Citizens Review Board Reform: An Exercise in Semantics

October 6, 2013

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.


Citizen Review Board Q & A

September 26, 2013

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

  1. Citizen files complaint either directly with the Police Department or through the Community Relations Committee.
  2. 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.
  3. If the citizen is dissatisfied with the Police Chief’s decision, he/she can file an appeal with CRB.
  4. CRB holds an initial hearing.  The citizen is often unrepresented and has no evidence other than the investigative report from Internal Affairs.
  5. 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.
  6. 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).
  7. 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.
  8. 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


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