Brattleboro Civilian Police Review Board Proposal

Steering Committee for the Brattleboro Civilian Police Review Board

Submitted:  April 2004 to the Brattleboro Selectboard

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 the 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 the public.
  10. Disciplinary Role. Board findings should be considered in determining appropriate disciplinary action

PROPOSAL FOR BRATTLEBORO CIVILIAN POLICE REVIEW BOARD

TABLE OF CONTENTS:

I.             Brattleboro’s Current System of Police Review
II.            A Better System of Police Review
III.           The Benefits of Effective Civilian Review

a.     Better Government
b.     Improved Police Management
c.     Better Investigations
d.     Community Policing and Accountability
e.     Public Trust

IV.The Board
a   Composition
b.  Appointments
c.  Board Responsibilities
d.  Board Powers: Subpoena
e.  Board Powers: Training and Policy Issues
f.  Board Powers: Recommend Discipline

V.     Investigators

VI.    Filing a Complaint (Intake)

VII    Mediation
VIII   Assured Results
IX.     Financial Concerns
X       Appendix:

Summary

Supporting Documentation

                      Introduction: In numerous community dialogues and in the recent ballot proposal that was endorsed and passed by 1,566 voters:   Are you in favor of a “Brattleboro Civilian Police Board” under the guidance of the town government, with the goal to provide consistent feedback between police and community, provide an independent means to mediate disputes between community and police, and to foster community safety?   During the gathering of petition signature, informal key informant interviews took place that surveyed the communities’ attitudes towards policing and its efficacy in Brattleboro.  In over 600 interviews there was preponderance of concern with the level of training, safety, attentiveness, and community orientation of the Police Department as reflected in interviews with people from business owners, minorities, and people from many strata of life.  What was also noteworthy, in approaching community members, we found that less than 5% of those asked were unwilling to sign a petition.  What was striking was the unanimous response of African American and Hispanic voters on their concerns about policing in Brattleboro.   Minority’s perception of policing was mirrored in public dialogues sponsored by the Center for Living Democracy in the late l990s.  In those public meetings, African Americans and Latinos uniformly expressed concern and even fear in dealing with the Brattleboro Police Department.   In December 2001 Robert Woodward was shot and killed by Brattleboro Police officers.  This shooting of a highly agitated man created an atmosphere of mistrust between police and community.  Despite several community meetings and repeated calls for an Independent review of the police department, its policies, and the deadly force policy this has not occurred.   Currently, the internal review process by the Brattleboro Police Department consists of all complaints being personally handled by the Chief of Police.  There is no independent Internal Review Board which is a hallmark of modern policing. This lack of a true complaint process is mirrored in the statements by former Chief Martin that in the preceding year there were only “Two complaints against the BPD.” However, on closer question he disclosed there were more, but as Martin reports, “I settled the problem on the spot.” There is no consistent independent documentation for handling civilian complaints against the police.   Contrary to accepted policies in Police Departments around the US for a true complaint process to be processed it must be available without having to go to the Police Department and in order   In addition, in the Department of Justice’s The Brattleboro Challenge: Creating Excellence in Police/Community Relations Summary of Recommendations November 21, 2002 included the consideration of a Civilian Police Review Board process.  This recommendation was rejected as being inconsistent with the BPD’s philosophy. However, there is no philosophy statement that appears on record that supports this. WHAT IS CIVILIAN REVIEW? Civilian review systems create lot confusion 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 — 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, who then make a recommendation for action to the police chief. This process is the most independent and most “civilian.” 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. 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 a board 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. 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.A campaign to establish a civilian review agency, or to strengthen an already existing agency, is an excellent vehicle for community organizing. In Indianapolis, for example, a civilian review campaign brought about not only the establishment of a civilian review agency, but an effective coalition between the Indiana ACLU, the local branch of the National Association for the Advancement of Colored People (NAACP) and other community groups that could take future action on other issues.

Your community’s campaign should seek a strong, fully-independent and accessible civilian review system. But even with a weak system, you can press for changes to make it more independent and effective.   TEN PRINCIPLES FOR AN EFFECTIVE CIVILIAN REVIEW BOARD Independence. The power to conduct hearings, subpoena witnesses and report findings and recommendations to the public.Investigatory Power. The authority to independently investigate incidents and issue findings on complaints.Mandatory Police Cooperation. Complete access to police witnesses and documents through legal mandate or subpoena power.Adequate Funding. Should not be a lower budget priority than police internal affairs systems.Hearings. Essential for solving credibility questions and enhancing public confidence in process.Reflect Community Diversity. Board and staff should be broadly representative of the community it serves.Policy Recommendations. Civilian oversight can spot problem policies and provide a forum for developing reforms.Statistical Analysis. Public statistical reports can detail trends in allegations, and early warning systems can identify officers who are subjects of unusually numerous complaints.Separate Offices. Should be housed away from police headquarters to maintain independence and credibility with public.Disciplinary Role. Board findings should be considered in determining appropriate disciplinary action.
History of  CIVILIAN REVIEW BOARDS 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 1997, more than 75 percent of the nation’s largest cities (more than 80 cities across the country) had civilian review systems. 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 the police proclaim that they will never 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; The “post-partum resistance” stage, when the newly established civilian review board must fight police opposition to its budget, authority, access to information, etc. Strong community advocacy is necessary to overcome resistance, even after civilian review is established. I. Current System of Police Review  at the Brattleboro Police Department There is no Internal Review Board in place at the BPD.  As noted earlier, all complaints about the Department are directed to the Chief of Police.  There is no public system of documentation that allows for review of complaints.  Furthermore, there is no way to assess which officers are being disciplined or have a history of behavior problems which are inconsistent with their role as police officers.  
 

II. A Better System of Police Review

Other cities have civilian review systems that are independent of the police force. The most effective systems have the following features:

. If community policing has any hope of achieving its goals, it must begin on a foundation of public trust. Extensive research shows that one of the best ways to build and maintain public trust is to create an effective civilian review board. Even Douglas Perez, whose study is often cited by opponents of civilian review, admits that civilian review boards increase public confidence in the police.15 When civilians believe that their trust has been violated, as in the Woodward shooting,, a strong civilian review board can repair this breach in two ways. First, a mediation process allows the civilians and the police to communicate openly, so that each can understand the other’s position. Second, any complaints not taken care of by mediation will be fully and fairly investigated. While the civilians may or may not be pleased with the result of the investigation, they can have confidence that the process was impartial. IV. The Board a. Composition The board needs to represent the ethnic, cultural, and economic diversity of the community.   In particular, because of perceived problems of racial profiling in Police Departments around the US and in Brattleboro, and the historical lack of trust between minority communities and police department (i.e., Rodney King,  Abner Louima, Amadou Diallo, etc) it is imperative that a board be as inclusive as possible. When it comes to the police, having an ethnically and socio-economically diverse oversight committee is crucial.   This is particularly important  in that the BPD is 100% Caucasian and middle class.   People in more prosperous neighborhoods are likely to have different experiences with the police than those in poorer neighborhoods. In poorer neighborhoods, the police are a regular presence. Increased police presence is a double-edged sword; it serves as a deterrence to crime, but also lends a sense of mistrust and suspicion of neighborhood residents.   Moreover, a disproportionate number of complaints of police misconduct come from minority members of our community. In addition, cultural differences, including immigrants who do not speak English and do not understand the American justice system, lead to difficulties in relations between police and civilians.   Attitudes toward the police vary widely among people from different communities and different backgrounds. To have truly balanced and unbiased oversight of the police, the civilian Board must, therefore, represent the diversity of our community. Potential appointees to the Board will be considered according to this factor. The goal in composing the Board is not to seek those most expert on police affairs. Instead the Board will be seen as a jury, and its members will be appointed in order to give each case the most balanced, unbiased consideration. The Board will not, for reasons of public confidence, contain any current sworn police officers. No more than one former sworn officer may serve on the Board.  Though it may be advisable to have a non-voting member on board b. Appointments The Board will be appointed by the Selectboard Chairperson  of the Brattleboro Civilian Police Review Board Pat D’Angelo and the Steering Committee of the Brattleboro Civilian Police Review Board. And based on nominations by a specific list of community groups. 
  c. Board Responsibilities The Board will conduct public hearings on specific complaints as recommended by investigators. The Board will notify the complainants when their hearing is scheduled. Hearings will result in sustaining some or all of a complainant’s claims or finding them to be unsubstantiated. The Board will make recommendations for improved policies and training routinely when deciding the outcome of cases and as a result of regular public hearings held to discuss policies and training. The Board will create quarterly reports, indicating the number of complaints, hearings and investigations. The reports will also include statistical information about the nature of complaints as well as the outcomes of Board recommendations. The Board will also oversee the hiring and actions of investigators, as well as the processes of intake and mediation. d. Board Powers: Subpoena The Review Board will have the power, by majority vote, to compel testimony and presentation of evidence. For a police officer, giving such testimony will be part of his or her regular duties. The officer’s superior will order him or her to appear before the review board. “Without [subpoena power], the Board will not have the necessary underpinnings to establish credibility and have meaningful input.”18 In other words, the investigation is not complete without all the evidence, and without full cooperation of the police, justice cannot be served. The ability to have the officers voluntarily submit to the Review Board has frequently been the difference between a board that is truly independent and successful in serving the needs of the community. e. Board Powers: Training and Policy Issues The Board will hold regular public hearings regarding police policies and training. Such forums allow public input on important policy issues and clearly fit the mold of Community Policing. Public involvement in policy matters can help cut down on the number of complaints by improving poor or misunderstood policies. The Board will review Police Bureau General Orders and use patterns of misconduct to determine necessary changes. The Board’s function, however, will be purely advisory, its power being in publishing its recommendations. 

The Board will have the power to recommend discipline based on its findings. These recommendations will be purely advisory in nature, but will be made public. The Chief of Police will ultimately decide what discipline, if any, is appropriate. That decision will then be presented to the Board. )

f. Board Powers: Recommend Discipline

The Board will have the power to recommend discipline based on its findings. These recommendations will be advisory in nature, but will be made public. The Chief of Police will ultimately decide what discipline, if any, is appropriate. That decision will then be presented to the Board.

V. Investigators

In order to ensure the fair and complete investigation of police misconduct claims, an independent‹non-police affiliated‹investigator will be employed by the Town of Brattleboro to assist in those cases that investigation.

While some members of the BPD believe that non-police investigators would not be capable of performing adequate investigations, evidence from around the country strongly indicates otherwise. In San Francisco, New Orleans, and elsewhere, city-employed investigators are able to conduct inquiries into the claims of civilians. It is true, however, that their success depends on at least three things: adequate resources, the power to subpoena testimony and physical evidence, and full police department and officer cooperation.

It is critical that investigators be directly responsible for processing and keeping track of all formally filed complaints. Upon receipt of the complaint, the investigator will verify the basic facts. It is possible that complainants will file false reports, but it is imperative that every complaint be given this preliminary investigation. If the complaint proves unfounded, or if no violation of police procedure is alleged, the investigator will notify the complainant and the board that the case will not be pursued. If the complaint is well-founded, but is of a minor nature, the investigator will propose mediation. If the allegations are more serious, or the mediation fails or is refused, the investigator will begin a full investigation.

The Board will have the power to adopt the recommendations, to request further investigation, or to accept the investigation as complete but amend the recommendations. Complainants who believe that the investigation was not done satisfactorily will have the opportunity to testify before the Board to that effect.

The Board will regularly review the actions of its investigators and may take remedial action if a pattern of mishandling cases occurs. The Board may also replace an investigator who does not perform his or her duties well.

Those records which the investigator presents to the Board at the hearing will become part of the public record. In those cases which involve pending criminal conduct charges, the records will become public once the criminal case has been resolved.
VI. Filing a Complaint (Intake)

As part of the effort to make the complaint process more open and less ominous to those who have a grievance with the police, we propose that complaints be filed at non-police locations around the city.

Specifically, a protocol for lodging formal complaints against the police will be developed so that complaints can be filed at locations around Brattleboro.  i.e. Brattleboro Housing, ALANA, Center for Restorative Justice,  Library,   and even public locations like Gouger’s Market,  Price Chopper, Mikes Bar, and accessible to the public.  And the complaints can be mailed in or dropped off for Review Board processing.

Under the current system, a person who believes he or she is the victim of police misconduct can file a complaint only at the Brattleboro Police Department. This is not conducive or comforting to someone who believes they have suffered abuse at the hands of the police.

VII. Mediation

The Santa Clara County Bar Association makes an excellent argument for mediation in its report on civilian review:

 A non-adversarial, voluntary, informal resolution process should be established for complaints of a minor nature. Some complaints arise from simple misunderstandings or minor acts of rudeness or discourtesy. No one should have an interest in resolving these sorts of issues with an overly formal and time-consuming complaint investigation or hearing. The officer may be quite willing to apologize or sit down with a complainant and explain things from his or her perspective. A complainant is probably more interested in being treated with respect by the officer and having his or her concerns acknowledged than in having the officer disciplined. Unless there is a pattern of similar conduct by the officer, neither the police department nor the Civilian Review Board should have any independent interest in a formal investigation of these kinds of complaints. This informal resolution process could range from sitting down with a mediator to a private meeting to a written apology. It should be completely voluntary on the part of both the officer and the complainant.21 

Of course, the implications of entering into mediation and the exact mechanics of the process will be fully explained before a complainant chooses that route.

VIII. Assured Results

Complainants will be assured results in four months (120 days), save for special conditions such as criminal conduct investigations pending. The Board will be responsible for contacting the complainant, the Chief of Police, and City Council, and for publicizing its findings. If no result is forthcoming, the Board will advise the complainant and the officer involved, in writing, as to the reason for the delay and the timetable for completion.

The Chief of Police will respond to the Board’s recommendations within 30 days. The response, which will be made public, will state the actions taken by the Chief, if any.

IX. Financial Concerns

The costs associated with implementing and sustaining such a system is reasonable. The funds required will be made available by the use of already existing resources, reduction of financial settlements in police misconduct cases, and a greatly reduced IID budget.

The Board will be less expensive than comparable civilian review systems elsewhere. For example, San Francisco, a city of 725,000 people, handles 1400 complaints per year with an annual budget of $1.3 million.22 We estimate that Portland, with a population of 435,000, will handle 400 complaints yearly for about $320,000.

One Investigator will, in addition to handling complaints, perform administrative duties.

Use of mediation is one source of savings. Portland is unusual in that it already has a functioning office of mediation. Emmanuel Paris of Portland’s Neighborhood Mediation Project agrees that his office could help with the extra load required by this system, with the addition of one mediator. At least forty percent of complaints will be handled by a mediator instead of an investi-gator, significantly reducing investigative costs.

Further, some of the Board’s costs will be offset by savings in other areas. And while the savings are less predictable, we can look forward to a reduction in the Risk Management settlements paid to civilians who sue the police. Overall, the cost to city taxpayers will pale beside the benefits to the community.

Appendix:  1  SUMMARY

What is the proposed Civilian Oversight Board?

The Brattleboro Civilian Police Review Board’s mission is to serve the needs of the community and to build positive relations between the police department and the citizen’s it serves.  It will serve as a way to support and encourage modern open policing practices that reflects the needs for public safety and ensures confidence in the Police Department.

The civilian oversight board is an independent body empowered to receive and investigate citizen complaints against police officers. It will make findings and recommend disciplinary action to the Brattleboro Selectboard and the Chief of Police. It will also recommend policy changes based on patterns of complaints. Finally, the Board will issue reports to the community documenting the Department’s responsiveness to its recommendations, as well as giving statistical breakdowns as to types of complaints, findings, location by district, and the number of officers with multiple complaint records.

Why is a Civilian Oversight Board needed?

The current method of Civilian Complaint is not consistent with national standards or guidelines for ensuring impartial analysis or evaluation of complaints against the police department.  Currently, the Police Chief receives all complaints and adjudicates them without an impartial investigation. This often discourages complaints, is slow to respond, and is reluctant to provide information. Many communities lack confidence that police can police themselves. The latter twentieth century has seen a movement to create citizen boards to review complaints and make policy recommendations based on patterns of complaints. In this way, the process can be made more accessible and responsive to citizens, and long-range institutional improvements can be made through policy reform.

Are such boards effective?

Studies have looked at which models have been effective. Successful civilian oversight requires independence so that a truly new perspective is empowered. There must be adequate funding so that the system functions. The Board must have the ability to independently investigate complaints and compel testimony and documentation. Finally, the Board must have the mandate to make policy recommendations so that it is involved in structural reform, not just the discipline of individual officers. The most effective boards are ones that have these policies in place.

Isn’t the Police Chief,  Town Manager and Selectboard already serving this function?

No. The former Chairperson of the Brattleboro Selectboard Greg Worden stated, “It is not our job to supervise the police.” Supervision of the Police Chief rests with the Town Manager; however, it appears that the majority of complaints about policing in Brattleboro are solely dealt with by the Chief of Police without any independent or impartial review of complaints. The creation of a Civilian Oversight Board will provide greater focus to citizen input and give guidance to the Commissioners on policy matters.

How will the members be selected?

There will be seven members that represent the community at large that will best represent the economic and ethnic diversity of the community.  The members will not be selected by the Town Manager nor the Chief of Police, as in previous community forums representatives had been hand selected by them, and there was an appearance of bias in this process.

Will the Board have subpoena powers?

The Board can have subpoena power. No investigation can be complete without the ability to hear testimony and see documentation from all parties. Because our system of justice requires that no one be forced to testify against him or herself in criminal proceedings, involuntary testimony would not be passed on to local prosecutors or in any way used in possible criminal prosecution.  However, the hope of the board will be that most of the complaints can be handled through an impartial mediation.

Will hearings be public?

Personnel matters are exempt from Sunshine Law provisions and must be confidential. This will help insure the rights of subject officers, create a calmer climate for fact finding, and expedite the process so that cases are resolved in a timely manner. Public statistical reports are a crucial power of the Board, but cannot refer to specific officers involved.

Will the Board Serve as an Internal Affairs Department?

We project that citizens will opt to have their complaints examined by the Civilian Oversight Board and its civilian investigators.  The BCP Board also recommends a mediation option, which may reduce the need for extensive investigations by either body.

How would the Board be funded?

Monies can be found from the General Operating Budget of the City. These expenditures will pay for themselves in several ways. We would also expect great savings in the area of civil litigation against the police as greater accountability will result in less misconduct. Furthermore, cities that show due diligence in creating police accountability are less likely to be found negligent when faced with a civil suit.

It is anticipated that the board will be voluntary and meet on a quarterly basis to review complaints and commendations of the police.

To Whom will the Board be accountable?

The Board will be created as a separate office within city government. It will be accountable to the Selectboard, who hold the power of the purse over it. Ultimately, the Board will be accountable to the Citizens of Brattleboro.