Filing a complaint against a police officer should be relatively easy with as many access points as possible. The types of complaints that an agency chooses to accept will have major implications on staffing needs, system costs, and case processing delays. A lot will depend on the nature and level of distrust of police and/or a lack of confidence in the ability of the police to treat complaints objectively and take their complaints seriously. When determining what complaints will be accepted, the following factors, along with the authority/jurisdiction of the oversight agency must be considered:
- I. Form
A. Readily-accessible complaint forms will likely be available at the oversight agency, local police station, or online. The complaint process usually begins with the complainant submitting a complaint form or making a verbal complaint against an officer. Citizens can also call the agency and request that a form be mailed to them. Complaint forms can also be submitted via fax, hand delivery, or email.
B. Under some Investigative models, anonymous complaints are not always accepted where specific incidents are investigated and a complainant’s identity can be crucial during the investigation. A complainant’s identity may also be required at the conclusion of an investigation if the complainant is needed to testify at an adversarial hearing. Anonymous complaints are more commonly accepted under the function of an Auditor/Monitor/Ombudsman model, where the identity of the complainant is not necessarily required to review broad policies and practices.
C. Complaint forms may require a signature under the penalty of perjury. This may have a chilling effect on a person’s willingness to file a complaint. The reason for the language is to deter false allegations against the police. One way to minimize the chilling effect while still minimizing the number of false allegations is to not have the language on the initial complaint form, but an agency might choose to include it if/when the complainant provides a sworn statement to the oversight agency. Caution: it should be remembered that complainants and witnesses are usually not trained observers. What they observe and experience represents an individual, and therefore potentially limited, perspective on events. Statistically, most people do not like to complain and they encouraged what they experienced from their perspective without the worry of being punished if a formal investigation results in a finding that they were mistaken as to some of the facts.
D. Requiring complainants and witnesses to be Mirandized before submitting a formal complaint is discouraged because it is often associated with being in police custody and/or being arrested on the suspicion of committing a crime. Such a practice could have a chilling effect on individuals coming forward to file complaints.
- II. Initial Intake
A. Who Does the Civilian Complain to? Civilian oversight agencies often foster a greater sense of trust among citizens with regards to how complaints against the police will be resolved. Some jurisdictions require that copies of all initial complaints (that fall within the agency’s jurisdiction) are forwarded to the oversight agency, while other jurisdictions permit the law enforcement agency to receive and investigate complaints and forward their findings to the oversight agency for review. There are also jurisdictions where the police department and the oversight agency both independently investigate the same allegations of misconduct, sometimes concurrently.
B. Thus, during the initial intake of a formal complaint form, the oversight agency will likely have a classification process by which the subject matter jurisdiction of a complaint can be evaluated. This assessment may also include a determination of whether the nature of the complaint is suitable for mediation or other non-investigative options such as conciliation, or rapid resolution.
- What should an agency do when it receives information regarding allegations not within its jurisdiction?
1) Refer the entire complaint to internal affairs?
2) Only refer the allegations that are not within its jurisdiction and investigate the rest of the complaint?
3) Should the agency have authority to investigate the entire complaint if it has jurisdiction over at least one of the allegations?
Regardless of the particular intake process, oversight agencies are often required to notify the police department of the complaint when it is received and provide copies of materials gathered in the initial intake process. Similarly, police departments are expected to forward complaint information to the oversight agency. Protocols for sharing information and accessing data must be established to foster transparency and accountability. Professional data bases are recommended as they ensure data are collected and stored and can be analyzed efficiently.
- III. Subject Matter
A. The types of complaints that should be investigated include allegations that, if proven true, would represent misconduct under the police department’s policies and procedures. For example, this may include use of unnecessary or excessive force; unlawful arrests; searches and seizures; theft or destruction of property; first amendment violations; dishonesty; violation of local, state, or federal laws and police regulations; failure to provide identification; failure to provide a service or allegations that bias toward the complainant or suspect was evidenced through language or behavior demonstrating a bias based factors such as race, ethnicity, immigrant status, socio economic status, age, sex, sexual orientation, gender identification.
B. Subject matter jurisdiction for each oversight agency will usually be defined in the ordinance/local statute that governs the oversight process.
Depending on the jurisdiction and contingent upon the oversight agency’s function, a number of parties may have standing to file a complaint. As mentioned, some jurisdictions accept anonymous complaints and third party complaints. Other jurisdictions require each victim of police misconduct to file his or her own complaint, while others allow witnesses to file on behalf of victims who do not file their own complaint. Often times, parents may file complaints on behalf of minor children. Furthermore, some agencies can self-initiate their own investigation.
- V. Time Restrictions
A statute of limitations is regularly put in place to ensure timely filing. Without such a restriction, an agency’s ability to acquire evidence decreases after a significant period of time and witness recollections of an incident are likely to diminish. However, the need to preserve the quality of an investigation must be balanced with the need to ensure that complainants are not overly constricted in their ability to file a complaint. Exceptions to the time restrictions may be made when a complainant has been incarcerated or hospitalized.
Oversight agencies therefore may establish a reasonable timeline that clearly defines how long a citizen has to file a complaint, when the agency must complete the investigation, and when potential discipline of the officer must be imposed. One year is commonly allowed for citizens to file complaints. However, oversight agencies may be granted discretion to extend the time frame for a complainant’s non-availability based on circumstances beyond his/her control.
Many agencies have a 180-day rule for the time to complete an investigation. Exceptions for this rule may be given for factors such as a showing of “good cause,” i.e., complexity, number of witnesses, staffing shortages, etc. Like jurisdiction, time restrictions, if there are any, are usually written into the ordinance/local statute governing the oversight process.