1. Office of the Independent Police Auditor
Mark P. Smith
Independent Police Auditor
APTA Risk Management Seminar
June 10, 2013

2. Civilian Oversight of Law Enforcement
A growing trend?
New York City
Boise
Chicago
Cambridge
Los Angeles (City)
Honolulu
Los Angeles (County)
Syracuse
San Francisco
Sacramento
Washington, DC
Austin
Atlanta
Providence
Boston
Eugene

3. Civilian Oversight
National Association for Civilian Oversight of Law Enforcement (NACOLE)
Established 1995
Brings together professionals working to establish or maintain law enforcement oversight
Code of ethics
Practitioner certifications

4. Types of Civilian Oversight
Investigative
Monitoring
Auditing
Investigate complaints and reach findings, possibly including discipline
Review completed investigations from Internal Affairs, recommend different outcomes
Focus more on quantitative analysis to identify problematic trends or areas for improvement

5. Importance of Civilian Oversight
Can a police department police itself?
Should a police department police itself?
Should a police department police itself alone?
Controversial incidents lead to:
Public mistrust
Independent, civilian oversight leads to:
Objectivity
Accountability
Transparency
Opportunity to reestablish trust

6. Early Timeline of the Office of the Independent Police Auditor (OIPA)
January 1, 2009: Oscar Grant killed by BART PD Officer Johannes Mehserle
July 8, 2010: Mr. Mehserle is convicted of involuntary manslaughter (trial moved to Los Angeles)
November 5, 2010: Mr. Mehserle is sentenced to 2 years in prison with credit for time served
BART engages in process of developing civilian oversight system

10. Early Timeline of OIPA (Cont’d)
June 27, 2011: OIPA begins operation
July 3, 2011: Charles Hill killed by BART PD Officer
3rd OIS in 2.5 years
August 11, 2011: BART interrupts cellular service
October 10, 2011: Occupy Oakland becomes active
-All too often, civilian oversight is an appropriate, though late, reaction to a particular incident or series of incidents that lead to mistrust of a police department.
-What is challenging for the oversight professionals is that they must begin their startup work in what might already be the worst, or least ideal, circumstances.
-In light of this, the importance of managing expectations is paramount:
-”SOLVING” the problem vs. “MINIMIZING” the chances of it recurring.

11. OIPA’s Mission
Provide all members of the public with effective and independent oversight of the BART Police Department
Conduct unbiased and thorough independent investigations and reviews of police department investigations
Make policy recommendations to improve the performance of the police department
Maintain continual communication with members of the public in the BART service area.

12. OIPA’s Responsibilities
Citizen Oversight Model
Intake complaints from the public
Investigate complaints regarding excessive force, racial profiling, sexual orientation bias, sexual harassment, use of deadly force, wrongful deaths
Review Internal Affairs investigations
Mediation
-Hybrid Model
-I was given the Model without any particular direction on how to implement it, so I broke it down into a list of individual responsibilities that I was required to meet. I came up with about 18 of them.
-Investigate complaints: sounds fine, but we’ve learned that this jurisdiction is far too restrictive for an oversight system like BART’s. Additionally, the investigation part only applies to complaints we receive (not those filed with the police department).
-Review IA investigations: sounds fine, and I think it is very important. But there is no direction as to what to do when these reviews are complete. There are specific instructions for investigations and appeals, but they were specifically left out of this section.

13. OIPA’s Responsibilities (Cont’d)
Facilitate appeals of Internal Affairs conclusions
Monitor officer-involved shooting investigations
Develop policy and training recommendations
Meet with the BART police associations
Conduct community outreach
Submit monthly and annual activity reports
-Monitor OIS. Ok on its face, but when people find out that this is not the same as independently investigating, they are often quite disappointed and ready to lose faith in the whole system.

14. OIPA’s Responsibilities (Cont’d)
Facilitate application process and coordinate selection process for Citizen Review Board
Provide staff support to the Citizen Review Board
Facilitate training for the Citizen Review Board
-Importance of having a say in the mandate of your oversight office.
-Importance of developing a good working relationship with whatever entity has the ultimate authority to refine your Model, or ordinance, or charter.
-This is often easier said than done. Politics can present many challenges to effecting change.

15. Who Works at OIPA? Independent Police Auditor
Independent Police Investigator
Senior Administrative Analyst
-Not that many people to take on all of those listed responsibilities.
-Task is made harder by the fact that the pressure is on from Day 1, and you have likely not yet had the chance to fill your staff positions.
-Many challenges I faced were learning the hiring practices at my bureaucratic organization. It was a multi-step process fraught with delays that persist through today.
-This may be common knowledge to those who work in government or pseudo-government, but it’s a useful tip to discuss nonetheless: make friends in HR!

16. Key Elements of OIPA Independent of BART PD
“Unfettered access” to police reports and police personnel records
Written into Citizen Oversight Model
Can recommend revisions to policy and training
Chief of Police cannot unilaterally overrule OIPA findings
-Everyone talks about whether an oversight system has “teeth” to it. Reporters, the public, critics, the police, etc. I think people can interpret the answer to that question in different ways. But to me, these are some of the things that are most crucial to having legitimacy as an independent oversight body.
-Not every agency has these elements. It does not necessarily doom oversight to be without them, but I think it increases the chances that challenges to the effectiveness of the oversight system will arise down the road.
-Other agencies have additional tools:
-Subpoena power
-Authority to recommend stripping officers of police powers pending an investigation

17. OIPA’s Challenges Publicity Skepticism from BPD Skepticism from public
Inherent resistance to spotlighting issues and/or deficiencies
-When you’re new, nobody knows about you. It quickly creates a situation whereby critics question your value if you are not receiving, investigating, reporting on cases involving misconduct.
-But I have come to find that there may simultaneously be resistance by some to being “too public.” Remember, many agencies come to life in the aftermath of an incident that causes a municipality to feel an immediate need to restore its image; some stakeholders in that municipality may think that talking too loudly about filing complaints and about police misconduct will run counter to restoring their image, and the more public you are, the lower their comfort level goes down.

18. Stakeholders / Community Groups
Family of Oscar Grant
Neighborhood/Religious/Youth organizations with aligned interests
Host community forums throughout the District
Establish contact with Public Defenders’ offices
-I have combined these two because in my arena they are so heavily overlapped. Not 100%, but very close.
-Meeting with the family of Oscar Grant was one of the very first things I did when I arrived at BART. I maintain a relationship with them today and intend to keep that relationship going for my entire useful life at BART.
-I just started asking around for other stakeholders and community groups that I could meet with. They rarely reached out to me, because despite the level of their involvement, the actual startup of the office remained too low on their radar screens with all of their other interests. So I needed to seek them out. I paid attention to media stories, I looked for some of the big names (ACLU), and I asked the elected board who appointed me for the groups they thought I should be talking to.
-Later, we started looking to the BART Government and Community Affairs staff for help compiling lists – in any municipality or district, there is likely someone who has already had to pull together data on various cross sections of the same constituents that you might want to reach as an oversight professional.

19. Relationship with the Police Department
Good leadership acknowledges when there is need for reform
Recognize the similarities between Internal Affairs and civilian oversight, where possible
Meet with unions early on
Talk directly to the officers themselves
-If the Command Staff of the Department concedes that there is need for reform, take advantage of this – make it clear that in order to do your job effectively, you need “unfettered access” and cooperation from Command Staff.
-Depending on circumstances, you may find you have more in common with the Internal Affairs Department than you think. I have experienced both sides of this point, but where you are able to identify with IA, do so – you will often find yourself needing their assistance to verify the data you are collecting and the policy analysis you are doing.
-Unions representing your police department can often be your toughest stakeholders to develop a relationship with… it’s just the nature of their job in protecting their officers that is most diametrically opposed to what they see as your job in identifying poor conduct by officers. I have most definitely been on both sides of this equation as well; but whether you are dealing with a union that respects your presence or one that does not, meeting with them early will at least minimize some unnecessary speculation about your motives and method of operating. The longer you wait to communicate with them the greater they face the unknown, and the unknown likely bothers them as much as just about anything when it has the potential to affect their members.
-At BART we have the luxury of interacting with pretty much every employee of the police department. The same is obviously not true in places like Los Angeles and Chicago. But either way, the more opportunities you take to introduce yourself and give a brief breakdown of the new oversight you are bringing to the department, the better off you will be. The argument is the same as with unions – officers may understandably fear the unknown about you more than anything else about you. By talking to them, you can begin to at least let them know what your expectations are and how oversight is going to work, whether they choose to agree with it or not. Even in large departments there are countless opportunities to address groups of officers, whether at training sessions, at roll calls, or even as a module during their academy.

20. Progress Made Community outreach CRB meeting regularly
Website/brochure
Production of reports
OIPA/CRB involvement in officer recruitment
Complaint intake/investigation/review

21. Looking Forward… Continuing to develop outreach
Developing an ADR system
Reviews of BART PD training and policies
Educating more officers about oversight system
Evaluating the oversight system
-Working on a policy recommendation now as the BART Police Department will soon deploy on-body cameras to its patrol force. We have some disagreements with the policy that the Department came up with, and so we need to make a recommendation to reflect our point of view.
-Evaluation of the oversight system is crucial to me. You have heard me talk about certain obstacles and pitfalls – this could potentially be the chance to make the modifications and clarifications that I think are warranted.

22. Civilian Oversight - Summing Up
As an agency, take whatever steps can reasonably taken to minimize the chances that a controversial incident will occur
Put yourself in the best possible position to react and rebuild trust in case such an incident does occur
-Working on a policy recommendation now as the BART Police Department will soon deploy on-body cameras to its patrol force. We have some disagreements with the policy that the Department came up with, and so we need to make a recommendation to reflect our point of view.
-Evaluation of the oversight system is crucial to me. You have heard me talk about certain obstacles and pitfalls – this could potentially be the chance to make the modifications and clarifications that I think are warranted.

23. OIPA Contact Information
Telephone
(510)
Fax
(510)
Website
Mail
OIPA
Bay Area Rapid Transit
P.O. Box 12688
Oakland, CA
Office
300 Lakeside Drive
14th Floor
Oakland, CA 94612