Police officers have no place on misconduct review panels

Q: How many police officers sat on the jury during the trials of the cops who participated in the murder of George Floyd?

A: Zero.

In the rare instances in which police officers are put on trial for criminal acts committed during their working hours, the members of the jury who determine guilt or innocence typically do not include any police officers.

The same presumed lack of police officers on juries applies when someone sues the police or the cities which employ them.

While Minneapolis moves forward with its contentious update of civilian oversight, and as the Minnesota legislature has opportunity to revisit its own statute for civilian oversight of police, it pays to be reminded: in the most consequential reviews of police actions – criminal trials and lawsuits – the only people reviewing the circumstances and making a decision about officer culpability are non-police. Civilians.

So why is it that when the stakes are lesser – basically status as an employee, as opposed to civil or criminal liability – city and state policy makers insist that civilians alone cannot properly review police actions?

Given the easily observed, and documented, failure of MPD’s leaders to hold officers accountable, it should not be surprising that members of the public find fault with a so-called civilian oversight system in which police share a key role.

On Dec. 8, the Minneapolis City Council will vote on a minor proposed update to the city’s civilian oversight apparatus, one which maintains the shared police role. Absent from the proponents’ considerations is that a civilian oversight structure with all civilians and no police might better prepare the city (and its officers) for how juries will view police conduct. The counter argument offered is that civilians make better and more trusted determinations about whether or not police misconduct occurred if they fully understand the police perspective.

Absolutely true. But the problem is how that police perspective is delivered.

Consider again the jury. In the Chauvin trial or in any civil lawsuit trial alleging police misconduct, police take the stand as witnesses. Not only the ones who were present, but those with expertise, such as trainers in the use of force or self-defense.

Police do have an important role to play in a civilian oversight system. But it should similarly be only as expert witnesses providing testimony to investigators.

They should not serve as panel members who vote on the result and are rightly perceived by the public as having a conflict of interest and lacking independence. It should entirely be up to the civilian panel members, like jurors, to weigh the credibility and relevancy of police experts in combination with assessing other witnesses.

A brief history of the issue

The argument that police need to have a shared role belies the fact that oversight in Minneapolis was all civilian for most of its 30+ year history.

Until 2012, police misconduct complaints were investigated by professional staff led by an attorney. Recommended findings consistent with law and policy were then presented to all-civilian panels for final findings of facts and determinations.

However, the civilian panels did not have the authority to impose discipline, and police chiefs over the years routinely ignored the attorney investigations and civilian panel findings. Because under state law only government employees who are disciplined can have the contents of investigation files publicly revealed, there was little ability for those responsible for civilian oversight to provide the public with specific outrageous examples of police chief dereliction of duty. (Here is where I have written about this policy flaw in more detail.)

The accumulation of civilian oversight files in which the investigation and findings of fact showed egregious police misconduct greatly concerned the Minneapolis Police Federation, despite the lack of discipline or public scrutiny. Such files could still be viewed by subpoena or court order, and indicated that officer misconduct had been proven.

The Federation successfully lobbied state lawmakers to establish a law stating that a civilian oversight body cannot make findings of fact, but only recommendations. The new law eliminated the final status of the oversight panel’s findings. So when a police chief declines to discipline an officer, there is no longer a leftover record of proven officer misconduct.

Leaders in Minneapolis decided that this change in state law required revision of its own oversight ordinance, and one of the results was the new inclusion of police on review panels: two officers and two civilians. (The currently proposed update would add one civilian.)

It was sold on the basis that police chiefs would have more confidence in the panel’s recommendations if police officers were involved in making them. But overall, discipline has remained rare.

Legislative action

While Minneapolis could and should remove police from the oversight panels, civilian oversight of police would be more substantially improved by changes in state law. The two changes needed at the legislature are:

1. Change the public data status of complaints against government employees (e.g. cops) so that the underlying files become public when there has been a finding of misconduct, and not only when discipline results.
2. Replace the law that only allows civilian oversight bodies to make recommendations with one that authorizes civilian oversight to make factual findings and impose discipline.

It may be reasonable to allow a shared police role for determining the specific discipline to impose given the civilian oversight’s external perspective for an HR matter. One such compromise would be to allow the police chief to amend the civilian oversight’s imposed discipline so long as the discipline which results remains public.

This will allow public and media scrutiny not just of the incident details and officer involved, but also of the decision-making quality of the civilian oversight body and the accountability standards of the police chief.

No longer could a police chief undermine civilian oversight by ignoring it. Like a judge, secretly reversing a jury’s verdict.