An incident involving a suspect quickly escalates. In a blur, a member of the public is shot by the police, and the individual dies. There is body-worn camera video. There is in-car camera video. And there is “public” video – bystanders to the event who captured it on their smart phone cameras.
Social media ignites, with multiple parties claiming knowledge of the situation – or to have witnessed it – stating the police had no basis to shoot the person. Published interviews and statements sweep across the internet – all condemning police acts in the event. Barely three hours have passed since the incident.
Public Opinion Weighs In – Almost Immediately – as the Agency Investigates
The loudest voices claim the police murdered the individual – illegally and without any attempt to find alternatives to a fatal outcome. And before the police agency can get its incident command mobilized, the court of public opinion has reached a verdict. Rarely is this decision favorable for the police or supportive of community-police relations.
Internally, the police department does what it normally does – it investigates on its own. The department gathers the evidence, interviews and documents witnesses, reviews videos, documents its action and awaits evidence processing. It consults with prosecutors and seeks direction on additional issues to be addressed. City leadership and attorneys are informed, often resulting in risk-mitigation strategies. Because an officer is involved, administrative processes kick in, sometimes limiting access and timing of interviews.
Given these prosecution issues, risk mitigation strategies and the officer’s legal protections, the department involved provides the public with minimal information in the initial aftermath of the incident. As the investigation continues, there are generally few, if any, updates. At some point, a decision is made by the prosecutor not to charge the officer after identifying the officer as ”justified” in the use of deadly force. Following such a decision, most departments often close the matter internally – with no disciplinary outcome.
Unfortunately, this decision comes months – and in some cities, years – after the initial determination by the public that the officer acted wrongly. Long investigations, in which the police essentially investigate the police, compounded by a lack of transparency around internal investigations, drive the belief held in many communities that the police are not accountable for their actions.¹
Meeting Public Expectations for Transparency and Independent Investigations
How internal investigations are conducted, managed and communicated directly impacts the police-community relationship and the overall trust they have in the law enforcement agency. While there may be valid evidentiary and legal reasons for maintaining a close hold on investigative information, this information vacuum results in the erosion of community trust. Therefore, assuring the integrity and independence of any professional standards investigations must begin before the event. The public needs to know and understand their police department’s investigative processes, what it can expect and when –and must be assured that the process will be transparent.
Third Party Engagement Brings Integrity and Independence to Internal Professional Standards Investigations
One of the best ways to gain the public’s trust – and widespread recognition for the integrity of the process – is to have an independent third party conduct the investigation. A variety of options exist, from informal mutual aid arrangements with other law enforcement agencies to contracted services with an independent investigative firm. In some parts of the country, independent civilian investigations or oversight bodies are used to assure the integrity of investigations into officer conduct. In other jurisdictions, it is legally required that another law enforcement agency investigate an officer-involved critical incident. For example, Wisconsin law mandates that when an officer-involved critical incident results in the death of an individual, the investigation is to be conducted by a team of two from an independent agency.² Gaining ground in law enforcement is the use of an external investigative firm that operates independently of the criminal investigation, but fully investigates the actions that fall within the administrative process. In the private sector, it is far more common to use an independent investigator. Relying upon external investigators for internal investigations can be most valuable when, for example, the investigation involves a high-ranking senior member of the department, the in-house investigators lack the skills and experience for complicated inquiries or do not have the bandwidth to complete the work as required. or the investigation involves vested interests or potential conflicts for other agency stakeholders.
Whichever means are used to establish independent investigations – e.g., mutual aid, civilian review and investigation or professional investigation services – it is important to outline responsibilities fully to ensure the agency executive has direct engagement, receives timely information updates, and matches actions to organizational needs for investigative integrity and independence.
11 Critical Questions to Ask when Assessing Internal Investigative Protocols
- Is my agency sufficiently resourced and skilled to conduct the investigation?
- Is there a potential conflict of interest, perhaps on the part of a senior executive?
- Do my current practices support a professional, impartial and timely investigation?
- What risk is presented to the agency or local unit of government as a result of current internal investigative practices?
- What privacy issues protect or limit information disclosures?
- When and how will video evidence be disclosed?
- When and how will involved-officer information be disclosed?
- What internal and external notification processes will be followed prior to disclosure?
- How does the community benefit from current investigative practices?
- What harm might occur to the department’s due to its current investigative practices?
- In the case of critical incidents, how are my resources most efficiently and effectively used?
Much More than Just “Internal”
Internal affairs matters can have far-reaching and significant impact on the officers, the community and the agency involved. No longer can departments allow investigations into critical incidents involving police officers to proceed behind the scenes without some form of communication to the public – especially given the prevalence of video and surveillance devices, both public and private, as well as social media sharing and the internet.
Absent engagement by the department through an informed, thoughtful investigative and communication protocol, community distrust only grows – even where proper actions result.
Ensuring internal investigations are independent, impartial, accurate and thorough – while maintaining an effective communication strategy – is time-consuming and requires significant internal resources. The most effective process may be one that engages an external investigation team. Such a practice contributes to an impartial investigation and provides assurance to the community of the investigation’s integrity.
When considering external investigators, however, the agency would be well served to determine in advance, before a crisis occurs, communication and information-sharing strategies, both for internal audiences and external audiences. In the end, the public has to have trust in the ability of the police to act lawfully and appropriately in all communities for the police to be effective in providing public safety. Providing transparency and integrity to internal investigations is one method to help restore community trust.
How Hillard Heintze can help your law enforcement agency provide transparency? Find out more here. Or contact me at Debra.Kirby@hillardheintze.com or 312.229.9809.
Katz, Walter. Harvard Law Review. Enhancing Police Accountability and Trust with Independent Investigations of Police Lethal Force. April 10, 2015. https://harvardlawreview.org/2015/04/enhancing-accountability-and-trust-with-independent-investigations-of-police-lethal-force/ Accessed May 2, 2017
 The Council of State Governments. Police and the public trust: In wake of high-profile incidents involving officers and civilians, legislation focuses on transparency, accountability. March 2015. http://www.csgmidwest.org/policyresearch/0315-police-cameras-investigations.aspx Accessed May 2, 2017.