Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the
D.C. Council Committee on the Judiciary and Public Safety Hearing on
Bill 24-356 – “Strengthening Oversight and Accountability of Police Amendment Act of 2021”
by
Ahoefa Ananouko, Policy Associate
October 21, 2021
Hello Chairperson Allen and members of the Committee. My name is Ahoefa Ananouko and I am a Policy Associate at the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 15,000 members and supporters across the District.
It is our strong belief that a robust system of public safety cannot be successful without mechanisms to ensure police are not abusing their powers. The ACLU-DC has consistently testified over the years about the need for stronger oversight of the Metropolitan Police Department (MPD) and greater accountability for officer misconduct. We have also recommended expansion of the Office of Police Complaints’ (OPC) authority and resources, so that it may carry out some of these oversight functions.
We commend efforts the Council has made to bring about these changes, such as passing the Temporary Comprehensive Policing and Justice Amendment Act and introducing this bill, the Strengthening Oversight and Accountability of Police Amendment Act (Bill 24-356).
Bill 24-356 was introduced by Chairman Mendelson in July of this year. Among other things, the bill would establish a Deputy Auditor for Public Safety within the Office of the D.C. Auditor; rename and expand the authority of the Police Complaints Board and the Office of Police Complaints; amend the FOIA statute to increase access to police disciplinary records; and create a public database of disciplinary records of MPD officers and D.C. Housing Authority Police Department (HAPD) officers.
The ACLU-DC generally supports the bill’s intent to make MPD’s disciplinary process more meaningful and to expand the authority and role of the Office of Police complaints. Unfortunately, the bill language lacks clarity and specificity in parts, and needs strengthening in others, to ensure real accountability rather than simply achieving transparency. Our testimony will focus primarily on the accountability and disciplinary systems the bill aims to address.
Establishment of the Deputy Auditor for Public Safety
The ACLU-DC does not oppose the creation of a new Deputy Auditor of Public Safety. The Auditor’s reports are a useful and important tool in helping the public and the Council understand the strengths and shortcomings of District agencies, and in identifying areas for improvement. However, after conversations with officials from both the Auditor’s office and the Office of Police Complaints, it appears to us that the duties and responsibilities of the Deputy Auditor, as contemplated by this legislation, are largely already within the powers of the D.C. Auditor, and in some cases are duplicative of functions that OPC and the Police Complaints Board currently perform. We urge the Council to work with both agencies to ensure The ACLU-DC does not oppose the creation of a new Deputy Auditor of Public Safety. The Auditor’s reports are a useful and important tool in helping the public and the Council understand the strengths and shortcomings of District agencies, and in identifying areas for improvement. However, after conversations with officials from both the Auditor’s office and the Office of Police Complaints, it appears to us that the duties and responsibilities of the Deputy Auditor, as contemplated by this legislation, are largely already within the powers of the D.C. Auditor, and in some cases are duplicative of functions that OPC and the Police Complaints Board currently perform. We urge the Council to work with both agencies to ensure that the legislation substantively furthers the goals of increasing MPD accountability without duplicating government functions.
Oversight and Accountability of Special Police Officers
We appreciate the intent of Bill 24-356 to achieve greater oversight and accountability of the District’s special police officers (SPOs). The ACLU-DC strongly supports greater oversight of SPOs, but before expanding the jurisdiction of the OPC to conduct this oversight, the Council must first create clear and uniform guidelines for all SPOs operating in the District.
Currently, the Department of Consumer and Regulatory Affairs (DCRA) holds licensing of special police officers. As far as we know, there are no standardized rules governing how SPOs operate in the District For example, there are no general orders or uniform list of offenses and penalties like there exists for MPD. If OPC is given oversight of the current system, the only penalty they could possibly impose is recommend that an SPO’s license be taken away—an appropriate action for certain violations but certainly not all. OPC would also not be able to hold accountable the private companies that contract out SPOs.
While the ACLU-DC believes that OPC would be well positioned (given an increase in budget and capacity) to receive and investigate complaints against special police, a major rehaul of the current training and licensing standards for SPOs needs to take place before a properly functioning oversight and accountability structure can be put in place.
Police Accountability Commission Composition of the PAC
As we noted in our October 2020 testimony for the Comprehensive Policing and Justice Reform Amendment Act of 2020, ACLU-DC supports expansion of the Police Complaints Board (the Board). One of the changes the Council made in that bill was removal of the serving member of the MPD from the Board once the term of the current MPD member expires. That bill also states that no member of the Board should have affiliation with any law enforcement agency. However, B24-356 would reinstate the As we noted in our October 2020 testimony for the Comprehensive Policing and Justice Reform Amendment Act of 2020, ACLU-DC supports expansion of the Police Complaints Board (the Board). One of the changes the Council made in that bill was removal of the serving member of the MPD from the Board once the term of the current MPD member expires. That bill also states that no member of the Board should have affiliation with any law enforcement agency. However, B24-356 would reinstate the MPD as an ex-officio member of the renamed and reconfigured Police Accountability Commission (“PAC” or “the Commission”).
The legislation does not define what “ex-officio” means so, while it is clear the person would automatically assume a position on the PAC as a result of the position they hold within MPD, it is unclear whether they would be a non-voting member. Regardless of whether this person would be a voting or non-voting member, the ACLU-DC does not support including a member of the MPD on the PAC, and we encourage the Council to adopt the changes made in the Comprehensive Police Reform bill.
Additionally, we support the intent of B24-356 to ensure meaningful representation on the PAC from community members most directly impacted by policing and incarceration. The Comprehensive Police Reform bill included language to expand the Board to have a representative from each Ward. Bill 24-356 specifies what that representation should look like, including that young people aged 15-24 from neighborhoods impacted by policing, immigrants, LGBTQIA communities, and those with disabilities must have representation on the board. We strongly support the bill’s intention with this language to ensure that those most impacted by policing serve on the Commission, and also recognize that the proscriptive nature of the bill language may pose a challenge in identifying members who want to or are able to serve on the Commission.
Powers of the Police Accountability Commission
The bill intends to expand the authority of the reconfigured PAC, but it’s unclear if any of the changes in the bill are substantive or simply reiterate duties the Police Complaints Board already has. Pursuant to Bill 24-356, the Commission would review and make recommendations regarding MPD policies, procedures, and trainings before they are finalized and binding on MPD officers. The legislative text, however, seems to suggest that the Commission will only have this power when the Police Chief submits updates for review. It is important for the legislation to clarify that the Commission has the power to initiate reviews of MPD policies, procedures, and trainings sua sponte, as this would ensure that MPD does not circumvent the law by simply deciding not to submit them for review.
It is also unclear whether the Commission’s recommendations would be binding, as the legislation does not address what happens if the Police Chief disagrees with the recommendations, and the department refuses to incorporate the Commission’s changes. A similar problem currently exists with MPD largely ignoring OPC recommendations regarding its use-of-force policies. The proposed bill does not directly address this issue and does not create an avenue for real accountability.
Office of Police Accountability
We strongly support recommendations in B24-356 to expand the authority of the Office of Police Complaints, renamed the Office of Police Accountability (“OPA” or “the Office”), to accept anonymous We strongly support recommendations in B24-356 to expand the authority of the Office of Police Complaints, renamed the Office of Police Accountability (“OPA” or “the Office”), to accept anonymous complaints and to include additional allegations of police misconduct that the OPA discovers in the course of an investigation of a complaint.
For the anonymous complaints provision to be workable, the legislation must include a separate process for filing anonymous complaints. The bill currently requires the OPA to send various notices to complainants, but does not state how to proceed if an individual is not available to give additional information or receive notices from the OPA. Without clear guidance on how to contact and engage anonymous complainants, the OPA will not be able to conduct these investigations.
Furthermore, the Council should also authorize the OPA to give complainants the option of having their personal identifying information removed prior to case information being shared with MPD. We have heard from community members time and again that many simply do not file complaints about MPD officers due to fear of threats and retaliation against them or their family members. Providing this option would allow individuals who want to be fully cooperative in an investigation to do so without fear.
B24-356 also gives the OPA authority to make disciplinary recommendations to MPD following a sustained allegation of misconduct, which the ACLU-DC strongly supports. But it is not evident in the legislation that the OPA’s recommendations would be binding. Without clear language that the disciplinary recommendations of the OPA are binding on MPD officers, this legislation lacks teeth, and leaves the door open for MPD to simply refuse to impose the recommended discipline.
The OPC’s October 2020 report on MPD discipline revealed that the current system of MPD serving as the sole arbiter of disciplinary decisions is not working. The report found that the majority (about 60%) of sustained complaints of misconduct resulted only in minor disciplinary sanctions. OPC’s report noted that MPD not only tended to go outside the realms of its table of penalties, but that the education-based development to which officers were typically referred was merely additional training. These trainings are often basic things that are taught extensively at the police academy and should be clearly understood by officers—hence why they are not listed in the table of penalties. The report also notes that OPC would not consider education-based development a form of discipline, because this type of action is usually not the appropriate response to the sustained misconduct.
As stated in the report, low-level reprimands “allow officers to believe that complaints from community members are unimportant and that MPD tolerates, or endorses, behaviors likely to produce complaints.” OPC’s October 2020 report offered a framework for improving the disciplinary procedure, and that could help enhance community trust. Other jurisdictions, such as Oakland, CA., Milwaukie, WI., and Maryland can also serve as helpful models of police accountability mechanisms.
Increasing Transparency of Disciplinary Records Through FOIA
The ACLU-DC strongly supports B24-356’s amendment to the District’s Freedom of Information Act (FOIA) to increase the public’s access to MPD disciplinary records. As previously stated, access to police records is critical in police accountability.
However, what this legislation does not address are the many ways that MPD delays or prevents public access to records, about which we have testified in the past. We have made recommendations in previous testimony and encourage the council to implement these changes in addition to the ones made in B24-356.
First, MPD regularly abuses the discretion given agencies to provide documents free of charge or at a reduced rate—where the information being sought is considered to primarily benefit the public. Leaving fee waivers at the discretion of the agency has allowed MPD to adopt what we believe to be a standard practice of denying fee waiver requests to anyone except media members and individuals depicted in the recording—an approach that denies the public access to critical information. The Council should update D.C.’s FOIA law to address this.
Additionally, MPD often invokes the personal privacy exception to deny access to public records and charge exorbitant fees to redact body-worn camera (BWC) recordings. This continues to be a significant barrier to transparency and accountability. We recommend the Council includes provisions in the FOIA amendment section of B24-356 to fix this issue.
The Council should also amend the FOIA statute to increase access to BWC footage. BWC footage provides critical details about events involving officers, and can help us better understand why an officer acted the way they did, and whether those actions were justifiable. This was also one of the recommendations of the Police Reform Commission.
,p>And finally, given MPD’s poor history of responding to FOIAs in a timely manner, the Council should consider required reporting of MPD’s timeliness to FOIA requests that details the type of requests, who made them, whether the request was approved and when, and the grounds for denial.
Establishment of an Officer Disciplinary Records Database
We strongly support the creation of an officer misconduct database. D.C. would not be the first to establish a police misconduct database. Jurisdictions such as Massachusetts, Pennsylvania, and Oregon have passed legislation expanding access to police records through some sort of public database.
The ACLU-DC believes police disciplinary and internal affairs records are vital tools for assessing individual officers’ histories. They are also critical for determining a police agency’s patterns of behavior, especially when confronted with cases of police violence or other egregious misconduct. One can find information on licensing, misconduct, decertification, and license revocation for a countless number of occupations including doctors, lawyers, and even barbers and cosmetologists. It is unacceptable that the same cannot be said for law enforcement agents—individuals who have the power to take lives.
Until the recent Disciplinary Actions, Grievances, and Equal Employment Opportunity (EEO) Report (Misconduct Report) submitted to the Council, neither the Council nor the public had much information, if any, on officer misconduct or MPD’s investigations and grievance processes. Though this report is an important first step, like MPD’s NEAR Act stop and frisk data releases, there are gaps in the data presented in the report. For one, it does not show criteria for the different dispositions (with EEO complaints for example, how does the EEO office determine that there are insufficient facts to proceed with a case or that an officer should be exonerated from an allegation?). The report also does not list names of officers. This could allow officers who were terminated or chose to resign before a termination could occur to seek employment in law enforcement agencies in other jurisdictions.
One concern we have with the current legislation as written is that it does not lay out a plan for enforcement of database reporting requirements. An on-going issue we have seen with MPD is the willful flouting of reporting requirements in other areas like the NEAR Act, and even the Misconduct report. To strengthen this section of B24-356, we recommend that the Council include a provision providing that each officer be assigned a unique identifier to track certification and misconduct history. This would assists with database accessibility, as officer ID and badge numbers may change throughout their career.
We also urge the Council to establish clear guidelines for reporting, including a set schedule of regular reporting and penalties for when that requirement is not met. The point on penalties cannot be overstated, and applies to every aspect of accountability, including FOIA requests and disciplinary processes, we have covered over the course of this testimony. MPD has deliberately ignored reporting requirements and recommendations from agencies such as the OPC for many years. Not including penalties for not reporting in a timely manner would not only ensure that MPD does not continue to contravene the law, as it has historically done, but also lets the Department know that the Council is serious in fulfilling its oversight duties.
One way of doing this would be to tie MPD’s annual budget to its compliance with reporting requirements and other laws (this is something the Council has the authority to do both through the annual performance oversight and budget oversight processes).
We recognize that a database alone will not change policing, but having a publicly accessible record of officer misconduct will go a long way in ensuring that officers with patterns of misconduct do not continue to move through the ranks or escape culpability. There must also be stronger reforms and bolder efforts to place limitations on police practices, particularly with regards to use of force. And we hope this will be addressed in the permanent version of the Comprehensive Policing and Justice Reform bill.
Selection of the Police Chief
The proposed bill authorizes the Police Accountability Commission to provide input on the job description and qualifications of a Chief of Police, but there are no details about how the Commission would provide this input or what the selection process would entail. Nor are there improvements to how the community can engage in this process.
As we testified at Chief Contee’s confirmation hearing, that D.C community members were not engaged at all in the selection process of the police chief is a serious misstep for the District at a critical moment in discussions about public safety and police reform. There was no public input into the selection of Chief Contee as the nominee. No public discussion of the values and principles that the District would be seeking in a candidate for chief of police, no consulting the communities most impacted by both crime and over policing to gather information on the commitments that residents wanted to hear from a law enforcement leader, and no search beyond existing MPD leadership.
By the time the confirmation hearing was held, a decision had been more or less solidified by the Mayor and the Council. The chief of police is not only accountable to the Council and the mayor, but especially to the residents they are sworn to protect. To stand firm in its commitment to police reform and racial equity, the Council should provide for a more meaningful community-informed process before confirmation of the police chief.
Conclusion
We are at a critical juncture where D.C. communities are no longer satisfied with the status quo when it comes to public safety. Trust and confidence in law enforcement have long been lost in some communities, and for others, these are words that have never been used to describe the relationship they have with the police they encounter in their neighborhoods. D.C. cannot continue to accept the opacity and resistance to accountability the MPD has historically exhibited. The District must demand not just transparency, but real accountability from its policing infrastructure. That begins by instituting mechanisms that hold police and police departments accountable for their actions.
Bill 24-356 takes some meaningful steps in this direction. We hope that the Council will incorporate our recommendations to strengthen the impact and realize the intent of this legislation.
