SOME OPERATING ASSUMPTIONS
THE BAD NEWS.....is that police abuse is a serious problem. It has a long history, and it seems to defy all attempts at eradication.
The problem is national -- no police department in the country is known to be completely free of misconduct -- but it must be fought locally. The nation's 19,000 law enforcement agencies are essentially independent. While some federal statutes that specify criminal penalties for willful violations of civil rights and conspiracies to violate civil rights, the United States Department of Justice has been insufficiently aggressive in prosecuting cases of police abuse.
There are shortcomings, too, in federal law itself, which does not permit "pattern and practice" lawsuits. The battle against police abuse must, therefore, be fought primarily on the local level.
THE GOOD NEWS.....is that the situation is not hopeless. Policing has seen much progress. Some reforms do work, and some types of abuse have been reduced. Today, among both police officials and rank and file officers it is widely recognized that police brutality hinders good law enforcement.
To fight police abuse effectively, you must have realistic expectations. You must not expect too much of any one remedy because no single remedy will cure the problem. A "mix" of reforms is required. And even after citizen action has won reforms, your community must keep the pressure on through monitoring and oversight to ensure that the reforms are actually implemented.
Nonetheless, even one person, or a small group of persistent people, can make a big difference. Sometimes outmoded and abusive police practices prevail largely because no one has ever questioned them. In such cases, the simple act of spotlighting a problem can have a powerful effect that leads to reform. Just by raising questions, one person or a few people -- who need not be experts -- can open up some corner of the all-too-secretive and insular world of policing to public scrutiny. Depending on what is revealed, their inquiries can snowball into a full blown examination by the media, the public and politicians.
II. GETTING STARTED: IDENTIFYING THE PROBLEM:
You've got to address specific problems. The first step, then, is to identify exactly what the police problems are in your city. What's wrong with your police department is not necessarily the same as what's wrong in another city. Police departments are different in size, quality of management, local traditions and the severity of problems. Some departments are gravely corrupt; others are relatively "clean" but have poor relations with community residents. Also, a city's political environment, which affects both how the police operate and the possibilities for achieving reform, is different in every city. For example, it is often easier to reform police procedures in cities that have a tradition of "good government," or in cities where minorities are well organized politically.
The range of police problems includes:
Excessive use of deadly force.
Excessive use of physical force.
Discriminatory patterns of arrest.
Patterns of harassment of such "undesirables" as the homeless, youth, minorities and gays, including aggressive and discriminatory use of the "stop-and-frisk" and overly harsh enforcement of petty offenses.
Chronic verbal abuse of citizens, including racist, sexist and homophobic slurs.
Discriminatory non-enforcement of the law, such as the failure to respond quickly to calls in low-income areas, and half-hearted investigations of domestic violence, rape or hate crimes.
Spying on political activists.
Employment discrimination -- in hiring, promotion and assignments, and internal harassment of minority, women and gay or lesbian police personnel.
The "code of silence" and retaliation against officers who report abuse and/or support reforms.
Overreaction to "gang" problems, which is driven by the assumption that most or all associational activity is gang-related. This includes illegal mass stops and arrests, and demanding photo IDs from young men based on their race and dress instead of their criminal conduct.
The "war on drugs," with its overboard searches and other tactics that endanger innocent bystanders. This "war" wastes scarce resources on unproductive "buy and bust" operations to the neglect of more promising community-based approaches.
Lack of accountability, such as the failure to discipline or prosecute abusive officers, and the failure to deter abuse by denying promotions and/or particular assignments because of prior abusive behavior.
Crowd control tactics that infringe on free expression rights and lead to unnecessary use of physical force.
III. GATHER THE FACTS
The first thing to bear in mind about the "homework" community residents have to do in order to build a strong case for reform is that obtaining the most relevant information on the activities of your police department can be a tough task. In answer to critics, police chiefs often cite various official data to support their claim that they are really doing a great job. "Look at the crime rate," they say, "it's lower than in other cities." Or: "My department's arrest rate is much higher than elsewhere." The catch is that these data, though readily available to citizens, are deeply flawed, while the most telltale information is not always easy to get.
FORGET The "Crime Rate." The "crime rate" figures cited by government officials are based on the FBI's Uniform Crime Reports (UCR) system, which has several serious flaws. To name only a few: First, the UCR only measures reported crime.
Second, since the system is not independently audited there are no meaningful controls over how police departments use their crime data. Police officers can and do "unfounded" crimes, meaning they decide that no crime occurred. They also "downgrade" crimes -- for example, by officially classifying a rape as an assault. Third, reports can get "lost," either deliberately or inadvertently.
There are many other technical problems that make the UCR a dubious measure of the extent of crime problems. The National Crime Survey (NCS), published by another part of the U.S. Justice Department, provides a far more accurate estimate of the national crime rate and of long-term trends in crime. But it is a national-level estimate and does not provide data on individual cities. So the NCS isn't much help on the local level.
FORGET The "Clearance Rate." A police department's official data on its "clearance rate," which refers to the percentage of crimes solved, do not accurately reflect that department's performance. The fact that one department "clears" 40 percent of all robberies, compared with 25 percent by another department, doesn't necessarily mean it is more effective. There are too many ways to manipulate the data, either by claiming a larger number of crimes "cleared" (inflating the numerator), or by artificially lowering the number of reported crimes (lowering the denominator).
FORGET The arrest rate. Police officers have broad discretion in making and recording arrests. The Police Foundation (in Washington, D.C.), which conducts research on policing issues, has found great variations among police departments in their recording of arrests. In many departments, police officers take people into custody, hold them at the station, question and then release them without filling out an arrest report. For all practical purposes, these people were "arrested," but their arrests don't show up in the official data. Other departments record such arrests. Thus, the department that reports a lower number of arrests may actually be taking more people into custody than the department that reports more arrests.
FORGET The citizen complaint rate. Official data on the complaints filed by citizens regarding police conduct are important but present a number of problems. Many departments do not release any information on this subject. Some publish a smattering of information on complaints and the percentage of complaints sustained by the department. In more and more cities, the civilian review agency publishes this data.
Data on citizen complaints are difficult to interpret. Some examples: In 1990, it was widely reported that San Francisco, with less than 2,000 police officers, had more citizen complaints than Los Angeles, which has more than 8,000 officers. What that may mean, however, is that Los Angeles residents are afraid to file reports or don't believe it would do any good. San Francisco has a relatively independent civilian review process, which may encourage the filing of more complaints. Also in 1990, New York City reported a decline from previous years in the number of citizen complaints filed. But many analysts believe that simply reflected New Yorkers' widespread disillusionment with their civilian review board. Citizen complaints filed in Omaha, Nebraska doubled after the mayor allowed people to file their complaints at City Hall, as well as the police department.
Another problem is that in some police departments with internal affairs systems, officers often try to dissuade people from filing formal complaints that will later become part of an officer's file. And the number of complaints counted is also affected by whether or not the internal affairs system accepts anonymous complaints and complaints by phone or mail, or requires in-person, sworn statements.
Thus, the official "complaint rate" (complaints per 1,000 citizens), rather than being a reliable measure of police performance, more than likely reflects the administrative customs of a particular police department.
WHAT YOU REALLY NEED TO KNOW, AND WHY
Police shootings. You need to know about police firearms discharges, which refer to the number of times a police weapon has been fired. This information is more complete than statistics on the number of persons shot and wounded or killed. (However, information on the race of persons shot and wounded or killed is important.) Particularly important is information on repeat shooters, which can tell you whether some officers fire their weapons at a suspiciously high rate.
With this information, you can evaluate the use of deadly force in your department. You can also evaluate the long-term trends in shootings. Are shootings increasing or decreasing? Has there been a recent upsurge? How does the department compare with other departments -- are officers shooting at a significantly higher rate in your department than elsewhere?
SIDEBAR: WHO SHOOTS?
*Do some officers shoot more often than others? *Do white officers shoot more often that black officers? *Do young officers shoot more often than veteran officers?
The most detailed analysis of police shootings was produced by James Fyfe, a former police officer who is now a criminologist and expert on police practices. He concluded that the single most important factor determining patterns of shooting is place of assignment. Fyfe's findings showed that: Black and white officers assigned to similar precincts fired their weapons at essentially the same rate; since new officers are assigned to less desirable, high crime precincts based on the seniority system, younger officers shoot more often than older officers; and since a disproportionate number of black officers are young due to recent affirmative action programs, black officers shoot more often than white officers -- but as a function of assignment, not race.
Fyfe found significant differences in shooting patterns between police departments. The overall shooting rate in some departments was significantly higher than in others, a disparity that he attributed to differences in department policy.
SOURCE: James J. Fyfe, "Who Shoots? - - A Look At Officer, Race And Police Shooting." Journal of Police Science And Administration; Volume 9, December 1981; pp. 367-382.
B. Use of physical force. You need to know how frequently, day to day, police officers in your city use physical force in the course of their encounters with citizens. Do officers try to refrain from using such force against citizens, or do they quickly and casually resort to force?
In its report on the Los Angeles police department in the aftermath of the March 1991 beating of Rodney King, the Christopher Commission confirmed a long held suspicion: a small number of officers are involved in an extraordinarily high percentage of use of force incidents. Ten percent of the officers accounted for 33.2% of all use of force incidents. The Commission was able to identify 44 such officers who were not disciplined despite the fact that they were the subjects of numerous citizen complaints.
In 1981, the U.S. Civil Rights Commission found a similar pattern in Houston and recommended, as a remedy, that police departments establish "early warning systems" to identify officers with high rates of citizen complaints.
Patterns in the use of physical force reveal a lot about the "culture" of a particular police department. Clearly, a department whose officers repeatedly engage in physically coercive conduct needs reform. Police officials often deny that their personnel are prone to using force inappropriately, so if your community believes it has a problem in this area citizens must be able to support their claims with existing data, or data they have gathered themselves.
SIDEBAR: RACIAL DISCRIMINATION IN POLICE SHOOTINGS
These data indicate a clear pattern of racial discrimination. The disparity between whites and blacks shot and killed is extreme in the category of persons "unarmed and not assaultive." These are classic "fleeing felon" situations in which, prior to 1985, Memphis Police Department policy and the common law of many states permitted officers to use deadly force. In 1985, the U.S. Supreme Court ruled that it is unconstitutional for a police officer to shoot a suspected felon in flight who does not pose an immediate danger to the officer or public. The case -- Tennessee v. Garner -- involved Edward Garner, a 15 year-old black youth who, though unarmed, was shot and killed while trying to flee the scene of a suspected burglary.
POLICE SHOOTINGS IN MEMPHIS 1969-1974
Person Shot and Killed Number Shot and Killed White Black
Armed and Assaultive 5 7
Unarmed and Assaultive 2 6
Unarmed and Not Assaultive 1 13
In examining official policies, you need to evaluate them in comparison to recommended standards.
D. Lawsuits. You need to know how many lawsuits citizens have filed against your local police department. You want to know what the charges were, the number of officers involved, whether certain officers are named repeatedly in suits, what was the outcome and, in the case of successful suits, how much did the city pay in damages.
The number of lawsuits filed against a police department can be very revealing. For example, the Los Angeles Times reported that the city paid $64 million (of citizens' tax money!) in damages for abuses by the Los Angeles Police Department and county sheriff's office in just three years -- 1989-1991. In 1990 alone, New York City paid victims of police misconduct a record high of more than $13 million. This kind of information can be used to mobilize middle-class taxpayers and "good-government" activists, who can then be brought into a community coalition against police abuse.
E. Minority employment. You need to know how many African Americans, panics, Asians, other minorities and women are employed by your police department and their distribution throughout the department's ranks.
This information is useful in assessing, again, the "culture" of your local police department -- is it internally diverse, fair and equitable? It also suggests how much value the department places on the "human relations" aspects of its work, and how responsive it is to community concerns.
WHERE TO GET THE INFORMATION, AND HOW
Police business is generally shrouded in secrecy, which conceals outdated policies and departmental inertia, encourages cover-ups and, of course, breeds public suspicion. But remember: Police departments are an arm of government, and *the government's business is your business*. Police policies, procedures, memoranda, records, reports, tape recordings, etc. should not be withheld from public view unless their release would threaten on-going investigations, endanger officers or others, or invade someone's personal privacy.
Demanding information about police practices is an important part of the struggle to establish police accountability. Indeed, a campaign focused solely on getting information from the police can serve as a vehicle for organizing a community to tackle police abuse. Regarding all of the following categories, one of the tactics your community could employ is to interest a local investigative journalist in seeking information from the police for a series of articles. Once in hand, the information is a tool for holding the police accountable for their actions.
Police Shootings. Virtually every big city police department has this information on hand, since officers are required to file a report after every firearms discharge. Departments are supposed to publish a summary of weapons discharges every year, but they don't usually release the information voluntarily. Strong civilian review boards in a few cities now publish the information. As for repeat shooters, this information exists in police reports but police departments vigorously resist identifying repeat shooters. There are several ways to proceed:
(1) As an organizing strategy, demand that the police department publish this data, identify the repeaters and take appropriate remedial action (counseling, retraining, formal discipline, transfer, etc.)
(2) Alternatively, since it isn't essential that officers be identified by name, demand that they be identified simply by a code number, which can focus public attention on the problem of excessive shooters.
(3) Visit your local civilian review agency, if one exists. These agencies often have the authority to collect and release a range of information about local police conduct.
SIDEBAR: ON DRUGS, GANGS AND POLICE OFFICER SAFETY
Police work remains dangerous, and many police officers contend that they need greater freedom to use deadly force today because of the increase in heavily armed drug gangs.
But in fact, police work is much less dangerous than it used to be. The number of officers killed in the line of duty is half of what it was nearly 20 years ago. According to the FBI, the number of officers killed dropped from 134 in 1973 to 67 in 1990. That reduced death rate is even more dramatic considering the increase in the number of police officers on duty in the field.
Police officers have not been the victims of "drive-by" gang shootings. Innocent by-standers and rival gang members have been the victims.
The police do not need more firepower.
B. Physical Force. There are three potential sources of data on police use of physical force.
(1) Data developed by community residents. Community residents can make a significant contribution to documenting physical force abuses and, in the process, organize. They can bear witness to, and record, abuse incidents, take information from others who have witnessed incidents, refute police department arguments that there is no problem and help document the inadequacies of the police department's official complaint review process.
The San Diego chapter of the ACLU's Southern California affiliate set up "police hotline," which is listed in the Yellow Pages, to receive complaints about the police. The chapter's first report on the hotline, issued in August 1990, offers some useful information about complaint patterns. The Police Watch in Los Angeles compiles similar data. To receive a copy of the San Diego ACLU report, write to the ACLU/San Diego, 1202 Kettner Boulevard, Suite 6200, San Diego, CA 92101, or call (619) 232-2121. Police Watch can be contacted at 611 South Catalina, Suite 409, Los Angeles, CA 90005; (213)387-3325.
(2) Formal complaints filed by citizens. Most police departments do not make this information public. Some publish summary data in their annual report, so consult that document. In a number of cities, civilian review agencies publish it, so check with that agency in your city. The annual reports of the New York City Citizen Complaint Review Board (CCRB) and San Francisco's Office of Citizen Complaints (OCC) provide fairly detailed summaries.
(3) Internal police reports. An increasing number of police departments require officers to fill out reports after any use of physical force. This is a larger set of data than the citizen complaints would provide, since many citizens don't file complaints even when they have cause to do so. Ask to see these reports.
C. Official Policies. Your police department has a Standard Operating Procedure (SOP) manual (it may have another title) that contains the official policies of the department. The SOP manual is a public document and should be readily available. Some departments place current copies in local libraries. Others treat it as an internal document not available to the public -- which is unacceptable. Demand to see the manual, if your department withholds it. As a last resort, you can file suit under your state's open records law to obtain the SOP manual.
D. Lawsuits. Lawsuits brought against police departments are matters of public record. Records of suits brought in state courts reside at your local state courthouse; of suits brought in federal district court, at your local federal courthouse. The Lexis computer database is a source of published opinions in civilian suits brought against the police. However, collecting information from any of these sources is a very laborious task. Better to contact your local ACLU affiliate and/or other relevant public interest groups, which may have done most of the work for you. In the back of this manual, find the name and address of your local ACLU and other organizations.
E. Minority Employment. Official data on this issue are generally reliable and available from your local police department. If the police stonewall, you can get the information from the city's personnel division. The point is to evaluate the police department's minority employment record relative to local conditions.
Using current data, compare the percentage of a particular group of people in the local population with that group's representation on the police force. If, for example, Hispanic Americans are 30 percent of the population but only 15 percent of the sworn officers, the your police department is only half way toward achieving an ideal level of diversity.
IV. CONTROLLING THE POLICE: COMMUNITY GOALS
GOAL #1: A CIVILIAN REVIEW BOARD
Civilian review of police activity was first proposed in the 1950s because of widespread dissatisfaction with the internal disciplinary procedures of police departments. Many citizens didn't believe that police officials took their complaints seriously. They suspected officials of investigating allegations of abuse superficially at best, and of covering up misconduct. The theory underlying the concept of civilian review is that civilian investigations of citizen complaints are more independent because they are conducted by people who are not sworn officers.
At first, civilian review was a dream few thought would ever be fulfilled. But slow, steady progress has been made, indicating that it's an idea whose time has come. By the end of 1991, more than 60 percent of the nation's 50 largest cities had civilian review systems, half of which were established between 1986 and 1991.
Civilian review advocates in every city have had to overcome substantial resistance from local police departments. One veteran of the struggle for civilian review has chronicled the stages of police opposition as follows:
> the "over our dead bodies" stage, during which police will not accept any type of civilian oversight under any circumstances;
> the "magical conversion" stage, when it becomes politically inevitable that civilian review will be adopted. At this point, former police opponents suddenly become civilian review experts and propose the weakest possible models; Strong community advocacy is necessary to overcome resistance at every stage, even after civilian review is established.
WHAT IS CIVILIAN REVIEW?
Confusion reigns about civilian review systems because they vary tremendously.
Some are more "civilian" than others. Some are not boards but municipal agencies headed by an executive director (who has been appointed by, and is accountable to, the mayor).
The three basic types of civilian review systems are:
(1) Type I. Persons who are not sworn officers conduct the initial fact-finding. They submit an investigative report to a non-officer or board of non-officers, requesting a recommendation of discipline or leniency. This process is the most independent and most "civilian."
(2) Type II. Sworn officers conduct the initial fact-finding. They submit an investigative report to a non-officer or board of non-officers for a recommendation.
(3) Type III. Sworn officers conduct the initial fact-finding and make a recommendation to the police chief. If the aggrieved citizen is not satisfied with the chief's action on the complaint, he or she may appeal to aboard that includes non-officers. Obviously, this process is the least independent.
Although the above are the most common, other types of civilian review systems also exist.
SIDEBAR: TEN PRINCIPLES FOR AN EFFECTIVE CIVILIAN REVIEW BOARD
1 Independence. The power to conduct hearings, subpoena witnesses and report findings and recommendations to the public.
2 Investigatory Power. The authority to independently investigate incidents and issue findings on complaints.
3 Mandatory Police Cooperation. Complete access to police witnesses and documents through legal mandate or subpoena power.
4 Adequate Funding. Should not be a lower budget priority than police internal affairs systems.
5 Hearings. Essential for solving credibility questions and enhancing public confidence in process.
6 Reflect Community Diversity. Board and staff should be broadly representative of the community it serves.
7 Policy Recommendations. Civilian oversight can spot problem policies and provide a forum for developing reforms.
8 Statistical Analysis. Public statistical reports can detail trends in allegations, and early warning systems can identify officers who are subjects of unusually numerous complaints.
9 Separate Offices. Should be housed away from police headquarters to maintain independence and credibility with public.
10 Disciplinary Role. Board findings should be considered in determining appropriate disciplinary action.
WHY IS CIVILIAN REVIEW IMPORTANT?
Civilian review establishes the principle of police accountability. Strong evidence exists to show that a complaint review system encourages citizens to act on their grievances. Even a weak civilian review process is far better than none at all.
A civilian review agency can be an important source of information about police misconduct. A civilian agency is more likely to compile and publish data on patterns of misconduct, especially on officers with chronic problems, than is a police internal affairs agency.
Civilian review can alert police administrators to the steps they must take to curb abuse in their departments. Many well-intentioned police officials have failed to act decisively against police brutality because internal investigations didn't provide them with the facts.
The existence of a civilian review agency, a reform in itself, can help ensure that other needed reforms are implemented. A police department can formulate model policies aimed at deterring and punishing misconduct, but those policies will be meaningless unless a system is in place to guarantee that the policies are aggressively enforced.
Civilian review works, if only because it's at least a vast improvement over the police policing themselves. Nearly all existing civilian review systems reduce public reluctance to file complaints; reduce procedural barriers to filing complaints; enhance the likelihood that statistical reporting on complaints will be more complete; enhance the likelihood of an independent review of abuse allegations; foster confidence in complainants that they will get their "day in court" through the hearing process; increase scrutiny of police policies that lead to citizen complaints, and increase opportunities for other reform efforts.
Your community's campaign should seek the strongest possible civilian review system, one that is fully independent and designed for easy access. But if all you can get adopted is a weak system, take it with the understanding that once it's created you can press for changes to make it more independent and effective.
GOAL #2: CONTROL OF POLICE SHOOTINGS
Police misconduct in the use of deadly force is an area in which considerable progress has been made. Although the rate of deadly force abuse is still intolerably high, national data reveal reductions, by as much as 35-to-40 percent in our 50 largest cities, in the number of persons shot and killed by the police since the mid-1970s. This has been accompanied by a significant reduction in the racial disparities among persons shot and killed: since the 1970s, from about six minority persons to one white person, down to three minority persons to one white.
This progress serves as a model for controlling other forms of police behavior.
How was it achieved? In the mid-1970s, police departments began to develop restrictive internal policies on the use of deadly force. These embodied the "defense of life" standard, which allows the use of deadly force only when the life of an officer or some other person is in danger. In 1985, the Supreme Court finally upheld this standard in the case of Tennessee v. Garner (see sidebar, "Racial Discrimination in Police Shootings"). However, the majority of policies adopted by police departments go beyond the courts Garner decision, prohibiting warning shots, shots to wound, and other reckless actions. Most important, these policies require officers to file written reports after each firearms discharge, and require that those reports be automatically reviewed by higher-ranking officers.
To meet goal #2, your community must:
(1) Ensure that the police department has a highly restrictive deadly force policy. Most big city departments do. But the national trend data on shootings suggest that medium-sized and small departments have not caught up with the big cities, so much remains to be done there. Much remains to be done as well in county sheriff and state police agencies, which have not been subject to the same scrutiny as big city police departments.
(2) Ensure enforcement of the deadly force policy through community monitoring.
To be accountable, the police department and/or the local civilian review agency should publish summary data on shooting incidents.
Citizens should also be able to find out whether the department disciplines officers who violate its policy, and whether certain officers are repeatedly involved in questionable incidents.
SIDEBAR: THE HOUSTON POLICE DEPARTMENT'S DEADLY FORCE POLICY (1987)
POLICY: The Houston Police Department places its highest value on the life and safety of its officers and the public. The department's policies, rules and procedures are designed to ensure that this value guides police officers' use of firearms.
RULES: The policy stated above is the basis of the following set of rules that have been designed to guide officers in all cases involving the use of firearms:
*The citizens of Houston have vested in their police officers the power to carry and use firearms in the exercise of their service to society. This power is based on trust and, therefore, must be balanced by a system of accountability.
The serious consequences of the use of firearms by police officers necessitate the specification of limits for officers' discretion; there is often no appeal from an officer's decision to use a firearm. Therefore, it is imperative that every effort be made to ensure that such use is not only legally warranted but also rational and humane.
*The basic responsibility of police officers to protect life also requires that they exhaust all other reasonable means for apprehension and control before resorting to the use of firearms. Police officers are equipped with firearms as a means of last resort to protect themselves and others from the immediate threat of death or serious bodily injury.
*Even though all officers must be prepared to use their firearms when necessary, the utmost restraint must be exercised in their use. Consequently, no officer will be disciplined for discharging a firearm in self-defense or in defense of another when faced with a situation that immediately threatens life or serious bodily injury. Just as important, no officer will be disciplined for not discharging a firearm if that discharge might threaten the life or safety of an innocent person, or if the discharge is not clearly warranted by the policy and rules of the department.