In the most recent issue of the National Association for Civilian Oversight of Law Enforcement’s quarterly publication, the Review, our Clinic was featured! Clinic alumni Isabel Carson and Celia Olson wrote an article with Professor Jason Huber for the Review that highlighted our Clinic’s efforts on the Citizens Review Board (“CRB”) project. The CRB was established to bridge community-police relations here in Charlotte, and our Clinic has worked diligently over the years to create transparency within the CRB. We have had so much success with this project here in our community and continue to advocate for transparency across North Carolina.
By: Isabel Carson
The Citizens Review Board (CRB) project started with a public records request over 3 years ago, developed into a nationwide study, and returned to local and state-wide legislative advocacy. After Reviewing CRB documents, talking to former complainants who had been through the process, and reaching out to Board members—it became apparent to the Clinic that there was a flaw in the system. The flaw was not solely evidenced by a 0-79 track record for the CRB, but by the perceptions of both complainants and Board members, and the utter lack of accessibility or transparency for the process.
When the Observer published its first story on the CRB in February 2013, the project picked up momentum. As the Clinic continued to move forward, it was met with unrelenting and invaluable community activism. CRB Reform Now, a coalition formed after a single conversation between the Clinic and a local public servant, moved to the forefront in amplifying and solidifying the community’s voice—putting pressure on City Council to be accountable in its actions and garnering the attention of the media throughout the process. While the Clinic and the Coalition took different approaches within the political atmosphere and throughout the stakeholder process, both had one goal—to serve the citizens of this community through meaningful and articulated reform.
On Monday, November 25, the voices of City Council members unanimously rang out in favor of reforming the Citizens Review Board. This vote marked a huge success for the community coalitions, the Clinic, and the greater Charlotte community. After ten long months of media coverage, community activism, research, and revised proposals, the City has taken a step in the direction of meaningful reform.
The adopted changes include:
- Extending the time for a complainant to file an appeal to 30 days
- Providing the CRB with the entire Internal Investigations file rather than a summary of the investigation prepared by the Police Chief
- Changing the threshold burden the complainant must meet before the CRB will conduct a full fact-finding hearing to “substantial evidence of error regarding the disposition of the disciplinary charges entered by the chief of police”
- Changing the standard at the full fact-finding hearing to “whether, by the greater weight of the evidence, the Chief of Police clearly erred”
- Providing “cultural awareness training” for the CRB members and enhancing the visibility of the complaint and hearing process of the CRB
While these changes are a direct reflection of some of the thoroughly researched and supported recommendations from community stakeholders, change does not stop here. As the Clinic prepares to take this project state-wide, we recognize those areas where the ordinance still remains deficient.
First, there is no opportunity for the CRB during the appeals process to subpoena and question or cross examine the police officer who is the subject of the complaint. Because the Council-Manager Relations Committee and Task Force have framed this review process as a continuation of the Police Department’s internal administrative processes, the only parties to the appeal proceedings are the police department and the complainant. Without subpoena power, the CRB does not have the ability to evaluate the credibility of the subject officer or to verify statements made about the subject officer. Any and all evidence about the underlying conduct (which is the main subject of the Police Chief’s discretionary decision) is simply hearsay. While the citizen complainant is explicitly subject to cross-examination, he/she is not afforded that same right against the subject officer. This could easily become a game of he said – she said.
Second, the language used for the new standards of review does not clearly define what is required of the complainant. The “substantial evidence” standard seems out of place in the initial hearing phase of the appeals process. Under the new ordinance, the only reason the CRB chooses to conduct a full evidentiary is if it determines that further fact-finding is necessary. This leads one to question: how can a complainant meet a substantial evidence standard if the CRB thinks there is insufficient evidence to come to a final disposition? Both the initial standard of review and the final hearing standard of review (“greater weight of the evidence”) focus on whether there was an error in the Police Chief’s decision. What access does the complainant have to the internal processes of Internal Investigations and the Police Force? What evidence can the complainant offer other than his/her direct conflict with the subject officer (the conduct complained of)? Again, without the opportunity to cross-examine the subject officer or independently investigate the actual conduct complained of, the standard of review and lack of independent investigatory/subpoena power leave the CRB appeals process as a one-sided arena.
Third, while the new ordinance touts encouragement of creating visibility within the CRB appeals process, it does not lay out any explicit guidelines to ensure public participation/awareness or transparency. Many municipalities with civilian oversight boards maintain independent websites, list the names of the board members, provide contact information for a board representative, and publish yearly reports of the Boards’ activities, findings, and dispositions. These annual reports are done without exposing private personnel information—but rather by offering a big picture perspective of the Board’s effectiveness. Our city website provides a brief and uninformative description of the general duties of the CRB. As a product of the stakeholder process, the City has provided more information about the complaint and appeals process, but these are found on an entirely separate webpage. In order to promote visibility and accessibility, all information pertaining to the appeals process and CRB activities should be located on the same webpage. Board members’ names should be listed. Statistics and annual findings should be published rather than filed away by the City Clerk.
The Clinic recognizes the strides this City’s representatives have taken to address community concerns and promote democratic participation throughout the process of CRB reform. The changes made and the time and effort devoted to the stakeholder process were a true testament to Charlotte’s perpetually progressive potential. While we are thankful for the opportunities to instill change, we know that change does not ever signal the end. Our motivations are not solely to serve the citizens of Mecklenburg County, but the citizens of North Carolina as a whole, and the fundamental rights of each citizen in this country to participate and seek redress in a meaningful and just way.
By: Isabel Carson
On September 17th, students from the Charlotte School of Law participated in an event called “Constitution in the Classroom” promulgated by the American Constitution Society (ACS). The basic premise of the program is to take law students into middle school and high school classrooms and have them teach an amendment from the Bill of Rights. ACS provides an outline of the lesson plan, handouts, and step-by-step instructions for the hour and a half class. Regardless of preparation or materials, I was in for a surprise and a challenge.
Waiting outside the principal’s office has never felt so nerve-wracking. For 10 minutes I waited with a fellow clinic member outside of the administrative suite at West Mecklenburg High School for an escort to take us to a Tenth grade Civics class. No amount of stress or anxiety over oral arguments, job interviews, or first dates had prepared me for the nerves I felt walking into that classroom full of Tenth Graders.
Initially, few students even noticed the group of strange, overdressed adults as we entered the classroom. Chatter continued until the teacher welcomed us and suddenly, we had the floor. Luckily, our lesson on the 6th Amendment fit right into the material the class had been covering the past few weeks. Students who were familiar with the branches of government chimed in as we did a brief overview of the roles of the government in creating, enforcing, and interpreting laws. However, as the conversation became more pointed and students had less of a basis of knowledge, attention began to wane. It was like…well…high school. Side conversations, rude comments, giggling, and sheer inattention began to bubble over at times.
What began as a written lesson plan, had to become an organic conversation. We could not teach AT the students. We could not pass out worksheets, explain, break them into groups, and expect them to get anything out of the activities. We asked students to replace the fake characters from the hypothetical scenarios with themselves: what would YOU do? What seems unfair to YOU? What should have happened? All of a sudden, these questions were answerable. These kids had knowledge – not the kind law students get from agonizing over case law, but real-world experiences and a fundamental sense of what is right and fair.
Sometimes in law school, the focus on black letter law and judicial rationales does not account for the actual experience of the parties to a case or the real-world variations of how laws are enforced against different groups of people. Taking a step back and hearing the experience of another human being –regardless of age, race, sex or outlook – was a humbling and challenging experience for me. Forgetting some of my pre-conceived notions of constitutional jurisprudence, I was reminded of the reasons why I attended law school when these kids explained the importance of representation for all and fair law enforcement procedures. Their foundation for how the law SHOULD work as compared to their understanding of how the law DOES work illustrated a missing link that is apparent in all realms of social policy and interaction. Whether it is a legislator serving his constituents, a lawyer serving her clients, or a teacher teaching a student – there is almost always a lack of access to or practical understanding of opposing perspectives.
As lawyers, we are counselors, advocates, and technicians of the language of the law. We are also servants, and in the grand scheme of things, it is the PEOPLE whom we serve. The people in that Tenth Grade classroom reminded me that the real world and the black letter law are constant contradictions, and that communication and access are vital tools in repairing the discord between policy and application. As a servant, I strive to break down the barriers of communication and to make resources and knowledge more accessible to all.
I believe each student (whether Law student or Tenth grade civics student) that participated in the Constitution in the Classroom event came away with a unique experience or benefit, and I encourage any and all to participate if given the opportunity in the future.
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.
Recently, Charlotte’s Citizen’s Review Board (CRB) has been the subject of scrutiny over its 78-0 record, having never sided with a citizen complaining of police misconduct. The bleak statistics surrounding the CRB lead the Civil Rights Clinic to take an in-depth look at the structural issues within the ordinance creating the CRB.
As part of an on-going three year project, the Civil Rights Clinic recently compiled information about the civilian oversight of police in cities across the country—what authority the boards’ had to conduct investigations, the board structure, the accessibility of the information, and the standard of review for alleged police conduct. Additionally, the Clinic looked at CRB meeting minutes, as well as contacted former board members and complainants about the process. After reviewing the data, the Clinic released a report with recommendations for changes to Charlotte’s CRB as well as a model ordinance. The report, authored by Clinic member Isabel Carson, with contributing research from Clinic members Lindsey Engels, Katie Webb, and Daniel Melo, proposed changes to the standard of review, the availability of information on an independently maintained website, independent investigatory power, and the necessity of building trust between the police and the community they serve through transparency. The Clinic proposed four primary changes, outlined below in an excerpt from the report:
“Drawing on the current structure of Charlotte’s municipal accountability scheme, Part III identifies the inconsistencies and weaknesses within the Citizens Review Board, and suggests four primary changes: 1)lowering the pre-hearing standard from preponderance of the evidence to probable cause; 2)shifting the focus of the standard of review from abuse of discretion to whether actual misconduct occurred;3)providing independent investigatory, subpoena, and audit powers to the Citizens Review Board; and 4)establishing stronger lines of communication and accessibility between the city and its residents.”
The Clinic recently met with the task force charged with gathering community input for recommendations to bring back to Charlotte’s City Council as part of the stakeholder process, and has also spoken to Charlotte’s ACLU chapter on the issue.
If you would like to read the full report click CRB Report.
You can also visit CRB Reform Now for more information and ways to get involved in reforming Charlotte’s CRB.
Clinic Members Emily Ray, Isabel Carson, and Daniel Melo sit down to discuss the recent proposed changes to Charlotte’s Citizen’s Review Board and what lies ahead.