The Basics: Categories of Police Misconduct
Minor misconduct:
- has minimal adverse impact on the operation or integrity of the agency.
-Not likely to result in formal disciplinary action (e.g., a lack of courtesy; although rudeness may also fall into the more serious "unnecessary force" category).
General misconduct:
- violates a policy that requires a fixed penalty (e.g., failure to attend court, failure to attend a scheduled training or qualification, etc.). Generally not relevant to citizen complaints.
Serious misconduct:
- kind you want to allege if at all possible.
- violates policies, procedures, rules, or regulations that have an adverse impact on the operation or integrity of the agency, and which can result in formal disciplinary action (this includes violations of the law).
Examples of serious misconduct include (names and definitions may vary a bit from jurisdiction to jurisdiction; check your local police agency's Operations Manual (it should be made available to the public online, or at the police agency office):
Aiding another (officer) to violate a rule
Altering information on official documents
Appropriating property
Careless driving resulting in injury or death (note also that many jurisdictions require automatic testing of an officer for alcohol or drug influence after any car accident more severe than a fender bender that may have been caused by that officer; this can be a good thing to request under an FOIA (Freedom of Information Act) request
Compromising a criminal case
Departing from the truth (a colorful euphemism for lying; good for alleging in the case of traffic tickets; see also False report)
Destruction of reports or records
Discrimination (see also Racial or ethnic intimidation, below)
Drinking on duty
False arrest (not to be confused with the tort of the same name)
False report (see also Departing from the truth)
Harassment (see also Sexual Harassment)
Knowingly making a false report (good for alleging in the case of traffic tickets)
Law violation(s), or conspiracy to commit law violation(s) (a.k.a. lack of conformance with the law)
Malicious threats or assault
Narcotics
Overdriving (driving rapidly and/or aggressively) on the way to a minor call (very common in some jurisdictions)
Racial or ethnic intimidation
Rough and careless handling of departmental equipment
Sexual harassment
Soliciting or accepting a bribe
Unnecessary force (a.k.a. excessive force; this category includes not only unnecessary force or violence in making an arrest or in dealing with a prisoner, but also ridiculing, taunting, humiliating, or mentally abusing you)
Filing the Complaint
As mentioned previously, make sure your complaint alleges at least one specific category of misconduct! (See examples above.) This serves two purposes. First, this makes it irrefutably clear what misconduct you are accusing the officer of, and thus helps to set the stage for your complaint to be appropriately reviewed and investigated. Secondly, and even more importantly, a specific allegation makes it tougher for the departmental employees handling the complaint to clear the officer without any substantial refutation of your allegations, and thus tougher for them to sweep it under the rug. It's easier for an agency to dismiss a raw statement of facts which contains some misconduct buried deep within, than to dismiss a report which specifically names one or more official categories of misconduct. As such, try to pick the best few applicable policy violations and list them in a boldface heading at the top of your complaint. In addition to the serious offenses listed above, other categories of misconduct include:
Abuse of authority
Abuse of process
Conduct unbecoming a law enforcement officer
Lack of courtesy
Lack of professionalism
Neglect of duty
Retaliation (e.g., for a previous complaint you filed!)
There is clearly a lot of overlap between categories, so you should be able to cite plenty of types of misconduct in your report. Don't limit yourself to the items listed here; check your local police department operational manual or procedural handbook for additional categories!
Remember, if the incident about which you are complaining is part of a pattern of behavior by the subject officer(s), be sure to note this in your complaint!
Finally, make sure that you mail the complaint report using Certified Mail, Return Receipt Requested. That way, you'll end up with a postcard that says who at the department signed for your complaint, and the department cannot later allege that they never received it.
Procedure
What happens after I file a complaint?
First, the intake stage. A sergeant (or higher ranking officer; this person will be known as the "intake officer") will conduct a preliminary review the complaint and determine whether the allegations, if true, would constitute non-minor misconduct. Next, there are several other grounds for dismissal of the complaint besides the misconduct being categorized as minor. For example, a determination that your allegations are intentionally and materially false will lead to your complaint being dismissed. Trivial or frivolous complaints (i.e., those which allege minor technical violations of procedural rules which have negligible adverse effects on the public or the agency's credibility, such as failure by the officer to wear the uniform hat) are also dismissed during intake. Grossly illogical or improbable complaints (e.g., that an officer took control of your mind and made you punch yourself in the face) are also dismissed at this stage. Note that if you have a "history of unfounded complaints" with the agency, you may receive "special handling." This does not mean they can automatically dismiss your complaint, but rather, that they may require you to agree to an interview or other additional procedures.
If your allegations are perceived to be minor by the reviewing officer (or not part of a pattern), your complaint dies before it is ever seriously considered -- this is why it's so important for you to clearly allege and categorize serious misconduct by the officer!
Informal investigation
A categorization of minor misconduct by the intake officer will lead to an informal investigation; this is a dead end as far as you are concerned! An informal investigation consists of nothing more than debriefing the subject officer regarding your concerns about the officer.s actions or quality of service. Most importantly, informal investigations do not trigger any formal finding or the imposition of discipline. This is why it's so important to explicitly allege serious misconduct by the officer, and to request a formal investigation in your complaint! If your complaint gets designated for informal investigation, write the department a letter underscoring the severity of your allegations, and demanding that a formal investigation be undertaken.
Formal Investigation
A formal investigation is generally performed by the subject officer's chain of command (his supervisors), or by an Internal Affairs officer (or bureau of officers, in the case of larger, metropolitan police agencies). Depending on your jurisdiction, Internal Affairs involvement may be reserved for allegations of serious misconduct (and the officer's superior is generally required to notify Internal Affairs of any such allegations). During a formal investigation, the subject officer and his or her representatives are prohibited from contacting or interviewing any witnesses or conducting any type of investigation into the allegations. As such, you should report any contact or attempts at contacting you by officers who are not specifically authorized to conduct the investigation!
The subject officer is not entitled to any legal representation during the investigation process since it is generally an internal matter and does not involve a court proceeding. During the investigation, officers who are known to have knowledge (either direct or indirect) of the alleged misconduct will be required by the agency to prepare and submit an individual report which is both complete and accurate.
Be forewarned that in a rural Sheriff's Office or other small police agency, "Internal Affairs" may consist of a single officer who is closely acquainted with, or works closely with, the subject officer. This will probably make it harder to get your complaint the attention it deserves, but the techniques in this guide should help you overcome this disadvantage!
Criminal or civil suits against the officer
If criminal charges are expected against the officer, this may affect the scheduling and handling of the investigation. This is because in a criminal case, the standard of proof is "beyond a reasonable doubt" (that is, the jury must be roughly 90% certain that the crime occurred). In contrast, in most civil cases or in the handling of police complaints, the standard of proof is a "preponderance of evidence" (that is, roughly 51% certainty that the allegation is true, but this may not be true with some allegations such as False Arrest, which only has to meet an even lower, "probable cause" standard). So, in the case of criminal allegations, the investigating authorities will generally wait to handle complaints after the conclusion of the criminal matter, since the evidence and results of the trial may be definitive and save investigation time (unofficially, it also decreases the odds that the police agency sweeps something under the rug that later becomes embarrassing headline news). Note that if the officer has been charged with a felony by the District Attorney's office, the police agency will generally be forced to indefinitely suspend him or her. The filing a civil suit against the agency may likewise change the dynamic of the complaint procedure, but generally will not halt the agency's investigation.
In the case of very serious allegations (e.g., that the officer used force or deadly force), you should lobby the District Attorney's office to initiate its own investigation. If an affirmative defense exists (e.g., the officer was acting in self defense), or if there is insufficient evidence to convict, the District Attorney will not prosecute the officer.
If the officer is found guilty of criminal charges, there may not be any administrative penalty, since the criminal penalty is believed to be more severe. If the officer is found not guilty in the criminal trial (remember, criminal cases use the "beyond a reasonable doubt" (90%+ certain) standard of proof), he or she could still be found guilty using the "preponderance of evidence" (51%+ certain) standard of proof, and so the investigation of the officer will resume in this case.
In some jurisdictions, an independent monitor from outside the police agency will be appointed whenever criminal charges have been filed against an officer. This independent monitor will often have the discretion to continue the investigation even if the criminal charges are dismissed, and can also recommend that the Internal Affairs department conduct additional investigation into a matter. Therefore, it is definitely worth your while to work with the independent monitor to make sure all relevant evidence is considered.
Mediation
Mediation is a voluntary process for resolving complaints, and it may involve you meeting with other community members, police officers, police administrators, and/or an independent monitor. You have the right to refuse mediation if it is offered. Also, you do not have the right to demand mediation. Whether or not mediation will help achieve your goals definitely depends on the facts of your case, and the professionalism of the agency with which you are dealing. If mediation is offered to you, it is worth tracking down a lawyer or other local insider with knowledge of the mediation process and its likely effect on the results of your complaint.
The outcome
Once a formal investigation is complete, the department is required to reach an official disposition as to your complaint. Findings in formal investigations use different terminology than criminal cases. Instead of "Guilty" or "Not Guilty," police complaint investigations can result in a variety of outcomes. An "Unfounded" finding is one where the allegation was not found to be based on facts as shown by the investigation; that is, the alleged misconduct is believed not to have occurred by the police agency. An "Exonerated" finding means that the alleged action was found to have occurred, but the investigation revealed that the action was reasonable, lawful, and proper. A "Not Sustained" finding means that insufficient evidence was available to either prove or disprove the allegation (that is, 50% or less of the evidence suggested that the allegation was true). Finally, a "Sustained" finding means that the investigation disclosed sufficient evidence to determine that the allegation was accurate. You may have noticed that we've got three varieties of "Not Guilty" verdicts here, and only one "Guilty" ; this provides some indication of how much the deck is stacked against the citizen making the complaint, especially when you supposedly only need 51% of the evidence to support your allegation to result in a "Sustained" outcome!
If the subject officer is cleared of wrongdoing, some departments will allow you to appeal the decision within the department.
If this option does not exist, or is unsuccessful, you've got several options.
The lowest cost course of action would be to complain to your state representative and/or the town or city governing body.
Beyond this, your only real recourse for escalating the issue is a civil lawsuit, or pursuing criminal charges against the officer.
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