WHAT TO DO ABOUT NEW POWERS FOR CITIZEN OVERSIGHT BOARDS

Date 10.30.2015

Civilian oversight boards may be on the cusp of getting more access and more power when it comes to reviewing police use-of-force incidents. The issue of oversight, of course, has been bubbling for decades, but it has taken center stage over the last few years as city leaders and the Justice Department have become more engaged in issues of policing and the use of force (Here's a Police Executive Research Forum report on the increasing involvement of the DOJ).

In Philadelphia earlier this month, new rules were introduced that will give the director of the Police Advisory Commission a voice and vote on the Department's internal use-of-force reviews. This marks a significant departure from past procedures and places formal authority in the hands of a civilian when the Department has to decide whether a cop's discharge of a weapon was justified.

Some may hope that the Philadelphia plan is an aberration, but there is a real chance that, instead, the city is just an early adopter of a new and growing model for oversight. If, in fact, more cities give civilians a role in meting out decisions about use of force, we need to think about the implications and how cops and law enforcement leaders approach the prospective changes.

Additional oversight, in itself, should not be regarded as a bad thing. Professionally, we can and should be able to withstand public scrutiny. Politically, the more cops appear to resist accountability, the more we reinforce the declining public confidence in police officers that we see in current polling data, in the media, and, too often, in our communities. Still, we shouldn't sit idly by as new rules take shape; cops and law enforcement leaders need to be engaged in the discussion and thinking about the terms under which we could embrace new modes of accountability. The possibility of these changes presents an opportunity to better explain constitutionally sound use-of-force issues to the public as well as demand more resources for training cops in de-escalation strategies that underlie the push for increased scrutiny and accountability.

Of course, things could go wrong. There is a real possibility that handing over power (even in part) to enforce internal department policies could threaten the careers of many more officers each year, including those whose decisions to use force were too close to call. As anyone who has served knows, it's usually impossible to have the full range of information at the moment a decision has to be made so being judged as if officers had perfect information could unfairly weigh against them. The Supreme Court noted these elements in determining "the objective reasonableness standard in the 1989 ruling Graham v Connor.

To address this possibility, law enforcement leaders should make an effort to improve the relationship with civilian boards. For a long time, that relationship has been guarded and uneven, usually with no shortage of mutual antagonism. This legacy does not bode well for cops if these out-of-the-loop civilians are suddenly squarely in the middle of internal investigations. As we ready for the prospect of new powers for civilian overseers, we need to engage the existing boards with a recognition of their position and duty. This is not about unilaterally handing over authority, it's about building some bridges to people whose power is on the upswing.

One might ask, aren't we just validating their authority by building bridges to these outsiders?

First, they're not the enemy; however hostile they may sometimes seem, oversight boards represent a perspective that is - for various reasons - very important to the communities in which we serve. More importantly, if the people who fill out these boards may be making career-determining decisions about our officers, we ought to spend more time explaining what cops see, and how and why they make the tough decisions they must sometimes make.

What's more, it may be that these board members can actually be a voice for our own needs. To get to this point, we have to be willing to accept that civilian members of oversight boards are not there because they are anti-cop but because they are pro-community. By looking at things through this frame, we can find some common ground.

An example comes from our own models. The primary duty of policing is to enforce the law, but, because our real purpose is to produce good public safety outcomes, we put time and money into community-oriented projects like Police Athletic Leagues. We know that the positive to come out of these and similar community investments can make the law enforcement duties much easier and more effective.

If we can accept that the underlying purpose of these oversight boards is to improve policing in communities –and not just to play gotcha with cops – then we need to enlist them in efforts to improve policing outcomes as a strategy to diminish concerns about errant and unconstitutional use-of-force. (By the way, if we continue to assume that these boards are just out to get us, it's not going to change the trajectory of their power. It may, however, reinforce the antagonism in ways that hurt cops.)

The more that these civilians understand what cops face in their work, and the more they understand how little training there is for deploying the de-escalation techniques and alternative approaches to policing that they so often advocate, the more likely it is that they will start demanding resources to support cops. It's a little bit like Nixon going to China; it may be that these citizen panels we label as anti-police are exactly the people to get us the support we need.

Whether or not these boards gain more investigative and enforcement power is not actually the big issue; the real issue is whether we can act strategically enough to leverage these boards' already-expanded influence to get real investment in the training that cops ought to be provided.

There's an interesting analogy to education reform here. The new Common Core standards are considered "revolutionary" from a teaching and learning perspective, but they are meaningless if teachers don't have the right training. As EdSource reported:

Whether elementary school teachers will be given the support they need to facilitate that revolution is unclear. [California] provided $1.25 billion this year to help districts implement Common Core, but the funds can be spent on items from textbooks to computers – anything districts need to make the new standards a reality and prepare for new, computerized tests aligned to the standards. The money can be spent on teacher training, but it is not required that districts do so.

Fortunately, Boards of Education and politicians are starting to realize that they can't hold teachers accountable for students' Common Core test results without having trained them in Common Core teaching strategies. You have to, in other words, front-load expectation with preparation.

Similarly, the success of the paradigm shift we are seeing in policing – of which the expanded powers for oversight boards is only a part – will depend on how policymakers allocate resources. To make this transformation work, cities and counties must invest in the training needed to prepare cops for their new expectations.

And who better to demand these investments than the civilian boards being entrusted to hold cops accountable?


Ted Sexton, Executive Vice President of UNIT Solutions, is also the retired Sheriff of Tuscaloosa County, a former National Sheriff’s Association "Sheriff of the Year," and former Assistant Secretary at the U.S. Department of Homeland Security.