaints of alleged po gation publicized earlier this month. So far, the review of lice misconduct, one community member in 300 citizen complaints found that Montgomery police did not quired, "Where's the benefits? ... I don't see why use excessive force in several cases involving minorities. It did conclude that African Americans receive 21 percent of this is being offered at this time."l22 traffic tickets, although they make up fewer than 15 percent Some authorities also observe that when of the county's population." Gray, ''Demand for Oversight." members of the public request civilian oversight See also Jack Money and Steve Lackmeyer, "Citizen Review of police activities, the underlying reason stems Board Not A Magic Bullet," The Daily Oklahoman, Oct. 25, from their mistrust of the police to fairly exam- 1999, city edition. According to Deborah Wilson, chair woman of the Louisville Police Administration Advisory Committee, this committee was created because minority residents wanted to ensure police treat their complaints as seriously as white residents' concerns.
124 Sean Gardiner, ''Shooting Brings Calls for Public Review: 11 8 Randy Coleman, "State Police Fighting for Overtime Citizens Board. Would Police the Police," The Florida Times Money, Against Review Board," The Associated Press State Union (Jacksonville, FL). Feb. 23, 1998, p. Al. "The Jack & Local Wire, Feb. 7, 2000. sonville branch of the NAACP supports the creation of a 119 James Zambroski, "City Fights FOP Challenge of Civil civilian review board to improve the public's confidence in ian Review Plan," The Courier-Journal (Louisville, KY), July the sheriffs office. In addition, according to Sam Walker, a 26, 2000, p. B3. criminology professor at the University of Nebraska, Jack 120 Lyda Longa, "Review Board to Get Alleged Bearing sonville is one of the few big cities left [in the United States] Case," The Atlanta Journal and Co1tstitution, Jan. 13, 2000, that does not have a civilian oversight system." Ibid. But see p. CL See James Zambroski, "Civilian Review Board for ibid. "Jacksonville Sheriff Nat Glover and other police union Police Debated at Louisville Forum," The Courier-Journal officials view civilian review boards as unnecessary. 'To (Louisville, KY), Apr. 13, 2000, p. B3 (hereafter cited as bring someone in and have them review what law enforce Zambroski, "Civilian Review''). Mark Miller, Esq., Fraternal ment does without training is ludicrous. We're totally Order of Police, commented on a proposed ordinance to al against it,' said David Stevens, president of Jacksonville's low a third party to conduct independent investigations of Fraternal Order of Police Lodge 5-30. Glover said he sees no alleged police misconduct. He maintained that civilian re need for another layer of review because the current system view currently exists through the civil service board, a coro of checks and balances works .... [C]itizens' complaints ner's inquest, and a grand jury. Ibid. about less serious police misconduct are sent to the supervi sor of the officer in question. More serious allegations are 121 Dwight F. Btint, "Police Board Proposal Opposed," The investigated by the department's Internal Affairs unit. [In Hartford Courant, June 1, 2000, p. Bl. 1997] Internal Affairs received 523 citi2ens' complaints." 122 Ibid. Ibid. 58 more, supporters of civilian oversight maintain support of the police department, as well as to that this process creates avenues for improve retain local trust in the investigative process of ment in internal regulation of police depart police misconduct allegations_129 Although the ments. As demonstrated in San Francisco, the review committee is empowered with the ability Office of Citizen Complaints derives proposed to request a more expansive inquiry into investi policy changes from civilian complaints and for gations that may require additional information, wards civilians' recommendations to the police the police chief has the ultimate review of the department.l25 Similarly, an independent audi cases. ISO tor reviewed the San Jose (California) Police De For the most part, civilian review boards do partment's civilian complaint procedure and not possess the authority to do anything more suggested 24 recommendations for improve than review internal investigations by the police. ment.126 According to Samuel Walker, a profes Thus, the civilian review boards that the Com sor of criminal justice at the University of Ne mission reviewed in Guardians often failed in braska at Omaha, who commented on the Los their efforts to address police misconduct be Angeles Police Department, cause "they were advisory only, having no power to decide cases or impose punishment, and ... oversight helps to transform the organizational cul they lacked sufficient staffs and resources."tSl ture of a police department in three important ways. Because these boards lack any enforcement First, independent external scrutiny helps identify powers and do not possess the authority to carry the erosion of standards that the LAPD now concedes out the discipline of abusive officers, many citi it failed to identify on its own. Second, periodic public reports provide a window into a police department zens have lost faith in their effectiveness.1s2 that informs citizens and responsible elected officials about problems that need attention. Third, the ex Barriers to Effective Civilian Oversight perience of being routinely subject to external scru The effectiveness of any civilian oversight tiny eventually breaks down the sort of insular, hos process can be hampered by an inappropriate tile attitude that's at the heart of the LAPD's organ administrative structure, inadequate funding izational culture. Police departments in other cities and staffing, limited or ambiguous authority, or have come to accept the value of this independent an uncooperative police department.lSS For ex perspective.127 ample, in Dallas, Texas, the City Council limited the Dallas Citizens Police Review Board's au Chattanooga's (Tennessee) Citizens Review thority six months after its creation in 1988.1 34 Committee of the Chattanooga Police Depart ment is composed of nine members and three alternates, who are appointed by the Chatta 129 Ibid. 12 nooga City Council. 8 Police Chief Jimmie 1ao Ibid. Dotson maintained that the Citizens Review 131 USCCR, Guardians, finding 4.6, p. 163. Committee was created to increase community 192 USCCR, New York Report, pp. 14-15. ISS See Skolnick and Fyfe, Above the Law, pp. 227- 29. Cf. 125 Samuel Walker, "How to Make Cops Accountable," The James Zarobroski, "Police Union Files Grievance on Civilian Los Angeles Times, Mar. 6, 2000, p. B5. See Mike Martin Review," The Courier-Journal (Louisville, KY), June 24, dale, "PoHce Review Board Sought-Royal Oak Group Calls 2000, p. B6. The Louisville Fraternal Order of Police (FOP) for Changes, Updates in Department," The Detroit News, filed a grievance alleging that a city ordinance violates its Mar. 22, 2000, p. 4; Zambroski, "Civman Review"; Keith union labor agreement. The ordinance provides the civilian Hunter, Esq., stated, "I believe [Louisville, KY, police de review board with subpoena power to obtain testimony from partment's internal affairs division] . .. do a good job, that witnesses of alleged police misconduct incidents. The FOP they take their job seriously and they are very good at what maintained that according to a provision in its union con they do ... . Civilian Review is needed, however, because tract, only the police department's internal affairs division is some complaints 'fall through the cracks' and are not prop· authorized to investigate complaints of alleged police mis erly investigated." Zarobrosk.i, "Civilian Review." conduct. Ibid. 126 Walker, "How to Make Cops Accountable." 134 Dave Michaels, "PoHce Review Board Calls for More l27 Ibid. Power," The Dallas Morning News, Apr. 17, 1999, p. A1 (hereafter cited as Michaels, "Police Review"); see also Lee 128 Dick Cook, "Citizens Police Review Panel Begins Active Hammel, "Officials Oppose Police Review Board,'' The Tele Work This Week," The Chattanooga Times-Chattanooga gram & Gazette, Mar. 14, 2000, p. Al. Similarly, despite Free Press, July 11, 1999, p. B3. public testimony supporting the creation of a civilian review 59 The board also experienced a referendum defeat many police unions and city officials continue to in 1989, which would have granted it subpoena oppose granting subpoena power to civilian re power and the ability to discipline police officers. view boards.14o Even boards with subpoena power Furthermore, in 1999, only eight of the 15 re sometimes face intense resistance from police offi view board positions were filled, due to members cers and other officials who refuse to testify or who had forfeited their positions because of poor turn over documents and other evidence.I4I attendance and the failure of some City Council Therefore, the efforts of many well-meaning civil members to appoint review board members.13 5 ian review boards may be thwarted due to their Review board chairman, Paul Lietz, stated, "As own inadequacies and lack of authority. it is, it is a horrible deception of the public when Review boards typically suffer from this lack they come to us thinking they can get relief . . . of authority and subpoena power, which pre We can concur [with the police findings], dis vents them from carrying out their mandates. agree or make recommendations. What happens The Chicago Police Department's Office of Pro when we make recommendations? Nothing, for fessional Standards is composed of civilian in the most part." ISS vestigators who register and investigate all com Most civilian review boards do not have the plaints of police misconduct.l42 Critics of the of power to impose penalties on police officers and fice note, however, that it does not have sub they simply recommend disciplinary actions to poena power, unlike other civilian review police officials.l37 Indeed, of the nation's 12 larg boards, and reports directly to police department est police departments, only four are empowered officials who may reject its findings.l43 Similarly, to investigate complaints on their own.138 Police in Detroit, Michigan, if the civilian review board Lieutenant Eric Adams, president of 100 Blacks determines that a complaint against an officer is in Law Enforcement, explained that the effi serious, it will refer the complaint to the internal ciency of civilian review boards is undermined affairs division of the police department, which because they must rely, in part, on the coopera has the responsibility to carry out the investiga tion of police departments they have been sent to tion and discipline.I44 Charleston (West Virginia) investigate.l39 Thus, without subpoena power, Mayor Jay Goldman disbanded the city's five external review boards cannot access records or member civilian board in August 2000. Former compel testimony that would further their inves board member Marvin Frame maintained, 'We tigations. Many police officers are reluctant or were largely a listening, advisory group to the simply refuse to cooperate or offer any assistance chief [of police] and internal affairs."I45 The to investigations that would incriminate their board's functions were then transferred to the fellow officers. Despite this clear impediment, Charleston City Council's Public Safety Commit tee, which has additional authority, such as sub poena power.l46 The Human Rights Watch noted board, Worcester, Massachusetts, city administration offi cials opposed the proposal. Instead, the Human Rights Commission recommended that it should monitor the civil 140 James Zambrowsk:i, "City fights FOP challenge of civilian ian oversight process and forward complaints to the internal review plan," The Courier-Journal (Louisville, KY), July 26, affairs division of the police department. Ibid. 2000, p. B3. 135 Michaels, "Police Review." "Council member Larry Dun 141 Indrani Sen, "Review Panel Under Attack," The Boston can has not appointed a review board member since 1995, Globe, Oct. 23, 1999, p. Bl. records show. Council member Steve Salazar's position is 142 USCCR. Chicago Report, p. 108. also vacant. 1t's a real tough position to fill,' Mr. Duncan l43 Ibid. said. 'We need someone who is going to be sensitive to the citizens' concerns and somebody who understands the police 144 Human Rights Watch, "Shielded from Justice," Detroit: officer.' " Ibid. Civilian Review Board. 1as Ibid. 145 Rusty Marks, "Dissolving Police Board Not A Bad Idea, Five Members Say," The Charleston Gazette, Aug. 10, 2000, 137 USCCR, Chicago Report, p. 108, n. 28. p. lC. Mr. Frame added that the board had no power to en 139 Michelle Boorstein, "Weak Power, Resources Make It force their recommendations. Ibid. Tough Going for Police Watchdogs," The Chicago Tribune, Apr. 27, 1998, p. 2. 146 Ibid. "Police Chief Jerry Riffe said the public safety com mittee has little more authority than the board did. 'They 139 Michael Kramer, "A Black Cop on a Mission," The Daily can't order me to suspend anybody,' he said. 'They can't News (New York), Sept. 5, 1999, p. 55. order me to fire anybody.' But he said the committee does 60 that the former mayor of Atlanta, Georgia, called on duty."l52 This same bias may also influence the for the creation of a civilian review board "ap civilian review process. If a civilian who is sitting parently without realizing one already existed as a juror is reluctant to convict an accused offi (thus proving how marginal the pre-existing cer, a civilian who is part of a police review board board had become)." 147 may be prone to the same tendencies when faced In New York City, residents and city officials with a complaint against an officer_l53 have varying perceptions of the effectiveness of Inadequate funding is a major impediment to civilian oversight. Norman Siegel, executive di the effectiveness of many civilian review boards. rector of the New York Civil Liberties Union, Without sufficient funding by local governments, indicated that local government entities do not civilian review boards lack the staffing and other give civilian complaints of police misconduct pri resources necessary to investigate citizen com ority consideration. As a result, New York City plaints properly. According to James Fyfe, civil residents perceive the CCRB as ineffective, and ian review boards are often so severely under police officers are not intimidated by civilian funded that they appear to be "designed to oversight authority.l48 According to Mr. Siegel, fail."l54 Charlie Kluge, director of the Police Ad New York's police commissioner only disciplined visory Commission in Philadelphia, echoed Dr. about 25 percent of the police officers involved in Fyfe's assessment of the budgetary problems 1,543 cases that were referred to him for review plaguing civilian review boards. "I can tell you from 1996 through June of 1999.149 In contrast, most civilian review boards are funded to fail. Police Commissioner Howard Safir remarked, "If You don't get attaboys from the politicians be Mr. Siegel looked, he would find that we disci cause for the most part, they'd love to avoid the pline officers in the highest percentage of cases issue of civilian review," he said.t5s Ronald ever in the [police] department, and we continue Hampton, director of the National Black Police to do that, and we [take it] very seriously."t5o Association, explained, "When someone from a Statistics reveal, however, that few police abuse minority community goes to a commission and complaints are substantiated following civilian it's not properly funded, your complaint doesn't review. In New York City, only one out of every seem to be taken seriously, and you lose faith in 20 complaints flied with the Civilian Complaint that process too."l56 Review Board is substantiated. lSI Financial neglect and wavering support from The relatively low rate of complaints that are government agencies can lead to the demise of sustained by review boards may illustrate a any civilian review board. After several years of deeper problem rooted in many forms of civilian unresolved citizen complaints and a mounting review: the tendency of civilians to support the backlog of 900 cases, Washington, D.C.'s review police. The Human Rights Watch discussed this board was shut down in 1994.157 And despite concern in relation to jury acquittals of police $1.2 million in federal funds being subsequently officers who have been accused of wrongdoing: allocated to revamp the review board, several "[e]ven with apparently foolproof cases against council members in Washington, D.C., com police officers, juries have often been reluctant to plained that the city's police department was find officers guilty of criminal conduct, particu simply wasting those funds, which remained un larly where the incident occurred while they were spent ~ong after they had been secured.l58 New
152 Human Rights Watch, "Shielded from Justice," Local have more influence over the police chief, because he is re Criminal Prosecutions. quired to attend their meetings." Ibid. 153 See ibid.
117 Human Rights Watch, "Shielded from Justice," Atlanta: 154 Fyfe , Police Practices Briefing Transcript, p. 27. Civilian Review Board. 156 Michelle Boorstein, "Weak Power, Resources Make It us De La Cruz, "CCRB Ineffective." Tough Going for Police Watchdogs," The Chicago Tribune, 149 Ibid. There were 15,000 complaints filed against police Apr. 27, 1998,p. 2. officers during that time. 156 David Rohde, "Civilian Boards Strain for Funds to Watch 160 Ibid. Cops," Christian Science Monitor, Aug. 29, 1994, p. 1. 157 151 Juan Gonzalez, "Abusive Cops Roam Free," The Daily Ibid. News (New York), Feb. 26, 1999, p. 20. 1ss Ibid.
61 York City's civilian review board faces a similar tives. Some of the more novel approaches to ex fate with a backlog of approximately 2,000 cases ternal review, however, are gaining acceptance and repeated complaints from City Council and may prove to be more successful in combat members that the board is being purposely ne ing police misconduct. The newer methods, such glected by city officials who oppose it. According as the use of solicitors general, independent to Fernando Ferrer, Bronx Borough president, auditors, and federal oversight, present viable the city's budget "rolls over CCRB funds that it alternatives to the failed attempts of the past to needed to spend this fiscal year and adds other control police abuse. Creative efforts must be funds but still leaves it short of funding to act as explored to address this persistent problem, or a true police monitor."l59 If residents are left to police misconduct may continue to plague Amer conclude that their complaints are unimportant ica's cities for generations to come. by virtue of an ineffective civilian review proc ess, frustration and tension between members of CHAPTER 4: FINDINGS AND RECOMMENDATIONS the public and the police will undoubtedly con The Commission reiterates its findings and tinue. It remains to be seen whether a truly in recommendations set forth in Guardians, many dependent civilian review board can be devel of which have not yet been realized. oped that will be effective in combating police brutality. City Government Civilian review boards provide important pro Finding 4.1: As the Commission found in tection against police abuses, and they afford Guardians and other reports, city officials con members of the public the opportunity to have a tinue to hold the most influence over how exter voice in police practices and procedures. Without nal review procedures are conducted. They guide some form of external review, investigation and the overall attitude of their police officers re discipline of police officers will be left up to the garding misconduct issues. Mayors, police com discretion of other officers or police officials who missioners, and police chiefs who demonstrate a may be sympathetic to or biased in favor of the "zero tolerance" for police misconduct are more accused officers. In the end, the empowerment of likely to reduce tensions between the police and civilian review boards may prove to be the most the public. On the other hand, officials perceived effective weapon in the battle to end police bru to be tough on crime but soft on police brutality tality. will likely face diminished support from their constituents and continued tensions between the CONCLUSION police and the public. Since 1981, when the Commission published Recommendation 4.1: Officials at every Guardians, few changes have been implemented level of city government must make a concerted to improve the effectiveness of external controls effort to eliminate all forms of police misconduct. of police misconduct. City government officials There should be complete cooperation among the continue to be perceived as being tough on crime various government entities and police represen but soft on police brutality. Police misconduct tatives, to ensure the success of any policy or remains largely unchecked because most officers program designed to address police misconduct. and police officials view any form of outside "in Government officials should encourage the crea terference" as unnecessary and intrusive. Civil tion and development of all forms of external ian review boards across the country still lack oversight, including civilian review boards and adequate funding, resources, and support to independent auditors or solicitors general. A properly address the thousands of complaints comprehensive method of controlling police mis they receive each year. When external measures conduct should be based on a tripartite system are employed to curb misconduct, investigations that balances oversight powers between the police are usually hindered due to resistance from un and the communities they serve. Such a model cooperative police officers and their representa- would include (1) internal police department re view and disciplinary recommendations, (2) ex ternal review of the department's findings by a 159 "Ferrer: Mayor's Budget Flubs On Key Investment," solicitor general, and (3) civilian review by an Ethnic News Watch, vol. 42, no. 5 (May 10, 2000), p. 10.
62 independent board with full subpoena power and Recommendation 4.3: The appointment of final discretion regarding disciplinary measures. federal monitors should be viewed as necessary assistance and not an unwelcome intrusion by State Prosecutions and Federal Oversight police agencies and administrators. Police offi Finding 4.2: State prosecution of police cers and their supervisors should be encouraged misconduct cases remains an ineffective means to cooperate with their efforts. of correcting the problem. Most district or county attorneys rely heavily on the support and Civilian Review Boards cooperation of the police departments in their Finding 4.4: The Commission explained in jurisdictions, and as such, they are reluctant to its reports on police brutality in New Jersey, pursue criminal charges against them. southern West Virginia, and in Tampa, Florida, Recommendation 4.2: The appointment of that civilian review boards can be especially use an independent, or special prosecutor, assigned ful in eliminating police brutality. Despite dec solely to police misconduct cases would increase ades of reforms in police practices, many mu the frequency and quality of investigations and nicipalities around the country are still without prosecutions of police abuse incidents. Although any form of civilian review. As the Commission local prosecutors are often responsible for found in its reports on police practices in Chi requesting that a special prosecutor be appointed cago and New York, most civilian boards that do when a conflict of interest arises, an independent exist are severely underfunded, understaffed, auditor or solicitor general overseeing police and lack any enforcement power. misconduct cases should also be allowed to make Recommendation 4.4: Civilian review the request. boards should be implemented in every munici Finding 4.3: The use of federal monitors to pality. The funding and support for these enti analyze issues surrounding police misconduct in ties should remain a high priority for all elected individual jurisdictions adds another useful officials, regardless of their political perspec measure of external oversight. Through such tives. All civilian review boards should have monitoring, the federal government may find subpoena power and disciplinary authority over circumstances that warrant further action, such police misconduct investigations, in conjunction as the enforcement of one of the civil rights with, but not subordinate to, police internal af statutes designed to combat police brutality and fairs divisions. misconduct.
63 CHAPTERS Remedies and Legal Developments
In Who Is Guarding the Guardians? the U.S. using civil lawsuits as a remedy, state and fed Commission on Civil Rights detailed the remedies eral law limit the effectiveness of this remedy." available for victims of police misconduct. Since Guardians' publication, only minor changes have Civil Remedies under State Law occurred in the use of civil lawsuits by individuals The most common avenue of redress available against police officers at the state or federal to victims of police abuse is initiating a civil ac level. Twenty years ago, case law provided that tion for damages under state law.s Police mis the government did not have authority to seek conduct may constitute a tort for which a victim injunctive relief for police misconduct.! In may sue for damages. In general, these lawsuits Guardians, the Commission recommended that involve allegations of false arrest, false impris Congress enact legislation that would give the onment, malicious prosecution, assault, battery, Attorney General the authority denied to the or wrongful death.6 As pointed out in Guardians, government by controlling case law, namely, the there are advantages and disadvantages to the authority to enjoin proven patterns or practices of victim when filing a state civil lawsuit. Advan misconduct in a given law enforcement depart tages include a lower burden of proof than re ment. In 1994, such legislation was finally passed, quired in a criminal case, the fact that the victim adding an additional federal civil remedy.z may personally initiate the action, and the pos This chapter reviews the pattern or practice sibility of direct compensation to the victim.7 authority as well as other remedies and legal Disadvantages include costly and time-consuming developments over the past 20 years. Addition litigation and the fact that police officers ulti ally, it highlights state legislation and proposed mately may be judgment-proof and protected by federal bills that mandate collection of statistics sovereign immunity.s Even in cases where the relating to race, age, and gender of those who victims of police misconduct are successful in come into contact with law enforcement officers. their lawsuits, they rarely work to hold police departments or individual officers accountable CIVIL ACTIONS BY VICTIMS OF POLICE for their actions. 9 MISCONDUCT The Commission has concluded in various re 4 Marshall Miller, "Police Brutality," Yale Law & Policy ports that civil lawsuits against individual police Reuiew, vol. 17 (1999), p. 152 (stating that traditional legal officers may help deter police misconduct.s While remedies are ineffective in deterring police misconduct). there are several avenues one may pursue when 5 U.S. Commission on Civil Rights, Who Is Guarding the Guardians? October 1981, p. 129 (hereafter cited as USCCR, Guardians). s Ibid. 7 Ibid. 8Jbid. J United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1981). 9 Amnesty International, "A Briefing for the UN Commmee Against Torture," p. 13,
44 USCCR, Chicago Report, p. 140. the beating of Rodney King by LAPD officers 46 Ibid. was captured on videotape and televised, and 46 Under § 241, it is unlawful for "two or more persons to the subsequent finding by the Christopher conspire to injure, oppress, threaten, or intimidate any per Commission that "the problem of excessive force son in the free exercise or enjoyment of any right or privi [was] aggravated by racism and bias within the lege secured to him by the Constitution or laws of the United States or because of his having so exercised the same." 18 U.S.C. § 241 (1994). Under§ 242, it is unlawful for 50 Renee Sanchez, "L.A Police Misconduct Likened to Rack a person acting "under color of any law, statute, ordinance, eteering; Judge's Order Could Wide n City's Liability," The regulation, or custom, [to] willfully subject any inhabitant of Washington Post, Aug. 31, 2000, p. A4. any State, Territory, Commonwealth, possession or District 5t Ibid. to the deprivation of any rights, privileges or immunities 52 Ibid. secured or protected by the Constitution or laws of the United States." 18 U.S.C. § 242 (1994). 53 City of Philadelphia, 644 F.2d 187 (holding that the fed eral government does not have the authority to bring a law 47 Amnesty International, "A Briefing," p. 12. suit for injunctive relief); City of Los Angeles, 461 U.S. 95 48 Ibid. (holding that private citizens do not have the authority to 49 Ibid. bring a lawsuit for injunctive relief). 67 LAPD,"54 the House Judiciary Committee con dress a pattern or practice of misconduct by law sidered the Police Accountability Act of 1991.55 enforcement agencies.63 It allows the Justice De While Congress never enacted the bill into law, partment to seek injunctive relief by mandating the first two sections of the bill became a part of law enforcement agencies to make necessary the Violent Crime Control and Law Enforcement changes to end abusive actions.64 In the fall of Act (VCCLEA).56 The only part of the Police Ac 1995, the Civil Rights Division of the Justice countability Act that was deleted from the Department established the Special Litigation VCCLEA is the privat-e citizen's right to pursue Section to enforce the police misconduct provi injunctive relief for police misconduct. 57 sion of the VCCLEA.ss Congress passed and enacted the VCCLEA The remedies under this law do not provide into law in 1994. Title XXI of the legislation, 42 for monetary relief for victims of the misconduct; U .S.C. § 14141, made it unlawful for state and rather, they allow the Justice Department to local law enforcement officers to engage in a pat petition in federal court for orders to end the tern or practice of conduct that deprives persons misconduct and change law enforcement agen of rights protected by the Constitution or laws of cies' policies and procedures that contributed to the United States.58 This legislation responded the misconduct.66 The Special Litigation Section to a judicially imposed bar on individual victims' investigates "systemic problems in law enforce standing to sue for equitable relief.59 Title XXI ment agencies, including excessive force; false authorizes the Attorney General to bring civil arrest; discriminatory harassment, stops or ar action against police departments engaged in a rests; coercive sexual conduct; and retaliation pattern or practice of discrimination.5° Given the against person alleging misconduct."67 severe limitations on private parties' ability to Since the enactment of the VCCLEA, the Jus seek relief prior to 1994, the VCCLEA signifi tice Department has filed four pattern or prac cantly expanded the available legal remedies to tice lawsuits against the following entities: city address systemic police misconduct.61 of Pittsburgh, city of Steubenville, the state of Before the VCCLEA, many experts criticized New Jersey, and the city of Columbus, Ohio.ss the Justice Department for playing no real role The Justice Department obtained consent de in holding local police departments accountable crees from the city of Pittsburgh, city of Steu for misconduct.62 The VCCLEA enhanced the benville, and the state of New Jersey.s9 Mont Justice Department's enforcement authority. gomery County, Maryland, also signed a memo One section of the act gives statutory authority randum of agreement.7° The Justice Depart to the Attorney General to bring a civil action, ment's lawsuit against Columbus, Ohio, is pend seeking equitable and declaratory relief to re- ing at this time with no consent degree. 71 The
54 Independent Commission on the Los Angeles Police De GS 42 U.S.C. § 1414(b) (1994); see also U.S. Department of partment, Report of the Independent Commission on the Los Justice, "Special Litigation Section"
68 Justice Department has authorized litigation ments to implement those changes. 79 Indeed, § against the Los Angeles Police Department and 14141 has the potential for bringing about real also has begun investigations in New York, and substantial reforms to police polices by hold Washington, D.d ., and other cities around the ing police departments liable for implementing country.72 The VCCLEA gives the Justice De policy changes. However, that only four § 14141 partment the authority to negotiate and to push lawsuits have been flied since the VCCLEA has local police departments to institute best prac been enacted indicates that the process of re tices that would lead to increased police ac forms in police polices has been a slow one. countability without relinquishing the benefits of When discussing the Justice Department's ef local knowledge.n fectiveness in enforcing pattern or practice legis However, the process of obtaining court lation, Dr. Fyfe concluded that it has done an approved consent decrees has been lengthy and "excellent job."BO He said the Justice Depart costly.74 While pattern or practice lawsuits are ment's pattern or practice enforcement endeav effective in remedying police misconduct and ors have "made a major difference."Bl Mr. Wil have led to significant program changes in sev liams asserted that pattern or practice lawsuits eral police departments, they are not without have created fear in local police departments problems. Amnesty International and other hu that the Justice Department can and will inves man rights groups have called on Congress to tigate their departments for possible violations.B2 provide greater funding to the Justice Depart The Justice Department's authority to enforce ment so it can investigate pattern or practices pattern or practice legislation will work to trans cases effectively.75 The Commission also recom form police behavior, he contended.B3 Dr. Louden mended in its Racial and Ethnic Tensions in noted, however, that the "time lag from event to American Communities: The Los Angeles Report finality" is a problem.84 that Congress approve the allocation of specific resources to fund investigations into systemic CRIME CONTROL AND SAFE STREETS ACT police misconduct under 42 U.S.C. § 14141(a).76 Another law that allows the government to It has further recommended that Congress ap initiate litigation to remedy a pattern or practice prove the hiring of additional personnel.77 of discrimination is the Omnibus Crime Control As one commentator pointed out, while and Safe Streets Act of 1968.85 The act, along criminal prosecution of police misconduct cases with Title VI of the Civil Rights Act of 1964, plays a role in changes in police department prohibits discrimination based on race, color, policies, the real changes or reforms resulted sex, or national origin by police departments re from the enforcement of the VCCLEA.7B Section ceiving federal funds.ss The act states the Attor 14141 litigation holds local police departments ney General may initiate civil litigation to rem accountable by comparing their existing prac edy a pattern or practice of discrimination based tices with reforms and policies outlined in the on race, color, national origin, gender, or religion consent decree and forces local police depart- involving services by law enforcement agencies receiving financial assistance from the Justice Department's Office of Justice Programs and the Office · of Community Oriented Policing Ser 72 Bill Lann Lee, ''Testimony of Bill Lann Lee, Acting Assis tant Attorney General, Before the House Subcommittee on vices.B7 The Special Litigation Section of the the Constitution, Oversight Hearing on the Civil Rights Division" (testimony given before the House Judidary Sub 79 Ibid., p. 844. committee on the Constitution, July 12, 2000), p. 3 (hereaf 80 ter cited as Lee Testimony). Fyfe, Police Practices Briefing Transcript, p. 103. 81 Ibid. 73 Ibid. 82 Williams, Police Practices Briefing Transcript, p. 103. 74 Amnesty International, "A Briefing," p. 13. 3 75Jbid. 8 Ibid. 76 USCCR, Los Angeles Report, p. 230. 84 Louden, Police Practices Briefing Transcript, p. 102. 77Jbid. 85 42 U.S.C. § 3'789d(c) (1994). 86 78 Livingston, "Special Issue: Police Reform and the De 42 U.S.C. § 3789d(c). partment of Justice," pp. 841-43. 87 Id. 69 Civil Rights Division of the Justice Department procedures, but individuals also have a private enforces this provision of the law. right of action under both laws.94 For an individ Currently, a bill is being considered by Con ual to file in federal court under the OJP Pro gress to amend the Omnibus Crime Control and gram Statute, however, he or she must first ex Safe Streets Act of 1968.88 This new bill, the Law haust the administrative remedies outlined in Enforcement Trust and Integrity Act of 1999, the statute.95 addresses issues within law enforcement at all levels. This bill calls for establishing national Collection of National Statistics on Police minimum standards for accrediting law en Misconduct forcement agencies and establishing civilian Experts cite the lack of reliable national sta complaint review boards. It also "defines exces tistics on police brutality as a problem when de sive use of force, requires states to follow guide veloping policies to prevent police misconduct.96 lines established by the Attorney General for Many think the federal government is best reporting deaths in custody and offers incentives suited to collect and publish needed statistics. In for local police departments to adopt perform· 1993's Racial and Ethnic Tensions in American ance based standards to minimize incidents of Communities: The Mount Pleasant Report, the misconduct."B9 Commission emphasized the need to maintain national statistics on police discipline to formu Withholding Federal Funding from Agencies late an effective national response to police That Engage in Discriminatory Practices abuse.97 Accordingly, the Commission recom Since many law enforcement agencies receive mended that "the Federal Bureau of Investiga federal funding, Congress has enacted legisla tion be directed to collect, classify and publish tion to deter police misconduct. These laws, Title nationwide statistics on police abuse incidents VI of the Civil Rights Act of 196490 and the Of and discipline of officers for use in law enforce fice of Justice Programs (OJP) Program Statute, ment administration and management and to prohibit both individual instances and pattern or facilitate more accurate assessment of the extent practices of discriminatory misconduct by state of police abuse in the United States_''9B and local law enforcement agencies that receive Since then, Congress passed the VCCLEA., financial assistance from the federal govern which contains a section that directs the Justice ment.91 Both statutes provide for the suspension Department to collect data on the use of exces of federal funds if a law enforcement agency en sive force by police officers.99 While Congress gages in discriminatory conduct.92 The discrimi passed this legislation to collect data, it failed to natory conduct covered by these laws includes provide necessary funding to carry out this proc unjustified arrests, discriminatory traffic stops, ess. too Furthermore, the data collection process use of excessive force, use of racial slurs, or re lacks involvement from the Justice Department's fusal by the agency to respond to complaints al Civil Rights Division, which has the authority to leging discriminatory treatment by its officers.93 enforce federal civil rights laws, because the The remedies under Title VI and the OJP statute mandates that the data not be used for Program Statute differ from those provided in enforcement purposes.101 This further creates the VCCLEA because not only may the Justice problems in collecting and using data relating to Department seek to change police policies and police practices.
88 H.R. 2656, 106th Cong. (1st Sess. 1999). 94Jd. 89 Amy Worden, "Crime Bills Pushed in Last Month of 95 42 U.S.C. § 3789d(c). Congress," APBnews.com,
70 The need for data on police misconduct is our democratic ideals, especially our commitment to long recognized as an important step toward equal protection under the law for all persons.I09 ending this problem. At the briefing, Mr. Wil liams pointed to a report published in 1977 by To address the problem of racial profiling, the the Police Foundation and a 1998 report by the President said federal agencies should collect Human Rights Watch, both of which stressed data at all levels of law enforcement.11o Accord this need.102 He also discussed a Police Founda ingly, he directed the Secretary of the Treasury, tion mechanism-Quality of Service Indicator the Attorney General, and the Secretary of the that collects and analyzes traffic stop data.1o3 Interior to develop a proposal for a data collec Prior to June 1999, only a few police depart tion system and an implementation plan.lll The ments around the country collected data on traf President also directed that a report on training fic stops by race or ethnicity _1o4 Since then, more programs, polices, and practices regarding the than 100 jurisdictions have begun to collect data use of race, ethnicity, and gender in law en on traffic stops.l05 Data collection assesses forcement activities, along with recommenda whether police officers are engaged in racial pro tions for improving those programs, policies, and filing, 106 and therefore it is crucial to the goal of practices, be submitted to him within 120 days of deterring police misconduct. It is important for the directive_ll2 those in authority to have precise statistical in In the 1998 legislative term, Congress intro formation on the use of excessive force and police duced a bill entitled the Traffic Stops Statistics misconduct in implementing and changing poli Act,11S which allowed the collection of data on cies as well as making the police publicly ac traffic stops. It was approved by the Judiciary countable where there is a proven pattern of Committee on a bipartisan basis and passed the such misconduct.l07 House voice vote.n4 However, Congress did not enact this bill into law because the Senate ad LEGISLATIVE DEVELOPMENTS ON RACIAL journed before considering the bill.115 The bill was reintroduced in a later legislative term_ll6 PROFILING This new bill entitled Traffic Stops Statistics Federal Legislative Developments Study Act of 1999, otherwise known as the "driv In recent years, instances of racial profiling, ing while black" bill, has been introduced in both or "driving while black or brown," have raised the Senate and House.u7 The bill mandates the concerns among many civil rights groups. How Justice Department to conduct a study on racial ever, there is no federal legislative ban on racial profiling by collecting traffic stop data. The full profiling. In June 1999, President Clinton signed House Judiciary Committee approved the bill on an executive order calling for the Justice De March 1, 2000, and it must be considered before partment to collect traffic stop data.1°8 President adjournment to become law _us Clinton stated:
No person should be subject to excessive force, and no person should be targeted by law enforcement be cause of the color of his or her skin. Stopping or 109 Ibid. searching individuals on the basis of race is not effec l!O Ibid. tive law enforcement policy, and is not consistent with 111 Ibid. 112Ibid. 113 H.R. 118, 105th Cong. (1st Sess. 1998). 102 Williams, Police Practices Briefing Transcript, pp. 52-53. 114 People for the American Way, ''On Capitol Hill Civil 1oa Ibid., p. 55. Rights: Racial Profiling,"
108 Executive Order, "Fairness in Law Enforcement: Collec 118 People for the American Way, "On Capitol Hill Civil tion of Data,"
72 police departments engaging m a pattern or Recommendation 5.5: The U.S. Depart practice of misconduct. ment of Justice should continue its effort in us ing existing laws to find law enforcement agen Criminal Remedies for Police Misconduct cies liable for their officers who engage in mis Finding 5.3: Since the publication of conduct. Guardians, the Commission has found that civil lawsuits brought by individual victims of police Data Collection misconduct have not deterred police misconduct Finding 5.6: The Commission in its reports or held police officers and their police depart has emphasized the importance of collecting na ments accountable for their misconduct. The tional data on use of excessive force by police. Commission in Guardians recommended that The Commission has recommended that the Congress enact legislation holding governmental Federal Bureau of Investigation and other fed subdivisions liable under 42 U.S.C § 1983 for the eral agencies collect and analyze statistics on actions of police officers who deprive persons of use of excessive force and other forms of police rights protected by that section. Since then, the misconduct. The VCCLEA has a provision re Supreme Court has applied the deliberate mdif quiring the Attorney General to collect and pub ference standard in deciding municipal liability lish data on the use of excessive force by law en cases. In a § 1983 lawsuit, for liability to attach forcement officers. However, as found in the Los to a municipality, a plaintiff must show that the Angels Report, the information on use of force is particular policy or custom of the municipality not maintained consistently among law enforce that caused the injury is so inadequate that it ment agencies. amounts to deliberate indifference. This deliber Recommendation 5.6: As recommended in ate indifference standard is a high standard of the Los Angeles Report, Congress should allocate proof causing the plaintiff difficulty in succeed resources to adequately fund the Justice De ing in a § 1983 lawsuit. partment's mandate to collect and publish statis Recommendation 5.3: Congress should en tics and information on use of excessive force by act legislation amending 42 U.S.C. § 1983 to re law enforcement officers. move the higher burden of proof presented by the judicially imposed "deliberate indifference" Racial Profiling standard in municipality liability claims. Finding 5.7: In 1999, President Clinton Finding 5.4: The Commission in the Mount signed an executive order calling for the U .S. Pleasant Report found that the federal govern Department of Justice to collect traffic stop data. ment, through vigorous prosecution of police Many states have enacted legislation mandating abuse cases, can be effective in remedying police collection of traffic stop data. Some states pro misconduct. However, the Justice Department's hibit racial profiling by making it a state crime, prosecution of police misconduct cases has been and others have included legislation to withhold impeded by the "specific intent" requirement of state funds for not complying with the provisions 18 u.s.c. § 242. of racial profiling laws. In the 1999 legislative Recommendation 5.4: The Commission re term, Congress introduced a bill entitled Traffic iterates its recommendation of the Mount Pleas Stops Statistics Study Act of 1999, which would ant Report that Congress should amend § 242 to mandate collection of traffic stop data. remove the judicially imposed specific intent re Recommendation 5. 7: Congress should quirement. pass the Traffic Stops Statistics Study Act of Finding 5.5: In a case involving police cor 1999 to allow for collection of data on traffic ruption and misconduct of the Los Angeles Po stops by police. Congress should also enact legis lice Department, a U.S. district court judge ruled lation banning racial profiling that would in that LAPD officers can be sued under federal clude a provision allowing for withholding of racketeering laws. This illustrates that existing federal funds for noncompliance. laws can help remedy gross police misconduct.
73
Statement of Chairperson Mary Frances Berry, Vice Chairperson Cruz Reynoso, and Commissioners Christopher F. Ed ley, Jr., Yvonne Y. Lee, Elsie M. Meeks, and Victoria Wilson
This Commission report, Revisiting Who Is The Commission agreed to produce this re Guarding the Guardians? A Report on Police port in the wake of a disturbing number of alle Practices and Civil Rights in America, serves as gations reported to the Commission on police a companion publication to the substantial array misconduct occurring throughout the nation, and of police reports the Commission has issued over particularly from New York City residents. In 20 years, including its landmark publication, response, the Commission held a hearing in New Who Is Guarding the Guardians? In the nearly York City to obtain facts regarding the increas 20 years since the publication of that report, new ing number of police misconduct accounts from civil rights issues have emerged in the context of residents following several well-publicized inci police practices. The topic of "racial profiling" by · dents, specifically the tragedies involving Abner police officers is one example of these emerging Louima and Amadou Diallo. The Commission issues. The report relies on facts and data pre· obtained information detailing the problems ex sented in those reports in addition to the analyses isting between the police department and city and recommendations from leading experts in the residents. As discussed in the published report field of police practices and civil rights, along with following the hearing, Police Practices and Civil data from primary sources. Rights in New York City, the Commission found Much obviously needs to be done to improve that the country could benefit from an honest police-community relations and to reduce inci dialogue about police practices and civil rights. dents of police misconduct, including brutality To that end, the Commission endeavored to up and unjustified race-based stop-and-frisk prac date its leading publication on police practices, tices. We salute the police departments that Who Is Guarding the Guardians? have employed successful approaches to de In order to supplement Who Is Guarding the crease crime and police killings in their jurisdic Guardians? the Commission invited several tions. Despite these accomplishments, even prominent experts to present information to the these departments will fail to gain the full confi Commission and answer questions about the dence of the communities they serve until and extent of the police misconduct problem, what law unless there is an increased focus on police pro enforcement agencies have done to improve police fessionalism and civil rights protections. The services and reduce crime, and the changes re report confirms that in the absence of police pro quired to reduce and eliminate police misconduct fessionalism and proper training, an "us against while protecting the communities they serve. them" culture is created on the force that does not The expert information provided at the brief discourage officers to use excessive force in com ing, the dozens of other Commission reports on munities of color. police practices, and research using primary We hope that elected and appointed officials sources all provided the basis for this report. In will examine this report, heed the call to action, deed, it compiles much information from other and work diligently to achieve the goals pre Commission reports that have already been ap sented. We hope especially that prosecutors, proved and deemed sufficiently reliable to be who often face the brunt of pointed criticisms in released to the public. police brutality investigations and prosecutions, Before the Commission approved this report, will respond positively to the findings and rec it received extensive internal and external scru ommendations. The report does not indict state tiny during several levels of review. Following prosecutors; rather it points out that there are the standard operating procedures of the Com ways to avoid "hopeless conflicts of interest" in mission, the staff made necessary corrections, handling these complaints through independent where appropriate, and added substantive new mechanisms assigned exclusively to police mis information to the initial drafts after conducting conduct cases.
75 legal sufficiency reviews and receiving comments We believe this report will contribute to the from Commissioners. protection of civil rights and the improvement of police-community relations.
76 Dissenting Statement of Commissioner Russell G. Redenbaugh
The Commission's report on Police Practices has also admitted, in recent press statements, and Civil Rights in America, which purports to that there has been "a lot of progress" since the update the 1981 Who Is Guarding the Guardi 1981 report. ans?, raises many of the same concerns that Certainly, there are many signs of meaning emerged from the Commission's recent report on ful change. In major cities like New York, for police practices in New York City: It lacks sound example, significant reductions in violent crime methodology and research; it tends to "profile" have been accompanied by a dramatic decline in the police; and it proposes a series of flawed pre police use of force. Additional meaningful scriptions for reform. In its Executive Sumrnary, changes have resulted from the proliferation of the report speaks of "the need for a reasoned, community policing programs and civilian re systematic approach to honestly and sufficiently view panels, the development of training strate address the problem of police misconduct"; yet, gies to improve law enforcement response and to in this regard, the Commission sadly misses the reduce risk and liability, and the implementa mark. tion of computer technology to enhance early Some specific concerns include the following: warning capabilities. But the present report tends to downplay these signs of progress, con • Calling for "aggressive affirmative action," cluding that better pohcing often has come "at a the report criticizes the lack of employment terrible price" for minority communities, "which of minorities and women as police officers, seem to bear the brunt" of police misconduct. while ignoring the significant gains that With this kind of sweeping indictment, the re have been made since the 1980s. port demonstrates that it is not really interested • Lacking hard evidence, and relying on "per in the data it purports to gather. ceptions" and anecdotal information from The discussion of police recruitment, selec newspaper accounts, the report portrays the tion, and training is a case in point. In its 1981 police as part of a "culture" that systemati report, the Commission called for the increased cally engages in and tolerates abuse of the hiring of minorities. Without attempting to ver citizens they are sworn to protect. ify the extent to which law enforcement agencies • Dismissing the importance of using back have followed this recommendation, the Com ground checks and psychological tests in the mission asserts that its 1981 observation-that selection of police recruits, the report implies "serious under-utilization of minorities and that agencies that implement these meas women in local law enforcement agencies con ures are engaging in racism. tinues to hamper the ability of police depart • Contradicting the goal of promoting reform ments to function effectively''-stands true to in a way that enhances (rather than under day. However, a look at the available data re mines) public trust in the police, the report veals that minorities have made substantial proposes a number of heavy-handed recom gains as police officers. mendations for federal monitors, special For example, according to U.S. Department of prosecutors, and civilian review boards with Justice statistics, blacks composed 11.7 percent subpoena power and the final say over local of the population in 1987, but only 9.3 percent of investigations of police misconduct cases. total police officers-a difference of 2.4 percent.! By 1997, the gap virtually closed, with blacks Little Meaningful Ghange? being 12.1 percent of the population and 11.7 The report fails to give a clear picture of po percent of police officers-a difference of 0.4 per- lice reforms over the last two decades. On the one hand, it concludes that there has been "very little meaningful change" since the initial re 1 Analysis based on data from the U.S. Department of Jus lease of Who Is Guarding the Guardians? At the tice, Bureau of Justice Statistics, Law Enforcement Man same time, the Chairperson of the Commission agement and Administration Statistics (LEMAS) survey, and the U.S. Census Bureau. 77 cent.2 Women have also made dramatic gains in with evidence, making false statements, and fil law enforcement, as Professor James J. Fyfe tes ing false reports.s tified at the Commission's recent briefing. For The case for maintaining high standards for example, in the Philadelphia Police Department new recruits is bolstered by the recent corrup in 1997, women held 22 percent of the sworn tion scandal within the Los Angeles Police De positions, almost a 1400 percent increase since partment in which rogue officers were found to 1979.3 have planted evidence, beaten handcuffed citi Certainly, much more remains to be done in zens, committed perjury, and shot unarmed sus regard to recruiting and retaining qualified po pects.6 For years the lAPD has abandoned the lice officers across the board. With the challenge use of polygraph tests and failed to perform me of a tight labor market, police departments ticulous background checks on its recruits.7 As a across the country have been struggling with an result of the lAPD's failure to require high overall shrinking of the applicant pool. But the standards for its recruits, the civil rights of citi Commission's call for "aggressive affirmative zens were violated. action" is not an effective response to the prob Law enforcement can be a matter of life and lems of low pay and low morale which, according death-for both police and civilians. Given the to many experts and police officers themselves, complex and demanding job that communities pose the greatest barriers to recruitment and require of police officers, we must insist on retention of qualified officers. maintaining selection standards to ensure that candidates have the high moral character and Maintaining High Standards ability necessary to perform that job. Lowering The report dismisses the importance of using selection standards will not increase the ability background checks and psychological testing of the police to protect civil rights and target which assist in the selection of qualified police cnme. recruits. Without any in-depth discussion or evi dence to back up its charge, the report finds that Police Use of Force "biases" and "problems inherent in these exami In order to protect citizens, police officers are nations" may result in the elimination of minor entrusted with the enormous responsibility of ity candidates during the application process. having the authority to use force, including Although the report stops short of calling for an deadly force, under certain circumstances. Deci end to these safety measures, it implies that sions on use of force are affected by several fac agencies that implement them are engaging in tors, including the degree of threatening behav racism. If use of these important tools is denied, ior displayed by the suspect, state laws, police the Commission's call for a hiring process that department policy, and training. What we do develops "officers who possess sound judgment, know, from experts and police officers alike, is good reasoning abilities, knowledge of the law that the media portrayal of police brutality is and maturity" will be hindered. often significantly different from reality. Al Failure to hire qualified officers can have though the cases of police shootings mentioned tragic consequences. Consider Washington, D.C., in recent headlines are dreadful, there is no em where the Metropolitan Police Department has a pirical evidence that police brutality is rampant history of conducting inadequate background in the nation, as suggested by this report. and psychological checks. 4 In 1999, several offi The report also errs in choosing to look at cers either pleaded guilty or were found guilty of these problems mainly through the prism of the follow crimes: sexual abuse, extortion, ag race. For example, on the basis of anecdotes and gravated assault, theft, kidnapping, stalking, "perceptions," the report reaches the conclusion bribery, obstruction of justice, fraud, tampering "that law enforcement officers disproportionately target [minority] communities because of mis- 2 Ibid. 5 3 Professor James J . Fyfe, statement before the U.S. Com Ibid. mission on Civil Rights, Washington, D.C., June 16, 2000, p. 6 William Booth, "LAPD Admits Poor Management, Lax Su 2. pervision; Culture of Mediocrity Blamed for Police Corrup 4 Cheryl W. Thompson, "Convictions Rise Among D.C. Offi tion," The Wash ington Post, Mar. 2, 2000, p. A3. cers," The Washington Post, Jan. 12, 2000, p. Al. 7 Ibid.
78 perceptions based on their racial and ethnic Donald concludes: "Reality, not racism, is the backgrounds, rather than crime patterns or citi biggest challenge for the police.''Jl zen complaints.'' The report implies that police By emphasizing culture over competence, the shootings are primarily a racial problem, one report misses the opportunity to provide any in that could be resolved by "diversity" or "cultural depth discussion of police training methods that training'' initiatives. have proven effective in enhancing the ability of This appears to be an over-simplification of police to deal with real-life situations without the issue. It is instructive to look at recent stud having to resort to the use of force. The NYPD's ies which indicate that incidents of police use of "In-Service Tactical Training" and its "verbal force (meaning both lawful and unlawful actions judo" courses are just two examples of this kind where an officer employs physical coercion) tend of training. Effective and professional policing, to be intraracial, meaning that the officers and not an irrelevant "cultural competence" curricu citizens involved are more likely to be of the lum, is the key to achieving the dual goals of same race and ethnicity. In 1997, the fatal shoot crime reduction and protection of citizens' civil ing of suspected black felons by black officers was rights. almost four times higher than the fatal shooting rate of suspected black felons by white officers.s External vs. Internal Controls The black police officer shooting rate of suspected Another major problem is the report's conc1u black felons was 5.47 per 10,000 black officers, sion that since the "guardians" are unable to while the fatal shooting rate of suspected black "guard" themselves (because of a "police culture" felons by white officers was 1.41 per 10,000 white inclined to protect wrongdoers within the ranks). officers.9 what is needed is wider use of "external con trols." In order to "police the police," the report Flawed Prescriptions for Reform proposes a number of heavy-handed recommen Stressing "Culture" over "Competence" dations for federal monitors, special prosecutors, In its tendency to point to selected, high and civilian review boards with final say over profile cases as examples of "incessant" police local investigations of police misconduct inci misconduct and endemic police racism, the re dents. port stresses "the importance of diversity" and This kind of adversarial approach runs the need to make law enforcement agencies counter to testimony the Commission received at more "culturally competent." In a recent article our June briefing from Hubert Williams, presi on "How to Train Cops," published by the Man dent of the Police Foundation. As Mr. Williams hattan Institute, Heather MacDonald explains affirmed in his written statement: "While both the dangers of the "cultural sensitivity" ap internal and external accountability of the police proach. From direct observation of a "cultural are required, internal accountability is more ef competence" course at New York's Police Acad fective at deterring police misconduct."l2 Mr. emy, Ms. MacDonald contends that these ses Williams went on to emphasize the need for in sions are "wildly irrelevant to the real problems novative technologies such as the Risk Analysis of policing."IO Mandating such courses also Management System and the Quality of Service represents "a huge opportunity cost" in terms of Indicator, which str engthen internal account time that could be spent on instruction ability through the collection and analysis of key particularly, communication skills-to improve performance-related data.1a police response to the situations confronting In its rush to release a draft version of this them every day, sometimes fatally. As Ms. Mac- report just a few days before national elections, the Commission failed to seek the views of law enforcement experts in the field regarding the s Heritage Foundation calculations based on data from the effectiveness of internal controls. The report elic Federal Bureau of Investigation's Uniform Crime Reporting Program [United States]: Supplemental Homicide Reports, ited this reaction from Sheriff Brad Slater of 1997 and the U.S. Department of Justice, Bureau of Justice Statistics, 1997 LEMAS Survey. II Ibid. 9 Ibid. 12 Hubert Williams, statement before the U.S. Commission IO Heather MacDonald, "How to Train Cops," City Journal, on Civil Rights, June 16, 2000. Autumn 2000, pp. 4&-60. 13 Ibid.
79 Weber County in Washington State: "I found The fact is that this Office has never hesitated from that in those cases where misconduct was sub prosecuting corrupt or brutal police officers, as even a stantiated, we as a law enforcement agency took cursory examination of our record would demonstrate. a much sterner approach and disciplined more Nor does our daily interaction with the vast majority heavily than those looking from the outside in."l4 of professional officers create any difficulty in our ability to uphold our responsibilities to prosecute Sheriff Slater, who worked for many years as an those who use their positions for evil rather than for internal affairs investigator, questions whether good. Indeed, the fact that we see the victims of police state or federal agencies would do a better job brutality and corruption underlines our commitment monitoring police conduct: "My power comes to prosecute those officers who betray their badges.17 from the people. If I don't do [the people's] job, they have the power to remove me," he ex Removing the "Specific Intent" Requirement plains.15 Finally, I must strongly object to the recom mendation to have Congress change the law on State Prosecution as Inherently Biased prosecuting police in federal court so that prose Another very troubling aspect of this report is cutors would no longer have to show that the its ''profiling" of state prosecutors. Specifically, accused officer acted with a "specific intent" to the report alleges that '1ocal prosecutors are re violate someone's civil rights. In resurrecting luctant to prosecute the officers upon whom they this recommendation from the Commission's must rely for the investigation and prosecution January 1993 Jl.1ount Pleasant Report, the report of criminal cases." In other words, the Commis fails to acknowledge the objections that have sion in this report is making the unsubstanti been voiced previously to removing the judicially ated charge that states' district attorneys are imposed "specific intent" requirement. In his generally either unwilling or unable to fulfill separate statement to the Mount Pleasant Report, their sworn obligation to uphold the law. The former Commissioner Carl A Anderson rejected report contends that because of the "biases" of this proposal, citing Justice William 0 . Douglas' state prosecution, "most officers who face crimi opinion in Screws u. United States, 321 U.S. 91 nal allegations will avoid any type of meaningful (1945)_18 As Commissioner Anderson explained, prosecution." The solution proposed by the re port is to divest local prosecutors of their author law enforcement personnel are also citizens possessed ity in police misconduct cases and hand it over to of civil rights who are entitled, as they serve the special prosecutors "from outside the ranks of community often in life threatening situations, to the law enforcement community'' or even to fed have adequate notice of the sweep of such statutes. To do any less may endanger both the lives of law en eral monitors. forcement personnel and the citizens they serve. Spe The report offers no solid, empirical evidence cific intent is a not uncommon requirement in stat for making such a sweeping recommendation or utes which carry the range of criminal penalties found for even alleging that such a problem exists. As in Title 18 § 242 [U.S. Code]. Given the lack of an New York County District Attorney Robert M. adequate hearing record on this question, it is unwise Morgenthau recently wrote to the Commission, in my opinion for the Commission to recommend a to speculate that special prosecutors are needed change in current law so fraught with potential legal because local district attorneys must work with consequences.I9 the police on a routine basis ''is merely further proof that the Commission has either failed to Commissioner Anderson's objections remain educate itself or has purposely ignored the valid today. In attempting to merely reissue facts."l6 Speaking for the efforts ofhis own office, such a sweeping proposal, without the benefit of the district attorney further explained: any new or serious discussion, the Commission does a disservice to its fact-finding responsibili ties.
14 The Associated Press, "Report Condemns Police Brutality," The Desert News (Salt Lake City, Utah), p. Al. 17 Ibid. 15 Ibid. IB Commissioner Carl A. Anderson, statement, Racial and
IS Letter from New York County District Attorney Robert M . Ethnic Tensions in America: The Mount Pleasant Report, Morgenthau to U.S. Commission on Civil Rights, Apr. 28, January 1993. 2000. 19 Ibid.
80 Conclusion "The public must have confidence in the ability Prejudice has no place in the enforcement of of the police to police themselves." The best way the laws of this nation. Police misconduct and to "guard the guardians" is to enhance their abil racial profiling are morally reprehensible and an ity to promote reform from within and to do so in ineffective way to enforce the law. a way that reinforces public trust in the police. While there is no question that police miscon Unfortunately, the recommendations in this re duct does occur, there is no evidence that pomts port would undermine that goal. Instead of call to an epidemic of such misconduct. ing for federal monitors, special prosecutors, and As Chairperson Berry recently affirmed, "po more lawsuits, we should keep the emphasis on licing and responsibility for the police is a local assisting police chiefs who move decisively to and state responsibility and not a federal re defuse tensions between the police and the people sponsibility." This is consistent with a key finding they serve before these conflicts result in costly in the 1981 Who Is Guarding the Guardians?: and divisive investigations and court fights.
November 27, 2000
81 APPENDIX A
Commission publications concerning police practices and civil rights since Who Is Guarding the Guardians? (1981)
"Police-Community Relations in Washington, "Racial and Ethnic Tensions in American Comm u D.C.," District of Columbia Advisory Committee (June nities: Poverty, Inequality, and Discrimination, Vol 1981) ume lli: The Chicago Report" (September 1995) "Police-Community Relations in Montgomery, "Briefing on Racism and Sexism in Local and Law Alabama," Alabama Advisory Committee (September Enforcement Agencies" (October 1995) 1986) "Race Relations in Rural Western Kansas Towns," ''Police-Community Relations in Miami," Florida Kansas Advisory Committee (June 1998) Advisory Committee (November 1989) "Follow-up to the Report: Police-Community Rela "Police-Community Relations in Tampa-An Up tions in Reno, Nevada," Nevada Advisory Committee date," Florida Advisory Committee (September 1991) (February 1999) "Police-Community Relations in Reno, Nevada," "Racial and Ethnic Tensions in American Commu Nevada Advisory Committee (May 1992) nities: Poverty, Inequality, and Discrimination, Vol "Racial and Ethnic Tensions in American Commu ume V: The Los Angeles Report" (May 1999) nities: Poverty, Inequality, and Discrimination, Volume ''Police Protection of the African American Com I : The Mount Pleasant Report" (January 1993) munity in Chicago: An Update," Illinois Advisory ''Police Brutality: Law Enforcement Policies and Committee (June 1999) Practices in New Jersey," New Jersey Advisory ''Race Relations in Springfield," Missouri Advisory Committee (March 1993) Committee (August 1999) "Police-Community Relations in Southern West "Native Americans in South Dakota: An Erosion of Virginia," West Virginia Advisory Committee (March Confiderice in the Justice System," South Dakota 1993) Advisory Committee (March 2000) "Police Protection of the African American Com "Unequal Justice: African Americans in the Vir munity in Chicago" Illinois Advisory Committee (Sep ginia Criminal Justice System," Virginia Advisory tember 1993) Committee (April 2000) "Race Relations in Pemiscot County," Missouri "Community Concerns About Law Enforcement in Advisory Committee (October 1994) Sonoma County," California Advisory Committee "Police Protection of the African American Com (May 2000) munity in Milwaukee," Wisconsin Advisory Commit "Police Practices and Civil Rights in New York tee (November 1994) City" (August 2000) "Rising Racial Tensions in Logan County, West Virginia," West Virginia Advisory Committee (August 1995)
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