Chapter 14 Accountability CJFS 4870 SPRING 2019

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Learning Objectives Understand the importance of accountability. Distinguish between internal and external accountability. Understand procedures for ensuring accountability internally, including internal affairs and codes of ethics. Develop procedures for ensuring accountability externally, including civilian review, citizen complaints, state tort and Section 1983 civil liability, accreditation, and criminal liability and the exclusionary rule.

Accountability The requirement the subordinates be able to provide satisfactory reasons for significant deviations from organizational goals and expectations Essential when: Mistakes and misconduct occur Performance falls below expectations Outcomes differ from expectations

Two Sources of Accountability Within the police department Internal affairs Codes of ethics Outside the police department Civilian review Citizen complaints Civil liability

Promoting Accountability from the Inside Internal Affairs Codes of Ethics

Internal Affairs Specialized staff unit for policing the police Some purposes of internal investigations: Investigate complaints of police misconduct Investigate police use of deadly force Evaluate policies related to police ethics and behavior Trial board: responsible for rendering judgment after hearing a case presented by internal affairs

A Police Officer Bill of Rights Ban on the use of polygraphs and alcohol detection devices Defined hours when an interrogation of a suspected officer may be conducted by an investigator Advance notice to an officer who is being investigated, which includes the accusation and the name and address of any complainant Accusation and trial procedures that ensure an officer’s right to counsel, cross-examination of accusers and witnesses, and established penalties Right of an accused officer to pick some members of any review panel or trial board which will sit in judgment of the officer upon completion of the investigation

Codes of Ethics Consist of several standard elements: Legality (enforcing and upholding the law) Service (protecting and serving the public) Honesty and integrity (telling the truth, being honest in action) Loyalty (to other police officers) The Golden Rule (treating people with respect) Can be traced to the movement to professionalize policing. Provides model for officer’s behavior in private life and use of force, etc.

Promoting Accountability from the Outside Civilian review Citizen complaints Civil liability https://www.duluthnewstribune.com/content/police-chiefs-view-outside-review-board-has-its-pros-and-cons (Pros and Cons) https://www.nacole.org/faqs (The National Association for Civilian Oversight of Law Enforcement) http://www.policechiefmagazine.org/can-professional-civilian-oversight-improve-community-police-relations/ (IACP) https://www.youtube.com/watch?v=X7YM196o3CU (YouTube video) https://www.ncjrs.gov/pdffiles1/nij/184430.pdf (U.S. DOJ, PDF)

Types of External Review Three models: Civilian Review Model Civilian body investigates, adjudicates, and recommends punishment Civilian Input Model Vests the receipt and investigation of complaints in the hands of civilians All other functions remain the responsibility of the police departments Civilian Monitor Complaints are received by the police department and the process, from the beginning to end, is monitored by an external unit

Civilian Review Represents an important step in promoting accountability Civilian involvement in the complaint process produces: More objective and thorough investigations A higher rate of sustained complaints and more disciplinary actions against guilty officers Greater deterrence of police misconduct Higher levels of satisfaction on the part of both individual complaints and the general public Effectiveness is unclear; most civilian review mechanisms only provide for disciplinary recommendations

Citizen Complaints Serve as an indicator to supervisors of how well their subordinates behave on the street May be used to improve performance, enhance image, and strengthen relationships with citizens Warn supervisors when problems are brewing It is difficult to have a complaint resolved in favor of the person filing the complaint.

Civil Liability The prospect of civil liability, being sued for misconduct, is an especially important issue for police administrators. Civil liability is the legal fact that police officers and administrators can be held liable for their misconduct or the misconduct of their subordinates. There are two types of liability: 42 U.S.C. Section 1983 liability and state tort liability.

Civil Liability Section 1983 This is one of the most popular causes of action for aggrieved plaintiffs for suing officers. 42 U.S.C. Section 1983 (Section 1983) is a law that allows plaintiffs to sue state officials in federal court (sometime state court) for violations of federally protected rights The elements for a successful lawsuit are twofold: (1) a constitutional violation (or violation of any other federally protected right) (2) under color of state law. That is, the plaintiff needs to demonstrate that his or her constitutional rights were violated under color of state law. “Color of state law” is construed broadly to include actions of a law enforcement officer committed within the scope of his or her employment

Civil Liability In Bivens v. Six Unknown Named Agents (1971), the Court held that section 1983 lawsuits against federal officials are permissible. The same standards that apply for lawsuits against federal officials also apply for state officials. The Court has required a certain level of culpability in the commission of constitutional rights violations for a finding of liability. The plaintiff must show that the officer’s actions were “unreasonable.”

The Court has also held that a Fourteenth Amendment violation must “shock the conscience” in order to be a violation. Administrators and supervisors can be sued in their individual capacities. Individual supervisors can be sued for the unconstitutional activities of their subordinates. Administrators can also face Section 1983 liability in their capacities as policymakers.

Supervisors can be sued in their individual capacities if it can be determined that there was an “affirmative link” between unconstitutional conduct of the subordinate and the supervisor. An affirmative link has been defined in various terms as deliberate indifference, knowledge, or negligence.

In Monell v. Department of Social Services (1978), the Court ruled that municipalities could be held liable for constitutional violations sanctioned by official municipal policies or customs. More recently courts have held there must be a certain level of culpability when certain forms of misconduct are alleged.

Police officers and supervisors enjoy qualified immunity. This acts as an affirmative defense and provides immunity from lawsuit. It protects certain police officers for reasonable mistaken beliefs. It is also available to supervisors and subordinate police officers only in their individual capacities, but is not available to government units, municipalities, or counties.

State Tort Liability Law enforcement officers can be sued under state law for a variety of torts. A tort is a civil wrong for which a person can recover damages. In order to succeed with a tort lawsuit, a plaintiff must show that the officer owed the plaintiff a legal duty, that the officer breached that duty, and that actual damage or injury resulted.

State Tort Liability There are two general categories of torts: intentional torts and negligence torts. Intentional torts are civil wrongs that are intentional in nature. That is, the plaintiff must show that the officer’s behavior was intended. Examples might include wrongful death, assault and battery, and false arrest and imprisonment. Typically, police administrators are not sued for intentional torts because they rarely engage in the types of police work which commonly gives rise to this type of litigation. Negligence torts are civil wrongs that result from negligence; they do not require that the officer of administrator intend for harm to result. Most negligence lawsuits brought against police administrators and supervisors are filed at the state level.

Police administrators and their subordinates can be litigated based on several negligent scenarios: Negligent failure to train Negligent hiring Negligent assignment Negligent failure to supervise Negligent failure to direct Negligent entrustment Negligent failure to investigate or discipline

Accreditation The Commission on Accreditation for Law Enforcement Agencies (CALEA) is an organization that was established in 1979 to evaluate and accredit police agencies meeting the commission’s accreditation standards.

Accreditation It has developed standards designed to help law enforcement agencies achieve the following: Strengthen crime prevention and control capabilities Formalize essential management procedures Establish fair and nondiscriminatory personnel practices Improve service delivery Solidify interagency cooperation and coordination Increase community and staff confidence in the agency

Accreditation Standards The standards set forth by the CALEA address several major law enforcement subjects, including: Written directives Management decision making Preparedness Relationships with the community Accountability Liability and risk exposure Professional excellence

Accreditation Standards Departments must meet applicable standards, which include having adequate policies and procedures addressing the critical aspects of policing. An agency seeking accreditation must go through the following five phases: Application Self-assessment On-site assessment Commission review and decision Maintaining compliance and reaccreditation

Phases of Accreditation Application Self-assessment On-site assessment Commission review and decision Maintaining compliance and reaccreditation

Other Accountability Measures The landmark Supreme Court decision in Mapp v. Ohio (1961) applied the exclusionary rule to the states. The exclusionary rule requires that evidence obtained in violation of the Constitution cannot be admitted in a criminal trial to prove guilt. This rule is a legal mechanism for ensuring accountability.

Other Accountability Measures The fruit of the poisonous tree doctrine has expanded the scope of the exclusionary rule. This doctrine states that an illegal search requires not only that the original evidence be excluded, but that any “fruit” of that evidence must be excluded as well

Other Accountability Measures Criminal Prosecution At the state level, most jurisdictions provide criminal sanctions for illegal police conduct. This includes false arrest and trespass, among other offenses. However state prosecutions are relatively rare, and most states require criminal intent as an element of a crime, making good faith alone a defense to criminal liability.

Other Accountability Measures Criminal Prosecution One tool for criminal prosecution of officers is 18 U.S.C. Section 24, which states that the police can be prosecuted for the deprivation of a citizen’s constitutional rights. This statute acts as a supplement to state criminal remedies. That is, police officers can also be convicted on criminal charges at the state level.

Summary Accountability is an important consideration for police administrators, who will have trouble maintaining control without it. That is, if subordinates (even administrators) are not held to answer for their action, crime control and police services are compromised.