Introduction
Civilian review boards (CRBs) are institutions set up by cities or police departments that employ civilian review of complaints against police officers. The purpose of these boards is usually to provide independent review of specific instances of police abuse or to determine whether the internal procedures used by police are legitimate. Since these boards are established locally, and their powers are determined by local politics, CRBs vary wildly in terms of powers, responsibilities, and actual success at supervising police. Nevertheless, existing scholarship tends to place CRBs within one of three categories, while acknowledging that these are not strict boundaries and that some CRBs feature elements of two or more categories.1 This primer will begin by first detailing each of the three categories and providing more examples of each type of review board. It will then identify some best practices when setting up a CRB.
Three Types of CRBs
For purposes of this primer, the term CRB will be used for any kind of local, independent oversight of the police force. However, such oversight can come in a number of different forms. There are three main types of CRB. The first model of CRB is the investigative model. Here the CRB is charged with investigating specific allegations of officer abuse and creating findings which are then submitted to the chief of police or mayor. The second type is the review model that reviews findings made by the police department’s own investigative process to determine whether the findings are fair or not. Depending on the type of board, they may address all complaint allegations of a specific type, or just those appealed by the complainants. The third type of CRB is the auditor model. This model does not focus on specific complaints, but instead audits the internal review process to ensure its fairness. Some CRBs combine elements of each of these types, and within each type there can be substantial variation in terms of authority and openness.
Investigative CRBs typically have the most independent authority to obtain information. They usually have subpoena power over the police, or some court mandated substitute, so they are able to obtain information without persuading police to cooperate voluntarily. Since they conduct their own investigation, they cannot rely on civilian volunteers and must hire professional investigators. This makes investigative CRBs generally more expensive than other types of CRBs. Independence allows investigative CRBs to avoid having to rely on the police department’s own investigation. But it also renders them vulnerable to becoming ineffective if not given adequate resources. The Office of Citizen Complaints in San Francisco, CA was criticized in 2007 for taking more than 9 months to investigate approximately half of the complaints it received.2 This was a serious problem given that the statute of limitations for officer abuse was 1 year, and complaints that took longer than 9 months to investigate would often not be prosecuted within that 1 year time limit.
Once the CRB has completed its own investigation, investigative CRBs tend to diverge with regards to their authority to make recommendations. For instance, the Police Review Commission in Berkeley, CA is only authorized to either recommend that the police chief sustain or not sustain an allegation of police abuse. They have no authority to even recommend punishment, and even their sustain/not sustain recommendation isn’t final since Berkeley’s internal affairs division conducts a concurrent investigation and presents its own findings. The New York City Civilian Complaint Review Board, on the other hand, is able to recommend specific disciplinary actions when it sustains a complaint although these recommendations are often ignored by the Police Chief. It does not seem as though any have the power to directly impose discipline, although the (now defunct) Ombudsman’s Office of Flint, MI used to have the authority to publicly criticize the chief of police by releasing details of an investigation if it didn’t approve of the final action taken by the police chief or mayor.
Review CRBs do not possess independent investigative power. Rather, they are limited to reviewing the investigation that the internal affairs department (IA) has already conducted. The scope of review changes depending on the board. For instance, the Independent Police Review division of the Portland, OR police department reviews any investigation conducted by the Portland Internal Affairs division, but limits itself to merely ruling on whether or not the investigation was sufficiently thorough, and sending it back to IA if not. Portland also has a Citizens Review Committee (CRC) that can hear appeals from anyone dissatisfied with the disposition of the case. The CRC can send the complaint back for further investigation, accept the findings of the IA division, or, if it disagrees with IA, present the case before the City Council for final review. Before being struck down by the state courts in Florida,3 the Citizens Review Board of Orange County, FL reviewed all complaints involving excessive force or abuse of authority, and all incidents where an officer’s firearm was discharged regardless of whether a complaint was filed. It only had the authority to agree or disagree with the findings provided by the internal affairs division.
Because there is no independent investigation, these review boards are generally inexpensive. Usually the city needs only to pay for one or two administrative assistants to deal with the paperwork, since the civilians performing the actual review all do their jobs on a volunteer basis. This can be an advantage, if the city does not have a large budget. However, the obvious disadvantage is that the board is dependent on the investigations conducted by internal affairs. Thus, there are often concerns about the ability of these boards to produce actual independent oversight. Additionally, since the reviewing civilians generally have little knowledge of police procedure, they usually have to undergo training provided by the police department, which raises further concerns about independence.
The last form of CRB is the independent auditor. This is when an individual is appointed to review the internal affairs investigation itself, not the results of the investigation. Typically they are charged with reviewing all investigations into complaints of serious police misconduct, such as abuse of authority or excessive force, as well as a random sampling of other complaint investigations. Their task is usually not to make individualized determinations about the sufficiency of IA investigations, but rather to identify ways in which IA could improve investigations or the police department could change its policies in order to avoid abusive officer behavior in the future. In Tucson, AZ, for instance, the Independent Police Auditor reviews all cases involving excessive force, as well as a random sampling of other cases. He is directly responsible to the city manager, and provides monthly reports to the manager on the state of IA investigations. Los Angeles County, CA has a similar system, but the Special Counsel to the County Board of Supervisors has total access to all files in the LAPD’s possession.
The independent auditor is typically a professional, and typically handles the entire office himself. As with the other forms, this has positive and negative aspects. Because only one professional and a few support staff are required, this type of review costs less than an independent investigation office, but more than the review boards. Additionally, because the entire office is essentially vested in a single person, the effectiveness of that office is totally dependent on the office holder. Merrick Bobb, current president of the Police Assessment Resource Center, used to be the independent auditor in Los Angeles, and received high praise for recommending a number of important reforms to the LAPD’s use of force guidelines.4 However, the Tucson Independent Police Auditor was criticized for only asking the Tucson Police Department to review two out of the 372 cases it examined in 2007.5
There are some practices that are common to all types of CRB. Since the purpose of the CRB is to increase police accountability to the public, as well as increase the public’s view of the police force’s legitimacy, most CRBs have some kind of public outreach program. One of the most common outreach programs is a public forum, where civilians get a chance to lodge grievances they have with the police department, and either the police or the members of the CRB get a chance to respond in an attempt to mediate the civilian’s concerns. Other CRBs may hold investigatory or review hearings in public. At the very least, nearly all CRBs have to issue an annual or semi-annual report on the work the CRB has been doing. Most CRBs also have the authority to recommend, if not implement, policy changes that may improve relations between the community and the police. On a more specific level, most CRBs have the authority to arrange mediation between the complainant and the offending officer. They are also in a good position to offer a kind of “early-warning” system about officers who come before them repeatedly, and most CRBs have the authority to provide such notifications to their police departments.
There are also a number of powers that most CRBs do not have. CRBs rarely have the authority to identify defendant officers by name in public documents. The former Ombudsman’s Office in Flint, MI was a notable exception to this rule, but even that office had to notify all relevant departments at least two weeks before it published anything that identified specific officers. CRBs also rarely have the authority to actually impose discipline. Even if they have the ability to recommend it, final authority is usually with the police chief. Finally, CRBs are usually subordinate to police chiefs in terms of authority and in terms of who the CRB makes its reports to. That being said, this issue is the one with the most divergence, since many CRBs can go to the city council or mayor if ignored by the chief of police. Additionally, the Police Commission for the County of Hawai’i, HI is notable because, while it functions as a CRB, it also has the authority to hire and fire the police chief for the county.
Best Practices
There does not seem to be any kind of perfect or ideal CRB in existence today. Part of the reason for this is that CRBs can be established for a number of different reasons. Some review boards are established because the police force has lost legitimacy or accountability in the eyes of the citizens. Others are established because excessive force lawsuits have become prohibitively expensive, and the local city government is looking for new policies that will reduce the number of such claims in the future. Criteria for evaluation can be difficult to establish. If a CRB sustains a very low percentage of complaints, it can be difficult to know if that is because of a pro-police bias, or because the average sustain rate across the nation is 8%. Another reason for divergence in CRB structure is the divergence in local political circumstances. If the city does not have the budget for a large team of independent investigators, then that solution is eliminated right from the beginning. And if a city has enacted, or is located in a state that has enacted, a particularly rigorous “Law Enforcement Officer’s Bill of Rights,” there will be statutory limits to what sort of oversight the CRB can provide. Finally, even good CRBs can be shut down or have their authority stripped for reasons totally unrelated to their structure. The Citizens Review Board of Orange County, FL was struck down by Florida because a county sheriff is a position whose authority is laid out in the Florida constitution and cannot be amended by the county charter. And the Ombudsman’s office in Flint, MI was eliminated after the town went bankrupt and the state legislature of Michigan appointed an emergency supervisor to restructure the town’s government and reduce spending.6
That being said, there are some features that tend to distinguish better CRBs from worse ones. The first is independence. The more independent a board is, the more people tend to be satisfied with its findings, regardless of whether they were favorable or not. There are a number of ways of achieving actual or perceived independence, and a number of ways of losing it. Generally speaking, investigative CRBs are seen as more independent than review CRBs for the simple reason that review CRBs often have to take the police department’s own factual findings as given. Portland’s Independent Review Board was recently criticized because it only reviews those cases where Portland’s Internal Affairs division actually made an investigation, but IA only investigated 17% of the complaints it received. Thus Portland’s IRB actually provided little substantive review. This can be compared to Berkeley’s CRB, which conducts its own investigations concurrently with Berkeley’s IA division, thus allowing it to publish its own findings and whether it came to the same conclusion as the IA division.
Yet, it is not necessarily true that shifting to an investigative model is the best way of achieving independence. As stated above, investigative CRBs generally require large amounts of resources in order to be effective. Without those resources, the CRB can become backlogged and unable to generate factual findings before the statute of limitations precludes any sort of discipline for the officer. San Francisco’s Office of Citizen Complaints is a good example of this, as is New York City’s Citizen Complaint Review Board, which takes an average of 346 days to investigate a sustained complaint. These offices take a long time to investigate cases despite the fact that the two organizations already have budgets of $4.3 million and $9.3 million respectively. It is difficult to find an example of an investigative CRB that is able to investigate more quickly or efficiently, however. Berkeley’s Police Review Commission seems to resolve cases relatively quickly, but they typically handle only 15-20 complaints a year. Flint’s former Ombudsman’s office apparently used to resolve approximately 300-350 complaints a year, and was usually able to resolve a case within three weeks. However, it only sustained 2 to 4 percent of the complaints it received, which is far lower than the national average of 8% indicating it may not have been very thorough with its investigation.
A better way to achieve independence is probably through structural independence from the police. The less the CRB is beholden, or seen to be beholden, to the chief of police, the better. There is wide variation in structural independence among review boards. The former Flint Ombudsman’s Office is at the high-level-of-independence end of the spectrum. The Ombudsman was not appointed by the chief, or even the mayor who appoints the chief, but rather the city council. This meant he could act with less fear of reprisal from those offices. As a result, the office was very popular, and survived a number of voter referenda initiated by the city government in order to eliminate it. On the other end of that spectrum would probably be the recently-restructured CRB in Minneapolis. There, the investigation office is staffed by a group of seven police officers and two civilians, and the appeals board is made up of two civilians and two officers. People have complained that this structure will place most actual authority in the hands of police, eliminating the value of having civilian review in the first place. Similar complaints have been repeatedly lodged against the CRB in Rochester, NY, which is co-chaired by a civilian and the chief of police.
Even with structural independence, other concerns about police or city manipulation can arise. Since CRBs usually generate documentation about incidents that can lead to excessive force lawsuits against the city, there are often concerns about conflicts of interest. San Diego’s Review Board on Police Practices was criticized for just that reason. While reviewing cases, the San Diego City Attorney’s Office is responsible for providing interpretation of the legal rules to determine whether investigation is warranted, and whether a complaint should be sustained. A former board member said that the city attorney would always interpret the rules in a manner least-favorable to the complainant, thus reducing the number of sustained investigations. Similar criticism was launched against the restructuring of the Minneapolis CRB, since one of the main motivations was a string of lawsuits against the MPD, and since one of the changes to the structure was to give the chief of police veto power over any investigation.
One last important issue with regard to independence is fear of retaliation. Almost no CRB allows anonymous complaints, and few allow an investigation to go forward without continued cooperation from the complainant. While it is difficult to know how many people are actually dissuaded from complaining due to fear of retaliation, the NIJ study on CRBs indicated that many complainants did mention it as a concern. There are a number of steps that can be taken to at least reduce this fear. The first is to have independent citizen investigators, so that complainants do not actually have to talk to officers when giving their statements. But even having citizen investigators does not totally solve the problem. In Chicago, the police department employed citizen investigators, but their offices were located in the police department itself, which made many citizens nervous about being observed by police. Berkeley’s CRB statute actually forbids placing the CRB within the same building as the police department to avoid this problem, and a number of CRBs follow a similar practice.
Another important practice is openness. This can be achieved in a number of ways. The vast majority of CRBs publish annual or semi-annual reports on their activity. Some, like the DC Office of Police Complaints, go further and publish the facts and determination of the investigations they make. The Police Review Commission in Berkeley, CA holds public hearings for each investigation. The former Orange County CRB went further and deliberated about the determination in public. Other CRBs use openness to compensate for lack of independence. The Police Commissioner in New York City can refuse to prosecute sustained complaints, but must state his reasons for doing so in writing.
Outreach is another important factor for three reasons. First, CRBs are only effective to the extent that people know about them and use them. If the CRB is responsible for complaint intake, then people need to know to go to the CRB to file complaints. In some areas where IA is responsible for investigating complaints, people may have the option of getting a concurrent investigation by a CRB or having IA’s investigation reviewed by a CRB. However, they cannot exercise this right without knowledge of that right. Another reason why outreach is important is because most CRBs are allowed to recommend changes in police procedures and policies, and having open forums provides useful input for these policy recommendations. But, again, open forums are useless if people do not know about them. Finally, to the extent that CRBs are supposed to help restore greater trust between citizens and police, they will likely be ineffective at accomplishing this goal if they do not advertise whatever progress they have made at providing oversight.
As it turns out, most CRBs aren’t very good at outreach given the generally low levels of resources budgeted to them. However, some jurisdictions have useful policies. Berkeley has signs posted within the police department advertising citizens’ ability to seek CRB investigation and review of their complaints. San Francisco allows people to pick up and file complaint forms at any San Francisco city office. Some CRBs post notifications of meetings in local newspapers, and Portland even televises them on local-access cable television. However, resources at CRBs are usually limited, and while many CRBs use some of these methods, none use all.
The last big issue is data quality. Given how difficult it is to access whether a CRB is performing a useful service or not, and considering CRBs are often one of the first things that municipalities think of eliminating when it comes to cutting expenses, it’s important to have a good sense of what the CRB is actually doing in order to effectively evaluate it. Most CRB reports focus on the nature of the complaints and complainants handled in the previous year. Thus they have plenty of data on what sort of complaints have been made, the demographical information of the complainants, and the geographic location of the incidents. They also usually collect information on how the CRB disposed of the complaints it received. And to the extent that this information can be legally released to the public, the disciplinary results of the CRB’s actions or recommendations. The problem is that most of this information is useful for evaluating the police department, but little of it is useful when it comes to evaluating the CRB itself.
There are a number of metrics that can be useful for evaluating a CRB. For instance, CRBs should provide information on how long it takes for a complaint to get processed, in order to determine how efficient they are. Most cities do not provide this information, and those that do, like San Francisco and New York, provide it only after there has been some sort of public outcry about how long complaints take to process. Most CRBs do not provide any information about public satisfaction or even public awareness of the service. Some of this may be attributable to lack of resources for determining this information, but even large cities often fail to provide this information. And Portland’s CRB used to publish civilian satisfaction rates, but stopped after 2009 (when there was only 30% approval) with no formal explanation.
Additionally, the one measure that people usually look to for evaluating effectiveness, the rate at which complaints are sustained, isn’t really that useful. The average sustain rate for complaints is 8% nationwide, so one could argue that a CRB that falls below that figure is too deferent to the police, and that would certainly be a plausible explanation. But except in extreme cases like Chicago, where the sustain rate was less that 0.5% in 2004, it’s difficult to determine whether a low sustain rate was because of an ineffective CRB or a courteous police force. Additionally, sustain rates can be easily manipulated. Portland claimed a sustain rate of 22% in 2010, but ignored the fact that the IA division of the Portland police are able to dismiss claims without investigation. San Francisco claimed a sustain rate of 7% in 2011, but also noted that nearly 70% of sustained allegations involved “neglect of duty,” usually arising from failure of the police to fill out appropriate paperwork after stopping civilians. Ignoring that one class of offenses would have dropped the sustain rate much lower. That being said, it is difficult to know exactly what statistic would be more useful. The best practice would probably be simple honesty in not making the sustain rate appear to be something that it is not.
Conclusion
- CRBs are typically created to provide independent review of specific incidents, or to independently evaluate investigative procedures used by a police department.
- CRBs vary greatly with respect to their powers and responsibilities. In general, there are three types: (1) investigative CRBs; (2) review CRBs; and (3) auditor CRBs.
- Best practices for CRBs include structural independence from the police department, openness, and serious outreach efforts to the community.
National Institute of Justice, Citizen Review of Police: Approaches & Implementation (2001), available at: https://www.ncjrs.go/pdffiles1/nij/184430.pdf.
Police Assessment Resource Center, Review of National Police Oversight Models (2005), available at: http://www.nacole.org/sites/default/files/Review%20of%20National%20Police%20Oversight%20Models%20%28Feb.%202002%29.pdf.
Merrick Bobb, Oversight of the Police in the United States (2002), available at http://www.parc.info/client_files/Articles/5%20-%20bOBB%20pRESENTATION%20(2002).pdf.
Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How Civilian Oversight of the Police Should Function and How it Fails, Columbia Journal of Law and Societal Problems 43 (2009): 1
Prepared by Tim Lynch and Richard Stone.
1 Some useful surveys of CRBs include the National Institute of Justice’s Citizen Review of Police: Approaches & Implementation (2001), available at: https://www.ncjrs.go/pdffiles1/nij/184430.pdf; the Police Assessment Resource Center’s Review of National Police Oversight Models (2005), available at: http://www.nacole.org/sites/default/files/Review%20of%20National%20Police%20Oversight%20Models%20%28Feb.%202002%29.pdf; and Merrick Bobb’s Oversight of the Police in the United States (2002), available at http://www.parc.info/client_files/Articles/5%20-%20bOBB%20pRESENTATION%20(2002).pdf.
2 Jaxon Van Derbeken. “Audit rips police complaints office” San Francisco Chronicle (2007). Available at http://www.sfgate.com/bayarea/article/SAN-FRANCISCO-Audit-rips-police-complaints-2655009.php
3 Demings v. Orange County Citizens Review Board, 15 So.3d 604 (Fl. Dist. Ct. Ap. 2009). Available at http://caselaw.findlaw.com/fl-district-court-of-appeal/1256235.html
4 Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How Civilian Oversight of the Police Should Function and How it Fails, 43 Colum. J.L. & Soc. Probs. 1, 18 (2009)
5 Dave Devine, “Expensive Oversight” Tucson Weekly (2008). Available at: http://www.tucsonweekly.com/tucson/expensive-oversight/Content?oid=1091877
6 Kristin Longley, “More changes at Flint City Hall as emergency manager axes ombudsman’s office, civil service commission” Michigan Live (2011). Available at: http://www.mlive.com/news/flint/index.ssf/2011/12/more_changes_at_flint_city_hal.html