ACLU-DC Performance Oversight Hearing Statement on the Metropolitan Police Department 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
Performance Oversight Hearing on the Metropolitan Police Department
Thursday, February 7, 2019
Room 412

by
Nassim Moshiree, Policy Director

Good afternoon, 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 17,500 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.

In passing the Neighborhood Engagement Achieves Results Act in 2016, the Council embraced a vision of public safety that emphasizes accountability and transparency, community-centered violence interruption, trauma-informed care, and access to housing, health care, and jobs.

Underlying the public-health approach of the NEAR Act is an acknowledgement that the communities most impacted by violent crime are also those most impacted by over-policing and incarceration, and that the outdated “tough-on-crime” approach of arrests, convictions, and harsh sentencing has not only failed to make the District safer, but has contributed to the further destabilization of communities. I want to thank this Committee for continuing to engage in and demonstrate a commitment to oversight of the NEAR Act’s implementation.

Unfortunately, we have yet to see this same engagement and commitment from MPD or its leadership, which continues to deflect any criticism of its role in eroding public trust in law enforcement[1], which continues to delay implementation of key provisions of the law that would make it more accountable to the communities it serves, and which continues to opposes transparency over the actions of its officers and specialized units.  

At a hearing held by this Committee this past July in Deanwood, community members testified they wished they felt safer calling the police, but experience had taught them that officers might overreact or use excessive force or harass other neighbors, including children, and they didn’t want to put anyone else at risk of injury, arrest, or death. Parents described how their children are met by a throng of officers every time they leave school, how they are harassed and have their backpacks searched by police on their walks home, how they’re told to lift their waistbands by officers shining lights at them from moving vehicles when they’ve done nothing to arouse suspicion. And we heard from individuals who don’t feel safe sharing critical information about serious crimes with the police because they don’t believe that officers will protect them from retaliation.

These stories represent a persistent problem that MPD has thus far been unwilling to acknowledge and address in any meaningful way. In response to criticism, MPD reasserts its commitment to “constitutional policing,” a term that has lost meaning in communities where residents’ civil rights and civil liberties are routinely disrespected.

 Stop-and-Frisk Data Collection:

Although Black residents make up forty-seven percent of D.C.’s population, they remain the subjects of the vast majority of all stops, frisks, and uses of force in the District. Nearly three years after the passage of the NEAR Act, MPD has yet to come into full compliance with the stop-and-frisk data collection provision of the law. In May 2018, the ACLU-DC, along with Black Lives Matter DC and the Stop Police Terror Project DC, sued the mayor and MPD for this failure.[2]

This past fall, MPD released a general order as part of its interim plan to comply with stop-and-frisk data collection.[3] Unfortunately, this plan still failed to meet the requirements of the law for several reasons. Notably, MPD proposed to collect some of the required information on body-worn camera recordings of stops, which the judge in our case referred to as a “non-starter” and a “fiasco” at a hearing last fall.

MPD’s general order also directs officers to recite the following to individuals they stop: “Per the NEAR Act, as passed by the Council of the District of Columbia, we are required to ask for your gender, race, ethnicity, and date of birth.”[4] This statement reveals a significant misunderstanding of the law’s requirements. What matters for the purposes of stop-and-frisk data is what the officer perceives to be someone’s gender, race, and ethnicity. If officers simply ask subjects of stops for their date of birth and then fill out the rest of the required information based on what they perceive of the person’s gender, race, and ethnicity, they will better meet the purposes of the law and be relieved of a burden that the general order unnecessarily places both on officers and those they stop.

If MPD does not collect all data the NEAR Act requires them to collect, accountability and reform will remain elusive, as they have for so many years, and MPD will continue to subject communities of color in the District to disproportionate and unfair treatment. We remain disappointed with MPD’s lack of progress on this front.

Consent Searches:

A recurring request we get from community members is for rights information about when and under what circumstances the police are entitled to search them during an encounter. We also hear regular complaints about alleged officer misconduct as it relates to improper searches of persons, homes, and vehicles.

Other jurisdictions have tackled this issue directly by providing clear guidance to their police departments on how to obtain voluntary, knowing, and intelligent consent prior to conducting searches that are not incident to lawful arrest or pursuant to probable cause, warrants, or other exceptions to the warrant requirement. [5] We recommend that DC adopt such an affirmative consent law – one that requires officers to articulate plainly and clearly to individuals that are subject to search of their right to refuse consent and that also requires officers to keep a record of individuals’ responses.  

The D.C. Office of Police Complaints has also recommended that MPD adopt mandatory use of a consent search form [6] because the agency continues to receive complaints regarding searches and has observed significant racial disparities based on the complaints it receives related to consent searches.[7]

Adopting an affirmative consent policy in the District would go a long way in increasing trust in the police and would also serve as a regular reinforcement to officers of their obligations during stops.

Use of Force and the Gun Recovery Unit

In February of 2018, the Office of Police Complaints issued a report required by the NEAR Act on use-of-force incidents by MPD.[8]  The report found that complaints about police use of force had increased 36 percent over the last year; that since 2013, 90 percent of use-of-force incidents were against Black residents; and that the most frequent incidents were of White officers using force against Black subjects[9].  In 29 percent of incidents in which officers pointed their guns at subjects, the officers reported the subjects were not offering resistance and were completely compliant with officer requests.[10] OPC made several suggestions for how MPD could improve its use-of-force policies and data collection, all of which we support.[11] However, we have yet to learn if MPD has taken any necessary steps to adopt the recommendations, including by changing forms, policies, and protocols for more consistent data collection on the use of force.

Many of the complaints we hear of use-of-force are about the Gun Recovery Unit, over which there seems to be little oversight and transparency as to how, when, and where they operate.  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 with little accountability. The Council should also consider a full-scale, independent audit of the practices and tactics of all specialized units, beginning with the Gun Recovery Unit.

Body-Worn Camera Policies

Body-worn camera footage has been touted by both MPD and the mayor as a way to increase accountability and trust in policing, but MPD’s refusal to release body camera footage of incidents that are of significant public interest remains deeply problematic, especially where MPD officials frame the narrative of events to the public but then refuse to release body camera footage.

Another barrier to transparency we’ve identified is MPD’s practice regarding fee waivers in D.C. Freedom of Information Act requests. Under D.C. law, agencies have the discretion to provide documents free of charge or at a reduced rate where the information being sought is considered to be primarily benefiting the general public.[12]

However, we’re not aware of MPD granting any fee waivers since at least fall 2018, including for our own requests for footage of the two troubling encounters between police and community members on Sheriff Road in Deanwood this past summer. If MPD has adopted a formal or informal policy of denying all FOIA fee waiver requests, this policy would, in our view, amount to an unlawful abuse of discretion. We also believe the Council intended D.C. agencies to waive fees when furnishing the information would primarily benefit the general public.

Additionally, the fees for FOIA requests of body camera footage are exceptionally high as a result of MPD policy to only release footage after it has redacted or otherwise blurred the faces of all civilians in the video prior to release, even if the footage captures tourists in the background walking down a public street, for example. This policy increases the costs of redaction and, because MPD passes those costs onto requesters, makes it difficult for public interest organizations to access the footage. For instance, for our request of the Deanwood footage, we were given an estimate of approximately $49,000 in costs. We don’t believe it was the intent of the Council as reflected in the Committee Report on the Body-Worn Camera Program Amendment Act of 2015 for the agency to redact images of individuals who are in public and not depicted in a compromising or sensitive position, and would like to understand why MPD has concluded that it must do so.[13] While we agree that there needs to be a balance of privacy and the public’s right to know, overly cautious redactions come at the cost of transparency and accountability.

We recommend that the Council revisit our BWC and FOIA laws to improve public transparency of agency actions.

Conclusion:

The recent rise in homicides in the District have devastated and traumatized entire communities, and while we are heartened to see more emphasis on violence interruption and trauma-informed care, we have also seen significant setbacks to these positive efforts. Until all members of our community can trust that police are there to protect them rather than living in fear that they themselves will fall victim to unnecessary and unlawful use of force at the hands of police, we cannot achieve true public safety.

We hope the Council will continue to hold MPD accountable and will remain committed to moving away from policing and criminalization as the primary tool to address the problems our communities face.