An Article by Mark Gissiner
In light of the recent deadly force incidents involving police officers in New York, Cleveland and Ferguson, Missouri, these tragedies present an opportunity to remind the Eugene community of the work of the Independent Police Auditor’s office.
Eugene has an oversight systems based on the parliamentary model of oversight in which the independent police auditor – is employed by the legislature, the City Council. In many cities, oversight is under the executive (City Manager) who also supervises the police chief. Under City Council, a greater separation of powers occurs, which is healthy for the oversight process. To enhance the system, Council appoints a civilian review board (CRB) which gives a community perspective on the police complaints process and evaluates the work of the Auditor’s office. This combination of structure creates a sound structure for police accountability when implemented effectively, fairly and without bias.
A fair, effective and transparent police complaints system which ensures that investigation of every complaint is conducted justly, promptly thoroughly and without prejudice are the foundation for an effective oversight system.
The biggest hurdle we face is getting information to the public. Oregon places public records restrictions on the release of public employee personnel records and there are also a few limitations as the result of collective bargaining agreements. While we try to provide as much information as possible, naming names and identifying very specific incidents remains a formidable challenge.
Because of past actions by some officers, the police service has a challenge to build trust in the entire community. They must always be polite, courteous, respectful and at the same time protect the safety and security of the community and themselves while solving crimes. They must strive for community wide respect – with an understanding that not all will like them. They must continually press their peers to be the best officers possible.
The auditor and the CRB answer the question: “Was the internal police investigation of this incident thorough, fair and accurate?” We intake all complaints against police employees. We independently, impartially and thoroughly monitor the investigation process: identify ways to improve the complaint process; provide recommendations to the police chief and police commission on policies, training and trends; and provide staffing and counsel to the civilian review board on cases and policy issues.
Effective oversight needs to go beyond condemning acts of individual officers by identifying causes of the conduct and focus on ways to prevent acts from recurring. Sometimes, officers are held responsible for problems that should be the responsibility of police managers, trainers and supervisors. I must look beyond individual conduct and examine systemic and institutional dynamics that reinforces or justifies questionable conduct.
I serve multiple constituents including the community, Mayor, City Council, individual complainants, involved officers, families, union, the department as an institution, and attorneys. Each has significant and differing interests in the adjudications of the complaints and what action is taken.
Overseeing Investigations of complaints present challenges requiring specialized experience, knowledge, and skills. These challenges are not found in other types of investigations and often are more difficult than other administrative, criminal and civil investigations.
Allegations of police misconduct evoke emotions. Complainants feel a trust was violated and/or expectations were not met by the most visible face of government. They expect the auditor will provide them justice by getting criminal charges dismissed and/or provide a conduit to bring civil action against the City. Their interests include being heard, demanding punishment, questioning policies and at times, curiosity about daily behavior of officers. They may have suffered permanent injuries, loss of income or property and may face confinement. Complainants can feel victimized because police should treat people with dignity and respect, act professionally, protect us from predators and threats and quickly assess situations.
Police managers can use the decisions and recommendations of the auditor to administer corrective action, identify trends and patterns, revisit the training curriculum, and modify or change policies and procedures that could deter future misconduct.
Officers, as subject of the investigation, expect to be believed because they are sworn officers, their testimony is primary evidence in criminal cases and most are respected by the community at large. Officers under investigation have potentially life changing interest in outcomes. Subject officers may lose their income, reputation, credibility, and preferred assignments or promotions.
Officers make split second decisions based on their training and confidence that the training they receive will allow them to instinctively react to difficult situations. An oversight system may cause the officer to think more about the consequences of their actions rather than reacting based on training and experience.
However, investigations that are conducted thoroughly and professionally can be helpful to officers. Corrective action can include mentoring, additional training or discussions of best practices. Because of the high cost of training, corrective rather than punitive action can be beneficial to all involved.
But, make no mistake about it, willful and malicious acts of misconduct will be dealt with swiftly. No police service can gain the confidence of the community when officers deliberately and recklessly disregard the safety and well being people regardless of the alleged crime committed.
For community members, expectations include that oversight administer discipline and address long-standing resentments based on past incidents. They may have differing and unrealistic expectations of the powers of the oversight office, especially in newer agencies. Often there is the misunderstanding that the Auditor or CRB can fire or discipline officers. Only the hiring authority (City Manager) or designee (the Chief) has the authority to administer discipline. Some in the community expect that once the oversight agency is operating, there will be an end to “major” incidents involving firearms, Tasers, or force. In many jurisdictions, every time there is a new “major” incident, there is an outcry to change the structure because somehow it was expected that the oversight agency could prevent these incidents. Policing is an unpredictable and changing dynamic. It is unrealistic to expect that no more “major” incidents will occur because of the existence of oversight. What communities should expect is when these incidents happen; thorough, complete, timely and fair investigations will occur and discussed with the community.
We monitor, evaluate and make recommendations on investigations that differ structurally from criminal and civil cases. Our role is inquisitorial, not adversarial, requiring a broader perspective than just condemnation or validation of the actions of officers; neither being an advocate for the complainant or officer. We review facts and the thoroughness of the investigation with an unimpeachable standard of fairness, independence, and objectivity based on many years of experience.
Criminal and civil investigations take place within an adversarial system where justice emerges after two opposing sides convene and present facts supporting their side. The system assumes that a weakness in either side’s case is highlighted by the other side. This method in a civil or criminal investigation can limit the scope because the adversarial sides are not required to provide facts harmful to their own interests.
In contrast, complaint investigations should be inquisitive. Investigators must gather all facts in the case in an unbiased and objective matter; working all angles and scrutinizing each piece of evidence on its own merit, without deference to one version over another.
Complaints and investigations against police officers are different because police can, under justifiable circumstances, take life, seize and property, use force and restrict freedoms. The OPA is required to be impartial and neutral reviewers of facts, policies and training. We cannot take up the complainant’s perspective and indignation like an advocate in a civil or criminal proceeding. We assure the complainant that the investigations are conducted thoroughly and fairly while not offering judgments about the complaint until all of the facts are gathered. Mediation is one way to resolve the issue, but the caveats of this process are obstacles.
Some complainants expect that the auditor’s work will help them get a ticket or criminal charges dismissed, property returned, or provide evidence necessary to win a civil lawsuit. The expectation that the auditor is an adversary of the police provides false hope to those who feel they were wronged.
Findings of within policy or insufficient evidence can be contrary to what the complainant perceived to be improper conduct. Some accept these findings, some do not and question the fairness, competence and impartiality of the review process. As auditor, I must keep the lines of communication open and accept the criticism from an unpopular decision.
Complainants are not the only ones who may not appreciate our work. Police are paramilitary organizations that emphasize chain of command and loyalty. Officers may be suspicious because we are not law enforcement and therefore unable to understand the rigors and risks of police service. This can be overcome by demonstrating impartiality and not coming to conclusions until the investigation is completed.
Internal affairs investigators, who are monitored by the Auditor, face different dilemmas. They investigate colleagues yet must maintain independence. Underlying suspicion exists that investigators have abandoned their loyalty on one hand, and the perception by citizens that the internal investigator cannot possibly be impartial because of the working relationships.
As Auditor, I am also authorized to make policy and adjudication recommendations to the Chief and the CRB. This can be the most difficult part of the process.
Decision making is not easy. We cannot come to conclusions hastily, but also not fear making unpopular decisions. We know that findings against officers may not be well received and create resentment; that the community may not understand or appreciate the basis for decisions, particularly when the community does not have access to the entire investigative file or react based on nuggets of information rather than all of the facts.
The findings and recommendations of the oversight agency can leave one or both parties unsatisfied. Because we are impartial and independent, rarely is there a defined community that unconditionally supports and promotes oversight agencies. There is little recognition for the quality work that occurs outside of the media. Harsh criticism stated in public can impact the reputation of the agency, and generate calls for change. Mayor Piercy accurately pointed out that the Auditor’s Office is like an island, isolated with recognition that rarely if ever will all parties be satisfied with outcomes. What does occur and is rarely reported are shifts in training, discussions that cause behavioral change and defining clear expectations of officers.
More controversial events will occur. We take seriously our responsibility to oversee investigations of events. The oversight process in Eugene is well structured, fair, objective and unbiased; as it should be. We are vigilant in our role to bring the community closer together on issues of police services.
Prior to the most recent national headline grabbing incidents, EPD and the Auditor’s office re-engineered the use of force process. The new process is called Blue Team. In this process, supervisors must immediately respond to the scene and report in the data base all uses of force in which someone is considered to be actively resisting. Previously, the officers self-reported. There are significant sanctions for failure to report. Once entered in Blue Team, the uses of force are reviewed by the Auditor’s office and EPD’s chain of command on a daily basis. Additional information may be required (such as any audio or video of the incident – which are preserved for a long time after an event) to determine whether the officer acted within policy. A review typically occurs well before a person might file a complaint. A review of a 9 month period showed that EPD used deadly force only twice in more than 9,000 arrests. One was the well-publicized officer involved shooting in the parking lot at Churchill High School and the other was when an officer used an asp (similar to a “night stick” – only smaller) during an arrest of a violent man who was resisting and fighting the officer. Both incidents were considered “serious incidents” and thoroughly investigated. We independently participated in the these processes.
On a per capita basis, Eugene compares very favorably with the vast majority of police agencies when comparing arrest rates in concert with uses of force, and as stated early, deadly force uses are very rare. In fact, in the 9 month study, the most effective deterrent to resisting arrest was a warning that a Taser would be deployed. Of the 130 cases studied, one level of force only was used to cease resistance in 68 or 52% of the cases. Of those 68, 30, or 44% was a Taser warning only. Thus, no physical contact, and no injuries to either officers or a person being arrested.
We found no pattern of individual officers or systemic relationships with force against minorities. The vast majority of force incidents involved white males, at a rate slightly higher than the U.S. census identified population for this demographic group.
In closing, we remain vigilant in our studies of uses of force by Eugene police officers. This was happening before the recently publicized incidents and will continue into the future.