Recently, Charlotte’s Citizen Review Board (CRB) has been receiving media scrutiny over its 78-0 record, having never sided with a citizen complaining of police misconduct. As a result of this negative publicity, the Civil Rights Clinic took an in-depth look at the structural issues within the ordinance creating the CRB. The identified issues were condensed into an email which was sent to Council-Manager Relations Committee and Task Force members to peruse before this Monday’s committee meeting where issues regarding the Citizens Review Board will be discussed.
HISTORY AND BASICS OF THE CRB
The need for civilian oversight of the Charlotte-Mecklenburg Police Department came after several officer-involved shootings during the mid-1990s. The CRB was created in 1997 to strike a political compromise between advocates promoting more police accountability and those who believed that law enforcement officers should be regulated by an exclusively internal policy.
The CRB does not have the authority to discipline officers or dictate department policies directly. The CRB does hear appeals from citizens dissatisfied with how the Police Chief handled complaints of police misconduct and makes recommendations to City Council and the Police Department about how to address problems of misconduct. This puts the CRB at the forefront of citizen-police oversight in Charlotte, making it imperative that the CRB is equipped with the tools necessary to provide an effective mechanism for oversight.
THE CURRENT CRB APPEALS PROCESS
- Citizen files complaint either directly with the Police Department or through the Community Relations Committee.
- Internal Affairs investigates the complaint and submits its report to the Police Chief, who makes a disciplinary decision and notifies the citizen of his decision.
- If the citizen is dissatisfied with the Police Chief’s decision, he/she can file an appeal with CRB.
- CRB holds an initial hearing. The citizen is often unrepresented and has no evidence other than the investigative report from Internal Affairs.
- If CRB finds that the citizen has proven by a preponderance of the evidence that the Police Chief abused his discretion in applying the disciplinary action in question, then the citizen receives a full evidentiary hearing.
- CRB holds a full evidentiary hearing. CRB can request further investigation by Internal Affairs, but has no subpoena power (cannot compel anyone to disclose information or appear as a witness).
- If the citizen can again prove by a preponderance of the evidence that the Police Chief abused his discretion then CRB may recommend that disciplinary action be taken.
- CRB’s recommendation goes to the Police Chief, the citizen, and the City Manager. The police chief retains the final say as to whether to follow the advice of CRB.
ISSUES FACING THE CRB AND PROPOSED AREAS OF REFORM
Issue #1: The high evidentiary burden
Only 4 of the 78 appeals have resulted in a full hearing. Citizens have a difficult time making it past the initial hearing because of the high procedural burden required before a full evidentiary hearing takes place. The current ordinance requires that a citizen prove by a preponderance of the evidence that the police chief abused his discretion in the disposition of disciplinary action at the initial hearing.
Answer #1: Replace “Preponderance of the Evidence” with “Reasonable Cause to Believe” at the Initial Hearing Stage
At the initial hearing, the CRB looks only at a summary of the Internal Affair’s investigative report and the complaint to make its initial determination. At this stage, complainants are not afforded the opportunity to engage in discovery or present a fully developed array of evidence to support their complaint and are typically unrepresented, while the Police Department can send as many representatives as they see fit. The imbalance of evidence presented to the Board at this stage makes the burden of “preponderance of the evidence” an unlikely one for the complainant to meet. Lowering the burden to “reasonable cause to believe” at this initial stage in the complaint process ensures that citizens are afforded an adequate and equal opportunity to receive a full adversarial hearing on the merits of the complaint. The standard of review at the full hearing would remain “preponderance of the evidence.”
Answer #2: Shift Focus of both the Initial and Final Hearings from “Abuse of Discretion” to “Whether Misconduct Occurred”
The current focus of CRB’s initial and final disposition of complaints is on the disciplinary decision of the Police Chief. This standard of “abuse of discretion” prohibits the effective function of the CRB for two reasons: 1) an abuse of discretion standard is an unreasonably high standard for citizens to meet and therefore is deferential to the police, and 2) the decision by CRB should be an independent review of the merits of the complaint rather than an assessment of the Police Chief’s discretionary authority.
Issue #2: No investigatory or subpoena power
Independent investigatory powers are vital to creating the public perception that a civilian oversight committee is neutral and independent from law enforcement. One complainant interviewed during our research stated that she felt the Board members were not interested in making a decision against the police, that she was unsure of whether the Board was actually working with the police, and that if a citizen wants an impartial hearing they are better off “bringing in somebody from out of town.”
Answer: Provide CRB with independent investigatory and subpoena power
The perception that CRB operates within the Police Department can be corrected by giving CRB the power to investigate independently from Internal Affairs. Investigating through the lens of the Police Department does not give the CRB a completely neutral assessment of the situation. With independent investigative authority, members of the CRB would be empowered to conduct more thorough and impartial hearings because they would be able to access information on their own as opposed to being routed through the Police Department.
CRB’s authority should mirror that of the Civil Service Board (CSB). CSB, which addresses appeals from police officers who do not agree with their disciplinary action, has the power to subpoena witnesses, administer oaths, and compel the production of evidence. Without this power, the CRB has no way to compel the police officer accused of misconduct to appear at the hearing, therefore leaving the complainant with no opportunity to cross-examine. Since both the CRB and the CSB are civilian oversight committees reviewing inter-department disciplinary action—albeit from different complainants—CRB, too, should be granted independent subpoena power to best represent the objectives of the CRB.
Issue #3: Lack of transparency and communication between CRB and the community
There is not enough readily obtained information about the CRB. Currently, the city’s website only consists of one short paragraph stating how many members are on the Board and the Board’s general duties. On CPD’s website there is a Q & A that describes the general process of filing a complaint and how the appeals process with the CRB works. Furthermore, the closed meeting minutes fail to adequately document business discussed during the closed session.
Answer #1: Improve CRB’s transparency and communications
The city should make three changes. (1) All information pertaining to the CRB and complaint and appeals process should be located together on a separately maintained webpage. Information should include plain language illustrations of how the process works, expectations of what amount of detail should be included in a complaint in order to receive a full hearing, statistical and historical data about the nature, number, disposition, and final disciplinary action of complaints, and the names and occupations of all CRB members as well as the point of contact for community members. (2) The Board should maintain sufficiently detailed records of its hearings. (3) Annual reports that the CRB compiles should be comprehensive and readily available to the public – as well as used by the Public Safety Committee when assessing and reforming policy.
Answer #2: Ensure adequate representation of Charlotte’s communities
Reducing the number of appointed Board members to seven, and requiring a representative from each district in Charlotte would ensure geographic representation, but other qualities such as profession, socio-economic status, and community involvement should be considered when electing members for the CRB.
Answer #3: Require specific and thorough training of each CRB member
Sufficient legal, policy, and community sensitivity training should be required before service on the Board. Unbiased legal training (from both prosecutors and defense attorneys) should be provided to create an open, neutral, or receptive forum for complainants.
To learn more about the Citizens Review Board, you can view the Civil Rights Clinic podcast here: http://www.youtube.com/watch?v=C__pJa75_jg