For better misconduct investigations, use third parties

Article highlights

• Law enforcement agencies currently have the discretion to choose how misconduct investigations are conducted, leading to potential bias and lack of trust from the public.
• The three types of systems for police misconduct investigations are: dependent (internal), interdependent (allied agencies), and independent (outside law enforcement). Each has its strengths and weaknesses.
• A proposed solution is a mandated third-party investigative model, independent but with the powers of the dependent model, to investigate and recommend sanctions.
• Benefits of the third-party investigation model include eliminating conflicts of interest, increasing credibility and acceptance of results, fostering trust between police and communities, and freeing up resources for the affected agencies.
• Challenges to implementing third-party investigations include resistance from law enforcement culture, legal access to confidential information, and issues related to funding, investigator qualifications, and legal requirements.

By Captain Joe Alvarez

“Who will guard the guards themselves?” [1] This has been a question for as long as there have been people in power. It is a fundamental question for modern-day policing and how we hold our public officials accountable for their actions. Over the past several years, law enforcement has been challenged with several high-profile incidents that have created tension with the public and increased outcry for oversight and reform.

At the center of this issue is how police can be objective in investigating themselves and that the public does not trust these investigations. We need to understand that “a perceived egregious act of misconduct by a single officer in one city not only damages police-community relationships locally; it can gain nationwide attention and reduce the trust of the police generally.” [2]

How the profession deals with misconduct is essential to maintaining public trust and addressing inappropriate behavior. Investigations that are fair, impartial and free from influence are vital for the credibility of the profession. The question is how we accomplish them in a manner that is fair to the employees and also accepted by the public as objective and complete.

The current state of internal affairs

Currently, law enforcement agencies can choose how they conduct misconduct investigations. While there are legislative guidelines for employee rights and workplace actions, there isn’t a mandated model for police misconduct investigations. The predominant models utilize internal resources or allied agencies that are partnered together and have common interests. These models may be challenged because they can be biased, subject to inappropriate influence and lack balance. Additional concerns stem from the fact that investigations rely on officers and attorneys with interests in the outcomes and that agencies with pattern and practice issues may not be capable of conducting unbiased and appropriate investigations.

Each of these items creates challenges in building public trust and acceptance of investigation outcomes. According to the Advancement Project, a multiracial civil rights organization, “Police departments should not investigate themselves. Nor should justice depend on prosecutors who rely on local law enforcement for evidence in cases they bring. Instead, accountability systems should be directed by the communities that police departments are supposed to protect and serve.” [3]

Traditionally there are three different types of systems for police misconduct investigations. Canadian criminologist Curt Griffiths describes these models as: [4]

• Dependent
• Interdependent
• Independent

The dependent model is what we’re all used to seeing on television. Here agencies use members of their departments to investigate themselves. The dependent model has several benefits to the agency and personnel. They can be highly responsive, cost-efficient and the personnel involved incredibly competent. This model is also accepted by employees and generally meets all legal mandates to complete investigations appropriately.

While this is the most dominant model, it also has the most issues where conflict and bias can occur. The dependent model utilizes investigators vested in the outcomes, answering to supervisors who control their careers. Additionally, internal department investigators will often look to support sworn personnel. Police reform expert Walter Katz notes, “There is a natural impulse to interpret evidence in a way that supports the conclusion the interpreter would prefer.” [5] The organization’s director has influence over the investigations, and other parts of the legal system are vested in the outcomes. This model has many areas of weakness, and “there’s an inherent conflict of interest in police policing themselves.” [6]

The interdependent model is where an allied agency’s personnel or other professional law enforcement agency is responsible for conducting the investigation. This model can afford the independent oversight the dependent model lacks, with all the other benefits. This model is generally more appealing to the public, as it “enables the community to believe that the investigation will be balanced and not in favor of the police or the civilian party.” [6] Whether the allied agency is investigating allegations against your staff or conducting an administrative investigation for your staff, the community view of the process is more positive than the dependent model. A benefit of interdependent models is that they limit staff interference and investigation bias. Using law enforcement professionals who can render a fair and unbiased opinion that’s accepted by both those being investigated and the community is a benefit of this model.

The independent model is when any group or organization outside law enforcement is responsible for conducting the investigation. These models include civilian oversight groups, independent auditors, civilian review boards, independent investigations and similar systems. “The public generally views this model as the most effective due to the independence of the investigators, which offers greater accountability for the actions of officers.” [6] While the public generally prefers this model, it is the least positively received among law enforcement. Areas of concern include the fear of politically motivated outcomes, biased investigations and uneducated individuals conducting investigations.

Independent models can vary, and while some include public participation, they are generally review models with no investigative authority and only go over a different group’s completed work. They typically have no power to compel involvement or correct employees, dealing predominantly with recommendations only.

What would the system look like, though, if we mandated all misconduct investigations be handled by a third party in an independent model, but with the powers of the dependent model to investigate and recommend sanctions on the offending officer?

How to transform investigations

The thought of a complete third-party investigative model makes some think, “That’s a bad idea,” and “It will never work.” I would ask that we take a minute and think about it. If investigations are supposed to be transparent and fact-driven, why won’t they work? If the result of the investigation is truthful and appropriate, why does it matter who completes it? Investigations don’t deal with discipline, and that authority will always rest with the agencies, so why do we resist oversight?

There are several benefits to adopting third-party investigation models that do not utilize the affected agencies’ personnel. These models eliminate conflicts of interest when investigating fellow officers, friends or supervisors. Removing the stakeholders from the process eliminates bias and undue influence and reduces inappropriate investigative practices. In a Pew Research Center study last year, 75% of respondents wanted to “give civilian oversight boards power to investigate and discipline officers accused of inappropriate use of force and other misconduct.” [7] This third-party approach delivers a product that is balanced, fair and impartial.

A key strength of an independent investigation is that the results are more credible and accepted, which leads to “strong relationships of mutual trust between police agencies and the communities they serve [that] are critical to maintaining public safety and effective policing.” [2] These models are more open to communities and increase cooperation. “Where the public trusts the process of the justice system, it will confer legitimacy on those institutions.” [5] They reduce conflict with the affected agencies by removing challenges like cover-ups and hiding information. They also can provide different layers of protection for the agency and its chief executive. Finally, using any third-party model frees up the affected agencies’ resources to be reassigned to other critical tasks.

The benefits of the third-party investigation model also apply to complaints by members of the community against police staff that may not necessarily rise to the level of formal investigation.

Handling complaints

There will always be a need for supervisors to respond to complaints. A complaint is different from a misconduct investigation, and a supervisor needs to hold subordinates accountable, maintain standards and provide an immediate response to the community. We must also recognize that “not all complaints are about police misconduct may relate to policing standards, operational guidelines or policies. Such so-called service complaints will not always require an investigation but warrant an effective and timely response.”⁸ That does not mean a status quo response to the ways complaints are handled is sufficient.

There are several viable third-party options to complement the supervisor response for the complaint process, from independent to interdependent. To be successful, the chosen models need the support of the local governing body, chief of police and command staff. The models need to be well structured, supported by written policy and procedures, and clearly outline the differences between complaints and misconduct that needs to be investigated. To do this, departments need to have a “variety of accountability mechanisms in place and procedures to ensure these mechanisms are being used consistently.” [2] Absent legislation that mandates third-party investigations, provides funding or creates a new agency to address misconduct, governing bodies will need to examine models that are available given their existing resources.

Jurisdictional partnerships

An easy way to create an accepted third-party investigation model is to partner with other agencies near your jurisdiction. Whether you are pooling funding to pay for contracted third parties or providing investigative services to each other, partnerships can be highly beneficial. While smaller agencies may not be able to meet the investigative needs of larger agencies, an equitable division of funding for contracted services can be an answer to this problem.

There are several challenges in mandating third-party investigations or designing a new system. Due to the law enforcement culture, there is a high likelihood of resistance and lack of cooperation with a third party. This can be magnified if the investigators have no authority to compel statements or issue subpoenas. Misconduct investigations deal with confidential personnel and victim information and criminal investigation information controlled by different laws. This can present challenges for third-party investigators who do not have the legal standing to access it and agencies that don’t wish to provide it for fear of inappropriate releases. Other areas that could be considered in designing a third-party investigative model may include funding, investigator qualifications, program authority, subpoena powers and legal requirements.

Agencies wishing to prepare for the future should focus on establishing funding, staffing and systems authority. The use of external models requires line-item funding, whereas internal models rely on existing personnel costs. Developing partnerships to share the workload and financial burden can significantly increase the new system’s efficiency, productivity and credibility. The standards and expertise for staffing are crucial for any third-party model’s success and must be established. Finally, the authority to subpoena, compel, or seek warrants must exist for the third-party model to be viable.

Conclusion

According to Professor Ed Delattre, author of “Character and Cops: Ethics in Policing,” “A higher standard is not a double standard. Persons accepting positions of public trust take on new obligations and are free not to accept them if they do not want to live up to the higher standard.” [9]

Many dependent models for police misconduct investigations produce quality investigations from highly skilled investigators. Despite that, they are challenged based on the premise that it is not appropriate for the police to investigate themselves. Additionally, dependent models cannot escape suspicions that they are biased, prone to inappropriate influence and can lack fairness or impartiality. Using interdependent and independent third-party misconduct investigation models can be highly beneficial in addressing these concerns. While they are not mandated, it has been shown using these models is a best practice in police misconduct investigations, which helps achieve the ultimate goal of community confidence in their police.

Topics for discussion

1. What mechanisms do we currently have in place to ensure accountability for misconduct within our force, and how can these be improved?

2. How can we better engage with the public to build trust and transparency in our operations, particularly in relation to misconduct investigations?

3. In light of recent high-profile incidents, what steps are we taking to proactively address potential issues and implement meaningful reform within our department?

References

1. Juvenal. Satire VI. Translated by A.S. Kline. 2001.

2. Importance of Police-Community Relationships and Resources for Further Reading. U.S. Department of Justice. Community Relations Services Toolkit for Policing.

3. The Change We Need: 5 Issues that Should Be Part of Efforts to Reform Policing in Local Communities. Advancement Project.

4. Griffiths C. (2008.) Canadian Police Work. Thomson Nelson.

5. Katz W. (April 10, 2015.) Enhancing Accountability and Trust with Independent Investigations of Police Lethal Force. Harvard Law Review.

6. McCartney S, Parent R. (2015.) Ethics in Law Enforcement. 5.4 Investigation Models. BCcampus Open Publishing.

7. Pew Research Center. (Jan. 5, 2022.) Trust in America: Do Americans trust the police?

8. Handbook on police accountability, oversight and integrity. (2011.) United Nations Office on Drugs and Crime. United Nations.

9. Delattre EJ. (2011.) Character and Cops: Ethics in Policing. AEI Press.

About the author

Captain Joe Alvarez has been in law enforcement for 25 years. He has worked numerous assignments throughout his career, including patrol, K-9, training, SWAT and internal affairs, and is an instructor in multiple subjects at the local police academy. Alvarez has a Bachelor of Science degree from Cal State University Fresno and a Master of Science degree in law enforcement leadership and public safety management from the University of San Diego. He is a graduate of the California POST Sherman Block Supervisory Institute and Police Executive Research Forum’s Senior Management Institute for Police (SMIP), as well as California POST Command College.

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