(a) All employees of an agency should:
- (1) engage in and promote sound policing;
- (2) intervene to prevent or stop acts inconsistent with sound policing, and mitigate harm resulting from such acts, when feasible, unless unreasonable under the circumstances;
- (3) report violations by officers of any laws or agency policies relating to sound policing; and
- (4) cooperate with incident reviews and investigations of misconduct, including by being truthful and forthright and by protecting complainants and witnesses from retaliation.
(b) Agencies should incorporate these responsibilities into their policies and training practices and reinforce them with supervision, incentives, and, when necessary, corrective action.
Comment:
a. Individual role in promoting sound policing. Usually, officers and other agency employees promote sound policing by adhering to law and agency policy and encouraging others to do the same. On occasion, however, promoting sound policing requires additional, often difficult, action by officers and other agency employees. This Section highlights three categories of such action: intervention, reporting, and cooperation with investigations.
First, officers should intervene to prevent misconduct or other actions taken by other officers that are inconsistent with sound policing. They similarly should intervene to mitigate harm once such acts have occurred. These sorts of intervention directly promote sound policing, convey a commitment to sound policing, and reinforce positive agency cultures. Although the duty to intervene should be interpreted broadly, there are circumstances in which intervention should be excused as unsafe, infeasible, or unreasonable, such as when an officer can only stop a use of excessive force by risking serious injury. Intervention also is unnecessary when a violation of agency policy neither risks harm nor is likely to affect public trust in the police.
Second, when an officer or employee observes misconduct, the officer should report it or ensure that another appropriate actor does so. In addition, as discussed further in § 13.07, officers and other agency employees should facilitate individuals in—and certainly not discourage them from—lodging complaints about officer conduct or agency service, even if they believe the complaint is unfounded. Such reporting is an essential means of informing agencies about risks to sound policing and enabling agencies to promote sound policing through supervision and correction.
Third, officers have both a duty of candor and a responsibility to cooperate honestly and completely with misconduct investigations and incident reviews, whether they are conducted by the agency, an external oversight board or commission, or a prosecutor. It is essential that officers cooperate with efforts to evaluate agency and officer conduct—both to identify steps that can be taken to promote sound policing in the future and to engage in corrective or disciplinary action.
b. Agency role in facilitating officer intervention, reporting, and cooperation. Agencies should support and reinforce the affirmative officer responsibilities described in this Section through policies, training, supervision, incentive structures, and accountability systems. Thus, agencies should adopt policies that delineate officers’ and employees’ responsibilities to: intervene to stop, prevent, or mitigate harm; report misconduct and uses of force; accept complaints and refrain from retaliation; and cooperate with investigations. Because it can be especially challenging for officers to take affirmative steps to promote sound policing through acts such as intervening to prevent misconduct or accepting citizen complaints, agencies should provide training to prepare officers for the difficulties they may face in performing those acts. As with other aspects of sound policing, agencies should reinforce these affirmative obligations by providing supervision and incentives and implementing accountability measures, including disciplinary action when appropriate. Agencies that promote and support sound policing in these ways are likely to attract and retain officers and employees who act with integrity and courage, and, in doing so, will further create a climate conducive to sound policing.
Reporters’ Notes
This Chapter emphasizes the importance of agency systems in ensuring that officers and employees follow the law and agency policy. This Section makes clear that notwithstanding this emphasis on agency action, each officer and employee also has a duty not only to act consistently with the requirement of sound policing, but to take affirmative steps to reinforce integrity and accountability within an agency.
There is relatively little academic scholarship or research regarding the role of affirmative actions by officers and employees in promoting sound policing. However, court cases, investigations of incidents and departments, program evaluations, and experience and observation suggest ways officers and agencies can promote and reinforce—rather than undermine—sound policing by officers. These sources suggest that requiring officers to intervene to stop misconduct, to report misconduct, to support those who complain or provide information about misconduct, and to cooperate with investigations may prevent unsound policing and reinforce a culture of sound policing. See, e.g., Samuel E. Walker & Carol A. Archbold, The New World of Police Accountability (2013); Rampart Indep. Rev. Panel, Report of the Rampart Independent Review Panel (Nov. 16, 2000) (documenting LAPD Rampart scandal and providing recommendations for ensuring sound policing); United States v. Moore,708 F.3d 639 (5thCir. 2013) (documenting rookie and field-training officer failure to inform hospital of force used against Raymond Robair, resulting in Robair’s death); Consent Decree at 90, United States v. City of Ferguson, No. 4:16-cv-000180-CDP (E.D. Mo. Mar. 17, 2016) (mandating that city require employees to cooperate with administrative investigations and discipline officers for failure to do so, and requiring city to prohibit retaliation against those who report misconduct or cooperate with investigations and to discipline officers who violate these requirements).
Officers have some affirmative duties to promote sound policing as a matter of law. Every federal circuit court of appeals has held that officers have a duty to intervene to prevent a fellow officer’s use of excessive force, and some circuits have recognized a broader duty to prevent other constitutional violations. See, e.g., Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64 (1st Cir. 2016); Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994); Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002); Randall v. Prince George’s Cnty., 302 F.3d 188 (4th Cir. 2002); Hale v. Townley, 45 F.3d 914 (5th Cir. 1995); Floyd v. City of Detroit, 518 F.3d 398 (6th Cir. 2008); Miller v. Smith, 220 F.3d 491 (7th Cir. 2000); Putman v. Gerloff, 639 F.2d 415 (8th Cir. 1981); United States v. Koon, 34 F.3d 1416 (9th Cir. 1994), rev’d on other grounds, 518 U.S. 81 (1996); Mick v. Brewer, 76 F.3d 1127 (10th Cir. 1996); Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000); Martin v. Malhoyt, 830 F.2d 237 (D.C. Cir. 1987). Compare Bunkley v. City of Detroit, 902 F.3d 552, 566 (6th Cir. 2018) (recognizing duty to intervene to prevent an unlawful arrest), and Anderson, 17 F.3d at 558 (same), with Livers v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012) (declining to recognize duty to intervene to prevent constitutional violations other than excessive force), and Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999) (declining to recognize duty to intervene to prevent fellow officer from fabricating confession). Even under its broadest construction, the constitutional duty to intervene is less specific and extensive than the affirmative responsibilities set out in this Section.
Even officers who might themselves engage in sound policing may need additional guidance and support in taking affirmative steps to promote sound policing. Thus, this Section recommends that agencies adopt detailed policies as a component of their efforts to promote sound policing. But policies alone are not enough.
Agencies also should train officers in how to overcome the challenges of fulfilling these responsibilities. Peer-intervention training has been endorsed by the National Association for Civilian Oversight of Law Enforcement and others. See Letter from Barbara Attard, Past-President, Nat’l Ass’n for Civilian Oversight of L. Enf’t, to The President’s Task Force on 21st Century Policing: Independent Oversight and Police Peer Intervention Training Programs that Build Trust and Bring Positive Change (Jan. 9, 2015). Although research into such training is just beginning, peer-intervention programs have a strong foundation in social psychology and have shown initial promise in the law-enforcement context. See, e.g., Ervin Staub, The Roots of Goodness and Resistance to Evil: Inclusive Caring, Moral Courage, Altruism Born of Suffering, Active Bystandership and Heroism(2015); Jonathan Aronie & Christy E. Lopez, Keeping Each Other Safe: An Assessment of the Use of Peer Intervention Programs to Prevent Police Officer Mistakes and Misconduct, Using New Orleans’ EPIC Program as a Potential National Model, 20 Police Q. 295 (2017) (describing the promise of peer-intervention systems and the implementation of such a system in New Orleans). In conjunction with training, agencies should incentivize the exercise of sound policing and support officers who practice it. Maureen Scully & Mary Row, Bystander Training Within Organizations, 2 J. Int’l Ombudsman Ass’n., no. 1, 2009, at 89 (emphasizing need to engage all levels of an organization to foster productive behavior and curtail illegal, discriminatory, and destructive behavior).
Agencies also should reinforce officers’ obligations to intervene, report, and cooperate through agency investigations and accountability mechanisms. Thus, for example, investigations of allegations of unreasonable force should consider whether officers failed to intervene when appropriate or failed to report a use of force, as required by policy. Many investigating entities inadequately identify and investigate such violations and are insufficiently trained to do so. Some agencies even actively discourage investigation of such violations. See, e.g., Civ. Rts. Div., U.S. Dep’t of Just., Investigation of the Chicago Police Department 50-79 (2016). Others may undermine sound policing by disciplining individuals who report misconduct more harshly than officers who committed and failed to report it. See, e.g., FWPD Officer Speaks About Demotion After Leaked Video, CBS News Dall.-Ft. Worth (May 22, 2017), https://dfw.cbslocal.com/2017/05/22/demoted-fwpd-officer-to-speak. These actions are inconsistent with this Section and the demands of sound policing.
Finally, agencies must scrutinize their systems to rid them of elements that undermine sound policing. For example, agencies should prohibit retaliation against officers who promote sound policing and aggressively enforce such prohibitions. Retaliations against officers who promote sound policing are likely to corrode an agency’s culture of accountability and can be dangerous to officers. See, e.g., Lisa Bartley, Bloodhound Handlers Win $10.2 Million in Lawsuit Against LAPD, KABC (May 23, 2019), https://abc7.com/lapd-police-sexual-harassment-retaliation/5314940 (whistleblower recounting retaliation in form of absent backup when pursuing suspected murderer); Justin Sondel & Hannah Knowles, George Floyd Died After Officers Didn’t Step In. These Police Say They Did—and Paid a Price, Wash. Post (June 12, 2020), https://www.washingtonpost.com/nation/2020/06/10/police-culture-duty-to-intervene.