Police Accountability

1. Police Accountability Aspects of democratic Police: Openness Accountability: -Controlling police power Benefits: -Enhances police legitimacy (rightfulness of police authority)

2. Accountability: Controlling Police Behavior Police are respected and feared at same time. 1. Respect: regard citizens have for police work. 2. Fear: enormous life and death authority they carry. This makes holding police accountable difficult -Costs of “punishing” police Distance from citizens complicates accountability Professionalism - Civil service: Connected to but separate from democratic process. Little agreement on whom the police should be accountable to: Commanders, Politicians, Citizens, etc.

3. What gets police in trouble? First – MOST police stay out of serious trouble. – Most citizens are satisfied with police However… Interrogations Searches & Seizures Excessive and lethal force Corruption Racial profiling

4. Mechanisms of Accountability Internal to PD* • At least 4 types of Organizational Controls • Policy & Directives (Fyfe, B&B p. 216) • Professional Ethics (Pollack, DA16) • Internal Investigations • Generally triggered by citizen complaints (Rojek, DA15) • Conducted by Police • Supervisors (Chain of Command) • Internal Affairs (limited to large LEAs) • Early Warning Systems (Walker, DA11) *Always plagued by questions about the issue of impartiality

5. Mechanisms of Accountability *External to PD • At least 2 Broad types of accountability mechanisms • Civilian Review • Incorporating outsiders (and impartiality?) into accountability • Legal Controls (Skogan and Meares, Reserve7) • Criminal Law • Civil Law (Smith, DA27) • Liability & Civil Lawsuits • Management anticipates and budgets for such suits? *Enhanced legitimacy?

6. Accountability: Controlling Police Behavior Oversight Mechanisms Internal to the Police Dept. Bureaucratic organization and management. This is the most important accountability mechanism. Carried out through design/operation of bureaucratic management principles. Review: Department policy, goal, objective, procedure, rule/regulation. Responses to directives. Manager believes deviation exists, lacks proof—informal solution. New assignment or transfer. The greater the public outcry, the more likely a formal response—punishment. Manager may be aware of deviation & decide to protect the officer: 5 reasons: 1) Culture, 2) Inadequate punitive solutions, 3) Code-of-silence, 4) Deflect supervisor responsibility, 5) Deny importance of problem.

7. Accountability: Controlling Police Behavior Internal Investigation In small departments—investigation may be responsibility of a supervisor or manager. Larger departments—internal affairs units. Political climate—affects complaint process: encourage/discourage complaint filing. Mayors who encourage police aggressiveness (Guliani/NYC). Small number of officers >> disproportionate number of complaints. 2.5% account for 25% The investigative process. The Police Officers Bill of Rights: to protect police officers Steps of the complaint process: 1) Review allegation—what policy was violated? 2) Contact/interview all witnesses. 3) Collect evidence. 4) Background on complainant. 5) Background on officer. 6) Interview all department members who might be involved.

8. Accountability: Controlling Police Behavior Complaint outcomes. Sustained complaints: Complaint determined to be justified. Unsubstantiated complaints. Insufficient supporting evidence. Unfounded complaints. Did not occur as alleged by the complainant. Exoneration: complaint is true, but officer’s behavior is justified or legal. If found guilty: Termination of employment. Loss of rank. Significant—loss of salary and career opportunities. Punitive suspension. No work, no salary, usually not over 4 weeks. Punitive probation. On duty with full salary—subsequent misconduct is suspension. Reassignment. Mandatory training. Reprimand. Written admonishment. Supervisory counseling. Both instructive and corrective.

9. Accountability: Controlling Police Behavior Oversight Mechanisms External to the Police Dept. Civilian Review. Civilian review board: effort to control police behavior by establishing an external form of review: Arbitrary 3rd Party. 60% of 50 largest cities have some type of external review. Decision to install CR: usually stems from the belief that it will be more fair than internal review. Complaint procedures unrelated to number of complaints or seriousness. When complaints are encouraged by CR or police, they are less likely to be sustained.

10. Accountability: Controlling Police Behavior Problems associated with CR: Do not tend to find problems more frequently than internal review – may not be any more fair than Internal Review Mechanisms. 2 reasons: (1) police are not often guilty of misconduct, legalistically speaking (2) many CR boards develop an appreciation for the police. Consequently they tend to develop a “boys will be boys” attitude toward police misbehavior. Too far removed from daily dynamics of police behavior to have an appreciable effect. Removes opportunities of supervisors to deal creatively with police misbehavior. Discourages internal socialization processes, particularly peer socialization in policing.

11. Accountability through the Law Various types of law can be mobilized to increase police accountability. Broad Types: • Liability Law • Civil • Criminal • Procedural Law

12. Controlling Police Behavior Legal Controls: Criminal Violation of Civil rights. “Under the collar of law.” Violation of rights, privileges, or immunities of citizens while in police custody. Decertification. About three-fourths of states allow for this outcome. Florida example: 1. Violating legal rights. 2. Negligent deprivations of liberty/property. 3. Failing to maintain required qualifications. 4. Falsifying or misrepresenting application. 5. Gross insubordination, drunkenness, incompetence.

13. Controlling Police Behavior Legal Controls: Civil liability Civil suits for monetary damages for police behavior. 2 requirements: person is under collar of law, and violation of federally protected right. Federal court suits: (1) usually quicker, and (2) if plaintiff is successful, defendant has to pay costs of plaintiffs attorney. Torts. A civil wrong in which the act of a person causes injury or damage.

14. Controlling Police Behavior Civil Liability - 2 Types of Torts: Intentional torts. Officer intends to cause a wrong... excessive use of force, false arrest, assault, wrongful death., misuse of legal procedure. Negligent torts. A breach of lawful duty to act reasonably —careless operation of a motor vehicle, failure to protect someone or respond to a call. Kinds of awards: Actual damages & Punitive damages. Defenses in civil liability cases. Good faith defense: did not know it was against the law. Probable cause defense: reasonable belief that the action was legal. Discretionary act defense. Decisions made by officers are discretionary. Sudden emergency defense: lack of time to exercise reasonable judgment.

15. Controlling Police Behavior Civil Liability: If plaintiff contributed to own injuries, police not liable Managers/supervisors can be held liable. Must be negligent. Deep pocket theory: line officer has limited resources—others may be more able to pay damages. Extent? 1967—1,741. Silver (1995): abut 6000 annually. Cost? 1983: 350 exceeded $1 million. LA 1990: $8 million. Effectiveness? Limited Damage suits have little impact on dept. policy. LA 1990: $1,300 per suit. Money viewed as cost of doing business. Human Rights Watch: also found ineffective. 1986-1991—examined officers fate in 100 cases where juries awarded more than $100,000. 185 officers. 8 disciplined. 17 promoted. 160 no action. Systemic problem facing police is not brutality, which is a small percent of officers, but ineffective accountability procedures.

16. Controlling Police Behavior • Criminal Liability of Police

17. Controlling Police Behavior Legal Controls: 1960s: “due process revolution.” Little substantive impact on ability of police to make arrests/secure confessions. But did reduce coercive behaviors. Exclusionary rule: all evidence obtained by searches and seizures in violation of the constitution is inadmissable in state court. Established by Boyd v. US (1886) Applied to federal police in Weeks v. US (1914) Applied to state/local police in Mapp v. Ohio (1961)

18. Police Accountability through the Judiciary 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. PROBABLE CAUSE lays the groundwork for a reasonable search. What is probable cause? Brinegar v. US (1949) “the facts and circumstances within the officers knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a … belief that an offense has been or is being committed.” (p. 2).

19. Police Accountability through the Judiciary Thus PROBABLE CASUE is SUBJECTIVE. It is open to interpretation. Absent a Search/Arrest Warrant, officers can Articulate reasonable trustworthy information Role of informants is increased in investigations 2 pronged test to evaluating the credibility of: 1) information & 2) source of info (informant) Gates v. Illinois (1983) loosened this standard. Anonymous informants okay. Courts establish the Totality of Circumstances approach. More subjective standard US v. Sokolow (1989)established legal basis for the use of a profile in establishing probable cause based on Totality of Circumstances standard. Paid cash, acted nervous, did not check baggage Racial discrimination is not legal, but race in combination with other unlawful acts (traffic violations) may be enough to meet this totality standard – should this be legal?

20. Controlling Police Behavior Legal Controls: Criminal Liability Exclusionary rule Little evidence that it affects property or violent crime enforcement. Legal motions are in practice rare, and are routinely denied. When officers violate the criminal law: liable in both state and federal courts. If found innocent in state court or not tried, can still be tried in federal court. Good faith exemption: police have acted in accordance with the constitution if they act honestly. In Leon v. California — basis for decision when police have acted honestly. Rehnquist court—sometimes called a counter-revolution to the Warren court. Focuses on speed, finality, and efficiency.

21. Police Accountability through the Judiciary EXCLUSIONARY RULE Weeks v. US (1913) federal Mapp. V. Ohio (1961) extended to states Mapp refused police entry to her home. Police entered anyway and found obscene materials in a search for a wanted person. Establishes that fruit of a poisonous tree is inadmissible at trial. Real concern that Mapp would deter police from aggressive investigation. Data suggests Mapp has had any real affect on police work. Is a much larger cultural issue – contributes to public’s cynicism about law and the CJS Empirical findings may result from limits on scope of Exclusionary Rule: Nix v. Williams (1984) establishes inevitable discovery exception

22. Police Accountability through the Judiciary STOP & FRISK Terry v. Ohio (1968) Police possess legal power to detain & question even without probable cause. All that is necessary is an Articulable Reasonable Suspicion of Criminal Act. Frisk (limited person search) is permissible in these circumstances Does not constitute an arrest How long the stop takes is an evolving issue

23. Controlling Police Behavior Limits of Oversight Mechanisms Oversight mechanisms contribute to the development of secretive elements of police culture. Externally imposed control systems backfire by intensifying resentment and secrecy. Moral-Ethical Standards These standards are preventive, in the sense that officers anticipate outcomes before they act. Professional standards: Professionalism movement backfires? Specialization of function and intense control of line officers Centralization of command & tight accountability (not decision-making) Police departments, not officers, became professionalized. Officers below executive level rarely considered professional colleagues—had to be managed.

24. Police Deviance & Accountability **Key Insight: Police wrongdoing as “white collar” or organizational crime. Definition. Behavior that does not conform to the standards of norms or expectations. Ethical standards: principles of appropriate conduct officers carry internally. An expression of personal values. Organizational standards: formal and informal; from rules and regulations, and from peer expectations. Legal standards. The laws officers are sworn to uphold, due process establishes means officers can use. These can conflict with each other—e.g., formal dept. standards with peer expectations. Barker and Carter (1994) Deviance is a “generic description of police officers activities which are inconsistent with the officer’s legal authority, organizational authority, and standards of ethical conduct.”

25. Accountability through Professionalism Ethical Standards: Most effective way to control an officers behavior; having them believe in the standards they will follow. 3 Ethical perspectives: 1) Ethical Formalism - Moral worth in doing one’s duty. Go by the book. Legalistic policing: full enforcement of the law. 2) Ethical utilitarianism - The results of one’s actions determine whether they are right or wrong. An illegal search that produces evidence of criminal wrongdoing is justified. 3) Ethical relativism - What is considered good varies from situation to situation. Widely cited: selective enforcement of the law, use of police discretion. Probably the most reasonable view of police work. Community policing: policing should be tailored to needs of community.

26. Pollock (DA16) Ethical Dilemmas of Policing: • Day-to-day/routine dilemmas: • Discretion (discrimination; harassment) • Gratuities (gifts of value due to a person’s position) • “Noble” Cause Corruption • Stems from a crime-control orientation • Ends emphasis over the means • The use of deception in law enforcement • Undercover operations • Interrogation (“danger” of false confessions) • Fluffing up the evidence (false testimony) • Whistleblowers: Conflicts between internal solidarity & ethical principles • Police Deviance & Corruption

27. Accountability through Professionalism Limits of Professional and Ethical Standards. The study of ethics can result in development of arguments that justify deviating from established ethical or professional standards. Officers behavior determined as much by peer ethics as it is by any particular “school” of ethics. Highly situational.