ACLU-DC Budget Oversight Hearing Statement on the Office of Police Complaints to the D.C. Council Judiciary Committee

Statement on behalf of the
American Civil Liberties Union of the District of Columbia
 before the
DC Council Committee on Judiciary and Public Safety
Budget Oversight Hearing on the D.C. Office of Police Complaints
Wednesday, March 27, 2019

Room 500
by
Nassim Moshiree, Policy Director

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 17,000 members in the District.

The ACLU-DC 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. My testimony today will focus on our recommendations to enhance the effectiveness and capacity of the Office of Police Complaints (OPC) through additional funding and broadening of OPC’s authority to initiate investigations.

In the NEAR Act, the D.C. Council strengthened OPC’s role as a law enforcement monitoring and auditing entity. Pursuant to the NEAR Act, all constituent complaints about MPD and D.C. Housing Authority Police Department officers go through OPC, and any complaints that are made directly to the Departments are now forwarded to OPC.[1] The law extended the time period in which community members can file complaints from 45 days to 90 days following an incident, allowing for more access to OPC by constituents. And the NEAR Act also required that OPC produce an annual report on MPD’s use of force,[2] the first two of which have significantly increased transparency over policing in the District and which have unearthed alarming trends and steps that MPD can take to address them.

Police accountability and transparency are critical to protecting the civil rights and civil liberties of all District residents, and OPC serves a vital role as an independent agency charged both with investigating complaints of police misconduct and with reviewing and issuing public reports on police operations that include recommendations to improve police policies, training, and practices.

However, OPC has limitations in capacity and authority that continue to impede its key monitoring and auditing functions. The ACLU-DC offers the following recommendations to increase OPC’s capacity to investigate complaints and be more accessible to community members who do not feel comfortable or safe making complaints about police misconduct.

1. The Council should expand OPC’s authority to allow it to initiate investigations into police misconduct that are not complainant-driven. Currently, OPC investigators do not have the authority to open an investigation into an incident if no specific complaint has been made. This creates the potential for many missed cases of police misconduct that might otherwise be examined. For example, OPC could have investigated the two police incidents that took place on Sheriff Road in Deanwood this past summer but for the fact that no one filed a complaint with the agency.[3] These were newsworthy events that had significant public attention, but the agency charged with investigating police misconduct did not have the authority to conduct an independent investigation. As another example, an OPC investigator who is reviewing body-worn camera (BWC) footage in response to a complaint may observe evidence of additional police misconduct in the footage – possibly by the same officer or by a different officer – but the investigator cannot open a second investigation into the behavior they observe if no one has filed a specific complaint about it. As a result, a significant amount of police misconduct may go unaddressed even when it is observed by experts charged with monitoring police misconduct.   
   
   Before the existence of BWC footage, it would have been difficult for OPC to conduct a thorough investigation without a complainant to interview, but that is no longer a barrier. Because most police interactions involve BWC footage and OPC investigators have immediate access to this footage, an effective investigation can take place in instances where OPC determines it necessary. Expanding OPC’s authority to do so is an important and logical next step in increasing police accountability.
    
2. The Council should expand OPC’s authority to accept complaints anonymously and to initiate investigations from anonymous complaints. We often hear from community members who are hesitant to file complaints about police officers for fear of retaliation once the officers find out that they’ve made a complaint. Unfortunately, these fears are not unfounded, as we’ve heard and seen incidents captured on smart-phones involving officers taunting community members or engaging in what may be perceived as retaliatory behavior. Residents also testified about their concerns of retaliation by law enforcement at the Deanwood hearing this past summer.
   
   With the availability of and immediate access to BWC footage, it is now possible for OPC to initiate an investigation following an anonymous complaint that includes enough information (time, date, and location) for investigators to locate and request the appropriate footage. Again, increasing the ways OPC can learn of and investigate police misconduct will result in a more complete picture of policing in the District and allow MPD the opportunity to more quickly and effectively address any unlawful or problematic police practices.
    
3. The Council should increase OPC’s budget to hire additional investigators to keep up with the increase in complaints. According to its annual report, OPC has seen a continued two-year trend of a record number of complaints.[4] OPC opened 501 new investigations in FY18, more than in any other fiscal year since OPC’s inception in 2001. Increasing the agency’s budget to add staff capacity will ensure that OPC is able to respond to complaints and to complete thorough investigations in a timely manner. We leave it up to the Council and the agency to determine the level of funding that would be required to ensure that OPC can effectively continue and grow, but we expect that expanding the ways in which OPC can initiate investigations will lead to an increase in investigations by the agency, and hope that the funding will reflect that likelihood.
    
4. The Council should include funding in OPC’s FY20 budget to either oversee or conduct a full and independent audit of the Narcotics & Special Investigations Division of MPD. The NSID houses the Gun Recovery Unit, over which there is currently little oversight and transparency as to how, when, and where they operate, and about which we have received a large number of complaints.  It is unclear what records MPD keeps on the operations of the specialized units, including what percentage of their operations result in the seizure of weapons or drugs, how they’re supervised, and what coordination, if any there is between the specialized units and the precinct commanders. We should not have a police force with members that operate in secrecy and with little accountability. The Council should mandate a full, independent audit of the training, practices, policies, procedures, and outcomes of the NSID to ensure that D.C. residents’ rights are not being systematically violated.
    
5. The Council should expand OPC’s role to give it independent disciplinary authority. Finally, we acknowledge that OPC’s role in addressing police misconduct is also currently limited in that OPC cannot recommend or determine the type of discipline to be imposed when allegations of police misconduct are sustained. Having an agency with full independent disciplinary authority over police officers is, in our view, essential to achieving complete accountability and transparency over police practices. The ACLU-DC has called for the Office of Police Complaints to have independent disciplinary authority in the past, and we continue to believe that OPC should be able to hold officers accountable for their actions in cases where misconduct is sustained, while of course respecting the due process rights of officers and all parties.

In the short term, we believe additional funding to increase OPC’s capacity to keep up with its growing caseload, in addition to expanding its authority to initiate more investigations, will encourage more residents to engage with the agency and help OPC build upon and expand its important work.