Template to Avoid Civil Liability
Investigating Use of Force Before and After Complaints: An Operational Template to Avoid Civil Liability Richard H.Martin, Auburn University Montgomery Jeffrey L.Gwynne, Auburn University Montgomery Charles A.
Gruber, Chief (Ret. ), CAG Consultants Introduction Many police agencies lack policy, procedure, and diligence by police supervisors to investigate NON-excessive use of force incidents before a citizen files a formal complaint of a civil rights violation against the police. Police by their very nature are the guardians of the nation’s civil rights.
They are the glue that holds the fabric of our constitutional guarantees in place. Therefore, when the underpinnings of those civil rights are compromised by those entrusted with their care, it limits the effectiveness of the police-guardian role, obscures the trust relationship, and creates liability for the supervising organization. Every police administrator’s dream would be to recruit honest, loyal, and wellbalanced officers who will carry out their duties and responsibilities without incident.
Then they wake up and realize that police officers are people, with all the character flaws and psychological baggage that most people carry. Whether from reaction to stress, flawed judgment, or simply some misconstrued dealings with the public, officers have problems that cause conflicts, and it is up to the police administrator to assign blame, mete out discipline, and provide both reputational and legal safeguards to the community. Officer reliability issues and citizen complaints come in all shapes and sizes: complaints of excessive force, abuse of authority, harassment, unlawful behavior, ad infinitum.
And when problems happen, they are rarely clearly delineated and easily resolved. They come through the muddied, if not conflicting, reports of the various sources involved, and it is the police administrator’s job to investigate and attempt to factually determine what really happened. To make matters more difficult, there is no single formula for conducting such internal investigations; they necessarily vary based upon the dynamics of the issues and encompassing circumstances.
While some issues may be resolved quickly, others require judgment calls about what to investigate, who to include in the investigation, and ultimately who to believe. Internal investigations also have risks. A poorly orchestrated investigation may do more harm than good, raising questions about the accuracy of the results as well as casting doubt about the police organization’s commitment to treating the complainant and (or) the subject of the investigation fairly.
The need for strong investigative protocols is therefore a management imperative. If issues can be resolved internally in a timely and professional manner, minor Law Enforcement Executive Forum • 2009 • 9(3) 19 problems can be stopped from exacerbating into major problems. Even if a problem turns into a serious legal issue, a good investigation and appropriate response may be the officer’s best defense. Sometimes internal investigations are necessary to preempt or prepare for inquiries from outside regulatory agencies.
By an agency conducting its own investigation first, it may be able to root out problems before they are uncovered and summarily addressed by outside investigative sources. With the ever-increasing incidence of use of force complaints, the resultant disruption, the enormous financial and emotional costs, and the obligation of departments to provide reasonable enforcement efforts set the stage for a formidable confrontation between officers and the public that employs them.
Therefore, police leaders, in addition to taking reactive steps to protect and promote civil rights throughout their communities, should take proactive steps immediately after an incident involving any use of force. Despite the amount of force used at the time, proactive steps should always precede an anticipated or unanticipated formal complaint that may be made by a citizen/victim and the subsequent reactive steps of an investigation. Visionary leaders recognize that the motive for these steps emerges out of the obligation to abide by the U. S. Constitution.
But why not define steps for an investigation before the complaint is filed? An internal accountability mechanism that becomes routine with use of force incidents will, by virtue of its function, become a deterrent to false complaints and intentional excessive use of force incidents (International Association of Chiefs of Police [IACP], 2006). With this said, an investigative protocol should be put into effect requiring an immediate response to the scene of all use of force activity to gather facts and supplementary evidence to determine if the use of force in this instance was reasonable.
According to the Fourth Amendment, force must be reasonable. It is implied, therefore, that there is both (in a general sense) reasonable force and unreasonable force. The force continuum used in force training around the U. S. flows from the level of use of words, or just the presence of the officer, to the level of deadly force (Petrowski, 2002). Choosing the correct level must be reasonable. Herein lies the problem—determining what reasonable force is. The U. S. Supreme Court decision in Graham v.
Connor states that determining what is reasonable is an objective standard based on the “common sense evaluation of the officer” during the situation. The reasonableness is determined by the officer at the scene rather than using hindsight evaluation to determine whether his use of force was reasonable (Petrowski, 2002). Hence, the importance of investigating the situation immediately by the supervising sergeant is magnified by this rationale of the Court. All courts recognize from a legal standpoint that officers can select the level of force that is reasonable—not necessarily the minimum amount of force.
In Plakas v. Drinski, the court stated there is no precedent that officers must use all feasible choices before using deadly force. However, the Plakas/Drinski court decision did state that there are cases in which deadly force was used with precedent—that there is no constitutional requirement that other alternatives must be used first before deadly force. Further, Petrowski stated that the U. S. Supreme Court and all federal circuit courts recognize that the “least obtrusive alternative” is impossible to choose.
In view of the situation and the heat of the moment, this is a reasonable conclusion.Use of Force Defined The meaning of the term use of force can be unclear at times. It can best be understood within the context of the situation in which it is used. Walker and Katz (2008) state 20 Law Enforcement Executive Forum • 2009 • 9(3) the authority to use force distinguishes the police from other professionals. It is a necessary part of the broad system of social control. Egon Bittner argued that the capacity to use coercion is the defining feature of the police.
Force is a broad term and its use can be defined as deadly force, less than deadly force, and deprivation of liberty through arrest. Bittner also stated that the use of force by the police is limited by law and must be used only in the exercise of official police action (pp. 10-11). The U. S. Supreme Court in the Graham v. Connor decision stated that the reasonable use of force by police has two justifications: (1) for safety and (2) for preventing escape and maintaining custody (Petrowski, 2002). Criminal Misconduct Police misconduct, or corruption, includes several characteristics.
One characteristic, or category, is any activity of police corruption that compromises the officer’s ability to provide police service impartially and enforce laws of the community. It is illegal for police action to be deployed in a manner that may produce personal gain for the officer. Police use of excessive force falls into this category. Sometimes the action is not excessive and is only perceived in that manner, but perception of wrong actions by the police has a negative effect on the police/citizen relationships in the community.
In anticipation of possible later formal complaints of excessive force, it is imperative to investigate all uses of force, including nonexcessive as originally reported. If a later claim is made, facts gathered by the investigation of the supervisor when the incident happened are already known. After all, not all claims of police brutality are filed immediately. In order to quell future allegations of excessive force, get the facts while witnesses are available and witness recollections of the incident are fresh. Citizen Complaints
In a study by Scrivner (1994) on the psychologist’s role in controlling police behavior, her findings show the types of services provided agencies to identify officers with potential behavior risks. The best way to control behavior risks is eliminating officers with potential behavior problems during the selection process. Some problems, however, do not manifest themselves until after employment. Scrivner identified several profiles of violence-prone officers. These profiles included personality disorders (e. g. , acquired before the job); related experience from previous employment (e. g. justified traumatic situations), problems that developed during the early part of their careers (e. g. , impressionable and macho types), inappropriate patrol techniques (e. g. , heavy handed and/or have a chip on their shoulders), and officers who have personal problems (e. g. , divorce). Procedures should be in place to assist the officers with these profiles to prevent problematic behavior. In addition to selection screening, it is recommended that officers develop the proper tools through provision of inservice training on the use of force and receive proactive supervision to identify problematic performance.
The first person to hear a citizen’s complaint is generally the supervisor. According to Whisenand (2007), a complaint has three stages: (1) reception, (2) investigation, and (3) disposition. The first stage is the receipt of the complaint which provides a paper trail for officer performance evaluations. A uniform format should be used to record all complaints. The citizen should be assured that an investigation will be made and a copy of the written complaint should be given to the citizen (p. 268). Law Enforcement Executive Forum • 2009 • 9(3) 21
Why not investigate before a complaint and be ahead of the blame game? This will protect the integrity of the officer and the department and act as a deterrent to false and frivolous accusations of excessive force. The second stage is the investigation. As part of general inservice training for newly appointed supervisors, specialized training on investigating internal and external complaints should be given to all supervisors, including providing them a resource guide on written guidelines for the investigation.
Basic training curricula should provide familiarity with the procedures conducted by the supervisor after receipt of a complaint. In addition, every agency should establish a policy to adopt formal procedures to investigate complaints of misconduct. Furthermore, these investigations should reveal facts and at the same time maintain the dignity and confidentiality of everyone involved (Whisenand, 2007, p. 268). Results of the investigation should be provided to the complainant (p. 271). The third stage is disposition.
During this stage, the supervisor is an advisor to police management. After the investigation is complete, the supervisor can inform management that the complaint is not sustained, unfounded, or that the officer should be exonerated. He can also advise the extent of the discipline to be meted out if the complaint is valid (Whisenand, 2007, p. 272). Allegations of excessive force, or police brutality, represent the most common complaint of minorities against police. The beating of Rodney King video is frequently used for evidence of this claim (Walker & Katz, 2008, p. 404).
Research conducted by Kappeler, Carter, and Sapp (see Walker & Katz, 2005) found that college-educated officers have fewer complaints filed against them than less-educated officers (p. 164). The attitude and demeanor of the suspect can have an effect on police use of force. In a study conducted by Black (cited in Walker & Katz, 2008), it was found that blacks are more likely to be antagonistic toward the police. Pilvavin and Briar found that juveniles had the same response toward police. This, in turn, can trigger an overbearing response by the police (cited in Walker & Katz, 2008, p. 408).
However, Klinger argued that it was the arrest that triggered the antagonism (cited in Walker & Katz, 2008, p. 408). Physical force is authorized by law for police to use to protect themselves, to affect an arrest, to overcome resistance, and to bring a dangerous situation under control. Excessive force is never authorized. The law enforcement agency accrediting body, the Commission for Accreditation of Law Enforcement Agencies (CALEA) (2006), illustrates in Standard 1. 3. 1 that police officers “will use only the force necessary to accomplish lawful objectives” (p. 1-6). Standard 1. 3. 6. d) states that a written report is submitted whenever an employee “applies weaponless physical force at a level as defined by the agency” (pp. 1-7). Walker and Katz (2005) state “that excessive force is any level of force [that is] more than is necessary to handle a situation” (p. 208). Walker and Katz’s comments on force were basically the same in their 2008 text, except, however, they suggested better accountability and better data on the use of force is needed (p. 493). There should be unmistakable differences between excessive force and plain force; measurement of force needs to be better.
Management must identify situations where force may most likely be used, identify individuals susceptible to using more force than necessary, and develop mechanisms to control officers use of force more effectively (p. 493). 22 Law Enforcement Executive Forum • 2009 • 9(3) As stated in the Graham v. Connor decision (Petrowski, 2002), the level of force used is determined by the officer’s perception in a given situation. It may be determined later that the amount used was not necessary. It is a matter of opinion.
The opinion of the officer is going to be different from the opinion of the defendant or complainant. Most police departments adopt a use of force continuum, identifying appropriate action in particular situations. Force continuums generally range from officer presence to using deadly force with three to seven stages between the two characteristics (Walker & Katz, 2008, p. 406). A Bureau of Justice Statistics (BJS) study found that police use of force happens in less than 1% of all citizen encounters with the police. The study involved over 80,000 people (Walker & Katz, 2008, p. 05). In 2004, Walker and Alpert wrote about early intervention (El) systems being recognized by the U. S. Department of Justice for enhancing use of force accountability. Consent decrees contain a variety of early intervention systems (Hickman, Piquero, & Greene, 2004, p. 21). The CALEA (2006) Standard 35. 1. 9 requires agencies to “establish a Personnel Early Warning System to identify employees that may require intervention efforts” (p. 35-4). Identifying problem employees and offering remedies early helps the agency establish accountability and increase respect in the community.
Police Citizen Contacts and Complaints 1996-2001 In 1996, Langan, Greenfeld, Smith, Levin, and Durose (2001) found a low number of incidents of excessive force by police. A nationally representative sample of 6,421 persons representing a population of 216 million people found 1,308 persons had face to face contact with the police and that 14 of them stated that police used or threatened force against them. Ten of these persons reported that their actions provoked the police to use force. The 14 incidents represented an estimated 500,000 people.
Another estimated 800,000 had no force or threats used against them but were handcuffed only. Half of all contacts in police-public interactions in 1999 resulting in the use of force or threatened force were in traffic stops (Langan et al. , 2001). In the last six months of 1999, approximately 422,000 people 16 years old and older were estimated to have had contact with police when force or the threat of force was used. The analysis of the Langan et al. survey found that less than 1% of these contacts resulted in police force or threat of force and only an estimated 20% of these involved only the threat to use force.
In 0. 7% of the stops, the surveyors were told that force was used, and in 0. 5% the survey respondents alleged that excessive force was used. 2002 Citizen complaints resulting in disciplinary actions accounted for less than 10% in a recent 2002 BJS study that was analyzed by Hickman (2006). Overall, he found evidence that justified disciplinary action in about 8% of 26,000 complaints of excessive force by police. Hickman also found the percentage of merited complaints ranged from 6% among county police departments to 12% among sheriffs’ offices. Law Enforcement Executive Forum • 2009 • 9(3) 3 Highlights of the analysis from Hickman (2006) include the following: • During2002,largelocalandstatelawenforcementagencies,representing5%of agencies and 59% of officers, received a total of 26,556 citizen complaints about police use of force. • Aboutathirdofallforcecomplaintsin2002werenotsustained(34%). Twentyfive percent were unfounded, 23% resulted in officers being exonerated, and 8% were sustained. • Usingsustainedforcecomplaintsasanindicatorofexcessiveforceresultsinan estimate of about 2,000 incidents of police use of excessive force among large agencies in 2002.
Approximately 19% of large municipal police departments had a civilian complaint review board or agency within their jurisdictions. Additional information about BJS statistical reports and programs is available from the BJS website at www. ojp. usdoj. gov/bjs. 2005 A 2005 BJS survey illustrates data on the characteristics of contacts between police and the public from a nationally representative group of 60,000 U. S. residents age 16 or older who had face-to-face contacts with the police (BJS, 2006b).
The findings represent one full year and include reasons for and outcomes of the contacts, resident opinions on police behavior during the contact, and whether police used or threatened to use force during the contact. Highlights of the BJS (2006b) survey include the following: • Anestimated19%ofU. S. residentsage16orolderhadaface-to-facecontact with a police officer in 2005, a decrease from 21% of residents who had contact with police in 2002. • Overall,about90%ofpersonswhohadcontactwithpolicein2005believedthat police acted properly. • Ofthe43. 5millionpersonswhohadcontactwithpolicein2005,anestimated 1. % had force used or threatened against them during their most recent contact, a rate relatively unchanged from the 1. 5% in 2002. U. S. District Court Civil Rights Complaints 1990-2006 Below is a summary of the highlights of a BJS (2006a) publication, Civil Rights Complaints in U. S. District Courts, 1990-2006, which illustrates the number of civil rights violations filed in federal district courts. Highlights include the following: • CivilrightsfilingsdoubledinU. S. districtcourtsfrom1990(18,922filings)to 1997 (43,278 filings) and subsequently stabilized until 2003. From 2003 through 2006, the number of civil rights cases filed in U.
S. district courts declined by 20%. • Duringtheperiodfrom1990through2006,thepercentageofcivilrightscases concluded by trial declined from 8 to 3%. 24 Law Enforcement Executive Forum • 2009 • 9(3) • From 2000 to 2006, plaintiffs won just under a third of civil rights trials on average, and the median damage awards for plaintiffs who won in civil rights trials ranged from $114,000 to $154,500. Awareness over the recent years is becoming much greater, and as evidenced from the data, the potential litigation of use of force incidents that may end up in federal district court can be seen.
Once it goes to court, the odds are in favor of the plaintiff, whether it is Section 1984 civil rights lawsuits or Pattern and Practice DOJ lawsuits. Although the percentage is very low, be prepared because it can be costly. The decline of trial litigation in that period of time is assumed to be the result of out of court settlement agreements and early warning intervention of problem employees by police agencies. Due to ethical imperatives, law enforcement leaders must be continually attentive to ensure the actions of their officers do not compromise civil rights and erode public support.
With the authority of the position, officers are granted a tremendous amount of discretion to enforce the law and protect individual rights in the community. At the same time, officers must act within the laws of the Constitution while executing their authority and discretion. They are not above the law nor should they ever consider themselves above the law while executing their responsibilities. The main purpose of the police is to protect, rather than restrict, the rights of civilians, a distinguishing factor of our constitutionally based republic (IACP, 2006).
Police supervisors, in addition to taking reactive steps to protect and promote civil rights throughout their communities, should take proactive steps immediately after an incident involving any use of force. Despite the amount of force used at the time, proactive steps should always precede an anticipated or unanticipated formal complaint that may be made by a citizen/victim and the subsequent reactive steps of an investigation. Visionary leaders recognize that the motive for these steps emerges out of the obligation to abide by the U. S. Constitution (IACP, 2006).
But why not define steps for an investigation before the complaint is filed? An internal accountability mechanism that becomes routine with use of force incidents will, by virtue of its function, become a deterrent to false complaints and intentional excessive use of force incidents. Investigating Use of Force Incidents Implementing timely and well-thought-out investigative protocols act to minimize risk; and risk prevention related to the use of force is certainly one of the most misunderstood and underutilized aspects in the abatement of officerrelated complaints.
In our attempt to protect against aggressive behavior and the subsequent results of such behavioral anomalies, we spend a great deal of time and fiscal resources in precursory activities such as applicant screening and post-employment training assuming the formulary dealing with potential risk has been dutifully satisfied. And while candidate assessment and training are key preventative factors and should always be a part of the ongoing development process, they are not a panacea. Additionally, we fail to take into account that the original risk criteria is predominantly established against the backdrop of pre-employment uitability, Law Enforcement Executive Forum • 2009 • 9(3) 25 which is based on the current individual’s lifestyle and experience—something that can be validated in part by a subsequent background investigation. However, once ensconced in the organizational culture and subjected to the varying demands of the work—work which exposes individuals to an unfamiliar set of circumstances and stresses not encountered before or reckoned with—individuals morph psychologically by varying amounts, both positively and negatively as previously illustrated by Scrivner’s (1994) findings about the different officer at risk behavioral profiles.
A strong investigative self-audit, coupled with appropriate policies and procedures, helps to take the guesswork out of executing one of a police administrators’ toughest tasks and leads the investigation from the initial after-action report to final resolution—hopefully prior to any formal complaint or other form of negative-based encroachments. Such early intervention is an effective means of protecting both the officer and public. Information should therefore be gathered by supervisory personnel immediately after all use of force incidents, even those thought to be incidental.
The information gathered by such supervisory staff helps to establish early warnings as well as protect officers from false allegations. Just as technologically sophisticated early intervention systems will be severely compromised when data are not collected thoroughly, so will the analysis of data collected by managers who are not trained and motivated to take advantage of early intervention as a deterrent in the use of excessive force.
Although more and more departments are using early intervention systems, clear data standards and uniform practices have yet to be established for the routine investigation of all uses of force, especially the use of force not resulting in a citizen complaint (IACP, 2006). Proactive Investigations A framework leading to the curtailing of liability-ensconced issues should begin with the premise that every officer-related incident involving the use of force should be investigated, whether it has been the subject of a complaint or not, thus resolving potential problems before they are identified in a subsequent formal complaint.
Such procedural perspectives allow increased public confidence and trust in the police; allows for quicker resolution of future formal complaints; improves collection of investigative data; and helps to provide an evenhanded approach, identifying intentional misconduct or willful negligence while absolving the innocent of wrongdoing.
While it is recognized that police officers may have to use force in the course of their duties, such should only be used to the extent necessary in the prevention of a crime, to affect a lawful arrest, or as a defensive countermeasure, with the assumption being that under such particular and substantiated circumstances, officers had no alternative but to use force. Any force beyond these limits should be characterized as “excessive. ” Any investigation on the use of force should therefore focus on two prime elements: (1) the methods used and (2) the purpose for such use.
The primary focus in these investigations should be (1) to collect relevant evidence, (2) to be thorough and impartial, (3) to make findings supported by evidentiary constructs only, and 26 Law Enforcement Executive Forum • 2009 • 9(3) (4) to conduct and complete the investigation in a timely and professional manner. The investigation should diligently probe for and discover evidence necessary to resolve the underlying issues of the use of force, concisely presenting and preserving such evidence.
The investigative presumption in use of force occurrences should be initially viewed as no wrongful or improper conduct, rebutted only by substantial evidence that the use of force resulted from intentional misconduct or willful negligence. Substantial evidence means that investigative findings support a greater weight of evidence toward misconduct than any different conclusion. The information obtained therefore must be based on well-established investigative and legal principles.
Evidence which establishes merely the possibility of intentional or deliberate misconduct should not overcome the presumption of innocence. As stated earlier, the Plakas v. Drinski decision stated that officers must use all feasible choices before using deadly force, but legal precedent also states that the “least obtrusive alternative” is impossible to choose when it comes to following the force continuum (Petrowski, 2002). Added to this are the ethical considerations. Law enforcement executives and managers face a variety of ethical challenges n a frequent basis, running the gamut from politically motivated situations to problems incurred through employee orchestration. Regardless of how the situation develops, it is up to those in command to serve the public and the department in a responsible and ethical manner. The Internal Investigation Process The internal investigation process is different in many ways from a normal criminal investigation. Police executives should be wary of assigning officers to internal investigation tasks based solely on operational convenience.
Officers charged with investigating use of force activity should be the best qualified to serve in such a capacity, possessing a mastery of investigative techniques such as gathering evidence, interviewing witnesses, and analyzing facts. Such investigators should also exhibit a professional quality of impartiality and a working knowledge of what it takes to meet legal standards in today’s litigious atmosphere. There is also the problem of skepticism in terms of whether any law enforcement organization can conduct an impartial investigation regarding one of its own.
Police executives must recognize that the most important aspect of any internal investigation process is the most difficult to achieve—conducting the investigation in the same professional manner in which criminal investigations are conducted. The investigation of use of force incidents should be just as thorough and complete as the investigation of any crime. This is additionally important because of the potential liability factor, the seriousness of which dictates the need to be as objective and thorough as possible.
Therefore, the investigator chosen should be a trusted and well-thought-of member of both the department and community—one who recognizes the importance and priority of the investigation and appreciates the ramifications for the maintenance of confidentiality of the investigative process. As much as we can determine from government reports, there are more than 18,000 law enforcement agencies in the United States. Most police departments Law Enforcement Executive Forum • 2009 • 9(3) 27 are rather small compared to those in Chicago, New York, and Los Angeles.
They do not have a complex organizational structure. It is difficult for small agencies to have specialists for personnel complaint investigations. The person most likely to investigate is the supervisor. Uniformity should be the rule for agencies with limited organizational structure and numbers (More & Miller, 2007, p. 336). Sergeants are usually the most visible and often the most approachable members of the police department’s management team. They are first in the chain of command and understand that officers will have a bad day and sometimes take it out on the citizens they encounter.
The officer may “be rude, insulting, intimidating, or downright criminal in dealing with others” (More & Miller, 2007, p. 336). Since constitutional constraints require reasonableness in the use of force (Petrowski, 2002), the supervising sergeant is the best choice to determine reasonableness by interviewing at the scene for any kind of force used, including voluntary handcuffing. Verbal abuse as well as physical abuse can be determined while it is fresh in the minds of witnesses as well as the condition and the demeanor of the person arrested.
Supervisors have inherent power and authority and are departmental disciplinarians who generally investigate minor claims and mete out discipline if warranted. In more serious claims of corruption, an internal affairs procedure is implemented. In smaller departments, they may also assist command officers in the investigation of serious complaints. In both situations, an administrative review evaluates whether personnel policies are followed appropriately (More & Miller, 2007, p. 337). Personnel investigations of misconduct claims require highly trained investigators, regardless of rank.
Therefore, the selection and training of investigators are very important. Police managers in smaller agencies do have several options when faced with an internal affairs investigation situation. Small agency managers can assign a case to the supervisor or themselves. The chief is responsible for making sure the investigation is of the highest calibre and fair (More & Miller, 2007, p. 338). The initial stage of an investigation is to interview the complainant (More & Miller, 2007, p. 338). It is good practice to always anticipate a complaint after a custodial arrest, especially when force is used.
The initial step in the investigation should occur just after the use of force incident takes place while witnesses are still available and before a formal complaint is made. The function of the interview is to gather information concerning the use of force complaint or, if no complaint, gather information about the use of force. Witnesses and investigative leads related to the alleged police action and possible misconduct need to be identified, and the incident and the suspect’s credibility and, if necessary, the complainant’s credibility, need to be assessed.
It should be determined whether the situation will likely end up in a formal complaint, ascertaining, if possible, the complainant’s motive or motives for making the allegation if there is a claim. It is important to not give opinions—do not editorialize, do not commit the department, and do not form conclusions during the interview process (p. 339). Two Types of Investigations With this in mind, we want to discuss two investigative protocols to help minimize legal exposure, anti-police rhetoric, and the disruption to organizational 28 Law Enforcement Executive Forum • 2009 • 9(3) unctionality. The first or Type One protocol involves investigations of complaints originating both internally and from the public domain—the reactive dynamic triggering most internal investigations. The second or Type Two protocol takes the position that an ounce of prevention outweights a pound of cures. Proactively investigating all use of force activity for potential misconduct issues is what agencies should think about implementing—not only to anticipate a complaint but as a routine procedure for any type of force used.
Such an investigative self-audit allows for a liability focused analysis against the rule of law and organizational policies and procedures, all prior to a costly lawsuit or negative public impact. Type Two not only protects the citizens, but it also protects officers against false allegations of excessive use of force. It goes a step beyond the normal requirements of investigating use of force incidents and alleged illegal uses of force. It is early intervention of all uses of force and an effective means of protecting officers and the public. Formal Complaint
Generally, agencies follow three basic steps when reacting to civilian and internal complaints: (1) the formal filing of the complaint, (2) investigation, and (3) the disposition. Although these steps are constant, there are differences in policies and procedures among departments. The determination of whether the force was reasonable is based on the circumstances of the incident. Whenever possible, individuals should be allowed to submit to arrest before force is used. But, when there is resistance, necessary reasonable force can be used. The first step, the formal complaint, should not be difficult for the public to make.
All perceived and real obstacles should be removed. In U. S. Department of Justice (2003) consent decrees, it is a requirement that the civilian complaint process must be readily accessible to the public. Officers should notify citizens of the right to file a complaint, where to go, and who to see to file the complaint. Business cards can provide the message of this right; a website URL; or the name of the person to contact at the agency and his or her badge number. Complaint forms should also be provided by the office when requested at the scene.
Since these are required by consent decrees after a Pattern and Practice lawsuit has been filed against the agency by the DOJ, why not be proactive and implement the procedure as a matter of policy before a lawsuit happens. Enforcement of the process is mandated by policy with disciplinary action for failure to comply with the policy, including disciplinary actions for impeding the complaint process. Officers should be investigated for failure to notify citizens of the right to complain and for any impediments by an officer. Police agency accreditation standards have been established by CALEA.
These standards are in place for agencies that wish to become accredited and maintain accreditation. According to CALEA (2006) Standard 26. 1. 5, first-line supervisors have the best opportunity to observe the conduct and appearance of employees and detect instances when disciplinary actions are warranted (p. 26-2). Another standard (26. 1. 8) states that a written directive provides specific procedures for maintaining records of disciplinary actions to document a warning system and Law Enforcement Executive Forum • 2009 • 9(3) 29 individual history of citizen complaints (p. 6-3). There is also a standard (45. 2. 2d) suggesting that the chief can proactively head off any potential problems as related to the community. It is reactive to community concerns, but it is also proactive because the chief can address concerns before a formal complaint against an officer is made (p. 45-4). In CALEA Standard 82. 2. 2(b), it states that the agency should have a written directive that requires the reporting of every incident of citizen complaints. The purpose of the standard is to require a procedure for proper investigation of complaints (p. 2-3). Accreditation standards do not specify what the investigative procedures should be. As with all CALEA standards, procedures and policies are left up to individual agencies to determine how an activity should be conducted. No CALEA standard addresses or explains “how” to investigate, only “to” investigate, and to have a process in place for investigation of a complaint, including being available to the public. The entire department must accept the responsibility of ensuring accessible civilian complaint processes.
Federal consent decrees and Memoranda of Agreement (MOAs) state the following measures: agencies should allow citizens to make complaints from various venues, both public and private; they should assure the public that they need not go to a police facility. Therefore, complaints should be allowed to be delivered in person, by U. S. Postal Service, or via personal e-mail. If a formal complaint is received at a police facility, officers should not make any assessment of the complainant’s mental capacity or physical condition.
Third party and anonymous complaints should also be accepted. If the complainant needs help completing the complaint form, assistance should also be given to the person (IACP, 2006). Formal Investigation After the Complaint The second step is the process of investigating the complaint. In addition to training recommendations by Whisenand (2007) illustrated earlier in the article, federal consent decrees and MOAs require departments to give complaints full and rigorous investigatory attention. To do this effectively and appropriately, complaints first must be categorized.
Police and legal experts recognize that not all complaints are of the same gravity or require the same type of investigation or intervention. Complaints range from gripes to allegations of felonies. This does not mean that low-level complaints can be summarily dismissed, however (IACP, 2006). When force is used, the following questions should be given consideration to evaluate the officer’s actions that should have been taken (IACP, 2006): • • • • • Whydidtheofficeruseforce? Wasthepersonathreat? Didthepersonhindertheseizure? Wastheperceptionreasonable?
Wastheuseofforceseizurereasonable? Complaint categories are based on the seriousness of the allegation. Many departments define multiple categories of complaints since procedures for investigating complaints depend on the nature of the incident and the allegation. For example, the Boise, Idaho, Police Department has two classifications of 30 Law Enforcement Executive Forum • 2009 • 9(3) complaints: Class I, policy violations and criminal conduct, and Class II, less serious allegations, including citizen inquiries not directed at an individual officer or employee (IACP, 2006).
The Tempe, Arizona, Police Department Agency Policy Manual has five categories of complaints. Complaints received will generally fall into one of the following categories (IACP, 2006): 1. Serious Misconduct—Allegations of criminal conduct or conduct that could result in suspension, disciplinary pay reduction, demotion, or termination 2. Minor Misconduct—Allegations not appearing to be criminal and which would not result in suspension, demotion, disciplinary pay reduction, or termination 3. Policy Infraction—Allegations which are not of a serious nature, but involve some infraction of department policy 4.
Inquiry—Those complaints against department policy 5. Administrative Investigation—Initiated at the direction of the chief of police and conducted by the internal affairs component Procedures for all investigations of complaints should be categorized according to the level of seriousness. Complaints based on seriousness are investigated through different procedures. Less serious complaints are reviewed by supervisors and managers, while more serious complaints are reviewed by specialized units within the department or external boards or commissions that have various degrees of independence from the department (IACP, 2006).
It is better to have commendations go into a separate level of intake rather than combining them with the complaint intake process. All allegations in the investigatory process, covering a wide range of issues, should include thoroughness of investigation. Standards of proof, quality of information, the role of supervisors, and timeliness of dispositions are important considerations. Consent decree agreements are deliberately prescriptive and proscriptive, addressing both what departments ought to do and ought not to do. IACP Recommendations
The IACP (2006) made several nonstatic recommendations in their project report on the basis of its assessment of federal consent decrees and MOAs as well as the project report. Additional comments to the IACP recommendations make the recommendations more applicable to what we are advocating—that is, an investigation of all use of force incidents regardless of severity. The authors’ recommendations are based on the IACP recommendations, but they have been modified to include all use of force incidents, including “soft hands control” situations.
The recommendations are as follows: 1. Implement a clear use of force policy that specifically addresses ALL use of force incidents, not just deadly and nondeadly use of force, and that is consistent with all legal and professional standards. All agencies should have a use of force policy with directives regardless of agency size or function. 2. Implement a comprehensive use of force policy that addresses all available use of force options, clearly places these options within a force continuum or a force Law Enforcement Executive Forum • 2009 • 9(3) 31 odel, and associates these options with corresponding levels of subject resistance. Policies should include canine deployment and conducted energy devices (CEDs) (i. e. , TASER use of force). 5. Monitor, review, and update use of force policies to reflect changes in use of force options, laws, and standards and provide specialized and comprehensive training and testing for use of force options. 6. Provide specialized training on alternatives to the use of force. 7.
Use of force policies must define ALL, NOT JUST SERIOUS use of force incidents, must include the circumstances under which supervisors must report to the scene of a use of force incident, and must require supervisors to report to the scene of all use of force incidents. The presence of supervisors provides support to officers at the scene and enhances accountability. 9. Clearly stipulate that a written use of force report is required for ALL incidents of force used. Reports aid supervisors and investigators in resolving incidents that may end up as formal complaints. 0. Clearly stipulate that for all levels of force, a use of force review and report is required. The authors’ recommendation is a reviewable use of ALL force at the scene by the supervisor. This recommendation goes beyond the consensus recommendation of the IACP advisors to this project—that reportable force is only the force above “soft hands control. ” 11. Ensure that accountability mechanisms, including use of force investigations for allegations of excessive force or force without cause, are fair, thorough, rigorous, and transparent.
Unlawful or excessive use of force is contrary to the ethics of policing, creates tremendous liabilities, and undermines the credibility of the department in the eyes of the public and the department members themselves. 12. Collect and analyze use of force data for organizational, management, and assessment purposes. Data collection should be frequent enough to enable analysis on a monthly or quarterly basis. 13. Establish proactive media and public relations strategies regarding department use of force policies and practices. 14.
Establish community outreach strategies to build the social capital on which departments may draw in the event of a critical use of force incident. Conducting the Investigation First and foremost, the internal investigative process should be considered a cognitive (critical thinking) exercise, characteristically likened to any professionally guided research endeavor—not simply a task-oriented process. As such, the investigator should seek to explore and analyze all forms of information, determining either a pattern for further inquiry or helping to contribute to the conceptual understanding of the circumstances being investigated.
This method 32 Law Enforcement Executive Forum • 2009 • 9(3) of inquiry helps to formulate and consider as relevant all possible investigative avenues by asking questions, making observations, manipulating conditions and observing the effects of those manipulations, and then developing explanations from the resultant data. In addition, best investigative practices take the form of theoretical insight regarding an essential feature or pattern of the event under investigative scrutiny—in other words, “what” and “how. These practices use the procedural tenets of probabilistic analysis and abductive (cause and effect) reasoning toward determining logical and verifiable solutions to identified events and outcomes— that is, “reasoning backwards” from consequent to antecedent. Simply stated, one throws all the obtained information and evidentiary possibilities in a bag and through a process of elimination removes possibilities from the bag, scrutinizing each until the bag is empty; the only thing left standing are the verifiable answers.
Further, it is not enough to simply collect and analyze investigative data. A guiding theory that is sufficiently flexible to accommodate new information and sufficiently logical to show a clear pattern of cause and effect is required. The essence of such thought-provoking “investigative inquiry” is established for providing investigators with a hypothetical learning experience in which they can develop their conceptual knowledge in the context of simulated authenticating processes, resolving doubt and creating an additional knowledge base.
Investigative Steps While there are numerous ways to articulate methodological formularies in such investigative processes, the underlying operational premise is based on three intertwining factors: (1) investigative integrity, (2) investigative effectiveness, and (3) the ability to functionally adapt to the complexities of the investigation at hand. Utilizing these prime formularies as the principle guide, the investigative strategy is simply an exercise in problem solving: 1. Review the preliminary case information and make observations about the data. . Consider the possible interpretations of those observations/data, and create a list of unanswered questions. 3. Develop a strategy for obtaining answers to those unanswered questions. 4. Continue making additional observations and collecting new information. 5. Take time to think about new observations/information, determining the best methods toward gleaning a full and better understanding of the subject matter under investigation; the resulting evidentiary data should be both clear and unambiguous to all who are reviewing them. 6.
Determine whether the observations and information garnered answer the original questions posed during the preliminary review, or whether there are other questions that need to be answered before a final conclusion can be Law Enforcement Executive Forum • 2009 • 9(3) 33 drawn. If there are still unanswered questions, repeat the appropriate steps until there is nothing left to investigate. Finally, use of force investigations should be governed under a “standard of proof” doctrine and supported by relevant evidence that accurately and substantively articulates the findings to have merit against the backdrop of any differing conclusion.
Upon critical inspection, all findings should be able to meet the burden of proof required in any future legal proceeding. Conclusion The use of force in police-citizen encounters is one of the most complex and emotionally charged issues in law enforcement. Officers must make decisions that are compliant with applicable laws, professional standards, and departmental policies, often in the context of split-second, life-or-death circumstances.
While the safety of officers and civilians remain a major concern, law enforcement leaders must create accountability mechanisms to ensure that the application of force remains within legal interpretation of “reasonableness. ” As use of force tools and techniques continually evolve, departments must carefully consider their use of force options. Maintaining public relations and respect for civil rights must continually be part of the process of making decisions in all situations (IACP, 2006). References Bureau of Justice Statistics (BJS). (2006a). Civil rights complaints in U. S. istrict courts, 1990-2006 (NCJ-222989). Washington, DC: U. S. Government Printing Office. Retrieved July 6, 2009, from www. ojp. usdoj. gov/bjs/abstract/crcusdc06. htm BJS. (2006b). Contacts between police and the public: Findings from the 2005 national survey (NCJ-215243). Washington, DC: U. S. Government Printing Office. Retrieved July 6, 2009, from www. ojp. usdoj. gov/bjs/pub/pdf/cpp05. pdf Commission on Accreditation for Law Enforcement Agencies (CALEA). (2006). Standards for law enforcement agencies: The standards manual of law enforcement agency accreditation program (5th ed. . Fairfax, VA: Author. Hickman, M. (2006). Citizen complaints about police use of force (NCJ-210296). Washington, DC: US. Government Printing Office. Retrieved July 6, 2009, from www. ojp. usdoj. gov/bjs/abstract/ccpuf. htm Hickman, M. , Piquero, A. R. , & Greene, J. R. (2004). Police integrity and ethics. Belmont, CA: Wadsworth. International Association of Chiefs of Police (IACP). (2006). Protecting civil rights: A leadership guide for state, local, and tribal law enforcement. Alexandria, VA: Author. Langan, P. A. , Greenfeld, L. A. , Smith, S. K. Levin, D. J. , & Durose, M. (2001). Contacts between police and the public: Findings from the 1999 national survey (NCJ184957). Washington, DC: U. S. Government Printing Office. Retrieved June 16, 2009, from www. ojp. usdoj. gov/bjs/abstract/cpp99. htm 34 Law Enforcement Executive Forum • 2009 • 9(3) More, H. W. , & Miller, L. S. (2007). Effective police supervision (5th ed. ). Cincinnati: Anderson Publishing Company. Petrowski, T. D. (2002, October). Use-of-force policies and training: A reasoned approach—legal digest. The FBI Law Enforcement Bulletin.
Retrieved July 6, 2009, from www. fbi. gov/publications/leb/2002/oct02leb. pdf Scrivner, E. (1994). Confronting excessive force in the police culture—Final report: Phase two research on excessive force. Rockville, MD: U. S. Department of Justice. Retrieved June 17, 2009, from http://ncjrs. gov/App/Publications/abstract. aspx? ID=165040 U. S. Department of Justice. (2003). United States v. city of Detroit, Michigan and the Detroit police department consent judgment (06/12/03). Available at www. usdoj. gov/crt/split/documents/dpd/detroitpd_ofwdcd_613. pdf Walker, S. & Katz, C. M. (2005). The new world of police accountability. Thousand Oaks, CA: Sage. Walker, S. , & Katz, C. M. (2008). Police in America: An introduction (6th ed. ). Boston: McGraw-Hill. Whisenand, P. M. (2007). Supervising police personnel: The fifteen responsibilities. Upper Saddle River, NJ: Pearson. Richard H. Martin is an associate professor and head of the Department of Justice and Public Safety at Auburn University Montgomery. He earned an EdD and a Master of Science from Indiana University, and a Bachelor of Science from Lipscomb University.
Martin was a police officer and a constable in Indiana; a police commissioner and sheriff’s department merit commissioner in Illinois; and was a department head for 24 years at four Midwest institutions prior to Auburn Montgomery. He is a certified assessor and team leader for CALEA; past member of the International Association of Chiefs of Police Research Advisory Committee; and chair of the IACP University and College Section Training Committee; and chair of the section Scholarship Committee.
He is also a consultant with the Theoretical and Applied Forensics Working Group; a reviewing editor for the Journal of Gang Research; serves as an Office of Juvenile Justice and Delinquency Prevention grant application peer reviewer; and has several published articles, book reviews, and two textbooks. Jeffrey L. Gwynne is an adjunct instructor and director of the Theoretical and Applied Forensics Working Group at Auburn University Montgomery. He earned a PhD from Walden University, a Master of Science from Reid College, and a Bachelor of Science from the Aero-Space Institute.
Jeff was a police officer rising to the rank of captain; staff member – Scientific Crime Detection Laboratory, Illinois Department of Law Enforcement; senior crime-countermeasures specialist, Honeywell, Inc. ; and president of Burn’s International Investigation Services, Inc. He is the designer of both law enforcement and security system components, is credited with the Law Enforcement Executive Forum • 2009 • 9(3) 35 development of the Municipal Registry police applicant evaluation system, and currently directs a consulting firm specializing in law enforcement and security issues. Charles A.
Gruber, Chief (Retired), now head of CAG Consulting, has a career in law enforcement that spans more than 36 years with 30 years as a chief of police. He is past president of the International Association of Chiefs of Police (IACP) and the Illinois Association of Chiefs of Police. Chief Gruber was appointed by the federal district court as part of a team of legal and policing experts to monitor compliance with the negotiated settlement agreement between the City of Oakland, California, and private plaintiffs pertaining to pattern and practice claims filed against the Oakland Police Department.
Concurrently, he is retained by the U. S. Department of Justice Civil Rights Division to investigate alleged pattern and practice abuses in several police departments. Like much of Chief Gruber’s work, the DOJ reviews include assessments of numerous officer-involved shootings and use of force issues. Chief Gruber earned a Bachelor’s degree in Psychology and a Master’s degree in Police Administration. He is a graduate of the FBI National Academy, Law Enforcement Executive Development Seminar, National Executive Institute, and