Who Is Guarding the Guardians? 
Chapter 3
Internal Regulation of Police Departments
In 1973, the National Advisory Commission on Criminal Justice Standards and Goals Task Force on Police observed that “[n]o police agency could maintain internal order if employee misconduct were rampant, just as it could not maintain social order if public anarchy were rampant.”[1] However, in contemporary times, national law enforcement agencies still face the challenges of preventing, monitoring, and addressing police misconduct incidents.
Several methods that are used to maintain internal order in police departments include reducing incidents of unnecessary deadly force, identifying substantiated civilian complaints of police misconduct, monitoring routine encounters between the police department and the public, conducting internal investigations, and recommending discipline for officer misconduct. Accordingly, this section of the report provides an overview of how various police departments in the United States are addressing these primary issues.
POLICIES TO REDUCE INCIDENTS OF UNNECESSARY DEADLY FORCE
Statistics on the Use of Deadly Force
The number of police shooting incidents that resulted in the death of civilians differs throughout the nation.[2] The following is a small sample of statistics from various jurisdictions:
Connecticut
In December 1999, the Governor’s Law Enforcement Council issued a report on improving the public’s confidence in investigations of police shootings in the state of Connecticut. The report noted that “there were five fatal shootings by police in 1998; four each in 1995, 1996 and 1997; one in 1994; six each in 1992 and 1993; and two each in 1990 and 1991.”[3] Among other recommendations, the council advised that the state should implement a standard policy on the use of deadly force, educate the public on police training in the use of deadly force, and mandate that law enforcement agencies provide a greater response to legitimate public concerns on the use of deadly force.[4]
California
According to Los Angeles Police Department reports, since 1994, LAPD officers have shot 37 people who exhibited symptoms of mental illness—25 of them were killed.[5]
Illinois
In Chicago, while the number of police-related shootings declined between 1998 and 1999, the number of individuals killed by police gunfire was approximately the same.[6] There were 16 fatalities in 1999 and 15 in 1998.[7]
Washington, D.C.
In the 1990s, District of Columbia police officers shot and killed more individuals per resident than any other major U.S. city police force.[8] However, police shootings fell by almost 66 percent when compared with 1998 data. “[S]ince January 1999, D.C. police have shot 11 people—four fatally—compared with 32 shootings—12 fatal—in 1998. Although District police killed fewer people in shootings in 1999, the percentage of those shot by police who ultimately died remained about the same.”[9]
Legal Standards
The 1985 U.S. Supreme Court case of Tennessee v. Garner[10] remains as controlling legal authority on law enforcement agencies’ use of deadly force. In Garner, the Court was asked to decide the constitutionality of a Tennessee statute that stated, “If, after notice of the intention to arrest the defendant, he either flee[s] or forcibly resist[s], the officer may use all the necessary means to effect the arrest.”[11] The Court examined whether deadly force could be used to avert the escape of an unarmed alleged felon.[12] Specifically, the Court recognized that when police officers use deadly force to apprehend a suspect, a Fourth Amendment “seizure” has taken place. As a result, deadly force is only constitutional if it is “reasonable.”[13] The Court also “conclude[d] that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”[14]
Policies on the Use of Deadly Force
At the Commission’s June 2000 briefing on police practices, James Fyfe, professor of criminal justice at Temple University, discussed the development of a police standard of care, which is now comparable to a “reasonableness” standard. He maintained that at the time the Commission published Guardians in 1981, there were no policies on policing, and it has been difficult to encourage police administrators to develop these strategies.[15] One contributing factor to the development of a police standard of care was the U.S. Supreme Court case of Monell v. New York Department of Social Services.[16] The Court in Monell observed that civil rights violations committed by a public employee can impose liability on the employer, if it can be shown that the employee was poorly trained or poorly supervised and those deficiencies caused the violations.[17]
According to Dr. Fyfe, this case changed police departments’ perspectives: “[i]f you look at what goes on in the civil courts today you’ll see that there is a police standard of care.”[18] He observed that the International Association of Chiefs of Police (IACP), which resisted policymaking in 1980, has developed guidelines for governing police activity, and the Commission on Accreditation has created police department administration standards.[19] Dr. Fyfe noted that the IACP and the Commission on Accreditation standards are irrefutable in court and have become the standard of care.[20]
Law enforcement entities have created policies on the use of deadly force that incorporate the federal “reasonableness” standard and state mandates. Despite this incorporation, police departments have varying interpretations of what policies satisfy the “reasonableness” requirement.[21] For example, in Tennessee, the Metro Davidson County Police Department’s policy permits officers to use deadly force when they reasonably believe “the action is immediately necessary to prevent death or serious bodily injury of a human being, including the officer.”[22] Similarly, the Indianapolis Police Department guidelines were amended in August 1999 to indicate that police officers “must not fire under conditions that would subject others to possible injury or death, except to preserve life or prevent serious bodily injury.”[23] In the District of Columbia, officers can employ “only that force that is reasonably necessary to effectively bring an incident under control, while protecting the lives of the officer and others.”[24] Lastly, the Lakeland (Florida) Police Department requires its officers to use deadly force when faced with the “immediacy” of a threat of death or serious injury to an officer.[25] The state of Florida mandates a slightly less stringent standard of requiring a law enforcement officer to “reasonably believe [that any level of force is] . . . necessary to defend himself or herself or another from bodily harm while making the arrest.”[26]
Factors That Influence Use of Deadly Force Policies and Incidents
A number of variables, such as a police chief’s stance on internal misconduct policies, the preferred forms of restraint methods, and type of ammunition police officers use, can affect police departments’ perspectives and policies on deadly force. For example, a 1991 American Civil Liberties Union report, Police Brutality and its Remedies, examined how police officers perform their duties in the field. The study determined that their performance is “heavily influenced by the leadership of their department. . . . When incidents of brutality, misconduct or racism occur, the chief’s immediate reaction to these incidents will have a great impact on whether the incident will be repeated in the future.”[27] Further, “[t]he tone can be conveyed by the detection and punishment of misconduct, but more positively by reinforcing appropriate conduct.”[28]
This perspective was also emphasized in a survey by the Police Foundation that revealed the impressions of 925 randomly selected American law enforcement officers from 121 police departments on the abuse of police authority. According to the survey, approximately 85 percent of the respondents “agreed or strongly agreed that a police chief’s strong position against the abuse of authority can make a big difference in deterring officers from abusing their authority.”[29] Almost 67 percent of the respondents also indicated that first-line supervisors play an important role in preventing police officers from abusing their authority.[30]
The types of restraint methods that police officers use should also be considered in a department’s use of deadly force protocol. In 1981, the nation’s law enforcement authorities and local communities were confronted with examining the effectiveness of techniques used to restrain and subdue suspects. During that time, a controversy arose throughout the United States over the employment of the chokehold, which was a primary method of subduing individuals that sometimes resulted in their deaths.[31] As an example, the “modified carotid” was one of the upper body control techniques that were used by the Los Angeles Police Department in the early 1980s.[32] According to former LAPD Chief Daryl Gates,
[a]pplied correctly, from behind, a police officer places his bicep[s] and forearm on either side of the suspect’s neck, pressing the carotid arteries and cutting off the flow of blood to the brain for a split second. The individual goes limp. You handcuff him and cart him off to jail. We felt this control hold was far superior to banging someone over the head with a PR-42 baton.[33]
Local Los Angeles officials and community residents questioned the LAPD’s use of chokeholds between 1975 and 1982, when 16 people died after being subdued by these restraints.[34] In response, the LAPD’s leadership supported eliminating the department’s use of the “bar-arm chokehold,” while continuing to employ the “modified carotid” restraint.[35] Ultimately, the Los Angeles Police Commission suspended the department’s use of both chokeholds, but permitted the modified carotid to respond to a threat of serious injury or death.[36]
In addition to these restraint methods, the type of ammunition that law enforcement agencies issue to their officers has also become a source of public concern. Most police departments in the United States started out using standard-issue, or “full metal jacket,” bullets in weapons.[37] According to Rich Weaver, secretary and treasurer of the Detroit Police Officer’s Association, who researched types of ammunition for the Detroit Police Department, “[t]he full-metal jacket bullets often go clean through a person’s body with enough force to cause damage to other people.”[38] Additionally, Dr. Fyfe discussed the death of Amadou Diallo, an unarmed African immigrant, and reinforced the effect of full metal jacket ammunition:
The [NYPD] . . . equipped all the officers in the city with steel ball ammunition, full metal jacketed ammunition, which are designed for the military. These are bullets that don’t deform when they hit an individual and they go right through them. And those are not appropriate for policing because they run the risk of hitting bystanders. The shots that were fired at Mr. Diallo included 19 hits; 16 of them went right through him. Only three of them remained in him. Of the 16 that went right through, several bounced right back at the police officers. . . . The physical evidence in the case was absolutely consistent with their story that he stood through the whole episode. They were hitting him with bullets that did not knock him down and that were inappropriate for policing.[39]
Currently, large urban police departments in cities such as Chicago, San Francisco, New York, and Los Angeles prefer “hollow point bullets” to standard-issue ammunition.[40] Supporters of hollow point bullets indicate that they are safer for police officers to use, since they are less likely to pass through their targets and strike innocent bystanders.[41] These bullets are characterized by their soft inner core and their expansion on impact when entering a human body, which ultimately creates severe internal damage.[42] Specifically, according to an affidavit submitted in the Workman v. Bell murder case by a Fulton County (Georgia) deputy chief medical examiner who has examined approximately 40 corpses with hollow point bullet wounds,
in every one of the cases, the .45 silver tip hollow point bullet expanded upon entering the human body involved; that approximately 90 percent of the time, the hollow point bullet never emerged from the victim’s body at all; that [i]n the remaining instances [i.e., the remaining three or four cases], the exit wound created by the .45 silver tip hollow point was significantly larger than the entrance wound the bullet created.[43]
Critics of hollow point bullets for police officers indicate that because this ammunition causes tremendous internal damage to body organs, the Geneva Convention’s rules of war have prohibited their use.[44] However, supporters of hollow point bullets contend that they are more effective to use in “shoot-to-kill” circumstances, especially in those situations when suspects have access to similar weaponry.[45] Although the controversy regarding police use of hollow point bullets continues, it is important to note that officers in New York’s Transit and Housing Bureaus have used hollow point bullets since 1990, although the New York City Civilian Complaint Review Board later supported the use of this ammunition for the NYPD in July 1998.[46]
Finally, some law enforcement agencies have adopted another strategy to control excessive force among police officers. During the hiring phase of employment, this approach seeks to predict and screen out those police candidates inclined to exhibit excessive force.[47] Two researchers have examined characteristics of officers who frequently resort to excessive force.[48] They determined that factors associated with minimal force usage are the officer’s education, age, experience, and African American origin.[49] Other authorities concluded that certain perspectives, such as narrow, negative, and prejudicial attitudes, increase the likelihood of an officer using excessive force.[50]
Training
The nation’s police departments use in-service training to familiarize officers with departmental policies on the appropriate use of force. Training also serves to decrease unnecessary incidents of deadly force and to instruct officers on appropriate techniques of employing both nonlethal weapons and deadly force.
In the Chicago Police Department, the current training program includes using a firearm simulator to evaluate officers’ responses in life-and-death situations.[51] Similarly, the Toccoa (Georgia) Police Department uses a Professional Range Instruction Simulator (PRISM), an interactive video game to improve police officers’ judgment and shooting ability. Officers react to each scenario by issuing verbal commands to the visual images, moving behind a barrier, and shooting a modified Glock handgun that fires lasers.[52] In response, Butch Newkirk, the PRISM trainer can shoot harmless plastic balls at each officer, which represent gunshots.
[PRISM’s] computer is loaded with 107 scenarios that officers might walk into, such as “Garage Rape,” “School Violence” and “Traffic Stop.” Each scenario has four or five variations. An officer will often face two variations of the same scenario that call for two entirely different reactions. . . . Sometimes the bad guys (in the training scenario) give up peacefully. . . . Newkirk can even change a scenario in midstream to make the actors more passive or aggressive. “I can make them lay the weapon down and then pick it back up,” he said. Each officer face[s] four scenarios. When the shooting is over, Newkirk plays the scene back and grades the officer in areas such as weapon handling, voice commands, shooting positions and marksmanship. “It’s really a pass-fail,” Newkirk said.[53]
The San Diego Police Department focused on other training areas, after the department was involved in two fatal shootings in July 1999 and February 2000. San Diego Police Chief David Bejarano announced to City Council members at a February 2000 meeting that police officers would begin to defuse potentially dangerous situations without using their guns.[54] The strategy provides that “every officer will carry in their cars a beanbag shotgun and [a] long-range Taser stun, and undergo two days of training in ‘tactical communication skills.’ ”[55] In terms of instructing methods of employing deadly force, according to Bill Geller, a national expert on use of force policies, most police departments instruct their officers to aim their weapons at the suspect’s torso to ensure that the individual’s actions are stopped.[56] This approach is contrary to the opinion of many members of the public. Their perspective is that police officers could aim their weapons at other areas of the body, which may result in injuries to, but not the death of an alleged suspect.[57]
Other police departments are also using nonlethal methods to restrain suspects. According to University of Portland criminologist Nick McRee, nonlethal weapons reduce the possibility that police officers will use deadly force.[58] In Boston, Police Commissioner Paul F. Evans announced in March 2000 that patrol supervisors would begin to be trained to use a nonlethal weapon, “the Super Sock,” which shoots pellets wrapped in fabric to incapacitate suspects.[59] Police officers, however, are skeptical of the Super Sock’s effectiveness. Captain William Broderick, president of the police union, said rank-and-file members are not convinced the device is the best method to address those street encounters that require force.[60]
Kirkland (Washington) Police Department officers also shared this perception of the effectiveness of beanbag launching devices. The police department’s tactical team has had access to launchers that shoot beanbags filled with shot for the past seven years.[61] Lieutenant Eric Olsen explained that this system was not accurate, and only nine SWAT members were trained to use it. Instead, the Kirkland Police Department employs a “Sage SL6” device that shoots a champagne-cork-shaped polyurethane projectile at 240 feet per second.[62]
The SL6 provides enough force to knock someone down and cause bad scrapes and bruises, but not enough to kill. Instead of being stored at the station house, the two machines Kirkland bought in January ride around in the supervisors’ patrol cars so that there are two SL6 launchers on the streets of Kirkland 24 hours a day.[63]
ROUTINE ENCOUNTERS BETWEEN POLICE OFFICERS AND THE COMMUNITY
Stop, Question, and Frisk
The Fourth Amendment of the U.S. Constitution protects individuals against unreasonable searches and seizures by law enforcement officers. It provides that:
[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[64]
Generally, for police officers to search or seize an individual or his or her property, this intrusion must be made pursuant to a warrant based upon probable cause. The U.S. Supreme Court examined a limited exception to the Fourth Amendment’s probable cause requirements in the case of Terry v. Ohio.[65] Terry permitted a police officer to briefly detain an individual, and question and frisk him or her, to determine if the person possesses a dangerous weapon. As a result, the Court concluded that the appropriate constitutional standard should be a less stringent standard of “reasonable suspicion,” instead of probable cause.[66] This “reasonable suspicion” must be based on the existence of some wrongdoing, as “the police officer must be able to delineate specific and articulable facts” that support the government’s intrusion. The officer must not rely upon “inchoate and un-particularized suspicion or [a] ‘hunch.’ ”[67]
Subsequently in Florida v. Royer,[68] the Supreme Court explained that police officers do not infringe upon an individual’s constitutional rights if they approach an alleged suspect in a public location and inquire whether he or she would be willing to answer some questions.[69] However, the Court further held that:
[t]he person approached . . . need not answer any question put to him; . . . he may decline to listen to the questions at all and may go on his way. . . . He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. . . . If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed.[70]
Moreover, the Court determined in Whren v. United States,[71] that it is reasonable for a police officer to stop a motorist when the officer has probable cause to believe the civilian has committed a traffic violation. Hence, when the officer concludes a traffic violation has occurred, there is no Fourth Amendment violation of unreasonable searches and seizures.[72]
Secondly, neither the equal protection clause of the Fourteenth Amendment[73] nor the Fourth Amendment prevents the use of race when it is essential to a law enforcement investigation and does not result in unequal application of state laws. However, the Constitution does not permit police officers to stop, question, and frisk individuals based solely on their race.[74] Despite this ruling, the United States Federal Court of Appeals for the Second Circuit maintained in Brown v. Oneonta[75] that when race is a part of the description of an alleged suspect, it can be used as a legitimate basis for questioning individuals of that race or ethnicity.[76]
Racial Profiling
Members of ethnic and racial groups have historically maintained that law enforcement authorities view them with increased suspicion.[77] Stops and frisks have been justified based on legal precedent, which allowed the use of an alleged suspect’s race and also granted further deference to police officers’ interpretations of whether reasonable suspicion and probable cause have been established.[78] This heightened suspicion routinely results in an increased probability of people of color being subjected to stops, questioning, and/or arrests on the nation’s highways, public streets, and college campuses, as well as in retail stores and airports.[79] African and Hispanic Americans have been stopped with such frequency that these instances have commonly been coined as “driving while black” on highways and “flying while black or Hispanic” in airports.[80] As an example, in Maryland,
blacks were 70 percent of those stopped and searched by Maryland State Police from January 1995 through December 1997, on a road where 17.5 percent of the drivers and speeders were black. New Jersey reported that 77 percent of those stopped and searched on its highways were black or Hispanic, even though only 13.5 percent of the drivers were black or Hispanic.[81]
In addition, Asian Pacific Americans have contended that law enforcement officers have detained or searched them without justification. In California, it is alleged that police authorities have stopped and photographed many Asian American youth.[82] These photographs were subsequently included in Asian gang mug books without the knowledge or consent of the youths’ parents or guardians.[83] Currently, however, racial profiling against Asian Pacific Americans has taken the forms of governmental investigations and prosecutions that question their loyalties to the United States.[84] This scrutiny is primarily the result of the Wen Ho Lee case, in which Mr. Lee, a scientist and an American citizen of Taiwanese descent was charged with 59 counts of mishandling secret computer data at the Los Alamos National (nuclear weapons) Laboratory.[85] As a result, Asian Pacific American scientists and engineers at various nuclear laboratories in the United States report that their employers and colleagues have unfairly scrutinized their actions, as well as created hostile work environments replete with anti-Asian jokes, lack of promotional opportunities, and lower compensation for comparable work.[86]
Furthermore, law enforcement agencies’ legitimate national security concerns about terrorism and narcotics trafficking have also provided an opportunity for racial profiling, particularly against American citizens of Middle Eastern and Latin American descent. Customs agents at the Miami, Chicago, and Newark, New Jersey, airports, which are ports of entry for international travelers, have been accused of almost exclusively selecting, detaining, and frisking people of color.[87] Black female travelers who arrived at O’Hare Airport in Chicago alleged they were repeatedly subjected to unwarranted strip searches. As a result, they filed a class action lawsuit against the U.S. Customs Service.[88] Similarly, one such allegation of racial profiling and violations of various constitutional protections originated from Janneral Denson, an African American Florida woman:
[Ms.] Denson was handcuffed and taken to Jackson Memorial Hospital in Miami by Customs agents who searched her luggage at Fort Lauderdale/Hollywood International Airport when she was returning from Jamaica. After finding nothing in her suitcases, [her lawsuit] . . . claims she was held at Jackson Memorial where, for three days, she was shackled to a bed, denied calls to her family or a lawyer, and forced to take a laxative she said might hurt her unborn child. Denson was never charged with a crime. Twelve days after her release, her son was born prematurely.[89]
In contrast to those who contend that police authorities engage in racial profiling, law enforcement officials maintain that their criminal justice research and experience are the basis for their use of race, ethnicity, and gender to create a characteristic “profile” of an individual likely to commit a certain type of crime, such as drug trafficking. This perspective was reflected in comments from a New York City police official, who indicated that police officers stop and question members of the public whose identities match crime victims’ descriptions of suspects.[90] Other authorities recognize that some of this nation’s police chiefs and law enforcement officers equate “good police work” as questioning anyone who somehow does not fit into the immediate surroundings.[91]
In a poor neighborhood, sometimes that’s the person driving a car with a shiny paint job and no dents. [T]he National Black Police Association director and a former patrol officer, saw it every time he was assigned a white cop as his partner. When you would ride with one of these ignorant people, they would say, “I’m going to pull this black guy over because he looks like he’s doing something suspicious. . . .”
[David Harris, a University of Toledo law professor and another leading expert on racial profiling] says Blacks and minorities are just going to look “out of place” more often in a white-majority society . . . This isn’t about racism. This is about institutional practices. Officers don’t do this because they are racist. They do it because they think it’s a way to stop crime.[92]
Internal Mechanisms to Monitor and Control Racial Profiling
Although controversy exists as to whether the nation’s law enforcement and investigating authorities routinely stop, question, frisk, and/or arrest members of ethnic and racial groups without sufficient justification for alleged legal violations, it is apparent that people of color are disproportionately subject to greater police scrutiny. Accordingly, the U.S. Customs Service recently indicated that it had no specific policy on determining which travelers should be stopped for questioning or frisks.[93] The agency subsequently instituted several policy changes that increased discoveries of drugs and contraband by 23 percent, while decreasing the number of searches it performed by 70 percent in 1999.[94] Specifically, “[a] supervisor must approve a personal search or a pat-down [of a traveler]. If an X-ray or a more intrusive search is necessary, the highest ranking port supervisor must authorize the transfer to a hospital, and only after a staff attorney is consulted. . . .”[95] Furthermore, the agency established that Customs inspectors’ handbooks should be revised to include new policies on personal search methods; a significant number of supervisors who exhibited managerial difficulties at the Miami, Atlanta, and Chicago airports should be transferred; and a working relationship should be created with the agency, the FBI, and the CIA.[96]
Other law enforcement entities have initiated dialogues with their respective local communities to educate people on what to anticipate when they are approached by a police officer. For example, in Buffalo, New York, several Buffalo police officers participated in a diversity training workshop sponsored by the Erie County Chiefs of Police and the National Conference of Community and Justice.[97] Members of the public contributed to this forum by asking questions relating to traffic stop procedures, receiving information on eliminating stress when stopped by the police, and viewing a video on perspectives of police and community relations.[98]
Moreover, although police departments in seven states have begun to collect internal statistics on the race of individuals stopped by the police, there is no national initiative to require every state to do so, due to resistance from law enforcement organizations.[99] Nevertheless, several studies show that people of color are disproportionately stopped and questioned more frequently than whites.[100]
INTERNAL INVESTIGATIONS AND DISPOSITIONS
Police departments conduct their own inquiries into alleged police misconduct, primarily through their internal affairs divisions (IADs), which are charged with providing consistent and secure investigation strategies and issuing dispositions of complaints.[101] In addition, the International Association of Chiefs of Police (IACP) recommended that the IADs monitor investigations of civilian complaints against police officers.[102] Although the IACP maintained that first-line police supervisors could address minor misconduct complaints, the most optimal situation would also allow IADs to review these incidents.[103]
Mechanisms for Detecting Officer Misconduct
Previous Reform Efforts
Internal affairs divisions of the nation’s police departments have seen reforms due to reports from various police review commissions, incidents of alleged police misconduct, community pressure, and strategic police management. In 1968, the New York City Police Department was at the center of a corruption scandal that involved merchants and builders paying police officers to avoid compliance with administrative codes and Sunday “blue laws.”[104] As a result of the media attention surrounding this controversy, then-Mayor John V. Lindsay appointed a panel, the Knapp Commission, to investigate the matter.[105] Concomitantly, Police Commissioner Patrick V. Murphy had begun to initiate radical reform measures in the NYPD, which included strengthening the internal affairs division:
[He] made its work the job of all commanders by establishing decentralized field internal affairs units and by creating an integrity officer position in every department precinct and squad. He authorized the IAD to conduct “integrity tests”—phoning in fictitious complaints against officers to determine whether supervisors discouraged or ignored complaints, for example—and made public examples of those who failed these tests. He created an Internal Affairs “field associates” program that recruited anonymous officers to report surreptitiously on any misconduct they witnessed at work. His IAD investigators and field associates identified “corruption hazards” in each of the city’s seventy-five police precincts and held commanders, integrity officers and supervisors accountable for making certain that officers did not fall prey to them. In short, and although his department’s major problem was money corruption rather than brutality, Murphy used his three and a half years in office to create an environment that loudly and clearly condemned abusive police conduct, those who engage in it, and—equally important—those who tolerate it.[106]
In the early 1990s, the Boston Police Department’s leadership and management were analyzed in the St. Clair Commission report. This report uncovered various barriers to effective policing and made several recommendations relating to the department’s internal affairs division. The study found that the IAD had inadequate record-keeping and documentation, conducted haphazard inquiries and hearings of police misconduct allegations, and caused lengthy investigative delays.[107] The report revealed:
Given the Internal Affairs Division’s . . . failure to routinely provide thorough and timely investigations of alleged misconduct, and the fact that the department sustains less than 6 percent of complaints against officers, it is no surprise that the overwhelming majority of community residents we spoke to have little confidence in the department’s ability or willingness to police itself. The IAD reports to the commissioner, and its shortcomings adversely reflect on his performance.[108]
Furthermore, the St. Clair Commission’s review of IAD files also found a pattern of complaints of excessive force against a small number of police officers, who remained on the police force.[109] The report recommended the IAD’s investigative process be revised and a community appeals board be created to review IAD investigations.[110]
Current Approaches
Throughout the nation, various impressions exist regarding the effectiveness of the internal affairs divisions of police departments. In the Baltimore Police Department, police officers have asserted that their disciplinary process was “unfair, retaliatory, and treated blacks more harshly than whites.”[111] As a result, the department acknowledged the existence of disparate treatment and began using a revised disciplinary system to correlate misconduct violations with consistent disciplinary options.[112] Sergeants and other immediate supervisors also no longer have discretion in addressing minor complaints; they must now forward all misconduct allegations to the department’s headquarters. However, critics of this new system indicate police investigators are not sufficiently investigating serious misconduct complaints, due to their current focus on minor offenses.[113]
Similarly, Deputy Chief John Martinez of the Dallas Police Department, who supervises the department’s IAD, instituted an initiative to rotate investigators assigned to its IAD, in order to address allegations of disparate treatment based on race in disciplining police officers.[114] This plan was a response to a discrimination settlement reached with a Dallas police officer, Sergeant Lee Bush, as well as a federal probe into the department’s disciplinary practices.[115] Deputy Chief Martinez is also considering implementing penalty ranges for specific complaints of police misconduct, which would change the current practice of police supervisors resolving discipline incidents on a case-by-case basis.[116] The initiative also would install new software in the IAD to give investigators an improved method of monitoring the disposition of discipline cases.[117]
Observers in other jurisdictions maintain that IADs routinely spend a lengthy period of time to investigate civilian complaints of police misconduct.
In 1998, the [Prince George’s County Maryland Police] Department’s IAD completed 75 investigations of cases in which civilians alleged that officers used excessive force, harassment or abusive language. On average, the investigations took 427 days to complete before the results were turned over to the Prince George’s Citizen Complaint Oversight Panel, an independent review board that monitors allegations of police misconduct.
In contrast, the department needed only 191 days to investigate complaints in 1995, according to a report released by the oversight panel [in September of 1999]. The investigations have taken longer and longer each year since then, rising to 280 days in 1996 and 339 days on average in 1997. . . .[118]
Secondly, in some jurisdictions, the role and effectiveness of IADs are unclear to the general public and to local officials. The Detroit Police Department’s IAD does not inform the public about its investigations. In addition, the number and types of IAD complaints are not public information, and there are no standardized complaint forms.[119] Similarly, during a City Council meeting in 1998, the Sacramento City Council heard accounts from many citizens who had complaints involving alleged police misconduct.[120] City Council members said they had not received an update on police-related tort claims filed against the city of Sacramento from the police department or other city legal officials since 1985.[121] However, the chief of police and a Sacramento city attorney then explained that California state regulations prohibit a public disclosure of internal affairs cases.[122]
One strategy for alleviating the public’s uncertainty of the IADs’ role in investigating civilian complaints is occurring in Austin, Texas. In May 2000, civil rights advocates and police union officials reached a compromise in determining public access into the activities of the Austin IAD, which currently investigates all civilian complaints and refers disciplinary decisions to the chief of police.[123] The proposed plan requires that a city-hired police monitor be notified of all civilian complaints. In addition, the police monitor would have full access to IAD files and can participate in witness interviews.[124] Previously, public access to a police officer’s personnel file would only be permitted if the IAD validated a civilian complaint against the officer.
Barriers to Effective Internal Investigations
According to Hubert Williams, director of the Police Foundation, internal accountability of police departments is considered to be more effective in monitoring police conduct.[125] A 1977 Police Foundation study revealed that the lack of systemwide data hinders police departments throughout the nation from developing innovative training programs and enforcement policies.[126] Mr. Williams indicated that a subsequent 1998 Human Rights Watch report found a need for data on police misconduct and mechanisms to address these incidents. This report also found that an oversight system was needed that held supervisors accountable for the actions of their staff, and evaluated supervisors’ effectiveness in managing problem officers.[127]
Moreover, Mr. Williams explained that police misconduct is usually due to the failure of police management to strongly voice and enforce departmental policies, as well as the inability to appropriately monitor employees’ actions that violate laws and police policies.[128]
To address these concerns, the Police Foundation developed two mechanisms to analyze police accountability and to improve service delivery and community satisfaction. The Risk Analysis Management System “centralizes key performance data, identifies critical risk areas, and allows for early intervention and strategic response to reduce the potential for liability, to assist officers and to promote community confidence.”[129] Secondly, the organization designed a Quality of Service Indicator to collect and analyze traffic stop data, in order to provide police administrators with a quantitative performance measure. Mr. Williams further said police management should:
proactively institute and enforce strong policies governing conduct as well as systems to collect and analyze data relative to police/citizen contacts such as complaints, use of force incidents, traffic stops. Such efforts would inform policy, guide recruitment and training and build accountability necessary to restore and maintain public trust in the police.[130]
At the Commission’s briefing, in response to a question from Commissioner Christopher Edley on how police departments relate to communities of color, Mr. Williams explained that when police officers exercise their discretion in ways that do not result in arrests or trigger other criminal justice mechanisms, their actions are not subject to review by their supervisors or the judicial system.[131] This unsupervised discretion provides an opportunity for discriminatory activity.
Mr. Williams also remarked that police departments used to consider themselves as the exclusive authority in combating crime, although they currently want the assistance of the public to solve crime problems.[132] In addition, police departments are now more diverse with better educated personnel. Mr. Williams then recommended that the Commission review The Challenge of Crime in a Free Society, which is one source that examines the criminal justice system and proposes many recommendations that have not been acted upon.[133] He then discussed the Kerner Commission’s observation of how police officers’ unfamiliarity with local neighborhood residents can be the predecessor to civil unrest.[134]
Mr. Williams said most chiefs of police are extremely concerned about any potential federal inquiry into the internal management practices and policies of their police departments. As a result, police chiefs and organizations are requesting access to those investigation standards that the U.S. Department of Justice uses when conducting a federal inquiry, in order to establish these policies in their respective police departments before a federal investigation.[135] Mr. Williams viewed this type of federal intervention as an important factor in reforming police practices.
Another participant at the briefing, Charles Ogletree, the Jesse Climenko Professor of Law at Harvard Law School, remarked that the problem with law enforcement is that there is a growing number of police officers who remain silent when they observe misconduct.[136] He noted the case of an African American undercover police officer in Boston who was beaten by black and white police officers, none of whom came forward to acknowledge their wrongdoing.[137] Thus, the problem of acquiescence persists throughout law enforcement, regardless of the officer’s race.[138] And, although Commission Vice Chair Cruz Reynoso made reference to a survey in Santa Rosa, California, that indicated 82 percent of the city’s residents were happy with the police, Dr. Ogletree cautioned against using such statistics to support the position that there is no problem with police misconduct.[139] He added that while communities may have problems with their local police departments as a whole, the individual “Officer Friendly” who is well known throughout the neighborhood may be highly respected and accepted by community residents.[140] Finally, Dr. Ogletree recommended that these issues of community policing and others should be examined more closely, perhaps in closed-session meetings with the law enforcement community, and not in response to a crisis.[141]
James Fyfe then provided a discussion on arbitration boards that review police disciplinary actions. He said the boards are a disaster and he did not “know of any police chief who would not like to get rid of them.”[142] Dr. Fyfe suggested that the Commission examine the effects of arbitration boards as the final step in the disciplinary process. He stated that in New Jersey, Pennsylvania, and Massachusetts, arbitration boards have eroded the ability of “right-minded, well-meaning” police chiefs to manage their agencies appropriately.[143]
CONCLUSION
Successful internal management of the nation’s police departments will depend on how well law enforcement authorities can reduce incidents of unnecessary deadly force, effectively design and utilize civilian complaint procedures, as well as monitor internal investigations. Although police use of deadly force is regulated by legal constraints and internal law enforcement guidelines, unnecessary fatalities of civilians and police officers continue to occur throughout the nation. In addition, incidents of excessive deadly force could be reduced by clear policy stances on misconduct guidelines and infraction disposition from police administrators, selective use of certain restraint methods of alleged suspects, identifying those police candidates, before an offer of employment is made, who may be prone to use unnecessary excessive force, and training police officers on appropriate ways of using both deadly and nonlethal methods of force. The Commission recognizes that while some progress has been made, particularly in employing specialized training methods and curricula on the use of force, other obstacles remain (e.g., inequitable dispositions and time-consuming IAD investigations).
Routine encounters between police officers and members of the public have now become unfortunate opportunities for alleged racial profiling. Current legal precedent permits the use of race to justify stopping civilians when it is an essential factor in a law enforcement investigation. Contemporary case law also grants deference to police officers’ interpretations of what constitutes reasonable suspicion and probable cause to stop and question civilians they suspect of wrongdoing. Furthermore, institutional law enforcement practices tend to view people of color as “outsiders” who are likely to have committed an offense, which results in a disproportionate number of them becoming the focus of law enforcement authorities’ inquiries and investigations.
Lastly, police departments’ internal affairs divisions continue to investigate alleged police misconduct and provide disposition of sustained complaints. Previous police reform movements emphasized the need for IADs to provide accurate record-keeping, rapid disposition of complaints, and appropriate procedural inquiries into allegations of misconduct. Current strategies reflect these goals. IADs also face the problems of equitably imposing discipline for all police officers who commit offenses, regardless of their race and gender; and efficiently managing problem officers and those police officers who have knowledge of their fellow officers’ wrongdoing. Ultimately, effectively addressing these concerns will contribute to the internal order of the nation’s law enforcement agencies.
CHAPTER 3: FINDINGS AND RECOMMENDATIONS
Reducing Incidents of Unnecessary Deadly Force
Finding 3.1: In Guardians, the Commission recommended that police officers should continue to be trained in the use of deadly weapons, as well as report discharges of firearms within 24 hours of the occurrence.[144] The Commission continues to support these recommendations. However, current police policies in local jurisdictions have varying interpretations as to what constitutes a legitimate use of deadly force in order to satisfy the federal “reasonableness” standard delineated in Garner.
Recommendation 3.1: Federal, state, and local law enforcement authorities should conduct further analysis to determine whether a uniform policy can be constructed for their respective internal departments on the use of deadly force.
Finding 3.2: Unnecessary deaths of civilians and police officers continue. Police officers require clear guidance from their chiefs of police and first-line supervisors on internal misconduct policies and disciplinary procedures on the use of excessive force. In addition, a significant number of police departments have begun to employ hollow point bullets as their preferred type of ammunition, in spite of public opposition. Training in nonlethal and deadly use of force methods is usually part of police departments’ curricula.
Recommendation 3.2: The Commission strongly encourages the establishment of routine policy guidance from chiefs of police and first-line supervisors on the use of excessive force, as well as informing police officers of corresponding disciplinary procedures for those who commit these offenses. Secondly, law enforcement agencies should initiate a series of routine public forums that discuss topics that concern members of the public, e.g., current restraint methods and use of hollow point bullets. These forums may alleviate public concern and inform police departments of anticipated police issues.
Routine Encounters between Police Officers and the Community: Racial Profiling
Finding 3.3: There appear to be differences in perspectives of when racial profiling occurs. People of color and other civilians have clear opinions about being stopped, investigated, frisked, or searched by police authorities without justification. In contrast, law enforcement officers tend to view the use of an alleged suspect’s race and ethnicity as appropriate police work. As stated in its report Police Practices and Civil Rights in New York City, the Commission defines racial profiling as the detention, interdiction, or other disparate treatment of an individual based on racial or ethnic stereotypes that has the effect of treating persons of color differently from other persons.[145] Police departments have also been resistant to collecting statistics on alleged suspects’ race or ethnicity in order to document possible instances of racial profiling.[146]
Recommendation 3.3: Continuing dialogue between law enforcement entities and the public is required to establish an understanding of what constitutes racial profiling. The nation’s police authorities should begin to redefine appropriate policing techniques that do not target any particular race or ethnicity, yet accomplish overall law enforcement objectives such as crime prevention. In addition, police departments should begin to document instances of racial profiling that are routinely generated by specific police officers. This information should become part of the officer’s personnel file and be reviewed for performance evaluation and discipline purposes. Moreover, the Commission recommends that law enforcement agencies establish a departmental system of records to permit the consistent collection and evaluation of data to determine whether racial profiling is occurring, and if so, when and why.
Internal Investigations and Dispositions
Finding 3.4: IADs continue to be charged with investigating allegations of police misconduct and providing disposition of complaints. However, their effectiveness is being hampered by complaints of unequal measures of discipline for officers who have committed the same types of offenses,[147] lengthy investigations, the “code of silence” among police officers, the lack of public knowledge about police misconduct complaints and their dispositions, and the lack of computerized data systems that may assist in collecting needed information on misconduct incidents.
Recommendation 3.4: Police administrators and IAD officials should routinely examine their disciplinary procedures and dispositions to ensure equitable treatment for all police officers, and adjust their policies accordingly. In addition, discussions should take place among rank-and-file police officers, police officials, and union representatives to address the code of silence issue and its ultimate impact on internal regulation of police departments. These discussions should also include a focus on how the code of silence has a negative impact on both the public’s safety and the well-being of fellow law enforcement officers. Lastly, sufficient resources should be made available to IADs to provide them with the mechanisms to perform their duties effectively.
[1] U.S. Commission on Civil Rights, Who Is Guarding the Guardians? October 1981, p. 35, n. 1 (hereafter cited as USCCR, Guardians).
[2] See also Diane Carman, “Deadly Force Out of Hand,” The Denver Post, Oct. 5, 1999, p. B1. The author refers to a Human Rights Watch study which maintained that “incidents of police brutality, including shoving, beating and manhandling suspects as well as unjustified shootings, have increased dramatically in 14 major cities over the past five years.” Ibid.
[3]
[4] Ibid.
[5] Steve Berry and Josh Meyer, “Mistakes Seen in LAPD Shootings of Mentally Ill,” The Los Angeles Times, Nov. 7, 1999, p. A1.
[6] Todd Lighty, “Shootings by Police Drop Off Sharply,” The Chicago Tribune, Jan. 6, 2000, p. 1 (hereafter cited as Lighty, “Shootings”).
[7] Ibid.
[8] Cheryl W. Thompson and Phuong Ly, “Shootings by D.C. Police Decline 66 Percent in 1999,” The Washington Post, Jan. 1, 2000, p. B1 (hereafter cited as Thompson and Ly, “D.C. Police”).
[9] Ibid. Police Chief Charles Ramsey indicated that a new lethal force policy and more police training and supervision are reasons for this decline.
[10] 471 U.S. 1 (1985).
[11] Id. at 4–5 (citing Tenn. Code Ann. § 40-7-108 (1982)).
[12] 471 U.S. 3.
[13] Id. at 6–7; see also Gregory Howard Williams, “Controlling the Use of Non-Deadly Force: Policy and Practice,” Harvard BlackLetter Journal, vol. 10 (1993), p. 79. The author notes that determining whether a suspect’s seizure meets the constitutional standard of “reasonableness” requires additional policy guidance from local police departments. Ibid., p. 89.
[14] 471 U.S. 3 (emphasis added); see id. at 12, 15. The Garner Court essentially eliminated the prevailing “fleeing felon” common law rule, which had permitted law enforcement authorities to use deadly force to subdue suspected escaping felons. See also Stephen Beaven, “When to Shoot: A Split Second Call—Deadly Force is Officer’s Last Resort,” Indianapolis Star, Mar. 15, 2000, p. A1. Police training in the use of force began to change after the Garner ruling. This was also due to an emphasis on nonviolent options to physical confrontations. Ibid.
[15] James Fyfe, statement before the U.S. Commission on Civil Rights, National Police Practices and Civil Rights Briefing, June 16, 2000, transcript, p. 25 (hereafter cited as Police Practices Briefing Transcript).
[16] 436 U.S. 658 (1978).
[17] See Monell, 436 U.S. 694–95.
[18] Fyfe, Police Practices Briefing Transcript, p. 25.
[19] Ibid., p. 26.
[20] Ibid.
[21] See USCCR, Guardians, p. 156. In 1981, the Commission found that police guidelines on the use of deadly force are often ambiguous.
[22] Kathy Carlson, Dorren Klausnitzer, and Thomas Goldsmith, “Deadly Force Training Under Scrutiny,” The Tennessean, Apr. 25, 2000, p. 1A (hereafter cited as Carlson, Klausnitzer, and Goldsmith, “Deadly Force”). According to Sergeant Bob Allen, a 19-year police veteran of the Metro Davidson County Police Department, the department does not have a “shoot-to-kill” policy for using deadly force. “We shoot to stop the threat. . . . When the threat stops and the subject is under control, the force is stopped.” Ibid.
[23] Beaven, “When to Shoot.” Indianapolis police can only use deadly force after all other options have been considered and utilized. Ibid.
[24] Thompson and Ly, “D.C. Police.” The District of Columbia Metropolitan Police Department’s policy provides a four-part “use-of-force continuum” that ranges from presence and verbal persuasion, hand-control procedures, protective weapons (e.g., using tactical batons), to deadly force.
[25] Rick Rousos, “Officers Have Strict Policy on Use of Force,” The Ledger, Dec. 23, 1999, p. B1.
[26] Fla. Stat. § 76.05(1) (2000).
[27] The Police Foundation, Police Use of Force: Official Reports, Citizen Complaints, and Legal Consequences, vol. I, 1993, p. 27 (hereafter cited as Police Foundation, Use of Force) (citing American Civil Liberties Union, Police Brutality and its Remedies, 1991, p. 6).
[28] Ibid.
[29] David Weisburd, Rosann Greenspan, Edwin Hamilton, Hubert Williams, and Kellie Bryant, Police Attitudes Toward Abuse of Authority: Findings from a National Study, National Institute of Justice, May 2000, p. 6.
[30] Ibid.
[31] See Daryl F. Gates and Diane K. Shah, Chief: My Life in the LAPD (New York: Bantam Books, 1992), p. 246; see also Amnesty International, “United States of America: A Briefing for the UN Committee Against Torture,” no. AMR 51/56/00, May 2000, <http://www.amnesty.it/ailib/aipub/ 2000/AMR/25105600.htm> (Oct. 20, 2000) (hereafter cited as Amnesty International, “A Briefing”). “In October 1999 Demetrius J. Brown died after being placed in a neck-hold while guards tried to strap him into a restraint chair in Duval County jail in Jacksonville, Florida; his was the second chokehold death in the same jail in 16 months, and led to an eventual ban on the procedure in that jail.” Ibid.
[32] Gates and Shah, Chief, p. 246. In the other type of restraint, the “bar-arm” control hold, “[a]n officer places his forearm across the trachea, cutting off the supply of oxygen to the lungs. The problem with this hold is that a person instinctively fights harder when deprived of air. The police officer uses more pressure and, if not careful, can break the hyoid bone, causing death.” Ibid. See also “Man Dies After Police Use Carotid Chokehold,” The Associated Press State & Local Wire, May 1, 1983, Sunday a.m. cycle, San Diego (hereafter cited as AP, “Man Dies”). Police officers from the San Diego Police Department arrested a 23-year-old African American man, Barry Andrew Preston Jr. He was then restrained with handcuffs and leg restraints. When Mr. Preston allegedly became violent, the police restrained him further by applying a carotid chokehold. Although he initially regained consciousness, he was later found unconscious and died soon after.
[33] Gates and Shah, Chief, p. 246.
[34] Independent Commission on the Los Angeles Police Department, Report of the Independent Commission on the Los Angeles Police Department, 1991, p. 195 (hereafter cited as Christopher Commission Report); AP, “Man Dies”; see generally City of Los Angeles v. Lyons, 461 U.S. 95, 114–15 (1982) (Marshall, J., dissenting) (recounting use of chokehold by LAPD officers on Adolph Lyons, a 24-year-old black man); Cf. U.S. Commission on Civil Rights, Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination, Volume V: The Los Angeles Report, 1999, pp. 49–52 (hereafter cited as USCCR, Los Angeles Report) (recounts how law enforcement authorities view the use of pepper spray as a safer means to subdue suspects, although critics maintain it can cause death).
[35] Gates and Shah, Chief, pp. 246–47.
[36] Christopher Commission Report, p. 195.
[37] See George Hunter, “Police Get Deadly Ammo—Detroit Cops Say Hollow-point Rounds Protect Bystanders, Critics Plan to Protest,” The Detroit News, Aug. 2, 2000, p. 1.
[38] Ibid.
[39] Fyfe, Police Practices Briefing Transcript, pp. 82–83.
[40] Hunter, “Police Get Deadly Ammo.” See Fyfe, Police Practices Briefing Transcript, p. 82.
[41] See Fyfe, Police Practices Briefing Transcript, p. 82.
[42] Workman v. Bell, 178 F.3d 759, 767 (6th Cir. 1998).
[43] Id. at 767.
[44] Hunter, “Police Get Deadly Ammo.” See Donna De La Cruz, “NYPD Switch to Hollow Point Bullets Draws Protests,” The Associated Press State & Local Wire, Mar. 10, 1999, Wednesday a.m. cycle, New York (hereafter cited as De La Cruz, “NYPD Switch”). Despite demonstrations denouncing the NYPD’s decision to use hollow point bullets, Police Commissioner Howard Safir announced that the department would begin using the new ammunition after officers had been qualified at a shooting range.
[45] Hunter, “Police Get Deadly Ammo.” See generally “Lyndhurst (NJ) Gun Suspect Allegedly Tied to Mob,” The Record (Bergen County, NJ), Dec. 21, 1999, p. L1 (law enforcement officers arrested a 56-year-old male suspect who had $12,000 in cash, and a semi-automatic Glock 9mm pistol that was loaded with 10 hollow point bullets. The suspect was allegedly connected with the Gambino organized crime family); “Florida Man Indicted on Charge of Illegally having Weapons,” Asbury Park Press (Neptune, NJ), Aug. 15, 2000, p. B5 (a Florida man was arrested on three counts of possession of a prohibited weapon, i.e., “hollow-point bullets, [an] . . . expandable police baton, and a large-capacity ammunition magazine; and unlawful possession of an assault firearm”). Ibid.
[46] De La Cruz, “NYPD Switch”; Fyfe, Police Practices Briefing Transcript, p. 82. “When those [9 mm] guns were adopted by the police department in New York there were lots of protests about the adoption of a hollow point bullet, even though the police department had been using them in the 38’s for years.” Ibid.
[47] Police Foundation, Use of Force, p. 150.
[48] Ibid., p. 150 (citing E.B. Croft, Ph.D., Police Use of Force: An Empirical Analysis, 1985; Robert E. Worden, “The ‘Causes’ of Police Brutality,” unpublished draft prepared for William A. Geller and Hans Toch, eds., Police Use of Excessive Force and Its Control: Key Issues Facing the Nation (Washington, D.C.: Police Executive Research Forum, 1992)).
[49] Ibid.
[50] Ibid. (citing Worden, “The ‘Causes’ of Police Brutality”; Donald J. Black and Albert J. Reiss Jr., Patterns of Behavior in Police and Citizen Transactions: Field Surveys III, Studies in Crime and Law Enforcement in Major Metropolitan Areas, vol. 2 (Washington, D.C.: Government Printing Office, 1967)).
[51] Lighty, “Shootings.” The department also asked the John Marshall Law School to review its policies on police chases and use of deadly force. Ibid.
[52] Ralph Ellis, “A ‘Game’ of Life-and-Death Law Enforcement,” The Atlanta Journal and Constitution, Nov. 26, 1999, p. D10.
[53] Ibid.
[54] Tony Perry, “California and the West: San Diego Police Chief Vows Focus on Non Lethal Weapons,” The Los Angeles Times, Feb. 23, 2000, p. A3.
[55] Ibid. Previously, only sergeants had access to Tasers, while use of the beanbag shotguns was restricted to the SWAT team. The department plans on using more police dogs, a more realistic video training simulator on subduing combative suspects without employing weapons, and pepper spray projectiles. Ibid.
[56] Nancy Calaway, “Deadly Force by Police Debated Nationwide,” Arlington (TX) Morning News, July 11, 1999, p. A1 (hereafter cited as Calaway, “Deadly Force Debated”). See Carlson, Klausnitzer, and Goldsmith, “Deadly Force.” A 19-year police veteran of the Metro Police Department in Tennessee maintained that police officers are instructed to aim at a suspect’s midsection in order to prevent injuries to bystanders and to end the threat that the suspect poses. Ibid. But see Maria Elena Fernandez, “Grant Plan Targets D.C. Police Training, Federal Panel Would Study Use of Force,” The Washington Post, May 5, 1999, p. A14. According to Representative Jose E. Serrano (D-NY), most police departments in the nation do not adequately teach use of force policies. Ibid.
[57] Calaway, “Deadly Force Debated.”
[58] Sarah E. Richards, “Kirkland Police Seek Less Lethal Weapons,” The Seattle Times, July 21, 2000, p. B1. But see ibid. “Such tools [nonlethal weapons] are useful, especially in a volatile situation, but they’re not foolproof, warned Captain Bruse Vestal, head of training at Bellevue [Washington Police Department]. ‘We’ve had people shot with (the baton), and it doesn’t do anything,’ he said, adding that a weapon’s effectiveness depends on an assailant’s mental capacity.” Ibid.
[59] John Ellement and Francie Latour, “HUB Police to Get Training on Pellet-Bag Weapon,” The Boston Globe, Mar. 8, 2000, p. B3. Specifically, the Super Sock is a shotgun shell that ultimately fires a high-impact pellet bag.
[60] Ibid. Captain Broderick noted that the Super Sock’s manufacturer warns that striking an individual in the thorax and other areas of the body could be fatal.
[61] Richards, “Kirkland Police Seek Less Lethal Weapons.”
[62] Ibid. “ ‘This gives us the tool to fill in the gaps between pepper spray and/or a nightstick, or, God forbid, a gun,’ said [Lieutenant] Olsen. ‘This allows an officer to stand back 15 to 20 yards from a guy waving a knife around.’ Officers are trained to shoot at large muscular portions of the body, such as the buttocks or thighs, since direct hits to the head or heart are potentially fatal. However, ‘the SL6 has not been linked with any deaths since it became available in 1992,’ said John Klein, president of Sage Control Ordnance, based in Michigan.” Ibid.
[63] Ibid.
[64] U.S. Const. amend. IV. See Camara v. Municipal Court, 387 U.S. 523, 528 (1967). The framers of the Constitution drafted the Fourth Amendment “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Id.
[65] 392 U.S. 1 (1968).
[66] Terry, 392 U.S. 20–22.
[67] Id. at 21, 27. Further, the Court indicated that a search must be “strictly circumscribed by the exigencies which justif[ied] its initiation.” Id. at 26.
[68] 460 U.S. 491 (1983).
[69] Id. at 497.
[70] Id. at 497–98. But see United States v. Cortez, 449 U.S. 411 (1981); United States v. Sokolow, 490 U.S. 1 (1989). The Supreme Court began to grant greater deference to police officers’ assessments of alleged criminal activity as a foundation for the required degree of reasonable suspicion.
[71] 517 U.S. 806 (1996).
[72] Id. at 809–10.
[73] U.S. Const. amend. XIV. In relevant part, the equal protection clause of the 14th Amendment provides: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Id.
[74] United States v. Brignoni-Ponce, 422 U.S. 873 (1975). The Court determined that the appearance of Mexican ancestry does not furnish reasonable belief for questioning the occupants of a car in search of illegal aliens.
[75] 195 F.3d 111 (2d Cir. 1999), reh’g denied, 203 F.3d 153 (2d Cir. 1999).
[76] 195 F.3d at 119.
[77] U.S. Commission on Civil Rights, Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination, Volume I: The Mount Pleasant Report, 1993, pp. 20–30 (hereafter cited as USCCR, Mount Pleasant Report) (describes the historic tension between the Latino community and the Metropolitan Police Department in Washington, D.C.); Illinois Advisory Committee to the U.S. Commission on Civil Rights, Police Protection of the African American Community in Chicago, 1993, pp. 13, 27–31 (includes witnesses’ testimonies on frequent incidents of alleged police brutality and the lack of police protection in black neighborhoods in Chicago); USCCR, Los Angeles Report, pp. 150–58 (reviews the relationship between immigrant populations and the Los Angeles Police Department); see South Dakota Advisory Committee to the U.S. Commission on Civil Rights, Native Americans in South Dakota: An Erosion of Confidence in the Justice System, March 2000, pp. 2–3 (provides an overview of testimony from Native American community members of alleged administration of justice violations).
[78] David Cole, “The Color of Justice,” The Nation, Oct. 11, 1999, p. 12.
[79] See generally ibid.; Christy Hoppe, “Race Disparity Found in Traffic Stops,” The Dallas Morning News, Oct. 4, 2000, p. A1; Mary Allen and Christopher Munsey, “Do the Police Stop Too Many Minorities?” The Capital (Annapolis, MD), May 9, 1999, p. A1; Tammerlin Drummond, “It’s Not Just in New Jersey: Cops Across the U.S. Often Search People Just Because of their Race, A Study Says,” Time, June 14, 1999, p. 61.
[80] Lars-Erik Nelson, “Changing the Profile at Customs,” The Daily News (New York), Oct. 15, 2000, p. 43; Michael Gougis, “Improbable Cause,” New Times Los Angeles, Sept. 7, 2000, Features Section. In May 1999, LAPD officers stopped Carlos Gonzalez, a 28-year-old Hispanic math teacher in South Central Los Angeles, while he was driving a 1994 red Mustang convertible. Mr. Gonzalez was not asked for his license, registration, or proof of insurance. He was also not informed why he had been stopped. According to Mr. Gonzalez, the police officers asked him for his name; when he replied, “they told him he was lying, unsnapped the holsters holding their service pistols, and handcuffed him.” He was ultimately given a ticket for going 38 miles an hour in a 25-mile zone, on a 900 foot long street that has three speed bumps. Ibid.
[81] Cole, “The Color of Justice.” See also Thomas Zolper, “Minority Traffic Stops Still Highest On Turnpike—Statistics Rekindle Racial Profiling Debate,” The Record (Bergen County, NJ), June 28, 2000, p. A1. “The statistics also show that minorities are far more apt to be arrested than whites, compared to their numbers in the population. For example, 57 percent of those arrested on all state highways were minorities even though they account for only 26 percent of New Jersey’s population, according to census figures.” Ibid.
[82] Robin Toma, Esq., human relations consultant, Los Angeles County Human Relations Commission, telephone interview, Aug. 6, 1996 (hereafter cited as Toma, Telephone Interview); see also Richard Marosi, “Trial Ordered on Racial Profiling Claim,” The Los Angeles Times, Aug. 9, 2000, p. B1. In 1996, the Anaheim Police Department wrongly detained Yong Ho Choi for two days on suspicion of killing California Highway Patrol Officer Don Burt Jr. Another Asian man was later arrested and convicted for the murder. As a result, Mr. Choi filed suit in federal district court and alleged that he was a victim of racial profiling. Although the lower court dismissed his claim, the U.S. Court of Appeals for the Ninth Circuit subsequently ruled that there was sufficient evidence to begin a trial on whether the police department violated Mr. Choi’s civil rights.
[83] Toma, Telephone Interview. Mr. Toma described how Garden Grove, California, law enforcement officers routinely stop Asian teenagers, accuse them of being members of Asian gangs, photograph them without their parents’ knowledge or consent, and ultimately do not arrest them.
[84] H. Josef Hebert, “Energy Probe Finds Racial Profiling in Wake of Wen Ho Lee Case,” The Associated Press State & Local Wire, Jan. 20, 2000, BC cycle (hereafter cited as Hebert, “Energy Probe”).
[85] Bob Drogin, “How FBI’s Flawed Case Against Lee Unraveled,” The Los Angeles Times, Sept. 13, 2000, p. A1. Mr. Lee was fired from his job at Los Alamos, spent approximately 277 days in jail, and was viewed as a convicted terrorist or spy. His proposed plea agreement would arrange for him to plead guilty to the felony of one charge of unlawful retention of national defense information. The remaining charges would be dropped, and he would not receive any penalties. However, before this agreement occurred, “Lee was indicted on 59 charges and arrested . . . Dec. 10, [1999] for allegedly transferring top-secret nuclear weapon data to unsecured computers and portable tapes at Los Alamos. . . . The weapon data were not formally classified when Lee copied them. . . . Thirty-nine of the charges, all carrying life sentences, alleged that Lee acted with intent to harm the United States and to aid a foreign power. Seven of the tapes could not be located, despite what the FBI said was one of the largest searches in its history. Lee’s lawyers claimed that he destroyed the tapes but offered no proof. . . . Lee’s lawyers sent letters to the Justice Department shortly before he was indicted, specifically offering to let him take a polygraph test to answer questions about the tapes. The offer was ignored. . . . In early 1999, [Robert Vrooman, then head of counterintelligence at Los Alamos] repeatedly testified in closed-door sessions before the House and Senate Intelligence committees and several investigative review boards. Their message: No espionage had occurred and Lee had been unfairly targeted because he is Chinese American.” Ibid.; see generally Sasha Talcott, “UC Lab Employee Tells What It’s Like Being an Asian at Work,” Daily Californian via U-Wire, Aug. 30, 2000 (hereafter cited as Talcott, “UC”).
[86] Talcott, “UC.” Dorothy Ng, a civil engineer and an American citizen who is employed at the University of California and managed Lawrence Livermore National Laboratory, was born in Hong Kong. She maintains that she is hesitant to visit her homeland because her colleagues may question her allegiance to the United States; Hebert, “Energy Probe.” But see Jason Ma, “Feinstein Speaks on Asian American Issues: Says Racial Profiling Did Not Occur in Labs,” The Ethnic NewsWatch—AsianWeek, Feb. 2, 2000, p. 9. California Senator Dianne Feinstein responded to a request from San Francisco’s Asian American community leaders for assistance in arranging bail for former Los Alamos scientist, Wen Ho Lee. “I would urge everyone not to jump to conclusions. . . . I truly believe in my heart of hearts that racial profiling has not been the case here. . . .” Senator Feinstein also stated that Mr. Lee’s incarceration in solitary confinement without bail was “a very unusual prerequisite in our system of justice.” Ibid.
[87] Nelson, “Changing the Profile at Customs”; Beth Gardiner, “Executive Files ‘Racial Profiling’ Complaint Against Customs,” The Associated Press, Nov. 17, 1999, a.m. cycle, New York (hereafter cited as Gardiner, “Executive”). Yvette Bradley, a black female traveler who arrived at Newark (New Jersey) International Airport reported that she and eight of the nine other African American female passengers on a flight from Jamaica, West Indies, were subjected to body and baggage searches, while white passengers were not stopped or searched.
[88] Gardiner, “Executive”; see also Pat Milton, “Raymond Kelly, Head of the U.S. Customs Service,” The Associated Press State & Local Wire, Oct. 21, 2000, BC cycle, New York. “In 1998 [Amanda] Buritica, a teacher from Port Chester, N.Y., was returning from a Hong Kong vacation. When a San Francisco Customs inspector noticed that she was a native of Columbia, she was searched, X-rayed, given laxatives and held 22 hours. No drugs were found; she won a $400,000 settlement.” Ibid.
[89] “Customs Defines Criteria for Airport Drug Searches,” Sun-Sentinel (Fort Lauderdale, FL), Aug. 12, 1999, p. A1 (hereafter cited as “Customs Defines”).
[90] Howard Safir, NYPD police commissioner, testimony before the U.S. Commission on Civil Rights on Police Practices and Civil Rights in New York City Hearing, May 26, 1999, transcript, p. 165 (hereafter cited New York Hearing Transcript). “We do not select our suspects, as they are identified not by us but by the victims. We deploy our officers where violent crime occurs, and we question individuals who fit the description of crime suspects. This is basically strategy implemented without regard to race or ethnicity but, rather, as a part of our commitment to eradicate crime in every neighborhood in the city.” Ibid. See also Rudolph Giuliani, New York Hearing Transcript, p. 49.
[91] Gougis, “Improbable Cause.”
[92] Ibid.
[93] Milton, “Raymond Kelly.” U.S. Customs Service Commissioner Raymond Kelly revealed that in the past, individual Customs inspectors decided which passengers could be detained. Ibid.
[94] Ibid.
[95] Ibid. But see Michael Arena, “New Body Scanners at Airports Proving to be Revealing,” Newsday, Dec. 30, 1999, p. A6. “International travelers who are suspected of smuggling drugs or carrying weapons are being offered the body scan (a new high-tech scanner that can see through passengers’ clothing and search for contraband with an x-ray image that shows the naked body) as an alternative to a physical pat-down when they pass through ports of entry at airports across the country. . . . [P]rivacy advocates say the capability to show the full external contours of the body, including male and female private areas, is an ‘electronic strip search’ that erodes constitutional protections.” Ibid.
[96] Ibid.; see also “Customs Defines.” “The agency is instituting a system based on criteria that focus on a passenger’s behavior and such factors as whether the suspect has given inconsistent answers to an inspector’s questions, is the subject of an intelligence report or has been detected by a drug-sniffing dog. . . . [T]he agency will no longer detain airline travelers suspected of smuggling narcotics for more than four hours without specific approval of a federal magistrate.” Ibid.
[97] Harold McNeil, “A Plea for Calm Between Police and Public,” The Buffalo News, June 21, 2000, p. B1; see also Darla Carter, “Guidance Offered on Stops by Police,” The Courier-Journal (Louisville, KY), Aug. 23, 2000, p. B1.
[98] McNeil, “A Plea for Calm Between Police and Public.”
[99] Gougis, “Improbable Cause.”
[100] Ibid.; see generally ibid. The author discusses a number of studies. For example, Professor John Lambert of Temple University researched driving and traffic stops on the New Jersey Turnpike from 1988 to 1991. He found that despite a similar rate of traffic violations, “only 13.5 percent of the cars had a black driver or passenger, [and] nearly 35 percent of the traffic stops—and 73 percent of the arrests—involved blacks.” Ibid.
[101] USCCR, Guardians, pp. 58–59, 71–74.
[102] Ibid., p. 59 (citing International Association of Chiefs of Police, Managing for Effective Police Discipline: A Manual of Rules, Procedures, Supportive Law and Effective Management (2d rev. ed., 1977), p. 48).
[103] Ibid.
[104] Jerome H. Skolnick and James J. Fyfe, Above the Law: Police and the Excessive Use of Force (New York: The Free Press, 1993), p. 178; see Martin Gottlieb, “13 Police Suspensions: Lessons of ‘68,” The New York Times, Sept. 25, 1986, p. B4.
[105] Skolnick and Fyfe, Above the Law, p. 178.
[106] Ibid., p. 180 (emphasis in original); see Gottlieb, “13 Police Suspensions”; see also George James, “New York Calls for Precincts to Control Police Monitoring,” The New York Times, June 15, 1995, p. A1. The prevention of police corruption continued to be a goal of New York City officials in the 1990s. In 1995, Mayor Rudolph W. Giuliani and Police Commissioner William J. Bratton announced a new initiative to provide police precinct commanders with direct responsibility for investigating their subordinates. Internal Affairs inquiries about rank-and-file staff would also be provided to precinct commanders. Previously, information about IAD investigations was exclusively accessible to the IAD. But see Gottlieb, “13 Police Suspensions.” In 1986, Chief Anthony Bouza, who had been an NYPD commander, commented on the field-associate program. “I don’t see evidence of its success . . . If it was really working, the union would be hysterical, cops would be abusing officers they think are field associates, and there would be a lot more uncovering of crime.” Ibid.
[107] “St. Clair Report,” The Boston Globe, Jan. 15, 1992, p. 24.
[108] Ibid.
[109] Ibid.; see also Maggie Mulvihill and Joseph Mallia, “Cop Faces Brutality Rap—Second Lawsuit Filed Against Officer who Beat Colleague,” The Boston Herald, Apr. 29, 1999, p. 32. “A Boston police officer found liable in the vicious beating of a fellow officer has been charged in a federal lawsuit with brutality a year later against a nightclub patron. The suit, filed last week, claims that officer David C. Williams was allowed to remain on the street even as he faced previous brutality complaints because police brass ignored reforms. . . . The suit charges that the highly touted St. Clair Commission report recommending Internal Affairs reforms has been virtually ignored by police.” Ibid.
[110] Ibid. The Community Appeals Board could also request that the IAD conduct additional investigations of complaints.
[111] “Rooting Out Wrongdoers Among City Protectors,” The Baltimore Sun, Jan. 28, 1999, p. A1. In December 1998, “the EEOC concluded . . . [that] the Department violated civil rights laws by retaliating against officers who accused the Department of racism.” Ibid.
[112] Ibid.
[113] Ibid. But see ibid. “ ‘We may be spending more time with day-to-day rules infractions,’ said Major Odis L. Sistrunk, Jr., who is in charge of making sure punishment is consistent. ‘But we would not have the organization we can be proud of if we didn’t handle the smaller things. Just because we go a year without finding a police officer who took money from a drug dealer doesn’t mean they aren’t out there. . . . but it doesn’t mean we aren’t interested in cleaning our own house.’ ” Ibid.
[114] Dave Michaels, “Dallas Police Rotating Internal Affairs Duties,” The Dallas Morning News, July 2, 2000, p. A29.
[115] Ibid. “Sergeant Bush was a recruiter in the personnel division in 1997 when he wrote a letter to former Chief Click that accused supervisors of trying to stop him from receiving a commendation and complaining that black officers were not allowed to travel as frequently as whites and Hispanics. Commanders suspended him for two days after investigating his claims and determining that he had made them up. . . . In April of 2000, the city agreed to pay . . . Bush $300,000 plus back pay, purge his personnel file and promote him to sergeant to settle the officer’s discrimination claim.” Ibid.
[116] Ibid. Some department sources maintain that this discretion results in minority police officers being more harshly disciplined than their white counterparts for similar infractions.
[117] Ibid. The initiative also includes expediting IAD investigations of complaints.
[118] Craig Whitlock, “Police Take More Time to Probe Complaints,” The Washington Post, Oct. 6, 1999, p. A3. See Matthew Dolan, “Internal Affairs—When Citizens File Complaints About Officers,” The Virginian-Pilot (Norfolk, VA), May 18, 1999. The Portsmouth (Virginia) Police Department’s IAD is now focusing on reducing delays in completing investigations. Ibid.
[119] Human Rights Watch, “Shielded From Justice: Police Brutality and Accountability in the United States,” <http:// www.hrw.org/hrw/reports98/police/uspo62.htm> (Sept. 22, 2000).
[120] Andy Furillo, “City to Police: Give Us Accountability,” The Sacramento Bee, Jan. 14, 1998, p. B1.
[121] Ibid.
[122] Ibid.
[123] Jason Spencer, “Police Plan is Result of Trade-Offs,” The Austin American-Statesman, May 30, 2000, p. B1.
[124] Ibid. But see ibid. Civil rights advocates were disappointed with the compromise plan. They preferred that it include the establishment of an independent review board with subpoena powers, a jury trial environment for each hearing, and civilian members who were not appointed by the City Council.
[125] See Hubert Williams, Police Practices Briefing Transcript, pp. 49–50.
[126] Ibid., p. 52.
[127] Ibid., p. 53.
[128] Ibid., p. 54.
[129] Ibid., p. 55.
[130] Ibid., p. 56.
[131] Ibid., p. 60.
[132] Ibid., pp. 70–71.
[133] Ibid., pp. 71–72.
[134] Ibid., p. 72.
[135] Ibid., pp. 104–05.
[136] Charles Ogletree, Police Practices Briefing Transcript, pp. 43–44.
[137] Ibid., p. 44.
[138] Ibid.
[139] Ibid., pp. 42–45.
[140] Ibid., p. 46.
[141] Ibid., p. 47.
[142] Fyfe, Police Practices Briefing Transcript, p. 30.
[143] Ibid., p. 31.
[144] USCCR, Guardians, p. 156.
[145] U.S. Commission on Civil Rights, Police Practices and Civil Rights in New York City, August 2000, p. 106, fn. 134.
[146] See also USCCR, Mount Pleasant Report, p. 144. Previously, the Commission recommended that the Federal Bureau of Investigation be “directed to collect, classify, and publish nationwide statistics on police abuse incidents and discipline of officers for use in law enforcement administration and management and to facilitate more accurate assessment of the extent of police abuse in the United States. Data collection should include race, ethnicity, sex, and age of offenders; race, ethnicity, resident status, sex, and age of victims; arrest information; type of injury; and type of weapon or force involved.” Ibid.
[147] See also USCCR, Los Angeles Report, p. 212. The Commission found that rank-and-file LAPD police officers contend that they are punished more severely than command officers for similar infractions, which affects the overall morale of the department; USCCR, Guardians, p. 159. The Commission determined that efforts to discipline wayward police officers is hindered by ultimately recommending these officers for departmental awards and promotions.
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