October 10, 2020

Unintended Consequences of Civilian Oversight of the Police

Dear PERF members, 

This morning, I’d like to talk about something that is getting lost in the discussions across the nation about police accountability.  It’s a different kind of accountability – the accountability of civilians tasked with overseeing the police. 

Many people and organizations say we need more oversight of police by citizens. But what they don’t realize is that in practice, civilian oversight usually results in less accountability, not more.

Civilian Review Boards:  If you grew up in the 1960s like me, you may recall hearing back then that the answer to police abuse was greater civilian oversight of the police, through creation of Civilian Review Boards that would be in charge of recommending discipline for officers who break the rules and abuse their power.

We are seeing a resurgence of this idea today.

However, the promise of Civilian Review Boards has not been kept. The leading police researcher in the country on this topic, Professor Sam Walker of the University of Nebraska at Omaha, recently told us that when Civilian Review Boards review complaints against police officers, they rule in favor of the complainant only about 10 to 15 percent of the time.  In the vast majority of cases, they rule in favor of the officer.

Arbitration:   It’s not just Civilian Review Boards.  The entire arbitration process in cities across the country, based on police labor union agreements or civil service laws, routinely overrules police chiefs who want to fire or otherwise discipline officers for misconduct.

Why does this happen?  It’s because arbitration is an adversarial process, and arbitrators often are chosen through a process in which the police department and the officer (or the officer’s labor union) are allowed to alternately veto names of arbitrators being considered to hear a case.

The result:  Arbitrators who want to continue serving as arbitrators (and not get “vetoed” by one side or the other in future cases) try to develop a reputation for “compromise” rulings that will give something to both sides. 

So in cases where the chief is trying to fire an officer, arbitrators often choose a lesser sanction, such as a suspension, as a “compromise.” But that is no solution to the problem.

Furthermore, arbitrators usually have the last word.  A massive study published in 2019 by Prof. Stephen Rushin of the Loyola University Chicago School of Law found that of 656 police union contracts studied, 73% give officers an opportunity to appeal to an arbitrator, 54% give the officers significant power to select the arbitrator, and 69% make the arbitrator’s decision final and binding on the police department.

And what are the real-world outcomes of this process?  Professor Rushin noted that the largest study of actual cases, conducted by the Washington Post in 2017,  found that at least 1,881 police officers had been fired in 37 of the nation’s largest police departments since 2006, and 451 of those officers won their jobs back. The highest rates of reinstatement were in San Antonio (70%), Denver (68%), Philadelphia (62%), and Honolulu (58%).

Here are just a few examples of police chiefs who tried to do the right thing and hold their officers accountable, only to be undercut by civil service or labor union arbitrators.

Tucson:  Look at what happened in Tucson the other day. Chief Chris Magnus had sought to fire an officer who fired several rounds into an immobile car at the end of a chase, even though the car’s windows were so darkly tinted the officer couldn’t see who he was shooting at.  “Several other officers at the scene told a police investigator they opted against firing their guns because they weren’t able to see inside the vehicle and did not identify a deadly threat,” the news media noted.

Magnus wanted the officer fired, but the Civil Service Commission (citizens appointed by the Mayor and City Council) refused, and the officer in question is back on the job.

Philadelphia:  Chuck Ramsey tells the story of a Philadelphia police inspector who had a long history of allegations of abusive and assaultive behavior against women. In 2008, then-Commissioner Ramsey demoted the inspector for having sex in a city police car. Ramsey said that demotion was the strongest sanction he could expect to be upheld, because the Police Department’s disciplinary code did not explicitly forbid police from having sex in their city cars. Nevertheless, the union filed a grievance, and even the demotion was reduced to a brief suspension. That was more than a decade ago. In 2019, the inspector was arrested on sexual assault charges and suspended.  He is awaiting trial.

Los Angeles:  If anyone has any doubt that civilians are often more lenient than police chiefs, look at what happened in Los Angeles in 2017.  The union, the Los Angeles Police Protective League, backed a Charter Amendment that gives officers charged with serious misconduct an option for appealing to an all-civilian review board, rather than the existing system of review by one civilian and two LAPD command staff members. Civil liberties groups opposed the change, realizing that civilians tend to be more lenient with officers. But the voters approved the measure.

The result is that you end up with problem employees’ behavior getting worse each time they “beat the system.” When you have a handful of officers flying under the radar and continuing to abuse their authority, you’re not protecting the community, and you’re not doing the offending officers a favor by allowing their bad behavior to continue and get worse.

And some police departments must do a better job internally when investigating complaints. There are still some departments where an officer gets accused of the same kind of complaint over and over again, and it rarely gets sustained. When I worked in the Boston Police Department many years ago, I saw this happen. And that can result in an arbitrator saying, “This is only a first offense,” even when the so-called first offense is egregious.

A related problem occurs when officers facing serious discipline are allowed to resign instead of being fired – only to be hired by another agency.  PERF discussed this issue – called the “muni shuffle” in St. Louis – in 2015 when we were asked to develop recommendations for reforms following the death of Michael Brown in Ferguson, Missouri.

So what should be done about all this?   Here are a few ideas for breaking this logjam:

Step 1.  If your city is considering a Civilian Review Board, advise your community that this model is ineffective and outdated, and that there are better models to consider.  Professor Sam Walker’s discussion with PERF is a good place to start. 

Step 2.  If your city has an arbitration process under union contracts or civil service laws, make the public aware when arbitrators overturn what you recommended.  Chiefs in this situation should tell their state lawmakers, mayors, city councils, and communities, “You took discipline away from me and gave it to the arbitrators. If you aren’t happy about anything bad that is done by an officer I tried to fire, you can talk to the arbitrators about it, not me.”

And when arbitrators undercut the disciplinary process, we should put them on front street.  In the recent Tucson shooting case I mentioned above, Chief Chris Magnus publicly said that the Civil Service Commission’s reversal of his termination of the involved officer is “thwarting his efforts to rid the department of problem cops,” as the local newspaper put it.

Step 3:  Educate the community about what’s happening.  Produce regular public reports with details and statistics about the decisions of arbitrators, compared with recommendations by the chief. And publicize those reports with your local news media and social media accounts.

Step 4:  Consider different, more productive models.   Some jurisdictions are creating new models of auditors, inspector generals, or ombudsmen who look at organizational issues rather than individual cases.

For example, if you have a series of incidents in which officers get in trouble over pursuit driving, a good ombudsman will be aware of best practices on pursuit driving, and can help a chief create new policies and training to prevent these cases from occurring in the first place. So instead of dealing with the aftermath of accidents, lawsuits, and disciplinary cases, an ombudsman can help strengthen policies to keep officers out of trouble. That’s a win-win.

These models are collaborative, not adversarial.  They are designed to identify and solve problems.

Other tools can help prevent misconduct.  Body-worn cameras and Early Intervention Systems can help in identifying officers who may be exhibiting problematic behavior. Supervisors should make a point of looking at video footage of officers who may be stepping over a line, and if necessary, taking them off the street. A relatively small number of officers are responsible for a disproportionate number of incidents.

Ultimately, what we want to do is strengthen the authority of police chiefs to discipline officers when appropriate.  With this power come responsibility and accountability.  

Unfortunately, what we have now in many cities is a mess of unintended consequences – systems that appear to be oversight, but which in fact produce bad decisions by people who are not accountable, and who undermine the chief.  

As always, I welcome your comments.

Have a good weekend.

Best,

Chuck