ACLU-DC Testimony before the DC Council Committee on the Recommendations of the D.C. Police Reform Commission

This testimony includes some recommendations of the report that the ACLU-DC views as critical to restricting harmful police practices and holding police accountable to the law and to the communities they serve.

Statement on behalf of the
American Civil Liberties Union of the District of Columbia
DC Council Committee on Judiciary and Public Safety & Committee of the Whole
Public Hearing on The Recommendations of the D.C. Police Reform Commission
by
Nassim Moshiree, Policy Director
Thursday, May 20, 2021

Good afternoon. 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 15,000 members and supporters across the District.

The ACLU-DC is committed to working to dismantle systemic racism, improve police accountability, safeguard fundamental liberties, and advocate for sensible, evidence-based solutions to public safety and criminal justice policies. The ACLU-DC is also an active member of the Police Free Schools Coalition and the Fair Budget Coalition.

We are pleased to testify in broad support of the comprehensive recommendations put forth by the D.C. Police Reform Commission (PRC) in their report, “Decentering Police to Improve Public Safety.” We found the recommendations to be thoughtful, evidence-based, and largely reflective of concerns and solutions that community members have been raising for years.

This testimony includes some recommendations of the report that the ACLU-DC views as critical to restricting harmful police practices and holding police accountable to the law and to the communities they serve. My colleague Natacia Knapper will address recommendations on decentering the role of police and strengthening the safety net to achieve public safety in separate testimony.

The mass movement for racial justice and police accountability has led the District and the country to this watershed moment. The time to act is now, and we believe that the Police Reform Commission has provided a clear blueprint of the many and varied steps we must take as a community to achieve true public safety and to reverse the decades of trauma and injustice inflicted on Black and Brown community members that continues to this day. Many of the suggested reforms in the report can and should be included in the permanent version of the “Comprehensive Policing and Justice Reform Amendment Act” (“Comprehensive Policing Act”) that the Council passed as emergency and temporary legislation last year.

I. Restricting police powers, practices, and policies that routinely violate the rights of civilians interacting with law enforcement.

A. Limitations on MPD’s Stop and Frisk Practices

MPD’s alarming stop and frisk tactics persist. In March of this year, after yet another lawsuit against the District over NEAR Act data, the ACLU-DC published a report analyzing the stop data from 2020. This data showed continued stark racial disparities in police stops, with Black people making up 74.6% of all stops in the District. Furthermore, Black people made up 90.7% of searches that resulted in no warning, ticket, or arrest. Because these searches are the ones most likely to arise from innocent conduct, these statistics suggest that MPD is overwhelmingly subjecting Black residents to intrusive police encounters despite their not violating the law. The data reaffirms community members’ repeated, urgent calls year after year about the need to limit these harmful practices. To this end, we seek to highlight the Police Reform Commission’s recommendations in Section V.

1. First, per recommendations 1 and 2, MPD should disband “specialized” units like the Gun Recovery Unit. Our data analysis shows that MPD’s claims about gun recovery are vastly overstated: only 1% of all stops and 2.2% of all non-traffic stops in 2020 led to the recovery of a firearm. So not only is the GRU’s efficacy questionable, but its aggressive tactics are more likely to result in unwarranted stops, searches, arrests, and uses of force, including potentially lethal force. MPD should instead require all officers – including those in specialized units – to be readily identifiable as police officers with names and badges visible and in marked police cars. These recommendations are crucial in reducing dangerous stops.
2. In line with Recommendations 3, 4, and 7, the Council should prohibit “jump outs,” end pretextual stops, and require reasonable articulable suspicion to justify a protective pat-down. Reasonable articulable suspicion must not be based on boilerplate language such as “bulge in clothing,” “characteristics,” or “for officer safety,” or on factors such as nervousness or presence in a “high crime area,” but instead be based on specific, individualized facts. Black people made up over 90.5% of those who experienced a search or pat-down of their person or property in 2) In line with Recommendations 3, 4, and 7, the Council should prohibit “jump outs,” end pretextual stops, and require reasonable articulable suspicion to justify a protective pat-down. Reasonable articulable suspicion must not be based on boilerplate language such as “bulge in clothing,” “characteristics,” or “for officer safety,” or on factors such as nervousness or presence in a “high crime area,” but instead be based on specific, individualized facts. Black people made up over 90.5% of those who experienced a search or pat-down of their person or property in 2020.. Despite there being a negligible difference in weapons recovered after searches of Black people as compared to searches of white people, Black people were 5 times as likely to undergo a pat-down or search.
3. MPD must also be restricted from conducting intrusive searches. The Council should prohibit body cavity searches, in line with PRC Recommendation 9 and MPD General Order 502.01. Despite MPD’s General Order prohibiting officers from conducting body cavity searches, MPD regularly violates this policy. The list of individuals who have been subject to these traumatic, sexually invasive searches continues to grow.
4. Finally, the Council’s passage of the NEAR Act and its data collection requirements formed the basis for better transparency and public accountability of MPD. However, the quality, transparency, and impact of NEAR Act data can and must be improved. We’ve submitted specific recommendations to the Council and the Commission for improving the quality and transparency of the data and we generally support the PRC’s recommendations on this.

B) Limitations on Use of Force and Weapons

The recent report issued on March 23, 2021 by the D.C. auditor found that not only is compliance with Use of Force restrictions and policies poor, but that MPD does not recognize that problems even exist and is therefore not compelled to remedy them. The Use of Force reports by the Office of Police Complaints over the past several years have identified similar resistance to change. Similarly, the militarization and use of aggressive tactics and unchecked surveillance by police has created an environment in which certain communities view police as an occupying force rather than as a civil servants charged with ensuring safety.

1. The ACLU-DC supports all of the recommendations of the PRC with regard to use of force and urge the Council to immediately amend the temporary Comprehensive Policing Act to expand prohibited use of force beyond neck restraints, and to include that provision as well as the law’s restrictions on deadly use of force, and its expansion of the membership of the Use of Force Review Board in the permanent version of the law. We further urge that use of force legislation passed by the Council include remedies for those whose rights are violated by officers acting outside the confines of the law.
2. We urge the Council to make permanent the prohibition on the use of chemical weapons and other less-than lethal munitions during First Amendment assemblies, as well as the prohibition on MPD officers wearing riot gear except when they face an immediate threat of significant bodily injury. However, to truly protect District residents, we recommend that these restrictions be expanded beyond First Amendment rallies.
3. We further urge the Council to make permanent provisions restricting District’s law enforcement agencies from acquiring and using military weaponry, including requiring agencies to publish notices of requests or acquisition of any property from the federal government within 14 days of the request or acquisition and to return any such equipment that they have already acquired within 180 days of the enactment of the law. However, as we testified in October 2020 on the Comprehensive Policing Act, to make this provision enforceable, the Council should require periodic audits by an independent agency outside of law enforcement to ensure compliance, and enact penalties for failure of law enforcement agencies to comply. Additionally, the legislation should ban DC Police from acquiring or purchasing such weapons from private companies, and should prohibit agencies from entering into non-disclosure agreements that that prevent public transparency or oversight of their acquisition of these harmful tools.
4. We are pleased that the PRC recommends that the Council adopt legislation to bring oversight and accountability to government use of surveillance tools. Although we know about a handful of surveillance technologies MPD uses, neither the public nor the Council know the full extent of the types of surveillance tools MPD currently has, how they are procured, how they are used, and how they impact people in the District. We also do not know what/if any data retention policies MPD has in place or with what other entities, government or otherwise, the data gleaned from such technologies, is shared. The lack of oversight and transparency of such use of technology by the Metropolitan Police Department especially has serious consequences for District residents. Unchecked surveillance threatens the civil rights and civil liberties of all D.C. residents, and especially of those who are already overpoliced–including Black and Brown communities, low-income communities, Muslim communities, immigrant communities, and activist groups.

The ACLU-DC is a member Community Oversight of Surveillance-DC (COS-DC), a coalition of local and national organizations and individuals committed to bringing public oversight to how District agencies procure and use surveillance technology. We urge the Council to introduce and pass legislation that requires Council approval anytime a District agency wants to purchase, acquire, or use surveillance technology.

C) Limitations on warrant executions

The ACLU-DC strongly supports the recommendations of the PRC to permanently ban the use of no-knock warrants and to strictly limit quick-knock warrants. While MPD asserts that it does not execute no-knock warrants, this dangerous practice is still permitted by case law and the exception to the warrant requirement remains part of the District’s criminal code.

Additionally, we urge the Council to amend the D.C. Code 23-524(g) and for MPD to modify General Orders to ensure that MPD officers execute search warrants lawfully, safely, and in a manner that minimizes harm to people and property. Specifically, the Council should require officers to comply with constitutional requirements for patting down and searching occupants; and authorize prompt compensation for damage to property.

II. Strengthening transparency, oversight, and accountability mechanisms to hold police accountable to the communities they serve.

In addition to explicitly limiting police powers to reduce harms, the most immediate action the Council can take now is to increase transparency of police practices.

A) Increasing public access to police actions and records

One of the most significant barriers to police accountability is the culture of opaqueness and resistance to transparency that permeates MPD. There are mountains of evidence of this, from MPD’s refusal to comply with the NEAR Act data collection requirements for years, its denial of FOIA requests, its non-compliance with recommendations made by the Office of Police Complaints in their annual reports, and most recently, its poor response to requests for data and information from the Police Reform Commission. And as findings like that in the recently released Use of Force report by the Bromwich Group and D.C. Auditor demonstrate, a direct consequence of this resistance is the infliction of physical harm and trauma to communities.

1. We support the PRC creation of a searchable public databases, like those that exist in New York City, enabling the public to easily access, for any officer, the status of open investigations, the outcome of administrative investigations, and the disciplinary action taken with respect to each act of misconduct. Lack of access to police disciplinary history has long 1) We support the PRC creation of a searchable public databases, like those that exist in New York City, enabling the public to easily access, for any officer, the status of open investigations, the outcome of administrative investigations, and the disciplinary action taken with respect to each act of misconduct. Lack of access to police disciplinary history has long been a barrier to holding officers who have engaged in repeated violations of civilian rights accountable. We strongly support the recommendation of the PRC to expand retention and public access to disciplinary records and proceedings through FOIA and other means.
2. We also strongly support the need to amend DC’s FOIA statute to increase public access to body-worn camera (BWC) footage, narrowing the personal privacy exception which MPD regularly invokes to both deny access to public records and charge exorbitant fees to redact BWC recordings. One problem that the report does not address, however, is MPD’s practice of denying fee-waivers in FOIA requests, which continues to be a significant barrier to transparency and accountability. 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 primarily benefit the public. However, the ACLU-DC’s experience is that MPD consistently denies fee waivers, abusing its discretion. The Council intended DC agencies to waive fees when furnishing information would primarily benefit the public, and DC’s FOIA law should be updated to fix this.
3. Finally, with regard to body worn cameras, we urge the Council to prohibit officers from reviewing their BWC recordings or those that have been shared with them to assist in initial report writing and make permanent other provisions of the Comprehensive Policing Act regarding public release of body-worn camera footage, about which we have testified before.

B) Removing Disciplinary Authority Outside of Police

The ACLU-DC has for years testified about the need to completely move the disciplinary process out of MPD, and to significantly expand the authority and capacity of the Office of Police Complaints only to investigate complaints into police misconduct, as it currently does, but to actually impose and enforce discipline when there has been a determination of wrongdoing; two things the law does not currently authorize it to do. Putting the authority of discipline in the hands of police is a clear conflict of interest.

1. First, we support the recommendation to expand the Police Complaints Board and give it the authority to review and approve MPD policies, prior to issuance, that are not purely administrative in nature.
2. We also strongly support the PRC’s recommendation that OPC have the authority and resources to investigate all in-custody deaths and serious uses of force by MPD officers, 2) We also strongly support the PRC’s recommendation that OPC have the authority and resources to investigate all in-custody deaths and serious uses of force by MPD officers, regardless of whether a complaint has been filed. OPC must also be given the statutory authority and access to relevant officer personnel records, including their entire history of complaints and internal investigations, to make informed disciplinary recommendations. We also believe that the process that the PRC proposes for removing disciplinary decisions from the sole discretion of MPD in section VIII is a good start to removing disciplinary authority outside of MPD.
3. Other recommendations that we urge the Council to adopt quickly include authorizing OPC to investigate anonymous complaints and to permanently extend OPC’s jurisdiction to investigate cases of police misconduct that OPC discovers during other investigations. From our own conversations with community members, we know that DC residents are hesitant to file complaints against police officers for fear of retaliation, and that residents often are not aware of the duties of officers and of their own rights.

C) Expand access to remedies for those whose rights have been violated by the police.

One of the greatest barriers to police accountability nationwide and in the District is the inability of civilians who are harmed by police officers’ actions to hold them accountable in court. While the District has passed progressive legislation meant to improve police accountability, too many DC laws fail to include remedies for violations of these laws. The result of this is that people have no recourse when their rights have been violated and especially for police, bad actors know that they can continue to violate the rights of people without serious consequence.

1. We strongly agree with the PRC recommendations that the D.C. Council include an explicit private right of action in legislation intended to hold police officers accountable. Doing so will not only provide an important avenue for recourse to those who are harmed by the actions of law enforcement but will serve as a deterrent to violating the law. One place where this is critically needed is in the First Amendment Assemblies Act, D.C. Code §§ 5–331.03 to 5-331.17 (the “FAAA”). That statute, enacted by the Council in 2005, provides significant protection to the rights of peaceful demonstrators in D.C. But when MPD does not follow the law, people can suffer real injuries—for example, when MPD improperly uses chemical weapons, or assaults and arrests people who don’t leave an area because the police didn’t give an audible dispersal order as the FAAA requires. But the act does not include an express private right of action provision which is a barrier for those who are harmed by these police actions to hold them accountable in court.
2. Currently, D.C. law requires individuals filing personal injury or other damages claims against the D.C. government (including against the Metropolitan Police Department) to “give[] notice in writing” of their claims “within six months after the injury or damage was sustained.” D.C. Code § 12-309(a). Thus, for an individual to hold MPD accountable for police misconduct, they must 2) Currently, D.C. law requires individuals filing personal injury or other damages claims against the D.C. government (including against the Metropolitan Police Department) to “give[] notice in writing” of their claims “within six months after the injury or damage was sustained.” D.C. Code § 12-309(a). Thus, for an individual to hold MPD accountable for police misconduct, they must learn of this specific deadline and file a detailed written statement within six months. The PRC recommends tolling this six-month notice requirement for claimants who are incarcerated or facing criminal charges related to an arrest. We feel that the Council should go one step further and abolish this requirement altogether because it does not serve any legitimate function. In theory, the §12-309 notice requirement exists to promote informal resolution of claims but, in practice, functions as a trap for uncounseled litigants, killing off their D.C. law claims with a quick 6-month notice requirement that most laypeople will not know about. The ACLU-DC sends notices of claim all the time and have not had a single case in the last 40 years in which the notice led to a pre-litigation resolution of claims. This provision arbitrarily closes the doors to the courthouse to people who cannot afford a lawyer. That is fundamentally at odds with creating a more equitable system of accountability for official misconduct by the police or, frankly, any other government officials.
3. And lastly, we urge the Council to pass legislation to end qualified immunity, which emboldens police officer to use excessive force and otherwise violate the constitutional rights of civilians without fear of repercussions. Under this doctrine, even if officers violate the Constitution, courts cannot hold them liable unless binding precedent previously held very similar conduct unlawful. Our colleagues at the Institute for Justice have drafted a strong bill to end qualified immunity that is based on best practices and legislation passed in Colorado, New Mexico, and New York. The ACLU-DC supports this draft legislation. We also appreciate Councilmembers Trayon White, Lewis George, and Nadeau in expressing support for ending this practice by recently introducing legislation as well. We hope to work with them, and all other Councilmembers to end this major obstacle to police accountability.

III. Conclusion

The Police Reform Commission’s report makes clear that real public safety goes beyond policing and that it cannot be achieved through a piece-meal approach. The ACLU-DC supports recommendations needed to the criminal legal system outside of policing, including restoration of jury trials for all criminal cases and criminal code reform that decriminalizes behaviors and activities that are better addressed through other avenues. We applaud the many reforms the Council passed in last year’s emergency bill and look forward to working with you to incorporate additional reforms discussed today into permanent legislation.