A civilized society depends on a well-maintained police force dedicated to service and protection. However, when officers stray from the duties sworn in their oath, the citizens must have some method of redress. The current approach in Minneapolis ignores the importance of deterring unacceptable officer behavior and instead focuses on mitigating bad press and decreasing financial liabilities. Unfortunately, neither of these goals is being achieved and that is because the police department needs to refocus its goals and institute a system that encourages deterrence.
A recent article in the Star Tribune adequately summarizes the problems our police department has created for itself. [1] “Despite nearly $14 million in payouts for alleged police misconduct over the past seven years, the Minneapolis Police Department rarely concluded that the officers involved did anything wrong… Of 95 payouts from 2006 to 2012… eight resulted in officers being disciplined…”[2] These facts show that the Minneapolis Police Department is not decreasing financial liability, nor is it avoiding negative media exposure.
What is the cause of such large payouts? Finding this root will help focus a solution. Are Minneapolis residents overly litigious? Are Minneapolis police officers overly confrontational and unreasonable? Rather, if the root of the problem is not within the players, could it be the system in which the players must participate? What is that system anyway?
In Minneapolis there are two routes that victims can pursue simultaneously. Victims of alleged police brutality can file a complaint with the Office of Police Conduct Review. [3] This panel replaced the Civilian Police Review Authority and important changes, discussed later, occurred with the replacement. The second route is filing a civil lawsuit for damages under federal law 42 USCA § 1983. Under that law, citizens have a right to seek redress for criminal and civil violations in which a right, privilege, or immunity secured by the Constitution is deprived by any other citizen. Thus, police brutality suits often reach court under a claim of due process or equal protection violations of the US Constitution. These lawsuits often result in settlements because the police department does not want to face the financial and press costs of fighting the cases. Current Police Chief Janee Harteau stated, “Unfortunately, payouts in lawsuits are a hard fought cost of policing[.]”[4] Filing a civil suit is the only route to monetary compensation.
The other option, overseen by the Office of Police Conduct Review, entails filing a complaint that goes to a panel made up of civilians from the Minneapolis Department of Civil Rights and police officers.[5] The panel is an internal dependent board directly associated with the Minneapolis Police Department.They collectively determine if the allegations are founded, unfounded, or require further investigation. The panel regularly hears allegations of using excessive force, inappropriate language or attitude, harassment, discrimination, theft, failure to provide adequate or timely police protection, retaliation, criminal misconduct, and any violation of the Minneapolis Police Department Policy and Procedure Manual.[6] The panel then issues a recommendation to Chief Harteau; the recommendation has no binding effect on the Chief’s response. The fact that the panel is dependent and that the findings are non-binding is the fatal flaw in the current system. In contrast, the previous review authority, the Civilian Police Review Authority, was both independent and issued final determinations regarding policy and law violations. With that said, as Joshua Newville discussed last August, the Police Chief “ignored 85% of the sustained allegations when considering whether to impose discipline.”[7] Perhaps the largest problem with the current and prior oversight boards rests in the fact that Minneapolis police chiefs seem to ignore disciplinary recommendations, and thus, police officers are rarely held accountable for policy or law violations.
And so our city police force is held in check by an oversight board that can only make recommendations that are ultimately ignored, and by the courts, which levy penalties on the department, and thus taxpayers, to shoulder. Let us not forget that our Police Chief believes police brutality lawsuits are just a necessary cost of protecting and serving. With such a system in place, is it even surprising that payouts are high and discipline is rare? Neither of those factors will change until we as taxpayers and citizens demand change and express outrage.
If change is desired, it must come from multiple fronts with each front instituting different solutions. The three fronts that can implement possible solutions include the players, the alleged victims of police brutality as one front and the alleged brutalizing police officers as a second, and a third front focusing on overall systemic change.
Citizens can best address the problem by openly discussing the issue of police brutality with friends, family, and co-workers. Not one person should disagree that police brutality is undesirable, however, many civilians simply believe it never occurs. If civilians begin to talk about the problem by sharing experiences and feelings, the public mentality will change to recognize police brutality as a problem that must be solved. Interacting with one another and openly listening to solutions will surely provide more than the few solutions discussed here.
Civilians should also learn about their exercisable rights that engage when interacting with police officers. A routine police stop, whether in a vehicle or on the sidewalk, can escalate quickly to physical contact if a civilian does not act with calm and composure. Civil interaction between civilians and the police stands as the ultimate goal, and both players must actively pursue civility. The American Civil Liberties Union [8] and an organization called Flex Your Rights [9] are both great resources to learn the appropriate way to act when approached by a police officer. The Flex Your Rights organization also produced an informative and comprehensive video entitled, “BUSTED: The Citizen’s Guide to Surviving Police Encounters.” [10]
The other players, police officers, can also implement solutions regarding the culture of policing in general. Police culture is “characterized by a code of silence, unquestioned loyalty to other officers, and cynicism about the criminal justice system.” [11] This is known as the Blue Code of Silence and stretches across officers, police unions, and even state attorneys. These players choose to protect each other from criminal and civil liability by refusing to investigate allegations of bad behavior, and neglecting to discipline officers that do behave badly. States attorneys refuse to bring criminal prosecutions against offending officers because these attorneys are full-time participants in the code of silence policy. Not all officers follow this code, but the fact that some do is part of the problem. Corruption may be at play in upholding this code as well, but that requires a much deeper investigation and a different discussion. Ultimately, police officers need to be reminded, or re-taught that this code hurts the general public. This can be accomplished through modifying the culture regarding police hierarchy, and my mandating continued education.
A strict hierarchy or chain of command governs police culture. This structure prohibits communication between ranks and sets examples of acceptable police behavior. “Police hierarchy inhibits discussion and debate, not only of performance standards, … but of standards of ethical conduct as well.” [12] “Confounding this is the fact that within the hierarchy, police officers often operate with considerable independence and little direct supervision.” [13] Ethical conduct must be discussed and reviewed with police officers of all ranks. If officers are encouraged to discuss issues of morality, if they are encouraged to challenge the actions of officers, of the same and superior rank, the code of silence will fade and a collective code of morality will be reinforced. The solutions in this section focus primarily on the individual players within police culture. This type of solution addresses the bad apple paradigm, defined as “a simplistic explanation that permits the organization and senior management to blame corruption on individuals and individual faults – behavioral, psychological, background factors, and so on, other than addressing systemic factors.” [14] Thus, solutions that address only the players involved will not be adequate on their own; however, change will be achieved when solutions focused on the individual are paired with solutions that focus on systemic change.
The overall judicial and oversight system can implement solutions that encourage a decrease in actual brutality, and in turn, the frequency of payouts. By further implementing checks on a police department’s independence, via public supervision boards, a city can help nurture a culture of oversight and accountability. The current Office of Police Conduct Review is not a sufficient oversight board because they are not independent from the police department, nor do they make final determinations on police misbehavior. The prior Civilian Police Review Authority, although independent and able to make final determinations, was not sufficient because the police chief ignored their findings and because the board had no real power over the police department. Thus, the solution is to give an oversight board actual power and make them independent of the police department. Actual power means the power to fire officers found to have violated law or policy. When officers violate the law, it is rare that they face criminal prosecution. Perhaps this is due to the code of silence discussed above. Regardless, if the oversight board is given the power to criminally prosecute and fire the officers that break laws, then a city will have a system with effective deterrence. Until society makes clear that a decrease in violations and payouts is desired, officers will not face real consequences. Consequences in the form of firing and criminal liability will act as the best deterrent.
As evidenced in this discussion, possible solutions are wide ranging. However, solutions will not be implemented from any front until society demands a change in the current system that addresses police misconduct. The current system is inadequate to curb police misconduct, and this inadequacy only encourages the filing of lawsuits and the payout of settlements. There is no reason to foresee that this pattern will change until citizens demand the change specifically.
[1] Alejandra Matos and Randy Furst, “Minneapolis cops rarely disciplined in big-payout cases” Star Tribune, June 3, 2013.
[2] Id.
[3] https://www.minneapolismn.gov/civilrights/policereview/
[4] Alejandra Matos and Randy Furst, “Minneapolis cops rarely disciplined in big-payout cases” Star Tribune, June 3, 2013.
[5] https://www.minneapolismn.gov/civilrights/policereview/WCMS1P-099034
[6] Id.
[8] https://www.aclu.org/drug-law-reform-immigrants-rights-racial-justice/know-your-rights-what-do-if-you
[9] https://www.flexyourrights.org/
[11] U.S. Gov’t Accountability Office, General Accounting Office, GAO/GGD-98-111, Law Enforcement: Information on Drug-Related Police Corruption 4 (1998).
[12] Michael Donahue and Arthur A. Felts, Police Ethics: A Critical Perspective, Journal of Criminal Justice, 21: 347 (1993).
[13] Don Loree, Corruption in Policing: Causes and Consequences, Community, Contract and Aboriginal Policing Services Directorate, Royal Canadian Mounted Police, 12 (2006).
[14] Id. at 14.
#CivilianReviewAuthority #MinneapolisPolice #federalcivilrights #OfficeofPoliceMisconduct #policemisconduct #PoliceBrutality #ExcessiveForce #CivilRights
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Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.