Wednesday, June 19, 2013
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The Art of Complaining - How to File an Effective Complaint Against a Police Officer
Tuesday, August 16, 2011
The Art of Complaining - How to File an Effective Complaint Against a Police Officer
I found following material impressive for lodging any complaint against the highhandedness/misconduct of police officers and wanted to share the same tips with forum fellows.
How to File an Effective Complaint Against a Police Officer
A lot of citizens struggle with writing an effective complaint about a police officer. Often, the writer lets too much emotion enter into the complaint, and it then comes across as more driven by emotion than fact, more unreasonable than objective, or just generally easier for the police agency to minimize or ignore. (Indignation and outrage are good things to communicate, but name-calling should definitely be avoided.) Another common mistake is to draft a statement of the events without making it clear what the actual complaint is! In any case, I wanted to provide a few tips to maximize the impact of a complaint on behalf of the aspiring complainer.
The Art of Complaining
What Do I Mean By "Effective?"
Well, effectiveness is a loaded term, and depends somewhat on the intent of your complaint. Fortunately, the same techniques apply whether your goal is merely to have a damning complaint sit permanently in the officer's personnel file (and get noticed by the powers-that-be whenever the officer is up for a promotion), or whether you are seeking more serious disciplinary action and/or termination of the officer or deputy.
A police complaint is formal allegation of misconduct. This should not be confused with a "service complaint," which is a complaint about the service or policies of the agency, but not an allegation of misconduct against a specific employee of that agency. For the purposes of this guide, the "subject officer" is the officer you are complaining about. The "agency" is the police department, sheriff's office, or other law enforcement agency with whom you are filing the complaint.
General guidelines: Effective Police Complaints...
- Are written by you! Do not let another police officer write a complaint for you based on your verbal testimony. You must control the specific content of the complaint, or you've probably already failed in your efforts. If you're asked to give your complaint orally to the on-duty supervisor, insist instead on sending a written complaint (certified, with return receipt requested) to Internal Affairs or other disciplinary authority. Remember that a written submission is much harder for an agency to minimize or bury!
- Allege serious misconduct by the officer (see some of the possible applicable categories below; be aggressive about asserting the seriousness of the officer's behavior in your complaint!), and contain an explicit request for a formal investigation. Wrap up your complaint with a sentence like: "Officer X has committed numerous, serious violations of departmental policy and the law, and for this reason, and for the safety of the community at large, complainant requests a formal investigation be undertaken immediately."
- Are timely. Many jurisdictions require that you file your complaint within 60 days for allegations of minor misconduct (e.g., officer was rude), or within 6 months for more serious allegations. If you can't meet these deadlines, you should be able to show good cause as to why your complaint was late. (Note that these deadlines are often waived for allegations of violation of the law.)
- Clearly allege a pattern of misconduct, if such a pattern exists. This makes it less likely the alleged misconduct will be dismissed as "minor."
- Have corroborating witnesses whose reports do not conflict with yours! If witnesses exist, you should ask each of them to write a separate account of the incident. It will also help if your witnesses are willing to answer additional follow-up questions the police agency might have.
- If your complaint cites evidence, the evidence should be produced when the police agency requests it (but make sure you get a receipt!) Referring to evidence without ever turning it over makes a case look weak, and is a red flag for the complaint to be disregarded.
- Are carbon copied ("cc'd") to a state representative or other local politician. This really turns up the heat and makes it harder for the law enforcement agency to bury the complaint without giving it due consideration!
Your first goal is to actually get your hands on a police complaint form. In some jurisdictions, this can be a challenge (see external link at the bottom of this page). Essentially, what you need to do is visit the police station or agency where the officer works (although if it's a large organization, you might consider visiting a different branch or office) to pick up a complaint form which you will fill out, and mail in. If you expect a lack of professionalism or outright abuse on the part of the agency (or if you aren't sure what to expect) then you should strongly consider bringing someone with you to the police station as a witness. If you're really concerned, consider having that person keep a small tape recorder in their possession. Having a witness with you makes it far less likely you will be harassed or arrested. Having the tape recorder will help later if the officer at the front desk is abusive and/or refuses to give you a complaint form. Be sure to grab some duplicate forms while you're at the police station, and stick them in a file cabinet at home -- no sense having to come all the way back to the station and fight for another form if you lose the first form, or if the behavior you're complaining about recurs!
The Basics: Categories of Police Misconduct
Minor misconduct: has minimal adverse impact on the operation or integrity of the agency. Not likely to result in formal disciplinary action (e.g., a lack of courtesy; although rudeness complaints may have a long-term effect on the officer, as described below, rudeness may also fall into the more serious "unnecessary force" category, also described below).
General misconduct: violates a policy that requires a fixed penalty (e.g., failure to attend court, failure to attend a scheduled training or qualification, etc.). Generally not relevant to citizen complaints.
Serious misconduct: violates policies, procedures, rules, or regulations that have an adverse impact on the operation or integrity of the agency, and which can result in formal disciplinary action (this includes violations of the law). Generally the kind of stuff that you want to allege, if at all possible.
Examples of serious misconduct include (names and definitions may vary a bit from jurisdiction to jurisdiction; check your local police agency's Operations Manual (it should be made available to the public online, or at the police agency office):
Filing the Complaint
- Aiding another (officer) to violate a rule
- Altering information on official documents
- Appropriating property
- Careless driving resulting in injury or death (note also that many jurisdictions require automatic testing of an officer for alcohol or drug influence after any car accident more severe than a fender bender that may have been caused by that officer; this can be a good thing to request under an FOIA (Freedom of Information Act) request - ***link coming soon!***)
- Compromising a criminal case
- Departing from the truth (a colorful euphemism for lying; good for alleging in the case of traffic tickets; see also False report)
- Destruction of reports or records
- Discrimination (see also Racial or ethnic intimidation, below)
- Drinking on duty
- False arrest (not to be confused with the tort of the same name)
- False report (see also Departing from the truth)
- Harassment (see also Sexual Harassment)
- Knowingly making a false report (good for alleging in the case of traffic tickets)
- Law violation(s), or conspiracy to commit law violation(s) (a.k.a. lack of conformance with the law)
- Malicious threats or assault
- Overdriving (driving rapidly and/or aggressively) on the way to a minor call (very common in some jurisdictions)
- Racial or ethnic intimidation
- Rough and careless handling of departmental equipment
- Sexual harassment
- Soliciting or accepting a bribe
- Unnecessary force (a.k.a. excessive force; this category includes not only unnecessary force or violence in making an arrest or in dealing with a prisoner, but also ridiculing, taunting, humiliating, or mentally abusing you)
As mentioned previously, make sure your complaint alleges at least one specific category of misconduct! (See examples above.) This serves two purposes. First, this makes it irrefutably clear what misconduct you are accusing the officer of, and thus helps to set the stage for your complaint to be appropriately reviewed and investigated. Secondly, and even more importantly, a specific allegation makes it tougher for the departmental employees handling the complaint to clear the officer without any substantial refutation of your allegations, and thus tougher for them to sweep it under the rug. It's easier for an agency to dismiss a raw statement of facts which contains some misconduct buried deep within, than to dismiss a report which specifically names one or more official categories of misconduct. As such, try to pick the best few applicable policy violations and list them in a boldface heading at the top of your complaint. In addition to the serious offenses listed above, other categories of misconduct include:
There is clearly a lot of overlap between categories, so you should be able to cite plenty of types of misconduct in your report. Don't limit yourself to the items listed here; check your local police department operational manual or procedural handbook for additional categories!
- Abuse of authority
- Abuse of process
- Conduct unbecoming a law enforcement officer
- Lack of courtesy
- Lack of professionalism
- Neglect of duty
- Retaliation (e.g., for a previous complaint you filed!)
Remember, if the incident about which you are complaining is part of a pattern of behavior by the subject officer(s), be sure to note this in your complaint!
Finally, make sure that you mail the complaint report using Certified Mail, Return Receipt Requested. That way, you'll end up with a postcard that says who at the department signed for your complaint, and the department cannot later allege that they never received it.
What happens after I file a complaint?
First, the intake stage. A sergeant (or higher ranking officer; this person will be known as the "intake officer") will conduct a preliminary review the complaint and determine whether the allegations, if true, would constitute non-minor misconduct. Next, there are several other grounds for dismissal of the complaint besides the misconduct being categorized as minor. For example, a determination that your allegations are intentionally and materially false will lead to your complaint being dismissed. Trivial or frivolous complaints (i.e., those which allege minor technical violations of procedural rules which have negligible adverse effects on the public or the agency's credibility, such as failure by the officer to wear the uniform hat) are also dismissed during intake. Grossly illogical or improbable complaints (e.g., that an officer took control of your mind and made you punch yourself in the face) are also dismissed at this stage. Note that if you have a "history of unfounded complaints" with the agency, you may receive "special handling." This does not mean they can automatically dismiss your complaint, but rather, that they may require you to agree to an interview or other additional procedures.
If your allegations are perceived to be minor by the reviewing officer (or not part of a pattern), your complaint dies before it is ever seriously considered -- this is why it's so important for you to clearly allege and categorize serious misconduct by the officer!
A categorization of minor misconduct by the intake officer will lead to an informal investigation; this is a dead end as far as you are concerned! An informal investigation consists of nothing more than debriefing the subject officer regarding your concerns about the officer.s actions or quality of service. Most importantly, informal investigations do not trigger any formal finding or the imposition of discipline. This is why it's so important to explicitly allege serious misconduct by the officer, and to request a formal investigation in your complaint! If your complaint gets designated for informal investigation, write the department a letter underscoring the severity of your allegations, and demanding that a formal investigation be undertaken.
A formal investigation is generally performed by the subject officer's chain of command (his supervisors), or by an Internal Affairs officer (or bureau of officers, in the case of larger, metropolitan police agencies). Depending on your jurisdiction, Internal Affairs involvement may be reserved for allegations of serious misconduct (and the officer's superior is generally required to notify Internal Affairs of any such allegations). During a formal investigation, the subject officer and his or her representatives are prohibited from contacting or interviewing any witnesses or conducting any type of investigation into the allegations. As such, you should report any contact or attempts at contacting you by officers who are not specifically authorized to conduct the investigation!
The subject officer is not entitled to any legal representation during the investigation process since it is generally an internal matter and does not involve a court proceeding. During the investigation, officers who are known to have knowledge (either direct or indirect) of the alleged misconduct will be required by the agency to prepare and submit an individual report which is both complete and accurate.
Be forewarned that in a rural Sheriff's Office or other small police agency, "Internal Affairs" may consist of a single officer who is closely acquainted with, or works closely with, the subject officer. This will probably make it harder to get your complaint the attention it deserves, but the techniques in this guide should help you overcome this disadvantage!
Criminal or civil suits against the officer
If criminal charges are expected against the officer, this may affect the scheduling and handling of the investigation. This is because in a criminal case, the standard of proof is "beyond a reasonable doubt" (that is, the jury must be roughly 90% certain that the crime occurred). In contrast, in most civil cases or in the handling of police complaints, the standard of proof is a "preponderance of evidence" (that is, roughly 51% certainty that the allegation is true, but this may not be true with some allegations such as False Arrest, which only has to meet an even lower, "probable cause" standard). So, in the case of criminal allegations, the investigating authorities will generally wait to handle complaints after the conclusion of the criminal matter, since the evidence and results of the trial may be definitive and save investigation time (unofficially, it also decreases the odds that the police agency sweeps something under the rug that later becomes embarrassing headline news). Note that if the officer has been charged with a felony by the District Attorney's office, the police agency will generally be forced to indefinitely suspend him or her. The filing a civil suit against the agency may likewise change the dynamic of the complaint procedure, but generally will not halt the agency's investigation.
In the case of very serious allegations (e.g., that the officer used force or deadly force), you should lobby the District Attorney's office to initiate its own investigation. If an affirmative defense exists (e.g., the officer was acting in self defense), or if there is insufficient evidence to convict, the District Attorney will not prosecute the officer.
If the officer is found guilty of criminal charges, there may not be any administrative penalty, since the criminal penalty is believed to be more severe. If the officer is found not guilty in the criminal trial (remember, criminal cases use the "beyond a reasonable doubt" (90%+ certain) standard of proof), he or she could still be found guilty using the "preponderance of evidence" (51%+ certain) standard of proof, and so the investigation of the officer will resume in this case.
In some jurisdictions, an independent monitor from outside the police agency will be appointed whenever criminal charges have been filed against an officer. This independent monitor will often have the discretion to continue the investigation even if the criminal charges are dismissed, and can also recommend that the Internal Affairs department conduct additional investigation into a matter. Therefore, it is definitely worth your while to work with the independent monitor to make sure all relevant evidence is considered.
Mediation is a voluntary process for resolving complaints, and it may involve you meeting with other community members, police officers, police administrators, and/or an independent monitor. You have the right to refuse mediation if it is offered. Also, you do not have the right to demand mediation. Whether or not mediation will help achieve your goals definitely depends on the facts of your case, and the professionalism of the agency with which you are dealing. If mediation is offered to you, it is worth tracking down a lawyer or other local insider with knowledge of the mediation process and its likely effect on the results of your complaint.
Once a formal investigation is complete, the department is required to reach an official disposition as to your complaint. Findings in formal investigations use different terminology than criminal cases. Instead of "Guilty" or "Not Guilty," police complaint investigations can result in a variety of outcomes. An "Unfounded" finding is one where the allegation was not found to be based on facts as shown by the investigation; that is, the alleged misconduct is believed not to have occurred by the police agency. An "Exonerated" finding means that the alleged action was found to have occurred, but the investigation revealed that the action was reasonable, lawful, and proper. A "Not Sustained" finding means that insufficient evidence was available to either prove or disprove the allegation (that is, 50% or less of the evidence suggested that the allegation was true). Finally, a "Sustained" finding means that the investigation disclosed sufficient evidence to determine that the allegation was accurate. You may have noticed that we've got three varieties of "Not Guilty" verdicts here, and only one "Guilty" ; this provides some indication of how much the deck is stacked against the citizen making the complaint, especially when you supposedly only need 51% of the evidence to support your allegation to result in a "Sustained" outcome!
If the subject officer is cleared of wrongdoing, some departments will allow you to appeal the decision within the department. If this option does not exist, or is unsuccessful, you've got several options. The lowest cost course of action would be to complain to your state representative and/or the town or city governing body. Beyond this, your only real recourse for escalating the issue is a civil lawsuit, or pursuing criminal charges against the officer, both of which are beyond the scope of this article.
Short-term implications for the subject officer
Ideally, a disciplinary outcome will result from your complaint. In order of increasing severity, this could take the form of an oral reprimand (note that despite its verbal nature, this action will still be documented in writing), a written reprimand, fine, suspension, demotion, or dismissal. Also, depending on the outcome of the investigation, the subject officer may be allowed to remain in his or her usual assignment, allowed to remain on duty but reassigned, or relieved of duty.
In some jurisdictions, "Sustained" complaints with a sufficiently severe penalty are subject to review by a Disciplinary Review Board which includes citizens, and officers who are not directly involved in the case and not in the chain of command directly above the subject officer. In some jurisdictions, officers also have the option to appeal a "Sustained" complaint to a Civil Service Commission or similar municipal authority.
Longer-term implications for the subject officer
In addition to the short term consequences of your complaint (that is, the investigation and resolution described above), your complaint also has a more indirect and longer-term consequence for the subject officer. First of all, even "Not Sustained" complaints stay in the personnel file of the subject officer, and will be reviewed during the officer's annual performance evaluation (all officers up to, and including, the rank of captain must typically undergo this type of yearly review). Past complaints will likewise come up whenever an officer is up for promotion or transfer. If the officer is on probationary status because they are a fairly recent hire, or because of a past disciplinary problem, such complaints will probably be weighed more heavily against the officer.
Secondly, a great many police agencies now use a "declining complaint system" to identify patterns of misconduct, and to weed out retaliatory complaints (that is, complaints which are believed to be filed simply to wreak vengeance on the officer by the citizen). Under the declining complaint system, the agency will not only look at the facts surrounding your complaint, but will use the number of complaints the officer has received in the past quarter year (or longer) to decide whether the officer is receiving an abnormally high number of complaints. If so, the agency is more likely to investigate further instead of ignoring the complaints. Many police agencies also use an "early warning" or "early intervention" system which endeavors to detect early warning signs that indicate incipient patterns of future misconduct.
Both systems review the officer on a quarterly basis to determine whether the officer's statistics are out of line when compared with "similarly situated" officers. Ideally, this means that only officers with the same tenure, shift, and neighborhood are compared, but in the real world such "similarly situated" officers may be unavailable for comparison. An officer's statistics are also normalized to adjust for the number of complaints versus the number of contacts or arrests during the period in question, the number of uses of force versus the number of contacts or arrests, the number of crashed cars, number of rudeness complaints, etc. Small or rural police departments may employ additional statistics due to the decreased number of contacts (e.g., number of sick days taken). If any of these metrics hits a certain threshold, counseling and mentoring are ordered for the officer (or in more serious cases, disciplinary proceedings).
How many complaints does it take to raise a red flag? For a variety of likely reasons, urban police officers typically receive more complaints than their rural counterparts. The "similarly situated" statistics notwithstanding, even five complaints in a quarter would be a very high number, even for an officer who makes a lot of arrests in an urban area. Obviously, a smaller number of complaints would likely raise a red flag in a suburban or rural police department.
What if I verbally antagonized the officer before he broke out the Taser?
Officially, the fact that you called the cop a "parasitic ass-clown" as he handed you the speeding ticket (a.k.a. "contempt for the officer"; note that this, and the oft-heard "disrespecting an officer" are not actually illegal) may be "taken into consideration" during the investigation, but is not supposed to actually be a mitigating circumstance for the officer. This is quite a nuanced guideline, but you can certainly use that to your advantage by owning up to your outburst in your complaint, and making it clear that this was still no excuse for the officer's subsequent behavior. Likewise, if you begged, "Don't taze me, bro!" beforehand, make that clear in your complaint as well.
What about off-duty officers?
You should be aware that off-duty officers in any jurisdiction who are charged with misdemeanors, felonies, or local law violations involving use of force (e.g., assault) or threatened use of force are generally placed under formal investigation if their department is made aware of the violation. If you are involved in an incident with an off-duty officer, never assume that the officer's agency will find out . the only way to be sure is to file a complaint which fully documents the incident. Note also that many departments require off-duty officers, while in uniform, to adhere to the same standards of conduct as if they were on duty!
What if I can't identify the officer?
Police agencies must make a good faith effort to identify the officer on your behalf. Unless you're going to sue the agency (and thus will have discovery or subpoena power), you won't have much chance to identify the officer yourself. So, if the agency cannot or will not identify the officer, your best chance is to challenge whether the agency really lived up to its obligations and made a good faith effort; ask them to document what steps they took to identify the officer(s) in question!
What about third party complaints?
Third parties can make complaints. However, they must have a "reasonably direct relationship" to the incident if filing a minor complaint. A "reasonably direct relationship" generally means the third party was directly affected by the alleged misconduct (a first-hand source), witnessed the alleged misconduct (a second-hand source), or has special, professional, or organizational knowledge about the alleged misconduct (e.g., based on the party's capacity as a lawyer, judge, etc.) The agency isn't allowed to dismiss less serious third party complaints if there is a reasonable explanation why the "person with standing" (the victim) did not file the complaint (e.g., the victim was a minor, elderly, disabled, deceased, doesn't speak English well, is not a citizen, is wanted on criminal charges, has been threatened, etc.)
Can I complain anonymously?
Anonymous complaints are usually dismissed unless they allege corruption or other very serious police misconduct.
If the subject officer or his cronies start giving you a hard time after you file the complaint, file an additional retaliation complaint after each occurrence! That way, each complaint makes the pattern of harassment more obvious, harder to deny, and increases the chances this behavior will stop.
What if I want to commend an officer for doing something good?
While "courtesy patrol" services such as helping a stranded motorist change a flat tire seem to be in steady decline (police agencies cite budgetary restrictions demanding retasking of officers; critics cite departmental greed causing deprioritization of such services in favor of revenue-generating activity like traffic enforcement), it is conceivable that you will have reason to thank an officer acting in this capacity. And indeed, you should . the increasing rarity of such occurrences makes it all the more important to reward officers for actually protecting and/or serving the community. You can submit a narrative the same way you would in the case of a complaint. The officer will likely receive a complimentary note from the Chief or other superior officer, and perhaps a mention in the agency's newsletter. More significant positive deeds can result in a service award or citation, Officer of the Year award, or even a medal.
How to File an Effective Complaint Against a Police Officer
How to Make a Formal Complaint on a Police Officer | eHow.com
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