Police Departments Grapple With Who Should Hold Them Accountable
Scandals surrounding abuse and corruption are spurring cities across the country to adopt civilian oversight boards. But some argue they have the opposite effect that advocates are looking for.
Sharon Fairley remembers how she felt when she first saw the dash cam video of the Chicago police shooting 17-year-old Laquan McDonald. “Shock and concern,” she says. “It’s just heartbreaking to watch that kind of violence being done to a person.”
Fairley, a former federal prosecutor, knew police work could be tough. She also knew that video could be misleading. But what this video showed was genuinely shocking. Police cars converge on a young man walking erratically down the middle of a street in an industrial neighborhood at night. Two officers jump out of a marked SUV. Seconds later, Officer Jason Van Dyke, who is white, empties his 16-bullet clip into McDonald, who is African-American. Van Dyke’s partner then walks over and kicks a 3-inch knife from the hand of the motionless teen.
Officers at the scene said that McDonald had turned threateningly toward Van Dyke with the knife. The video told a different story. The shooting occurred in October 2014, but Mayor Rahm Emanuel’s office took no public actions against the police department. Nor did the city release the video. Seven months later, a local journalist filed a Freedom of Information Act request for the video. Hours before its release, prosecutors arrested Van Dyke and charged him with first-degree murder.
That didn’t prevent protests, which persisted downtown for days. Marchers demanded that Emanuel resign. Instead, he fired Police Superintendent Garry McCarthy and, with U.S. Attorney General Loretta Lynch announcing a civil rights investigation into the department, assembled a police accountability task force to recommend reforms. Last April, the task force delivered more than a hundred recommendations. Among them was a call for the creation of a new civilian oversight agency, the Civilian Office of Police Accountability (COPA).
Emanuel asked Fairley, the city’s deputy inspector general, to head it. She accepted. In doing so, she became one of the leading participants in a movement reshaping law enforcement in cities across the country: the steady growth of civilian oversight of policing. It’s a development that has been welcomed by people concerned about the frequency with which police in the United States use lethal violence and the high levels of mistrust between minority communities and law enforcement. But there’s a problem with this solution. Past experience suggests it doesn’t work. In fact, it may make matters worse.
Civilian oversight boards aren’t new. In 1948, Washington, D.C., was the first to set up such a board. In the next two decades, enthusiasm for civilian oversight waxed and waned, but since the 1970s the number of civilian review boards has grown steadily. Today, roughly half of the country’s 50 largest cities have oversight boards with independent investigative authority, according to Udi Ofer, deputy national political director for the American Civil Liberties Union. But activists across the country want more independent and more powerful boards. Last year, Newark, N.J., created one of the most robust civilian review boards in the country. It has the power to subpoena records and witnesses, audit police practices and discipline rule violators. Seven of its 11 members will be appointed by community and civil rights organizations, with the remainder named by the mayor and the city council. Voters in Denver, Honolulu, Miami, New Orleans and in the California cities of Oakland, Sacramento and San Francisco also have voted to strengthen civilian oversight.
Some police chiefs are troubled by different aspects of civilian review boards. In particular, they are concerned about demands that they relinquish disciplinary powers to the boards. “The chiefs believe -- and I agree -- that disciplinary decisions need to be the responsibility of the police chief, not an oversight body of some type,” says Darrel Stephens, the former Charlotte, N.C., police chief and recently retired executive director of the Major City Chiefs Association.
There’s another problem as well. Civilian oversight of policing, as it is most commonly implemented, simply hasn’t met expectations. Consider the case of Chicago. Before COPA, there was the Independent Police Review Authority. Before IPRA, there was the Office of Professional Standards. Before OPS, there was the Chicago Police Board. All of these oversight entities were created in response to scandals. Far from improving accountability, some observers of policing in Chicago believe civilian oversight may actually have impeded it. Fairley acknowledges the problem. “Because you had this separate entity responsible for evaluating and dealing with complaint reports, it’s almost like it let the department off the hook,” she says. “They felt like, ‘Oh, we don’t have to worry about that because it’s IPRA’s job.’ They didn’t have the sense of needing to hold themselves accountable. They felt like they had this external entity doing it for them.”
Mayor Emanuel tapped Sharon Fairley to head up Chicago's new civilian oversight agency. (AP)
Yet today, Chicago is doubling down on civilian oversight. COPA will be bigger and more independent than the agency that came before it, with more investigators -- 90 instead of 70 -- and a larger budget. The way COPA is set up reflects the belief of Fairley and others that civilian review boards fail for two reasons: lack of independence and lack of resources.
That’s an analysis that worries Harvard University professor Mark Moore. Despite his anchor in academia, Moore is an influential person in the world of policing. In the early 1980s, Moore and Harvard’s Kennedy School of Government convened a group of reform-minded police chiefs who were seeking to reduce crime and disorder by building trust and relationships with community members. This working group played an important role in creating what came to be known as community policing. Since the early 1990s, the federal government has devoted more than $14 billion to the idea.
Before community policing, Moore worked on a different problem: police corruption. That work informs how Moore believes cities should approach the problem of police misconduct and excessive use of force today. Instead of taking authority and responsibility away from police departments, Moore wants police chiefs and their command staffs to view reducing misconduct and the excessive use of violence as integral parts of their jobs. He has in mind a specific playbook for how to do this. It comes from 1970s New York City, when an independent commission and a police chief worked together to eradicate police involvement in illegal bookmaking and payoffs.
In April 1970, The New York Times published a bombshell story about corruption inside the New York Police Department. Plainclothes officers in vice hot spots such as East Harlem were “on the pad” -- that is, taking payoffs from organized crime figures to ignore illegal gambling. Higher-ups in the NYPD and city hall had ignored reports of such corruption for years.
Faced with a public outcry, Mayor John Lindsay formed a committee, which included the police commissioner and the Manhattan district attorney, to investigate. But as more reports of corruption surfaced, Lindsay came under pressure to appoint an independent commission. The result was the Knapp Commission, named after its chairman Whitman Knapp, a former assistant district attorney who had turned Wall Street lawyer.
With a small staff and budget, and only six months to work (a timeframe that was later extended), the Knapp Commission faced an immediate challenge: How could it change a large bureaucracy like the NYPD? Its response was to recruit informers and create a media spectacle. The commission hoped that this in turn would generate public pressure for reform. In many ways, this strategy worked. New Yorkers watched, rapt, as officers such as Frank Serpico came forward with stories of corruption he had witnessed. However, the most important effect of the clamor was to change the leadership of the police department itself.
A few months after the scandal broke, Lindsay appointed Pat Murphy to head the department. Murphy had started his career in the NYPD before leaving to head first the Syracuse, then Washington, D.C., and finally Detroit police departments. In the process, he had gained a reputation as a savvy, tough reformer. “If you were a big-city mayor with a slightly berserk police department on your hands,” Washington Post reporter James Lardner, himself a former police officer, would later write, “there was one preferred remedy. You hired Patrick V. Murphy.”
It fell to Murphy to address a culture of corruption and the code of silence known as “the blue wall.” Murphy’s predecessors addressed corruption by creating a centralized unit of investigators, the Internal Affairs division. Although its exact name and organization chart sometimes changed from one commissioner to the next, the approach was basically the same: Internal Affairs was a special division of cops, separate from the others, whose mission was to root out misconduct and corruption. The response to scandals was largely the same too. When new revelations of misconduct or police criminality broke, the department’s leadership would appoint a new Internal Affairs commander, someone who was purportedly more ruthless and implacable than the person who had preceded him. Every 20 years or so, the process would repeat itself.
Murphy believed that approach was misguided. Instead of consolidating authority and responsibility in Internal Affairs, he chose to disperse it. Commanders would henceforth be responsible for corruption in their areas of command. Captains were given “field internal affairs units” so that they could conduct investigations on their own. To demonstrate his seriousness, Murphy forced several high-ranking members of the command staff to resign. He then informed the borough chiefs that the commander judged to be the least effective in addressing corruption would be relieved of his command. Internal Affairs was not disbanded. On the contrary, its range of activities was expanded. Instead of merely investigating complaints, it began to run so-called integrity operations -- stings -- that tested police conduct.
Murphy’s hardball tactics got results. By the time he retired from the department three years later, 90 percent of the NYPD’s top 180 commanders had resigned and “the pad” was a thing of the past. But Murphy’s reforms did not eliminate corruption permanently. Twenty years later in 1994, another corruption scandal convulsed the department. This time it involved a small group of officers shaking down drug dealers. Another independent commission, the Mollen Commission, was formed to investigate. It tapped Harvard’s Moore as a consultant.
Moore started with a kind of paradox. On the one hand, police departments did not effectively police themselves. Yet taking responsibility for investigations away from the police seemed to backfire because it made them even less accountable. Moore believed that the path to more respectful, less violent law enforcement ran through the department itself. He wanted to find a way to pressure and reward commissioners and commanders who took that responsibility seriously. To promote that, he proposed an independent, outside agency that would audit police investigations and policies. “The job of the external agency would be to warrant to the broader public the quality of police investigations,” says Moore. It would also provide political cover to reform-minded chiefs willing to look for and address problems within their department. The Mollen Commission ultimately rejected these suggestions. Instead, it created the Civilian Complaint Review Board. However, the subsequent experiences of civilian complaint boards have largely borne out Moore’s concerns.
Attorney Lori Lightfoot, who chairs the Chicago Police Board -- which serves as a kind of court of last appeals for disciplinary proceedings for the police department -- co-chaired Chicago’s Police Accountability Task Force. As part of the process of assembling recommendations, Lightfoot spoke with a number of police experts who shared Moore’s concerns about civilian complaint review boards. “Frankly,” she says, “in some ways it robs a leader or superintendent or commissioner of both the obligation and the opportunity to set the culture of the department.”
Lightfoot is still a strong supporter of civilian oversight, but like other advocates she is thinking less in terms of incidents and more in terms of systems. One city reformers have taken a close look at is Denver. In 2004, it created the Office of the Independent Monitor to watch over the police and sheriff’s departments. Nicholas Mitchell, who got his start as an investigator with New York City’s Civilian Complaint Review Board, heads the 15-person office. “Our model is a little bit of everything,” he says.
The office’s main function is to collect complaints. People can file them in person, through the mail or online. Investigations themselves are conducted by the police or sheriff’s internal affairs bureaus. However, the Independent Monitor’s staff tracks cases moving through the disciplinary process, making recommendations as to how the investigation can be more thorough and fair. The knowledge they gain from these individual cases informs the office’s audits and policy recommendations.
Gaining the trust of both law enforcement agencies and sometimes skeptical community groups requires Mitchell and his employees to maintain a difficult balance. “One of the most important aspects of our model is the public reporting we do. That really helps us drive change in the policy and practices of the agencies we oversee.”
At the same time, Mitchell says that the idea of complete transparency is unrealistic. “You have to be strategic about when you publish and what you publish and how you present your findings,” he says. “Timing is everything. And publishing findings at the wrong time or in the wrong ways can prompt agencies to shut down rather than be willing to listen to new ideas.”
All oversight agencies live with this tension. “You can’t understand how a department operates and how its culture functions unless you get really up close and have a peek inside,” says Walter Katz, Chicago’s deputy chief of staff for public safety. “But by virtue of getting close and being able to have that deep insight, it starts fomenting the perception that you are too close.”
One way cities can escape this conundrum is to think in terms of “front-end” and “back-end” accountability systems, says New York University law professor Barry Friedman, the author of the new book Unwarranted: Policing Without Permission, that argues for more public participation in police policymaking. Front-end accountability comes from agreeing on rules and providing input on policies. This is common in most parts of government. In education and transportation, for instance, elected officials set policy but agencies solicit public comment in numerous ways.
Protests erupted in St. Louis after a former police officer was acquitted in the fatal shooting of Anthony Lamar Smith. (AP)
In contrast, Friedman says, police accountability is focused entirely on back-end systems -- on investigations and audits that occur after the fact. Giving members of the public, particularly people in high-crime neighborhoods, more opportunities to participate in front-end decision-making is, in Friedman’s opinion, an urgent necessity.
It’s a perspective Lightfoot shares. “One thing that has been driven home to me over the years is that the process is almost as important as the outcome,” she says. “If people don’t feel they are being heard, if they don’t feel they have a voice, then you could have the best solution in the world, but it’s not going to have any legitimacy.”
Chicago’s current approach seems to be to try everything. In addition to creating COPA to investigate complaints, the city has also created a new position, inspector general for public safety, with responsibility for performing the kinds of auditing functions that Moore and other police accountability experts encourage. The city is also in the process of forming another civilian oversight board, which is expected to oversee COPA and perhaps provide the police with guidance on policy and priorities.
Yet some residents are already worried. At a recent meeting in the far West Side Chicago neighborhood of Austin, residents expressed concerns. After Paul Peterson, a COPA public affairs officer, explained how the group’s investigators would investigate complaints and make recommendations for discipline to the police superintendent and the Police Review Board, residents seemed skeptical. One asked how the agency could be independent if its budget came from the city.
Peterson explained that COPA was part of the city government but independent from the police. He then went on to explain that residents could submit complaints without coming in and filling out an affidavit. They could submit video clips or even file complaints on Facebook. “My primary concern is retaliation,” said one resident. “The police, they carry guns.”
As for the new civilian safety oversight board, no one seems to know yet what exactly it will be or how it will work. Front-end accountability for police departments is new. “This is really difficult,” says Friedman. “I don’t think we know how to do it.”
In a sense, Chicago is the experiment.
As for Fairley, 11 days after COPA officially launched in September, she stepped down to run for state attorney general. Even so, she’s confident that COPA’s leadership will succeed and that the most important determinant of success will be the attitude of the Chicago Police Department. “Accountability,” she says, “has to be baked into the core values of the department itself.”