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Legal opinion hits authority of civilian-led D.C. police complaints board

AG: Chief not required to discipline officers board finds guilty of misconduct

- The Washington Times - Monday, February 10, 2014

The District's top attorney says the city's police chief is not required to discipline officers found guilty of misconduct by the Office of Police Complaints — a major blow to the civilian board charged with investigating public accusations of wrongdoing.

The opinion, issued in a letter from D.C. Attorney General Irvin B. Nathan to the Metropolitan Police Department's general counsel, frees Police Chief Cathy L. Lanier to essentially dismiss misconduct charges substantiated by the office — a practice that has evoked ire from the complaints board in a small number of cases in which the chief has dismissed charges in the past.

Officials with the office, an independent agency from the police department, said they are further concerned that their authority is being undermined and that the opinion runs contrary to the laws that enabled the board.

"We are puzzled and concerned by the letter," said Philip K. Eure, director of the Office of Police Complaints. Obtained by The Washington Times, the letter was issued Jan. 22 and marked "privileged and confidential."

Mr. Eure said agency officials are reviewing the letter to determine their options and that they plan to closely watch how Chief Lanier handles future decisions.

"We're going to be monitoring that to see whether or not our decisions are being enforced," he said.

The dispute is nothing new. Nationwide, civilian review boards and police departments have frequently clashed over questions of the necessity and effectiveness of citizen-led oversight panels.

The New York Police Department's Civilian Complaint Review Board was described as a "fundamentally flawed system" that often fails to effectively investigate complaints, according to a 2007 report by the New York Civil Liberties Union that reviewed more than decade of the board's practices.

Civilian boards also often face stiff resistance from the departments they are tasked with reviewing. Published reports concluded in 2011 that Atlanta's police chief rejected the findings of that city's Citizen Review Board in every case in which an officer was found guilty of misconduct. That office was created in 2007 after the fatal shooting of a 92-year-old woman during a botched drug raid.

Civilian oversight agencies are common in large cities. A 2009 report in the Columbia Journal of Law and Social Problems identified 100 active civilian oversight bodies in the United States and said they were frequently created in the wake of high-profile scandals or investigations. The report said that, when crises pass, the agencies often were left with inadequate resources and authority.

The District's Office of Police Complaints, which opened in 2001 after a similar panel was dissolved six years earlier, said in its latest annual review that its biggest hurdle to resolving cases more rapidly was a lack of investigators given the volume of citizen complaints.

With an approximately $2 million budget and 23 full-time employees, the office annually receives more than 550 misconduct complaints, ranging from insulting language to excessive force.

Cases can be resolved in a number of ways, including through mediation, referral to the Metropolitan Police Department, dismissal or adjudication.

But in three recent cases in which the board investigated and determined that an officer had committed misconduct, Chief Lanier declined to discipline the officer involved.

Though such action is rare, it troubled the office so much that it was highlighted in the most recent annual report.

"By failing to discipline officers in these cases, MPD has not acted consistent with the requirements of District law," the fiscal 2012 report states. "Because public confidence in the city's police accountability mechanism requires that discipline be imposed when officers are found to have engaged in misconduct, we consider these to be serious matters warranting further scrutiny."

The police department says it's rare for the chief to deviate from imposing discipline but defended the practice in the three instances in question by the complaints board.

"The overarching issue in each case was that we did not feel that the OPC investigation had established sufficient cause to impose discipline — in one case, OPC reached a legal conclusion that was different than two separate prosecutors and two separate judges who had themselves reviewed aspects of the case," D.C. police spokeswoman Gwendolyn Crump wrote in response to questions about the opinion.

As Chief Lanier has always held that she maintains the ultimate personnel authority to impose discipline, Ms. Crump said, there is not expected to be any increase in the number of cases with which the chief disagrees.

"All of the disciplinary rights and procedures that exist under our labor agreement with the union, including all appeals and external review, will continue to apply to OPC cases," Ms. Crump wrote.

The attorney general's opinion gives the chief "authority to exercise a great degree of discretion as to whether or what discipline should be imposed," but it concludes that any factual determinations made on a case by the civilian office are not subject to the chief's review.

"Consequently, any decision not to impose discipline after a finding of misconduct by OPC must be based upon some factor other than a disagreement with an OPC factual determination," the letter states.

Although the Office of Police Complaints is concerned by the opinion, the American Civil Liberties Union of the Nation's Capital sees it as a victory for the complaints board because it makes the chief take the board's finding of fact seriously.

"Once she accepts the fact there was misconduct, there seems to be a real burden on her that she would have to explain why discipline wasn't necessary," ACLU legal director Arthur Spitzer said.

The attorney general's opinion also concluded that the police chief can discipline police officers who assert Fifth Amendment privilege and decline to cooperate with the office's investigations. Such discipline could range from written reprimands or a few days' suspension to recommendation for termination in the case of intentional, repeated, bad-faith refusals to cooperate.

Officials said the police department imposed discipline in two cases last year in which the office said an officer failed to cooperate with an investigation.

The police department's union, which typically represents officers who are under investigation by the Office of Police Complaints, was happy to see that the opinion affirms the police chief's discretion but raised concern about the department's inability to re-evaluate the facts of cases.

Union leader Kristopher Baumann said arbitrators have overruled decisions by the civilian office in cases in which the investigations turned out to be flawed.

"I think it is important to reconcile the idea that the imposing agency, MPD, would have no role or ability to evaluate what the office of police complaints has put forward," Mr. Baumann said. "There has to be the ability of someone else to say what makes sense."

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