©2012 Lou Reiter, Co-Director, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
Generally law enforcement agencies have operated their IA/OPS system with little oversight. That’s coming to an end. More communities, particularly those in large urban areas, are instituting some form of external review. In some communities it’s a form of civilian review. Since 1997, numerous police agencies have come under the scrutiny of the U.S. Department of Justice, Civil Rights Division, by consent decree, memorandum of understanding or technical assistance agreement. Several others have come under similar oversight by local groups and State Attorney Generals. An integral part of these agreements deal specifically with the citizen complaint process.
There are numerous sources to establish what would be considered as the “generally accepted police practices” for this police task. The DOJ website has identified “best practices” for this task which are now embodied in most of their agreements with police agencies. Model policies on handling citizen complaints developed by the IACP and PERF are other examples of the guidance for police agencies. Many states have model policies as well; California and New Jersey are examples. Lesson plans of police Internal Affairs training by groups such as PATC, IPTM and SPI are other source materials. Other approaches to this common and required police task are embodied in the works of Dr. Sam Walker and myself, Lou Reiter.
An effective IA/OPS operations is not only the right thing to do, but it protects the concerns of the four principal parties involved in this task – the aggrieved person, the accused police employee, the police agency, and the community being served by the agency. Failure to have an effective system can present your agency with civil liability. An example of one such case is:
Clark v. City of Muskegon
2000 U.S. Dist. LEXIS 6660 (WD MI. 2000)
“…a direct link between the municipalities (sic) acts and those of the police officer can exist where there is evidence that the ineffectiveness of…citizen complaint system was widespread, because it can be inferred that every police officer was aware that excessive force could be used with near impunity.”
1997 force allegation on “non-resistant…14 year old.” A disinterested witness reported this to a sergeant who wrote a memo to the Captain. No investigation was conducted for a year until the officer was investigated by the prosecuting attorney on another force case.
“A police department’s primary function is to investigate reports of malfeasance. When it fails to perform that function effectively, an obvious consequence is an increase in malfeasance since perpetrators will feel that their actions will go unpunished. This is no less true when…police officer. In fact, because police departments are vested with increased power and authority over ordinary citizens, police departments must be especially vigilant when complaints of excessive force are lodged…Citizen complaint processes are designed to reduce police misconduct. When citizen complaints are discouraged, ignored and discarded, it is an obvious and predictable consequence that in an department with 77 officers, some officers will realize they can commit misconduct with impunity.”
“The existence of a policy is not enough…’we cannot look to the mere existence of superficial grievance procedures as a guarantee that citizen’s constitutional liberties are secured.”
“Muskegon’s deliberate indifference to the risks that flow from an inadequate citizen complaint process is sufficient to establish causation where an officer who knows that an ineffective process exists uses excessive force.”
So what should an audit of the IA/OPS function consider? Normally there are four (4) primary, significant areas in administrative investigations – time frames, witness gathering and interviews, collection of evidence, and adjudication.
The issue of time frame concerns the time from complaint acceptance to the final adjudication. An analysis should consider whether the process meets whatever the agency identifies as the normal time frame for completion of this type of investigation. In the audit, the agency should first examine the sampling of the complaints audited, plot the high and low, and the average length of time to complete these investigations. The next task is to evaluate the actual investigation in relationship to the time it took to complete it; is there a reasonable relationship? Several legal cases have hinged the agency’s liability primarily on the length of time it took for the agency to investigate cases, particularly those with allegations of use of force. In one major city the average time it took to conclude citizen allegations of excessive force was 24 months; the Federal Court found that 24 months in and of itself constituted “deliberate indifference.” In another city it was 17 months.
Witness gathering and the interview process is an essential element in any administrative investigation. The first aspect of this portion of the audit is whether the investigation sought out, identified and located the persons who may have had information about the complaint. This would evaluate whether the investigator properly used the data in the available reports, communication records and complaint form. Were neighborhood, booking/detention, and jail canvasses conducted, when appropriate? Were the civilian interviews consistent with the format and content of those done with police employees? When witnesses or complainants were not contacted, did the investigation conduct a reasonable search for them and adequately document those efforts. A random call-back should be conducted of complainants listed as either not located or who were listed as being uncooperative. The actual tape of the interviews should be randomly selected for critical review. This tape review should evaluate whether the narrative summary done by the investigator is consistent with the statement of the person being interviewed. This tape review will also reflect the preparation of your investigator.
Collection of evidence is something the police agency has exclusive control over, with some exceptions such as medical treatment records. Have all of the available police and public documents been gathered and evaluated by the investigator? In addition, depending on the case being investigated, were the communications, dispatch, CAD, MDT and video monitoring records preserved and evaluated? Were background records of both the complainant and accused employee checked for credibility and investigative directions? If medical records were produced, were these documents interpreted and explained in the investigative report? Again depending on the specifics of the case, were reasonable investigative techniques and evidence analysis processes considered and used when appropriate?
The adjudication of the investigation encompasses the review process, the disposition of the complaint, and, when warranted, the foundation for any discipline. There are two (2) major issues for any audit of this area. The first concerns whether the agency reached the appropriate disposition based upon the documentation in the investigation. A significant factor in this first area is how the reviewers evaluated the material in the investigative report and whether any credibility determinations were adequacy supported. The second issue is whether the discipline resulting from the investigation is reasonably supported by a written explanation of the reviewer’s evaluation process and points considered.
The audit must delve into a reasonable sampling of investigations. There is no magic number, but any auditor has to be aware that his/her evaluation will be strengthened or weakened by the adequacy of this sampling.
The format for the report of the auditing team can take several approaches. If the purpose for the audit is liability/risk management and there is litigation pending, the safest format would be to have the entire audit process directed through the agency’s legal counsel. The decision whether a written report should be completed should be left to your legal counsel. This strengthens the confidentiality of the information. In instances when litigation is not pending, the format can either be a verbal discussion or written report of the audit findings. The more limited the number of written reports prepared and if control of those are documented your ability to claim some form of confidentiality will be strengthened, but recognize that it may not shield eventual discovery particularly during civil litigation.
Selection of the most appropriate person/team to conduct this form of audit is very important. You want to ensure that the person(s) have a track record and have personal experience with the administrative investigative process. Remember, you generally get what you pay for. However, simply paying out a large consultant fee does not necessarily mean you’ll be getting the best or even a reasonable product.
This type of internal audit can be described as a critical task, high liability audit. These types of audits, whether the critical task is a high or low frequency one, should be done once a year. Every police agency should establish a regular audit and inspection schedule. This may not eliminate individual failures, but it should be a foundation for establishing a liability shield for your agency.
The P.A.T.C. Legal and Liability Risk Management Institute is available to discuss any potential audits with your agency either for the administrative investigative process, law enforcement operations, jail and detention functions, policy review and critiques of high profile cases.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.