(a) Agencies should operate subject to clear and accessible written rules, policies, and procedures. At a minimum, agencies should have rules, policies, or procedures on all aspects of policing that meaningfully affect the rights of members of the public or implicate the public interest.
(b) Agency rules, policies, and procedures should—to the extent feasible and consistent with concern for public safety—be made available to the public, be formulated through a process that allows for officer and public input, and be subject to periodic review. The presumption is that these materials will be available to the public.
Comment:
a. The benefits of written policies. Agencies should pursue their objectives according to preexisting written rules, policies, and procedures, particularly when their activities meaningfully affect the rights of members of the public or implicate the public interest. Written policies help to constrain discretion and ensure that officers act in accordance with agency values. Before-the-fact policymaking can improve the quality of agency decisionmaking by ensuring that key policy choices are made through a deliberative process with the input of responsible decisionmakers and the public. In order for policymaking to achieve these objectives, however, the policies themselves must be clear, comprehensive, and internally consistent. Policies that are scattered across multiple documents, or are vague or confusing, are just as likely to undermine accountability as they are to promote it. Agencies also should ensure that policies actually are disseminated to officers and employees, and that there are mechanisms in place to ensure that they are followed. Agency accountability and compliance mechanisms—through training, supervision, and external review—are discussed separately in Chapter 13.
b. Public access. Policy transparency promotes accountability, builds trust between agencies and their communities, and helps to ensure that agency policies are consistent with the needs, priorities, and concerns of the community. In view of these important interests, subsection (b) adopts a strong presumption in favor of making agency policies available for public review, preferably on the agency’s website to ensure ease of access. At a minimum, agencies should make publicly available their policies on arrests, investigative stops, consent searches, suspicionless searches and seizures, handling of mass demonstrations, and the use of force.
At the same time, subsection (b) recognizes that there are certain aspects of police investigations that cannot be open for public inspection. This Section thus provides for an exception for policies that, if revealed, could either substantially undermine ongoing investigations or put officers or members of the public at risk. This exception should generally be limited to policies that reveal operational details or investigative tactics, and should not apply to policies that set out in general terms the circumstances under which a particular practice or technology may be deployed. For sensitive law-enforcement matters—for example the use of confidential informants or the deployment of SWAT teams—agencies should make an effort to release those portions of the policy that can safely be made public, with sensitive portions redacted.
c. Stakeholder input. Agencies should make an effort to seek input on agency policies and practices from affected stakeholders, including officers and members of the public.
Involving officers in the policymaking process is an important component of internal procedural justice. Officers and other agency officials are more likely to view agency policies as legitimate and to comply with them if they are given an opportunity to participate in their drafting. Officer input can also improve the quality of agency policies by providing valuable information about how a policy is likely to work in the field.
Agencies also should, to the extent possible, solicit feedback on their policies and practices from members of the public, particularly from residents of communities that will be subjected to the practices. Although policing agencies have traditionally not involved community members in the policymaking process, it is increasingly recognized that doing so can help build trust and legitimacy, and ensure that policies and practices are consistent with community values and priorities. This is particularly true for many of the practices discussed throughout this volume that have been, and are likely to continue to be, of significant public interest or concern.
Involving community members in the policymaking process poses a number of challenges, from finding ways to educate the public about the often complicated mix of legal and policy considerations that influence a particular policy, to ensuring that agencies get input from all of the various stakeholders, to finding the resources to devote to the task. In view of these difficulties, agencies may need to experiment with a range of approaches to seeking community input so as to identify the processes that best meet the needs of their communities. National law-enforcement organizations, academic institutions, and the Department of Justice Office of Community Oriented Policing Services (COPS) can assist in these efforts by disseminating information about approaches that have worked in other jurisdictions.
d. Periodic review. Policing agencies should establish a process for conducting periodic review of all policies. Periodic review helps to ensure that agency policies comply with statutory and constitutional law, that they continue to reflect best practices within the profession, and that they effectively address the needs of the agency and the community it serves.
Agencies can take a variety of approaches to conducting periodic review. For example, a number of larger agencies have dedicated risk-management units tasked with ensuring that policies are up to date. Some also have auditors or inspectors general whose duties include reviewing existing policies and making recommendations. Smaller departments may wish to appoint a policy-review committee to oversee the policymaking process on a part-time basis in addition to fulfilling their other responsibilities. As part of the review process, agencies should engage with their communities to identify potential areas of concern. They also should review citizen complaints and look for patterns that may indicate that specific policies are in need of revision.
Reporters’ Notes
1. Need for written rules, policies, and procedures. To the extent possible, agencies should operate subject to written policies. See Barry Friedman, Unwarranted: Policing Without Permission, intro. & pt. I (2015). Written policies improve performance in several ways. They help channel discretion to ensure that officer and employee actions are consistent with department values. See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551, 658-659 (1997). They also help to facilitate both internal and external accountability by creating standards against which to judge officer and employee behavior. See Laura Kunard & Charlene Moe, Procedural Justice for Law Enforcement: An Overview 4, Community Oriented Policing Services, U.S. Dep’t of Justice (2015). The policymaking process itself improves the quality of policing by ensuring that practices receive careful consideration, and by placing decisionmaking authority in responsible hands. See Kenneth Culp Davis, Police Discretion 98-120 (1975); see also Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 416-428 (1974); Wayne R. LaFave, Controlling Discretion by Administrative Regulations, 89 Mich. L. Rev. 442, 451 (1990); Carl McGowan, Rule-Makingand the Police, 70 Mich. L. Rev. 659 (1972). Finally, written policies can help reduce the influence of bias and provide a consistent training tool. See LaFave, supra.
Yet, all too often, agencies lack policies on critical aspects of policing. For example, a 2013 Police Executive Research Forum (PERF) survey showed that 64 percent of law-enforcement agencies lacked policies on the use of photo lineups, despite the fact that 94 percent of responding agencies reported using the procedure, and the fact that the National Academy of Sciences has made clear that there is a risk of erroneous convictions when inappropriate procedures are used. Police Executive Research Forum, A National Survey of Eyewitness Identification Procedures in Law Enforcement Agencies (2013); National Research Council Report, Identifying the Culprit: Assessing Eyewitness Identification 1 (2014). Another PERF survey similarly found that nearly one-third of departments using body-worn cameras did not yet have policies in place to govern their use. Police Executive Research Forum, Implementing a Body-Worn Camera Program 2 (2014). The same is true in many other areas of policing. See, e.g., Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 26 (2009) (citing lack of policies on use of confidential informants).
Consistent with this Section, agencies should work to develop policies on all aspects of policing that substantially affect the rights of the public or implicate the public interest. At a minimum, that includes policies on the various practices addressed throughout these Principles, including the use of force; the conduct of searches, seizures, and surveillance; and the gathering of evidence. See President’s Task Force, supra, at 20, 23 (urging departments to develop policies on use of force and identification procedures). A number of states already require that agencies develop written policies to govern various aspects of policing. See, e.g., 25 Me. Rev. Stat. § 2803-B (“All law enforcement agencies shall adopt written policies regarding procedures to deal with . . . use of physical force . . .; hostage situations . . .; domestic violence . . .; police pursuits . . . : criminal conduct engaged in by law enforcement . . .; recording of law enforcement interviews of suspects.”); 50 Ill. Comp. Stat. 706/10-20 (2016) (requiring rules for body-worn cameras). Legislatures at both the state and local levels should consider enacting similar statutes to ensure that policing is governed by written policies while leaving individual agencies free to develop policies that reflect department values and community needs. Academic institutions, national law-enforcement organizations like the International Association of Chiefs of Police or PERF, civil-liberties organizations, and other government and private entities also can encourage agency policymaking by conducting and disseminating research on model policies and best practices. Agencies should disseminate policies to officers and agency employees, and provide training as necessary. Furthermore, policies should be subject to periodic review to ensure that they adapt to changing legal requirements, best practices, and community preferences.
2. Public access. As the Presidential Task Force on 21st Century Policing made clear in its final report, agency policies should, to the extent possible, be “clearly articulated to the community and implemented transparently so police will have credibility with residents and the people can have faith that their guardians are always acting in their best interests.” President’s Task Force on 21st Century Policing: Final Report 15 (2015). Secrecy around matters of policy or practice can undermine public trust and lead to fear or speculation among members of the public.
One of the potential obstacles to policy transparency is the fact that the need for confidentiality is more acute in policing than in other areas of government. There is a legitimate concern among policing agencies that releasing information about certain policies could make it easier for suspects to avoid detection, or could put officers or members of the public at risk. To the extent this is the case, ordinary mechanisms of transparency may need to give way.
Insofar as possible, however, the need for confidentiality in policing ought not to stand in the way of policy transparency. For many aspects of policing—such as the use of consent searches and investigative stops, the handling of mass demonstrations, the adoption of surveillance technologies, or the use of force—department policies can be made public and publicly debated without endangering public safety. A number of police departments have made their policy manuals on these issues available to the public without any apparent detriment to public safety. See, e.g., Metropolitan Police Department: Directives for Public Release, available at http://mpdc.dc.gov/page/directives-public-release; Seattle Police Department Manual, available at http://www.seattle.gov/police-manual.
Even for more sensitive aspects of policing, such as the use of confidential informants or special weapons and tactics (SWAT), a number of policing agencies have made their policies available for public review. See, e.g., Boston Police Department, Rule 333: Confidential Informant Procedures (2006); Charlotte-Mecklenburg Police Dep’t, Directive 900-001: Special Weapons and Tactics (SWAT) Team (2015); Fairfax County Police Dep’t, SWAT Team SOP: Tactical Response Levels (2015); Greenville Police Dep’t, Use of Informants and Sources of Information (2014). At the federal level, the U.S. Department of Justice has also made public its formal guidelines concerning the Federal Bureau of Investigation, the Drug Enforcement Administration, and other federal agencies’ use of confidential informants. See Department of Justice, The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources (2006); Department of Justice, The Attorney General’s Guidelines Regarding the Use of Confidential Informants (2002).
One useful distinction for agencies to consider in deciding what can safely be made public is between policies that describe specific tactics or operational details, and those that articulate overarching rules or norms. See Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827, 1884-1885 (2015). Operational details regarding specific SWAT deployments or the department’s tactical approaches to serving high-risk warrants should typically be kept secret. But general guidelines about the use of SWAT—the guiding philosophy, the requirements of supervisor approval, the need for after-action review—can often be made public without putting officers at risk. For example, the Charlotte-Mecklenburg Police Department’s publicly available SWAT policy describes the procedures by which department officers can request SWAT assistance, the kinds of situations that may warrant SWAT deployment, and the process for completing after-action review. Charlotte-Mecklenburg Police Dep’t, Directive 900-001, available athttp://charmeck.org/city/charlotte/CMPD/resources/DepartmentDirectives/Documents/CMPDDirectives.pdf. The difference between general guidelines and specific tactics is sometimes captured in the distinction between “policies” and “standard operating procedures,” though many agencies use these terms differently. See, e.g., International Association of Chiefs of Police, Best Practices Guide: Developing a Police Department Policy-Procedure Manual 2, available at http://www.theiacp.org/portals/0/documents/pdfs/BP-PolicyProcedures.pdf. Two federal statutes—both of which endeavor to balance the goal of transparency against the need to keep certain investigative details confidential—draw similar distinctions. The Stored Communications Act, which typically requires that individuals be notified when law-enforcement agencies obtain records of their communications from third parties via subpoena, permits delayed notification when disclosure would “endanger[] the life or physical safety of an individual” or create other adverse consequences for an investigation. 18 U.S.C. § 2705. Likewise, the Freedom of Information Act permits agencies to withhold records and documents “compiled for law enforcement purposes” from public disclosure if disclosing them would allow individuals to evade the law by using information about specific law-enforcement procedures and techniques. 5 U.S.C. § 552(b)(7)(E).
Even with this distinction in mind, there will undoubtedly be difficult questions regarding disclosure that individual departments and their communities will need to resolve. But on matters of policy, it is essential that the presumption be in favor of transparency so that the public can be sure that agency policies are consistent with community values and needs.
3. Public and officer input. A growing number of agencies and professionals recognize that public engagement around policy and practice is essential to promoting trust and legitimacy. This sort of engagement was one of the core recommendations made by the Presidential Task Force on 21st Century Policing, and has since been embraced by a number of other law-enforcement organizations. President’s Task Force, supra, at 19; see also International Association of Chiefs of Police, Community-Police Relations Summit Report at 16 (2015) (urging agencies to pursue “true partnership,” which involves “institutionalized inclusion of citizens in the business of the police department”); Major City Chiefs et al., Engagement-Based Policing at 47 (2015) (describing steps the Las Vegas Metropolitan Police Department has taken to involve community members in discussions about department policies and practices).
Although it is an important goal for agencies to pursue, public engagement around matters of policy raises a number of difficult questions, each of which is discussed in turn. One obstacle to policy engagement is that members of the public may lack the expertise necessary to participate meaningfully in formulating department policies. Agency policies often reflect a mix of legal and tactical considerations with which the public may not be familiar. For example, agency policies on body-worn cameras may be influenced by state wiretap and privacy laws, collective-bargaining agreements, and various technological constraints. In a number of states, specific provisions in body-worn-camera policies are fixed either by state law or by attorney general guidelines. See, e.g., 50 Ill. Comp. Stat. Ann. 706/10-20 (2016) (empowering a state Board to set minimum requirements for body-worn camera policies); New Jersey Division of Criminal Justice, AG Directive 2015-1 (2015) (establishing minimum standards for all body-worn-camera policies in the state).
If agencies are to get meaningful input on these policies, they will need to find ways to educate the public on these issues. They may also need to simplify their policies, avoid legal jargon when possible, and explain clearly key terms. National law-enforcement organizations, academic institutions, and advocacy organizations can support these efforts by preparing toolkits to inform community members of the key policy issues and the tradeoffs at stake. For example, the Bureau of Justice Assistance—working in partnership with criminal-justice practitioners, civil-liberties groups and advocacy organizations, and community members—has developed a body-worn camera toolkit for agencies and communities to use in formulating their own policies. See “National Body-Worn Camera Toolkit,” available at https://www.bja.gov/bwc/. Organizations should work to develop similar toolkits on other topics to encourage police–community engagement on all policy areas of public concern.
Agencies also may need to experiment with a range of approaches to obtain public input so as to ensure that they are hearing from all of the relevant stakeholders in their communities. It is especially important that agencies find ways to engage residents in more heavily policed communities, as well as members of historically marginalized groups, including communities of color, immigrant communities, and LGBT populations.
Although each agency ultimately will need to tailor its approach to the needs of its various communities, there are a number of models that agencies may wish to consider. Many policing agencies already hold regular community meetings or have established neighborhood councils. Although these forums have not traditionally been used to solicit input on specific policies, departments should consider using them for this purpose. A small number of jurisdictions have established community police commissions with authority to review department policies. These commissions exercise varying degrees of control over those policies. For instance, in Los Angeles, the commission sets policy for the police department. See Los Angeles Police Department, “Police Commission,” http://www.lapdonline.org/police_commission. In Seattle, the commission acts in an advisory capacity. See Seattle Police Department, “Community Police Commission,” http://www.seattle.gov/community-police-commission. Finally, some agencies have begun to experiment with online surveys, virtual town halls, and various social-media platforms to solicit community input, particularly from groups that may not regularly attend community meetings. See, e.g., Colorado Springs Police Department, “Body Worn Camera Information,” https://cspd.coloradosprings.gov/public-safety/police/public-information/body-worn-camera-information; Camden County Police Department and the Policing Project at New York University School of Law.