Across the United States, many are discussing police misconduct – and the cost to the community, the department and the municipal government. Costs are measured in many ways: first, in terms of community trust and officer morale and also in terms of fiscal impacts. Communities deplore the long time that it takes to resolve internal investigations of police officers, particularly when serious officer misconduct is involved. However, not often discussed is the time it takes for criminal investigations into police officers to resolve. Recently, after the officer-involved shooting of Harith Augustus in Chicago, the Sun-Times Editorial Board called for the independent civilian investigative agency to find the “find the full story, quickly.” Herein lies the rub.

Administrative and Criminal Investigations: The Theory

While in theory, an administrative investigation operates independently of the criminal investigation into a law enforcement officer, in reality, both investigations often derive from the same evidence. Traditionally, law enforcement agencies will often stay the administrative investigation into an officer accused of potentially criminal misconduct pending a prosecutor’s decision on the criminal charge. This occurs for a variety of reasons: (1) the belief that the criminal penalties are stronger and therefore take precedence; (2) the desire to have an independent review of the criminal investigation (often, conducted by the same law enforcement agency); (3) to ensure that the potential prosecution is not impacted by administrative process and findings; and, (4) to ensure that full visibility into the evidence.

However, the criminal charging review for officer-involved criminal investigations is increasingly taking significant time. Nationally, highly publicized actions of officer misconduct take months and years to make a final determination on whether criminal prosecution will ensue.

Changing Perspective and Challenge

The New York Times has recently reported the New York Police Department (NYPD) has advised the U.S. Department of Justice that it will go forward with the administrative proceedings against the officers involved in the July 2014 incident resulting in the death of Eric Gardner. The NYPD has determined that four years to investigate a highly public and devastating incident both for the community and the NYPD is time enough – as the New York Times article highlights. In a highly unusual step for a police department, NYPD is on record as stating:

 “Understandably, members of the public in general and the Garner family in particular have grown impatient with the fact that N.Y.P.D. has not proceeded with our disciplinary proceedings and they have difficulty comprehending a decision to defer to a federal criminal investigation that seems to have no end in sight,” Lawrence Byrne, the department’s deputy commissioner for legal matters, said in a letter to the Justice Department on Monday.”

Not only is this unusual, but it also holds a level of risk for law enforcement agencies. A more traditional approach has been evidenced in Cincinnati where it is reported that a judge ruled that the administrative hearing regarding the officer’s actions could not go forward until the prosecutor’s investigation into the criminal actions of the defendant has been completed.  The officers were already determined to have acted within the law for the incident occurring on March 12, 2017 in which one officer was severely injured after encountering an armed offender.  This trial is not slated to start until October 15, 2018. As the judge in this matter wrote, in his decision:

“It is well-established that prosecuting authorities are entitled to complete prosecutions without interference by other bodies.”

This same article reported that anyone who violates the order will face swift consequences including being detained without bond and a mandatory appearance before the judge.

Law Enforcement Agencies Take Administrative Action

As demonstrated in the judicial decision in Cincinnati, administrative actions by civilian review and law enforcement agencies have the potential to impact any pending criminal investigation.  However, when criminal investigations and prosecutorial decisions continue for a lengthy period of time, law enforcement agencies are sometimes seen as delaying appropriate actions in response to the incident. For communities that lack trust in their police departments, administrative action could be construed as a way to derail an investigation while a lengthy wait for a prosecutor’s decision is seen as an insufficient response.

Some departments have taken action ahead of a prosecutorial decision in some highly charged incidents. Chief Will Johnson in Arlington, Texas fired an officer following a shooting incident stating that poor judgment led to a catastrophic outcome. Chief Johnson indicated that he has responsibility to take administrative action, which he did, and that the criminal investigation would be forwarded to the prosecutor for decision. Almost ten months later, a grand jury declined to charge officer. In another shooting incident in Milwaukee, Chief Flynn recommended termination of an officer for failure to follow training after an officer-involved shooting incident occurred on April 30, 2014. This recommendation was made on October 15, 2014 – two months ahead of the prosecutor’s decision not to charge the officer criminally.

These chiefs have held that their administrative authority is critical to their agencies’ relationships with their communities and to their own respective responsibilities. However, when community trust is weak, these decisions could also become a basis for further controversy both within the community and within their own departments, as such decisions are seen as negatively impacting the officer involved.

Implications for the Path Ahead

Justice delayed is justice denied. This saying carries a lot of significance within the communities affected by police misconduct. Whether justice is served by the agency’s administrative action ahead of prosecution action remains unclear. Nationally, criminal charging decisions regarding officer misconduct, internal and external, take a long time – both as a matter of investigation and for prosecution action, including decisions about whether the actions of the officers were compliant with the law. Such decisions need to be based upon evidence, factually supported and within the framework of the law. However, to meet the growing community demand for transparency and accountability – particularly when an officer-involved shooting is involved – the whole of the criminal justice system must work toward timely resolutions. Significant administrative actions by law enforcement agencies prior to prosecution decisions remain rare. The decision in Cincinnati is part of the reason: the ability to independently and fully prosecute criminal action is the role of the prosecutor and not the police.

In order to retain community trust, police leaders need to demonstrate transparency and objectivity – especially when they are acting in response to critical incidents. As it stands now, the local law enforcement agency is often in the middle between the community and the prosecution. A chief may elect to take administrative action ahead of a prosecution decision but, to do so, he or she needs to take action in alignment with a strong policy, adherence to the legal rules governing administrative and criminal investigations, and open communication with the officers, community and prosecutors.

The best decision a chief can make is one that addresses such incidents in the most objective and effective manner for their agency and the community.