(a) Agencies should readily accept complaints about officer, employee, and agency conduct, and should minimize barriers to filing them.
(b) Agencies should engage in thorough, fair, and timely investigations of allegations of misconduct, conducted by well-trained and highly competent investigators.
(c) Agencies should adjudicate misconduct allegations fairly, based on careful consideration of available evidence, and should find allegations proven when a preponderance of the evidence supports them.
(d) Agencies should impose consequences for misconduct fairly and consistently, as appropriate to promote sound policing, and discipline should be the presumed response to a proven allegation of misconduct.
(e) In deciding whether to disclose complaints, investigations, and adjudications of misconduct, agencies should balance the value of transparency against the privacy needs of the parties and witnesses.
Comment:
a. Handling allegations of misconduct. This Section addresses how agencies should receive and respond to allegations of officer and employee conduct that violates agency rules or applicable law. Such practices are critical means by which agencies contribute to sound policing. By having effective institutional methods for identifying and responding to misconduct allegations, agencies demonstrate a commitment to the law, promote officer compliance with law and policy, help build public trust, and recognize the imperative of treating officers fairly. This Section sets out the framework for handling allegations of misconduct in a manner that meets these objectives.
This Section concerns complaints about officer and employee misconduct made by members of the public, as well as internal reports about officer and employee misconduct toward members of the public. It addresses allegations of misconduct that go beyond minor infractions, including violations of law, policy, or directives that infringe rights or undermine agency legitimacy. It covers not only obviously serious misconduct, such as racially based action or inappropriate uses of force, but also conduct that could contribute to distrust and cynicism about the police, such as officers engaging in discourteous behavior, failing to complete a required report, and turning off a body-worn camera in violation of governing rules. Complaints of other kinds of misconduct, such as abuse of sick leave or workplace harassment, are not addressed in this Section.
b. Complaints. By enabling members of the public to share their concerns about encounters with the police, misconduct complaints alert agencies to possible violations of agency rules and procedures, enabling agencies to foster adherence to both the law and governing standards of conduct. Complaints also inform agencies about conduct and policing practices that, even if they do not violate existing policy or law, cause unnecessary harm and conflict with community expectations. Thus, they provide agencies with an important source of data, helping to highlight areas of policy or training that are in need of revision.
Notwithstanding the value of public complaints, many agencies resist rather than welcome such input by creating systemic barriers to receiving complaints or turning a blind eye when officers discourage community members from making complaints. Some barriers to complaints are formal and institutionalized, such as restrictions on who may file a complaint, how and where a complaint should be filed, and how long after an alleged incident a complaint may be filed or investigated. Agencies should eliminate such barriers and welcome complaints, setting limits only as necessary to process complaints properly. Agencies should allow third parties to make complaints and should permit anonymous complaints. They should permit complaints to be communicated in a wide variety of ways, including in person, by telephone, online, and by mail. And they should not require complainants to identify an officer by name or badge number in order to file a complaint. Agencies should make information about their complaint-filing processes easily available to the public through brochures, websites, and other means. And agencies should treat allegations of misconduct made outside of their formal intake processes, including allegations made to supervisors or in legal proceedings, as complaints.
Informal or nonstructural barriers to complaints often are less visible than formal barriers, but they equally can discourage complaints, delegitimize agency rules internally, and undermine public trust. Individual officers may mislead a person about the complaint process, refuse to accept a complaint, refuse to provide a name or badge number, offer to drop charges if a citizen does not file a complaint, or retaliate or threaten to retaliate against an individual who seeks to complain. Agencies should take proactive measures to prevent these practices.
c. Administrative investigations. This Section applies only to administrative investigations of allegations of officer misconduct triggered by a complaint or allegation. Criminal investigations of officer conduct are discussed in § 14.12, and routine reviews of officer use of force and significant adverse incidents are discussed in § 13.08.
Democratic values, sound management practices, and concerns about public legitimacy require that an agency determine whether a complaint of law-enforcement misconduct has merit. Thus, agencies should engage in thorough, fair, and timely investigations of allegations of misconduct, regardless of their form, and regardless of who made them. In order for its investigation of a misconduct allegation to be thorough, an agency should gather all of the information necessary to allow it to fairly and accurately adjudicate an allegation of misconduct. For an agency’s investigation to be fair, two criteria should be satisfied. First, evidence that is material to determining the veracity of the allegation should be collected without bias or presumption. Second, all participants, including officers, complainants, and witnesses, should be treated impartially and respectfully during the investigative process. For an agency’s investigation to be timely, it should be pursued expeditiously to completion. Delays can make allegations of misconduct more difficult to resolve accurately, as witnesses and evidence become unavailable and memories fade. Unresolved complaints disserve complainants and officers and undermine public trust.
In order to conduct a thorough and fair investigation that garners respect both from within and outside the agency, an agency should assign strong investigators to the task and implement rigorous protocols and oversight to aid them. Individuals investigating allegations of misconduct or supervising such investigations need not be sworn officers or agency employees.
Although there should be a strong presumption in favor of fully investigating misconduct complaints, it may be appropriate for an agency to close an investigation if, after a preliminary inquiry is made, it becomes clear that the complaint has no merit whatsoever, or alleges conduct that, even if true, would not violate the agency’s policies or law. Agencies should track complaints that are closed without full investigation so that patterns and trends can be identified and addressed. For example, although an agency appropriately may refuse to investigate complaints that officers asked for consent to search under circumstances that do not violate agency policy or governing law, the agency, by tracking and reviewing such complaints, enables its leadership to reconsider a policy and practice that may be imposing needless intrusions and causing community friction.
d. Mediation. Effective mediation conducted by a well-trained mediator allows participants both to understand each other’s perspective and to have a direct and meaningful impact on the resolution of a conflict, which often leaves both parties more satisfied with the process. For this reason, agencies should consider making available mediation or another alternative mechanism for resolving some complaints without full investigation and adjudication. However, mediation is not appropriate if either the complainant or the subject of the complaint does not wish to participate. Moreover, meditation should take place only after a preliminary inquiry into the complaint has determined the nature of the alleged misconduct.
e. Adjudication of allegations of misconduct. Even when an investigation has been thorough and fair, all the relevant evidence necessary for a reliable and accurate resolution of the allegation has been gathered, and a report fully and clearly documenting that evidence has been prepared, a misconduct investigation still may go awry if evidence is not fairly and competently assessed. After a complaint is investigated, the adjudicator should scrutinize each allegation in the complaint objectively and determine whether the evidence is sufficient to establish a violation of agency rules or applicable law. An allegation should be considered proven if it is supported by a preponderance of the evidence, that is, evidence demonstrating that it is more likely than not that the misconduct occurred, as is common in workplace misconduct adjudications outside of the realm of policing. Agencies should use high-ranking officials within an agency as adjudicators or, when appropriate or necessary to engender trust in the outcome, should have an independent entity or individual outside the agency conduct the adjudication. Adjudicators should document their conclusions and the rationales supporting them.
f. Discipline. Agencies best can foster a culture of sound policing and encourage positive behavioral change by holding officers accountable when they commit misconduct. As subsection (d) indicates, accountability for violations of agency rules and applicable law usually should involve discipline in the form of formal negative employment consequences, such as a written reprimand, suspension without pay, or termination. Those consequences should be appropriate to the nature and degree of misconduct and the officer’s disciplinary history. They also should be fair and consistent with the discipline imposed in similar cases. For discipline to be fair, officers should be treated justly during the disciplinary process and the discipline imposed should be proportional to the misconduct, unaffected by favoritism, bias, or arbitrariness. For discipline to be consistent, similar violations should be met with similar consequences. Sometimes, an agency cannot impose discipline that is simultaneously appropriate, fair, and consistent with past practice. Specifically, if an agency has not imposed appropriate discipline in the past, it may need to impose discipline that is inconsistent with prior practices as a means to improve its response to misconduct. Agencies should engage in appropriate discipline in such cases, explaining the departure, and seek to act consistent with their new practice in future cases.
When determining what penalties to impose for different classes of violations, agencies should collaborate with stakeholders to assign degrees of penalty that are fair and viewed as such by both officers and the communities they serve. Although discipline should be the presumed response to misconduct, nondisciplinary corrective action, such as retraining, counseling, or an outcome agreed upon during mediation, may be appropriate, if such action is taken consistent with an agency policy establishing parameters for the nondisciplinary responses to misconduct.
g. Balancing transparency and privacy. Agencies should make protocols governing their investigation processes available and educate officers and members of the public about them. Although complainants and the public have a legitimate interest in knowing how individual misconduct complaints are handled and resolved, disclosure is not always warranted. Agencies should balance complainants’ and the public’s knowledge interests against the interests of officers, complainants, and witnesses in keeping some kinds of information confidential, provided those interests are legitimate. In each case, however, a proper balancing of these interests requires that agencies timely notify parties to a misconduct complaint—both officers and complainants—of the outcome of the investigation or resolution of the allegation, including whether discipline was imposed and, if so, the nature/type of discipline. In addition, agencies regularly should make public aggregate data regarding misconduct investigations.
h. Agency oversight of its administrative-investigation process and outcomes. As noted in Comment a, complaints can provide agencies with an important source of data about the efficacy and impact of policing in their communities. To make use of this data, agencies should create systems for and commit resources toward analyzing data regarding misconduct complaints, their handling, and outcomes on a regular basis. Agencies should use this information not only to improve their processes for investigating allegations of misconduct but also for improving their policing practices more broadly.
Reporters’ Notes
1. Generally. Holding law-enforcement officers and employees accountable when they violate law or policy can be difficult, but it is necessary to encourage adherence to the rule of law, foster police legitimacy, and promote community confidence and officer safety. Conducting investigations that comport with this Section requires clear policies, robust training, diligent supervision and, most importantly, agency support.
2. Form and method of complaint intake. In order to serve their multiple purposes, it is essential that agencies accept complaints with little limitation on form and by a wide variety of methods of communication, including anonymous complaints, third-party complaints, complaints that do not identify an officer by name or badge number, and complaints that are not made in writing or under oath. Among other policing groups, the Police Executive Research Forum and the International Association of Chiefs of Police have endorsed a broad approach to accepting complaints. See, e.g., Police Exec. Rsch. F., Critical Response Technical Assessment Review: Police Accountability—Findings and National Implications of an Assessment of the San Diego Police Department 6 (2015); Int’l Assoc. of Chiefs of Police, Law Enf’t Pol’y Ctr., Concepts and Issues Paper: Investigation of Allegations of Employee Misconduct 4-5 (2019). Some jurisdictions have written the importance of accepting complaints into their laws and regulations. For example, New Jersey law-enforcement agencies are governed by N.J. Stat Ann. § 40A:14-181, which requires that they adopt guidelines consistent with state Internal Affairs Policy and Procedures promulgated by the Police Bureau of the Division of Criminal Justice in the Department of Law and Public Safety. The Internal Affairs Policy and Procedures mandate that: “Each [law enforcement] agency must accept reports of officer misconduct from any person, including anonymous sources, at any time.” N.J. Off. of the Att’y Gen., Internal Affairs Policy & Procedures § 1.09(b) (2019).
Despite there being a consensus on best practices, some officer contracts, agency policies, and state officer bills of rights continue to impose considerable restrictions on the investigation of complaints based on their form or method by which they were made. See, e.g., Md. Code Ann., Pub. Safety, Law Enforcement Officers’ Bill of Rights § 3-104(c)(1) (West 2021) (prohibiting investigation of a complaint of brutality unless it is signed and sworn under penalty of perjury by an “(i) the aggrieved individual; (ii) a member of the aggrieved individual’s immediate family; (iii) an individual with firsthand knowledge . . . or (iv) the parent or guardian of the minor child, if the alleged incident involves a minor child.”). Legislatures should eliminate such obstacles, and agencies should avoid such restrictions and should ensure that officers do not dissuade complainant[s] by “coercion, intimidation, threatening to charge the complainant[s] with resisting arrest or offering to drop resisting arrest charges if the [complainants do] not file a complaint.” Jenny R. Macht, Should Police Misconduct Files be Public Record? Why Internal Affairs Investigations and Citizen Complaints Should Be Open to Public Scrutiny,45 Crim. L. Bull. 1006 (2009).
3. Mediation. In contrast to broad dissatisfaction with traditional complaint-investigation processes, complainants and officers generally report satisfaction with both the mediation process and its outcomes. For instance, the New York City Civilian Complaint Review Board found that 93 percent of mediations in 2018 reached a resolution with which both parties were pleased. N.Y.C. Civilian Complaint Rev. Bd., Annual Report 5 (2018). The New Orleans Office of the Independent Police Monitor similarly found that 96 percent of citizen complainants and 100 percent of police officers who mediated a complaint felt positively about mediation, and 80 percent of members of the public and 86 percent of officers said that they would recommend it. New Orleans Off. of the Indep. Police Monitor, 2018 Annual Report: Community-Police Mediation Program 6 (2019). See also Lonnie M. Schaible et al., Denver’s Citizen/Police Complaint Mediation Program: Officer and Complainant Satisfaction, 24 Crim. Just. Pol’y Rev. 632, 639-642 (2013). This satisfaction may stem from the fact that mediation often is more consistent with principles of procedural justice than traditional complaint-resolution mechanisms; it gives all participants an opportunity to be heard, as well as to learn the other party’s viewpoint and why specific actions were taken. Samuel Walker et al., Mediating Citizen Complaints Against Police Officers: A Guide for Police and Community Leaders 11 (2002); Astrid Birgden & Julio Lopez-Varona, Community-Police Complaint Mediation Project: A Review Paper 10-11 (2011). However, there is still little evidence as to whether mediation is effective at reducing misconduct.
Agencies should not use mediation or label resolution mechanisms “mediation” as a means of preventing a more thorough investigation when one is warranted. See Civ. Rts. Div., U.S. Dep’t of Just., Investigation of the Chicago Police Department 54-55 (2016); Walker et al. at 19. Thus, any mediation program should be voluntary, should involve a face-to-face meeting between the parties to a complaint, should seek a mutually satisfactory resolution, and should be led by a neutral, trained mediator.
4. Preponderance of the evidence. An allegation of misconduct should be considered proven if the evidence shows it is more likely than not that the individual engaged in misconduct. This preponderance-of-the-evidence standard is prevalent in both non-policing employment-law investigations and law-enforcement administrative investigations. See, e.g., Jeffrey J. Noble & Geoffrey P. Alpert, Managing Accountability Systems for Police Conduct 66 (2009); Barbara Attard & Kathryn Olson, Police Misconduct Complaint Investigations Manual 44 (2016). However, pursuant to law, collective-bargaining agreement, or informal practice, some agencies have adopted a clear-and-convincing standard—a higher burden of proof for demonstrating police misconduct.
To effectively implement the preponderance-of-the-evidence standard, agencies should train investigators on the standard, and they should eliminate presumptions against finding an allegation supported whenever a complainant’s version of the facts demonstrates culpability, but the officer’s version of the facts demonstrates no culpability. Whenever possible, investigative entities also should strive to resolve contradictory versions of the facts by gathering and analyzing additional evidence that may corroborate or disprove material facts.
5. Agency liability for inadequate investigation and discipline. Agencies that routinely fail to investigate allegations of misconduct adequately or to discipline officers who have committed misconduct may be liable under 42 U.S.C. § 1983 for subsequent harm caused by their officers. See, e.g., Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996) (“mere procedures” to receive and investigate complaints insufficient to shield city from liability from allegations that its failures to investigate uses of force or to discipline instances of excessive force contributed to the excessive force alleged by plaintiff); LaPorta v. City of Chicago, 277 F. Supp. 3d 969 (N.D. Ill. 2017) (failure to discipline officers and maintenance of code of silence were moving force behind off-duty unconstitutional conduct). Further, inadequate investigation and discipline may be viewed as evidence that officer misconduct in a particular law-enforcement agency is part of a “pattern or practice” of constitutional violations, contributing to agency liability under the federal enforcement police-misconduct statute, 34 U.S.C. § 12601. See, e.g., Investigation of the Chicago Police Department, supra, at 46-93 (2016) (finding that Chicago PD’s deficient accountability systems contributed to pattern or practice of unconstitutional conduct). As in the context of other agency accountability matters, legal sufficiency does not ensure that an agency’s complaint and disciplinary mechanisms are adequate to promote sound policing.