By: Isabel Carson
On Monday September 24th, at the Council-Manager Relations Committee meeting, the Citizens Review Board Task Force offered a stick to the community’s outcry for reform of the Citizens Review Board (CRB). Albeit, the stick was disguised as a carrot – cloaked in the language of “recommendations for reform” – the recommended changes proposed by the Task Force leave the CRB’s Appeals process virtually the same.
We all know the numbers by now: 0-79, as revealed by the Observer article last February, “CMPD Review Panel Rules Against Citizens – every time.” Since last February, the local media has advertised this stark statistic, emphasizing the failure of the CRB to ever find on behalf of the citizen. However, it is not the “0” that struck a chord with the Charlotte School of Law Civil Rights Clinic. More troubling than the fact that the CRB has never decided a case in favor of a citizen in its 16 year existence, is the unfortunate reality that in 16 years and 78 appeals filed, only 4 times has a citizen received a full adversarial hearing before the board. Only 4 times has a citizen been afforded an objective forum to present all of his/her evidence and question the evidence of the police department or Internal Affairs. This is due to the unreasonably high evidentiary burden and the inappropriately focused standard of review at the threshold of the appeals process.
As the ordinance currently stands, the citizen complainant is required to prove by a “preponderance of the evidence” that the police chief “abused his discretion” before the CRB will even allow a full evidentiary hearing. Preponderance basically means 51% while the abuse of discretion standard forces the CRB to pay high deference to the decision of the police chief. The citizen must meet this standard both at the threshold of the appeals process and again at the full evidentiary hearing stage, and the community as well as city officials have consistently pushed to lower this burden. The recommendation from the Task Force in Monday’s meeting was to change the language of this standard to “substantial evidence that an error occurred in the investigation of the complaint or disciplinary action of the police chief.” This new standard changes nothing and is the same in practical effect as the original standard for three distinct reasons.
First, requiring a citizen to show a preponderance or even substantial evidence at a stage in the appeals process when the only evidence offered are the statements by the complainant and any and all evidence/witnesses or personnel that the Police Department wishes to present – is like a kitten on a seesaw with an elephant. The majority of the evidence (due to resources and knowledge of the process) comes from the police department. For this reason, the Civil Rights Clinic has proposed that this initial standard, when the CRB is deciding whether to hold a full hearing, should be lowered to “reasonable cause to believe.” Given the facts and circumstances, the CRB members should have some indication that the complaint is not frivolous and that misconduct could have occurred.
Second, the Task Force’s cleverly re-worded standard of review, focusing on the investigation procedures of Internal Affairs or the disciplinary decision of the Police Chief, is just another way to impose a deferential review of the complaint that fails to assess the underlying facts of the case. It entirely misses the point of independent oversight of law enforcement. The CRB was created during a time of community turmoil and distrust of the CMPD after several shootings in the mid 1990s. The purpose of oversight was to establish a neutral intermediary between the CMPD and citizens, an avenue for citizens to present their cases outside of the perceived biases of CMPD and Internal Affairs. When the standard that the CRB is required to apply to citizens’ complaints focuses their review on the procedures of IA or the discretionary decisions of the Police Chief, rather than the underlying merits of the complaint that neutrality is compromised. For this reason, our Clinic has proposed that the full burden at the threshold stage be “reasonable cause to believe that misconduct occurred.”
Third, requiring citizen complainants to meet the exact same standard at the threshold hearing as in the full evidentiary hearing is not logically sound. In a criminal trial, there is first a probable cause hearing where facts must support a reasonable belief that criminal activity occurred; and then at trial, the prosecutor must prove guilt beyond a reasonable doubt. In a civil trial, a plaintiff’s complaint must be factually sufficient if taken as true to present a claim upon which relief can be granted; then the trier of fact weighs evidence that is gathered throughout the discovery process to make his determination. In no instance that I can imagine is the threshold burden, before the record is factually developed, equal to the burden at final disposition. For this reason, while our Clinic proposed lowering the threshold burden, we would promote maintaining a higher burden at the full evidentiary hearing: “preponderance of the evidence that misconduct has occurred.”
Back in February, when the media first sounded the horn for reform of the CRB, Julian Wright, the CRB’s attorney, published a statement in the Observer to explain that any deficiencies with the CRB were structural and due to the language of the ordinance. In his statement, published on February 24th, 2013, Mr. Wright observed that “[i]f the Observer, City Council, or our community wants different results from the CRB, they need only lower the “abuse of discretion” standard imposed upon the board” which “could yield dramatically different results in CRB appeals.” This suggestion provided an early roadmap for reform which has been lost in the stakeholder process.
I am not so naïve as to demand that this issue be resolved in 90 days. I do not mistakenly presume that all of the nuances of the various community stakeholders’ proposed reforms can be understood in a brief hour-long meeting. I do expect, however, that our representatives in the City Hall chambers intend to thoroughly address the structural and practical obstacles prohibiting the CRB from building community trust. The entire community expects it. In the wake of the tragic shooting that occurred on September 14th our city cannot afford to let community distrust in our Law Enforcement linger.