Investigation

Investigation, Monitoring and Review of Complaints:
a Practitioner’s Case Study Guidelines^*

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This discussion will focus on key concepts and major issues all reviewing bodies must examine, whether they employ independent investigative, monitoring or auditor models.

Some key concepts exist in civilian oversight and monitoring of law enforcement. Each person involved in oversight must become familiar with these concepts, and be ready to explain them to citizens and interested parties in their jurisdictions.

If you are a member of a Review Board or Commission, be sure you are familiar with these concepts and distinctions. If you are unsure, ask for training and do not conduct or assess complaint investigations until you know you can apply the definitions and distinctions to case facts.

Be aware that some definitions are subject to interpretations. For instance, if the public attorney for your jurisdiction also defends officers in civil suits, the public attorney’s office may present interpretations that are shaped by the fact that office also defends the jurisdiction in civil liability litigation. Explore these issues with your Board.

One way to obtain balanced training is to have it presented by trainers representing different perspectives such as defenders and prosecutors of misconduct. Other ways are to seek training from national or regional police accountability experts; risk managers; local schools of law and public administration.

KEY CONCEPT	DEFINITIONS AND DISTINCTIONS
Neutrality and the Importance of Detailed Descriptions	Persons committed to civilian oversight processes often bring deeply felt convictions to the jurisdictions they serve. No matter what one’s beliefs and "politics" are, it is essential to the integrity of the oversight process, that reviewers of misconduct allegations suspend their personal assumptions during review, and stay calmly neutral while evidence is collected and examined. The reviewer must remain open to the possibility that any witness--be they officer, complainant or other-- may be telling truth as they see it, or may be embellishing, minimizing or falsifying what they describe. In taking and evaluating statements from witnesses, it is useful to elicit as much description as possible. Detailed descriptions provide the evaluator with small scenes that may be compared among witness statements, and may help establish credibility. Remember, witnesses’ assumptions color their perceptions and memory of incidents. Therefore, C Seeking more details from truthful, but emotionally overwrought witnesses can help them better remember and describe what happened. C Seeking more detail from untruthful witnesses will help the reviewer identify and probe problem areas.
The "Standard of Proof" Definitions	Be familiar with the "standard of proof" used in your jurisdiction. This means the amount of evidence that is required to make a finding. Various standards of proof are the following: "A preponderance of evidence" or "Clear and convincing evidence" or "Beyond a reasonable doubt evidence." An evaluator must recognize what evidence would be sufficient to meet any of these three standards of proof. Familiarity with the standards of proof is necessary because the evaluator will take whatever facts are present and apply those facts to the standard. Preponderance of evidence means that the proponent of a position has provided the greater weight of evidence that is more credible and convincing than the evidence propounded by the opposition. It means that the greater weight of evidence favors one side rather than the other. Another way to think of this standard is this: preponderance of the evidence equals more than 50%. Many oversight bodies use this standard. Clear and convincing evidence means that the evidence is sufficient to convince ordinarily prudent-minded people. It is more than preponderance of evidence but less than beyond a reasonable doubt evidence. Beyond a reasonable doubt evidence does not mean beyond all doubt, or beyond a moral certainty. Rather, beyond reasonable doubt means beyond doubt which would cause a reasonable person to pause in matters of utmost importance. Criminal proceedings use this standard. Be able to articulate what is sufficient evidence for "a preponderance of evidence" proof versus "beyond reasonable doubt" proof. Be sure to apply the standard called for by your Board or Commission’s Rules. Be prepared to explain these distinctions in your community.
Criminal Conduct Misconduct Civil Liability	Criminal Conduct is behavior that violates the penal code(s) in a jurisdiction. The remedy for criminal conduct is prosecution in criminal court. Misconduct is behavior that violates a department's policies. Such behavior may be misconduct without rising to the level of criminal conduct. Police Misconduct which causes injury or other damages may lead to Civil Liability if the injured person(s) successfully sue for damages. Civil Liability results from a cause of action filed in civil court seeking a specific redress from the police official or from the employing police agency. In most cases the remedy sought is money damages.
Remedies for Police Misconduct Filing Complaints Filing Civil Liability Suits Seeking Criminal Prosecution Conclusion	While police officers are not immune from allegations of criminal conduct, a police officer facing criminal charges is a rare occurrence. Indeed, most remedies for allegations of police misconduct are administrative (complaints followed by discipline processes inside the employing department) or civil liability (when departments and/or their officers are sued civilly for the alleged harm caused by law enforcement actions or inactions). Therefore, three remedies exist for police misconduct: Administrative (filing complaints); Civil (filing civil liability suits) and Criminal (prosecution). In the civilian complaint process, the administrative remedy will depend on whether allegation is sustained, and the seriousness of the misconduct. When an allegation is sustained, the remedy may range from training, to a reprimand to termination of the officer’s employment. No money damages are awarded to a person making a complaint. This complaint process may be lengthy. Due to Peace Officer Confidentiality laws, the person filing the complaint may not be informed of what remedy or discipline was meted out. In this process, the aggrieved or injured person(s) file civil liability suits seek to obtain a monetary judgment from the officer and/or the employing agency. These suits are both lengthy and costly. Time and money considerations may militate against individuals seeking this form of redress. Historically, in the US, criminal prosecution of officers has been rare for several reasons, including these: C the highest standard of proof is required for criminal prosecutions; therefore, prosecutors may decide that a criminal allegation is not provable at the beyond a reasonable doubt level required. C due to officer / community safety considerations and officer discretion, police are given special protections and special justifications for actions which might otherwise be alleged to be criminal. The point to be made is that while the penal law applies to police as it does to everyone else, proving beyond a reasonable doubt that an officer committed a criminal act of misconduct is complicated, difficult, and infrequent. In some cases, all three remedies may be sought. In such a case, an officer would face criminal charges, civil action and administrative discipline.

Force Applications

Lethal Force

Range of Force Applications

Law enforcement officers apply force when they use any form of force to obtain a citizen's compliance with their orders. Due to safety and the need to make split-second decisions, officers have discretion regarding use of force. However, despite this discretion, an officer’s use of force may result in a violation of criminal law.

Lethal force or deadly physical force is that force the intended, probable and natural consequence of which is to produce death and which in fact produces death. Sometimes lethal or deadly physical force is defined as that force which has the intended probable and natural consequence to produce death without an ensuing death. Nevertheless, the use of any degree of force is regulated by police departments. That is, police have policies on the use of force and some have a requirement that a ladder of force or escalation of force analysis determines the degree of force reasonable in any given incident.

Law enforcement officers’ wide range of force includes

C verbal commands;

C physical touching;

C physical restraint;

C use of batons or saps;

C use of chemical agents such as pepper spray; and

C the application of deadly physical force.

Depending on the circumstances, each of these actions may result allegations of misconduct. Remedies outlined above may be sought.

"Freeze-Frame" Analysis

Use it to Identify Misconduct, or Poor Policy

Prevention

The term "freeze frame analysis" refers to the deliberate and careful examination of the discreet, moment-to-moment actions of the involved persons in the minutes before an officer made a critical decision such as the decision to use lethal force.

The "freeze frame" or moment-to-moment examination of the incident as it unfolded is particularly useful in examining a death or injury incident.

It enables the reviewing body to consider what happened in the minutes prior to the death or injury, in order to determine if and how the death/injury might have been prevented. This then allows the reviewers to suggest strategies to avoid similar future events.

Frequently the immediate action that causes a death/injury is not a act of misconduct nor the result of a flawed policy. However, often an examination of the actions preceding the immediate action can reveal misconduct and/or poor safety tactics or flawed policy that led to the officer’s need to use force.

The moment-to-moment analysis is both an investigation tool, and a prevention tool. It yields information that will enable departments to

C identify misconduct versus flawed policies;

C improve training;

C impose discipline if necessary;

C refine or retool policy language if necessary;

C avoid similar incidents in the future;

C reduce liability.

MAJOR ISSUES

Issue	Independent Investigation	Audit or Monitor Internal Investigation
Preparing to Investigate or Monitor a Complaint	1. Review the written complaint	1. Review the written complaint
Written Records (Police Reports/ Police Policies/ Rules	2. Review the documentation of the incident leading to the complaint. 3.Review the governing policies and procedures that appear to apply to the incident. Identify problems with the documentation and address them through further investigation, recommendation or other action. (Ex: should there be some documentation such as an incident report, a patrol log entry that cannot be found?) 4. Make the documentation a part of the case file. 5. Make a preliminary evaluation and analysis. 5.a. Does the documentation address the complaint without further investigation? If so, conclude the investigation based on the documentation review, and notify the complainant as quickly as possible, giving them as much information as you can. Make appropriate referral(s). 5.b. If not, identify and list those persons who saw or heard any of the incident; attempt to locate and interview them. If they cannot be located, indicate what attempts were made to locate them. 6. Identify what other physical evidence needed to evaluate the complaint, and collect it.	2. Review the work of Internal Affairs Investigator: C Determine if the investigation has been thorough and complete; C Note any issues requiring attention; C if additional investigation and documentation appears to be needed, make recommendation for further investigation as permitted under rules governing review. 3. Make a preliminary evaluation and analysis of the case in terms of outcome or result as announced by the police agency. 4. Depending on the authority of the civilian review agency, make a recommendation to the police agency with respect to the outcome or result of its investigation. 5. Since "the job’s never done until the paper work is done," complete any follow-ups and documentation as required. Remember, the rules governing each civil review entity will determine what action may be taken.
Physical Evidence Medical / releases Public Records Video or Audio tapes	Obtain and review the necessary evidence; Identify what evidence is missing; what other evidence might exist; how might you seek it	Review the IA file. Consider the evidence assembled. Identify what evidence is missing; what other evidence might exist; return the file with the recommendation the additional evidence be sought.
Interviewing Witnesses	Determine witnesses to interview, and in what order. In general, the Subject Officer(s) should be interviewed last. Allow complainants and witnesses to give an uninterrupted account of their complaint before asking investigative questions. Justifications of officer actions are not to be made during or on behalf of the officer. Avoid leading witnesses. Critical Concepts: Understand what it means to "lead a witness" and avoid it.	Review witness interview transcriptions. Listen to tapes of interviews to determine if witnesses are being "led" in their statements, and to determine if IA summaries of witness statements are accurate. Did the IA investigator Allow complainants and witnesses to give an uninterrupted accounts of their complaint or statement before asking investigative questions. Justifications of officer actions are not to be made during or on behalf of the officer. Critical Concepts: Understand what it means to "lead a witness." If you determine witnesses have been "led," make appropriate recommendation(s).
Evaluate / Assessment of Statements and Evidence	Re-review Department policies and procedures; have all governing policies/procedures been identified? Evaluating Witness Statements Assessing the credibility of witnesses Dependent versus Independent Witnesses Evaluating Other Evidence Comparing witness statements with other evidence.	Evaluate IA investigation as outlined under Independent Investigation. Is it clear to you how the credibility of witnesses was determined? If not, ask for explanation. Do you agree with the IA evaluation? If not, articulate your concerns and request further investigation.
Department Internal Records (Discipline Records; Department’s Past Practices; Civil litigation records)	Obtain and review what is available to you under the jurisdiction’s laws.	Did IA obtain and review what is available to them under the jurisdiction’s laws? If not, recommend further investigation.
Frame Conclusions Make Recom-mendations	Prepare and present your analysis of the evidence. Recommend findings. Recommend appropriate policy changes and/or discipline as permitted under your rules. Carefully document your analysis and conclusions.	Are you persuaded by the IA analysis? If so, affirm the investigation. If not, recommend re-analysis; articulate your reasons clearly. Carefully document your analysis and conclusions.

Investigation, Monitoring and Review of Complaints: Practitioner’s Case Study/ National Asso. For Civilian Oversight of Law Enforcement (NACOLE) Conference, Oct. 5-8, 1999 /SQ/JS; Email: Sue Quinn