Civilian review of police: Why has it failed?

Photo by Jim Handrigan

Three weeks have passed since a jury found former Minneapolis police officer Derek Chauvin guilty on all counts in the death of George Floyd. Much of the conversation surrounding the trial has concerned how Chauvin’s actions were a direct violation of his duties as a police officer. Minneapolis Chief of Police Mederia Arradondo testified to this effect during his time on the witness stand in Chauvin’s trial, arguing that Chauvin’s actions were outside the norm.

However, the reality is that Chauvin has had a long history of complaints, many of which went without discipline from the department. Chauvin has been the subject of 26 complaints in his 19 years as a Minneapolis police officer according to Communities United Against Police Brutality (CUAPB).

The organization also found 3,434 complaints filed against other officers in the department. Only 20 of those were disciplined, resulting in a discipline rate of nearly half of 1%. This has led some to question the system of police oversight in place and its inability to penalize officers such as Chauvin who have a long track record of complaints.

Complaints against an MPD officer by a civilian are handled by the Office of Police Conduct Review (OPCR). According to the City’s website the OPCR is a joint office of the Minneapolis Department of Civil Rights and the MPD Internal Affairs Unit. There are two units of the OPCR, one made up of civilians and the other of sworn MPD officers.

The OPCR’s Police Conduct Review Panel is made up of at least seven civilians who are appointed by the mayor and city council. Several MPD officers selected by the chief of police sit on the panel as well. The panel when convened includes two civilians and two officers who review alleged cases of misconduct and submit recommendations to the chief. The chief has the authority to discipline the officer or officers involved or to dismiss the case entirely.

Civilian review over the years

Civilian oversight of police has a 30-year history in Minneapolis starting with the police Civilian Review Authority (CRA). It was created in 1990 by a city ordinance to receive, consider, investigate, and make decisions regarding complaints against the MPD brought forth by the public.

The CRA was made up of an all-civilian staff and was independent of any department in the City. It had a board that hired the executive director, two investigators, and two clerical staff. The review panel was made up of 11 people, with three members partaking in a panel hearing.

In 2012, another city ordinance was introduced to create the OPCR under the Civil Rights Department after then-Governor Mark Dayton signed legislation that denied civilian oversight boards the authority to reach “finding of fact or determination regarding a complaint against an officer or impose discipline on an officer.”

Critics of the CRA often pointed to what they saw as a low disciplinary rate of 6-7% as the reason for the agency to be scrapped, but it was close to the national average of 7-8% at the time. According to Dave Bicking vice president of (CUAPB) one of the other reasons for the demise of the CRA, was city leaders and law enforcement insistence that the police be allowed more involvement and buy-in on cases.

“In other words, if the police department was happy with the process and it worked out their way, they’d actually follow it. That I think would be the most fundamental reason given and not an actual legitimate one,” he said

Subsequently the CRA was dissolved and the MPD became part of the investigation process of police misconduct. The MSR reached out to the OPCR for comment but no one was available at press time. City officials did however provide documents about how the agency was formed and its operation.

Bicking served as a member of the CRA from 2008 to 2010. Though he admits that the CRA wasn’t perfect, Bicking sees it as a better system at handling police misconduct than the OPCR. “The CRA was weak, it had its problems, but it had real strengths,” he said.

 “There was a place to file a complaint that was totally a civilian office so you wouldn’t file a complaint by going to the police department directly,” emphasizing that the review panel was administered completely by civilians.

An officer complaint would first make its way to the desk of the CRA director, who would then make the call on whether or not the complaint was worthy of review. CRA panelists could review the director’s dismissal and have a case further investigated if they found merit.

Then an investigator would be assigned to the case and interview the complainant, the officer in question, and any witnesses. They would review any 911 tapes and request documentation from MPD that was pertinent to the investigation. From there, investigators would write up a summary with a recommendation on whether or not a complaint should be sustained.

According to Bicking, the CRA was funded for three investigators, but a third investigator was never hired. This kept the two investigators overbooked. In the current OPCR, investigators are not given the ability to recommend what happens with a complaint after investigating a claim against an officer. “I think it’s good for someone who does the investigation to give their opinion at least,” said Bicking.

During Bicking’s time on the CRA, he said 7 to 10% of complaints were sustained by the review panel. According to him despite their findings, there would be little if any discipline imposed by the police chief when they concluded their investigations.

Complaints disregarded by chief

During his time on the CRA, Michael Friedman believes the police department’s management went to war with the agency and did everything in its power to avoid disciplining police. Freidman was selected as CRA chair in 2003 and served in that role for three years. He said that during his time as chair the CRA sustained 30% of complaints, and of those complaints, less than one percent would be disciplined by the police chief.

“It was written in the ordinance that the chief of police was supposed to discipline based on whatever the panel said,” said Friedman. “But what happened in practice was the chief started from scratch and reinvestigated it and overwhelmingly never found discipline and undermined discipline.”

Friedman recalled an incident in which the CRA’s finding was overturned that involved a complaint against three officers in the arrest of an 18 year old.  After the officers handcuffed him they kicked him in the jaw, breaking it, ultimately requiring surgery to repair it. “The person who was victim to that was not able to identify the officer, but there was another witness who did,” said Friedman.

None of the officers included the incident in their report despite the fact the victim had to be hospitalized. Based on the witness testimony, the CRA found that all of the officers were complicit and in violation for the false report and for mistreating the arrestee. When the case reached the police chief’s desk, however, it was determined that the witness’s testimony wasn’t sufficient, causing the case to be dismissed.

According to city ordinance, the police chief was supposed to take the CRA’s findings and use his discretion in deciding what kind of discipline was appropriate. “Very frequently they said that they didn’t discipline because they reviewed the whole thing from the beginning and they disagreed, which was a direct violation of the ordinance,” said Bicking.

Use of subpeona powers

Although the police department was required to cooperate in the investigation, it was difficult for investigators to get members of the public to comply with their requests for information. Both Friedman and Bicking believe that a civilian oversight board should have the power to issue subpoenas to gain documentation of events outside of the department.

“Where subpoena power can be helpful is that it can require non-police, other people, to talk and produce evidence,” said Friedman.

“No bar owner or restaurant owner ever once provided video,” said Bicking. He believes officers would intimidate business owners by threatening to withdraw their protection if they voluntarily cooperated in an investigation of police misconduct. “If we had subpoena power, they’d be compelled to do it and tell the cops ‘we had to.’”

Bicking said he told Minneapolis City officials that subpoena power was needed, but he was ignored. According to the activist, former Minneapolis Civil Rights director Velma Korbel and current OPCR Director Imani Jaafar insisted that cops would be available to testify and that there was no need for a subpoena. “They deliberately don’t understand this or they’re lying,” explained Bicking.

Possible solutions

What Friedman would like to see for the future of civilian oversight is for agencies to have more power in seeing their recommendations through. “I think that over 30 years in cities across the country it’s well proven that civilian review does not achieve its aims because they don’t have the authority to impose their result,” said Friedman.

“There needs to be a higher level police commission run by someone who carries knowledge of law and would ultimately have accountability according to policy.”

Bicking believes that civilian oversight can still work but needs to be properly funded. He would also like to have police chiefs held accountable when they abdicate their responsibility to discipline officers.

“It’s unfortunate that it has had very little value in most cities where it’s been,” he said. “It’s been kept powerless either by lack of funding, lack of investigatory staff, or a model that doesn’t even allow them to conduct their own investigations.”