ACLU-DC Testimony to the DC Council Judiciary Committee's Performance Oversight Roundtable on the Metropolitan Police Department

Statement on behalf of the
American Civil Liberties Union of the District of Columbia
 before the
D.C. Council Committee on Judiciary and Public Safety
Performance Oversight Roundtable on the Metropolitan Police Department

Thursday, March 1, 2018
Room 120
by
Nassim Moshiree, Policy Director

Good morning, Councilmember Allen and members of the Committee. My name is Nassim Moshiree and I am the Policy Director of the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 20,000 members in the District.

The ACLU is committed to working to reverse the tide of over-incarceration, safeguard fundamental liberties, eliminate racial disparities, and advocate for sensible, evidence-based reforms to policing and criminal justice policies.

I will focus my testimony today on our concerns about Metropolitan Police Department’s compliance with its legal obligations under the Neighborhood Engagement Achieves Results (NEAR) Act and our takeaways from the recently released Office of Police Complaints Report on Use of Force by the Metropolitan Police Department.^[1]

After decades of failed policies that rely on policing and the criminalization of marginalized communities as the primary tools to address crime in the District, the conversation around criminal justice reform has moved away from a tough-on-crime approach to one focused on public health and prevention by treating the root causes of crime. The NEAR Act was adopted by the D.C. Council in this spirit, and its many provisions can help the District become a model for true public safety and for constitutional policing. But that’s only if its provisions are implemented fully and faithfully.

In its responses to the pre-hearing performance oversight questions, MPD lists “community trust” as the agency’s priority and details various outreach and communication efforts it has undertaken to foster this trust.^[2] Conducting outreach in the community and engaging in relationship-building activities are positive steps toward achieving community trust in policing, but they are not adequate on their own.

To effectively build trust with the community, it is necessary for MPD to prioritize transparency and accountability in how its officers are policing. Police officers have extraordinary powers not only to stop people, arrest suspects, and present criminal charges, but also to cause injury or death. If the agency is not engaged in active and accurate documentation and monitoring of how officers operate in the field and then using that data to hold officers accountable and to make systemic improvements aimed at reducing the number of unjustified stops, excessive force, false arrests, or other civil rights violations, any trust that MPD builds with community members through outreach is quickly lost.

“Stop and Frisk” Data Collection

Since October 2016, MPD has had funding to implement the “stop and frisk” data collection requirement under the NEAR Act, Title 2G.^[3]  Since then, the Council, community stakeholders, and the ACLU-DC have all pressed in vain for information regarding the status of the collection of this data, which will be critical to understanding how our law enforcement officers interact with D.C. residents and to creating the accountability necessary to build trust between the community and MPD.

Thus far, everything the Mayor’s office has shared about the status of this provision has been conflicting. Recently, the Safer Stronger DC released a NEAR Act chart indicating that MPD had “begun implementation” of this requirement.[4] However, testimony from Deputy Mayor Donahue last week and responses in pre-hearing questions from MPD indicate that in fact, MPD has not begun implementation and may not even intend to collect this important data.^[5]

On Tuesday, February 20, we were pleased to see MPD release pre-NEAR Act “stop and frisk” data from 2010-2016. However, as I testified last week, this data does not meet MPD’s legal obligation under Title 2G of the NEAR Act, and it is not responsive to community and the Council’s concerns about the lack of adequate data collection. In addition to missing information critical to assessing whether an officer is engaged in constitutional policing, this data does not accurately capture the number of stops because the data collection itself has been inconsistent.

The ACLU-DC FOIA’d MPD data on “stops and frisks” in 2015. We learned from then-FOIA officer Teresa Quon that the forms were not filled out consistently; rather, practices varied from district to district (she had to go to each district to get them to respond to our FOIA request) and sometimes the decision to fill out the forms was based on officer discretion or whether the officer thought the stop was valid.[6]

In addition to a lack of consistency among officers in collecting information on stops, the data released last week shows MPD has not complied with its own protocols outlined in its August 2013 General Order, which states officers “shall clearly indicate” whether an incident was a non-forcible stop, or a contact.[7] In its explanatory notes released with the data last Tuesday, MPD admits the data does not distinguish between the types of stops officers made. This is cause for concern for MPD’s future data-collection efforts, and we look forward to hearing how it plans to build both the technological capacity and incorporate clearer protocols, training, and oversight of officers’ collection efforts to increase consistency of data collection as it also works to come into compliance with the law.

Still, there is value in the information that MPD released. The data indicates over 80 percent of the stops and frisks were of black D.C. residents, even as less than 50 percent of D.C. residents are black, a troubling―though not surprising―statistic that calls into question how many of these stops were justified versus how many are the result of discriminatory racial profiling.^[8]  This reinforces more than ever the urgency with which the District needs to comply with the “stop and frisk” data collection so it can rectify this problem.

We understand that correct implementation of the law requires updates and changes to forms, policies, and protocols, but MPD has given little indication that it has taken steps to make these changes. Despite repeated questions from this committee and the community over the past year about what MPD’s specific plans are for making the necessary changes to comply, and how the Mayor and Council can address these specific challenges, no clarification has been offered. This greatly undermines trust and confirms the fear that perhaps MPD does not truly view this as a priority and does not in fact intend to take the necessary steps to implement the law faithfully. We hope Chief Newsham can clarify MPD’s status on implementation before the Council and the public today.

Office of Police Complaints Report on “Use of Force” by MPD

The ACLU-DC found the recent report by the Office of Police Complaints on Use of Force by MPD to be very informative.[9] We applaud the D.C. Council for requiring this comprehensive report in the NEAR Act, MPD for cooperating with OPC on providing data, and OPC for its in-depth analysis and timeliness in issuing the report.

Among the report’s findings are several troubling trends that we’d like MPD to address:

• Use of force complaints in FY2017 increased by 36% over the previous year.[10] While OPC’s analysis revealed that some of this increase could be attributed to increased reporting of incidents, it could not account for 20-25% of the rise.
• Since 2013, 90% of all uses of force were against Black residents, even as Black residents make up 48% of the population.
• The most frequent incidents were of white officers using force on black subjects, which account for 44% of the total uses of force, followed by Black officers using force on black subjects in 32% of incidents.
• The highest incidents of use of force were reported in the Fifth and Seventh Districts, which accounted for 38% of all reported incidents.
• In 29% of incidents in which officers reported pointing their firearms at subjects, the officer reported the subject to be compliant, meaning they respond in a positive way to officer’s presence, are easily directed with verbal requests and commands, and offer no resistance.[11]

The report’s findings highlight the necessity of good data collection and analysis, not just for public education and transparency purposes, but to provide guidance for internal measures MPD can take to improve policing practices, hold officers accountable, and reduce use of force incidents. Transparency only leads to more trust in law enforcement when it is accompanied by accountability.

We are pleased to hear that MPD plans to streamline the input of “use of force” incidents, but urge the agency to adopt all of the recommendations contained in the OPC report. In particular, we strongly support the consolidation of all forms into one single, electronic form that integrates additional essential data to fully capture everything that led up to an officer’s use of force; [12]a requirement that officers complete these forms immediately following a use of force incident;[13] and that MPD resume collection of data from all firearm discharge incidents in ‘on-scene’ sheets, which the report reveals MPD has not collected since its previous Force Investigation Team (FIT) merged into its current Internal Affairs Division (IAD).[14] We hope that the Mayor, MPD, and the Council will ensure that these recommendations are followed and that the Department is actively engaged in corrective measures where problems arise.