Statement on behalf of the
American Civil Liberties Union of the District of Columbia
DC Council Committee on Judiciary and Public Safety
Budget Oversight Hearing on the Metropolitan Police Department
Wednesday, March 27, 2019
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.
In her FY20 Budget, Mayor Bowser has proposed an additional $3 million to increase the Metropolitan Police Department force to 4,000 officers. But with a budget of over $500 million, MPD is already one of the largest police forces per capita in the nation. Meanwhile, the agency continues to fall short on its obligations under the law in ways which both harm public safety efforts in the District and prevent an accurate assessment of whether adding more officers is a useful or sound investment of taxpayer funds.
The ACLU-DC firmly believes that the investments we make in our communities to address the root causes of crime and community trust in law enforcement are critical to achieving public safety. We have serious concerns about the MPD’s performance and accountability that we feel must be addressed before any consideration is given to increasing the agency’s budget or police force.
Most urgently, there are significant indications that MPD officers have been engaging in excessive use of force and invasive and unjustified stop-and-frisks for some time with little accountability and in flagrant disregard for legal obligations which the Department continues to ignore without consequence.
OPC Use of Force Report
Three years after the passage of the NEAR Act, the MPD has yet to comply with data collection requirements for both “use of force” and “stop and frisk” data.
Pursuant to the NEAR Act, the Office of Police Complaints (OPC) issues an annual report on MPD’s use of force practices and policies, using data provided by the Department. OPC’s second annual report, released on March 19, 2019, reveals not only that MPD continues to fail to collect details of incidents consistently but that use of force by MPD officers has increased significantly even in the past year.
Some key findings of the report include:
- Use of force incidents increased by 20 percent from 2017 and by 83 percent from 2015. As indicated in the report, while the increase over 2015 may partially be attributable to changes in how MPD reports and records use of force, this does not account for the significant increase from 2017 as there have been no changes to the reporting requirements since then.
- The number of officers using force also increased in 2018 by 18 percent over the previous year (1,322 from 1,122 officers), representing one out of every three MPD officers using force in 2018, and 9 percent of officers who used force reported doing so five times or more in 2018.
- Though MPD does not consider it a use of force for officers to point a gun at subjects, officers pointed their guns at subjects 292 times in 2018, representing a 32 percent increase from 2017. In 61 percent of these incidents, subjects were reported to be fully compliant or only passively resistant to officer’s demands.
- 90 percent of reported use of force in 2018 involved Black subjects; as in the previous year, the most common officer-subject pairing was white officers using force on Black subjects, accounting for 41 percent of all uses of force.
Meanwhile, MPD leadership has made little progress in reexamining its use of force polices and trainings and has actively opposed requiring its officers to complete Use of Force Incident Report forms (UFIRs) immediately following such incidents. In fact, of the eight recommendations made in its first Use of Force Report from 2017, OPC found that MPD has failed to implement half and has only partially implemented the rest. And yet, the Department has faced little to no consequences for its systemic failure to comply with the law in ways that have a measurable negative impact on District residents - often on our most vulnerable community members.
Stop-and-Frisk Practices and Narcotics & Special Investigations Division
In response to concerns raised by the public and the Council about MPD’s stop-and-frisk practices at the MPD performance oversight hearing this past February, Chief Newsham testified that MPD has no “stop-and-frisk program.” What the Chief failed to acknowledge is that the Department may very well have unlawful and problematic “stop-and-frisk” practices in place without having an official program under which they take place. The fact that Black residents make up less than 50 percent of D.C.’s population yet remain the subjects of over 80 percent of all stops and frisks is one indication that the District has a stop-and-frisk problem. In failing to confront this reality, MPD leadership has encouraged a culture of secrecy, a severe lack of accountability, and a sense of impunity among officers. For every incident in which an officer acts outside the law, the community is traumatized. We recently saw this on display in the trial board disciplinary hearings of Officer Sean Lojacano.
Last year, the ACLU-DC settled a case on behalf of our client M.B. Cottingham, who was the subject of an illegal and intrusive search by Officer Lojacano, an officer in the Narcotics & Special Investigations Unit (NSID) of MPD who was later fired from the force. In a disciplinary hearing to appeal his termination earlier this month, it was revealed that Officer Lojacano had engaged in similarly invasive search of another man half an hour before he violated our client’s rights.
But that’s not all. While admitting that his searches violated both MPD general orders and training he received at the police academy, Lojacano claimed that veteran officers in the NSID told him “forget everything you learned at the academy” once he was in the field. He also admitted that he had conducted “hundreds” of such searches over the past five years and maintained that he wouldn’t have been fired but for the viral video and the ensuing public outrage.  Furthermore, both former and current MPD officers testified in Lojacano’s defense that the searches for which he was terminated are common practice for the police department and the NSID.
The testimony at this hearing evidences a disturbing practice that goes far beyond the behaviors of one or two officers but rather implicates a systemic failure on the part of public servants to adhere to the law in ways that directly and very seriously harm District residents.
We recommend the Council take the following steps in response to both the findings of the use of force report and the revelations from the Lojacano hearing:
1. The DC Council should mandate a full-scale, independent audit of MPD’s Narcotics & Special Investigations Unit and allocate appropriate funding for this in the FY20 budget. A full, independent audit of the training, practices, policies, procedures, and outcomes of the NSID is critical to ensure that District residents’ rights are not being systematically violated. We recommend that this funding go to the Office of Police Complaints.
2. The DC Council should pass emergency legislation requiring affirmative consent prior to all consent searches by police officers. The recent revelations from the Lojocano hearing in addition to recent problematic stops of young children in wards 6 and 1 reveal that the state of our stop-and-frisk practices requires meaningful scrutiny. This Committee has repeatedly requested data from MPD that it continues to refuse to collect despite its legal obligations to do so. Now is the time for the Council to act to protect the rights of District residents and require that officers acquire affirmative consent for all consent searches. In doing so, the District would be following the steps of other jurisdictions that have required that officers articulate plainly and clearly to individuals that are subject to search of their right to refuse consent and that they record the person’s response. Adopting a similar affirmative consent policy in the District is necessary to serve as a regular reinforcement to officers of their obligations during stops.
3. The DC Council should ensure continued public access to MPD disciplinary hearings. It is important to note that the public and the Council would not have known about Officer Lojacono’s conduct if the trial board hearing were not public, highlighting the importance of transparency and public access to these hearings. We hope that the Council pays close attention to the terms of the police union contract when it is up for renewal to ensure this transparency continues.
More funding for police does not equal greater public safety, though it is too often seen as the easy solution whenever discussions of public safety arise. What we’ve learned through the failures of MPD to comply with the law over the past several years is that more police can lead to a severe breakdown of public trust in police when communities can’t rely on officers to follow the law.
The most effective deterrent to crime is a thriving community where residents have their needs met – adequately funding programs that address housing security, economic justice, food access, health care and education needs. The ACLU-DC is a proud member of the Fair Budget Coalition and we support their FY20 budget recommendations for funding programs that address the basic needs of community members as the proven way to increase public safety.
 When compared to other big cities, Washington, D.C. and Chicago reported the highest number of officers per capita. See https://www.governing.com/gov-data/safety-justice/police-officers-per-capita-rates-employment-for-city-departments.html
 Report on the Use of Force by the Washington, D.C. Metropolitan Police Department 2018, available at https://policecomplaints.dc.gov/node/1391936
 Additionally, the number of total uses of force increased by 26 percent from 2017, representing a 106 percent increase from uses of force reported in 2015. Id. at 12
 Report on the Use of Force by the Washington, D.C. Metropolitan Police Department 2018, available at https://policecomplaints.dc.gov/node/1391936 pg. 12
 Id. at 14
 Id. at 18
 MPD’s response to this recommendation is as follows: “The specific procedures detailing when an officer must complete a UFIR were negotiated with and approved by the DOJ, and they have been MPD policy for almost fifteen years. MOA paragraph 60 required that MPD not compel an officer to make a statement if the USAO had not yet issued a criminal declination for deadly uses of force, serious uses of force, and uses of force indicating potential criminal conduct.” Id. at 35
 See https://www.wusa9.com/article/news/forget-everything-youve-learned-at-the-academy-mpd-officer-in-viral-search-video-says-veteran-officers-told-him-to-ignore-training/65-fb6dbac3-167f-45ec-a400-4c9a96564416
 One such expert witness was Officer JJ Brennan, a 43 year veteran member of the DC Police department from the NSID who testified that Lojacono’s search met guidelines of the department and that "I always told people that worked for me, don't be afraid to go up in the crotch.” Officer Brennan was given a termination letter the day following his testimony. http://www.fox5dc.com/news/local-news/dc-police-officer-fired-after-testimony-in-high-profile-case
 See https://hillrag.com/2018/12/26/community-demands-answers-after-boys-detained-by-officers/ and https://dcist.com/story/19/02/22/police-face-criticism-for-detaining-a-group-of-children-outside-the-petworth-metro/
 Right to Know Act law in NYC includes two pieces of legislation, which can be found here: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1681129&GUID=F650527A-AA60-49DB-8A02-97E9C4A0CBDE and here: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2015555&GUID=652280A4-40A6-44C4-A6AF-8EF4717BD8D6