Fresno’s first attempt at civilian oversight of the police is not yet a year old, so perhaps it is too soon to make any definitive judgments about its effectiveness. The Office of Independent Review (OIR), headed by Eddie Aubrey, started in December 2009.
In October, Aubrey submitted his first midyear report to the City Council. The report contains some significant criticisms of the Fresno Police Department (FPD), particularly for sloppy handling of citizen complaints and serious delays in completing investigations of officer-involved shootings. These are things that citizen critics of the department have been saying for years, and finally, it is part of the official record. That has to be seen as progress.
What the report does not do is address some of the other issues that worry citizen watchdog groups. Are Fresno police trigger happy? Do they use force inappropriately, or more frequently than do comparable departments in other cities? Are there a few rogue cops in the department who generate the majority of citizen complaints? Are there some officers who routinely treat certain minority groups differently? Do they not show proper respect to members of some groups? Do they, consciously or unconsciously, engage in racial profiling?
The midyear report does not really answer those kinds of questions. Perhaps it would be expecting too much to think that the first midyear report could address everything of significance. Also, unfortunately, the answers to some of those questions may be beyond the scope of what the OIR is permitted to do.
Complaints Disappear down the Memory Hole
There are things within the report that critics of the FPD will find heartening. For example, the Central California Criminal Justice Committee (CCCJC) has been saying for years that filing a complaint with the FPD is a bit like throwing it into a black hole. Over the past 10 years or so, the CCCJC has collected much anecdotal evidence from people who have filed complaints but never heard back from the department. If a complainant takes the trouble to inquire about his or her case, often the department cannot locate it, giving the citizen the feeling that the complaint is being ignored.
Aubrey’s report explains why some of that happens. It turns out that the department has no method of keeping track of the majority of complaints it receives. He found that only about 20% of the complaints received are ever assigned a tracking number. The other 80% might still be there in a file somewhere but are extremely difficult to locate. Furthermore, there is no systematic way of making sure that every complaint is investigated and brought to a conclusion in some way. He describes paper files with illegible comments written in the margins, sticky notes that sometimes fall off and that are frequently unsigned, and documents being removed from files but the removal not documented. Aubrey refers to this fiasco as an “error-prone and unprofessional documentation of information.”
Aubrey also criticized the department’s computer setup. It uses a couple of different sets of software that are not compatible with one another, resulting in information having to be reentered manually when going from one system to another. That, of course, is another potential source of error.
It is no wonder that citizens are frustrated when they attempt to follow up on a complaint. Intentionally or unintentionally, the FPD is losing track of the files. Aubrey pointedly mentioned the frustration of citizens who could not find out what had happened to their complaints. He said this was unnecessary and could be resolved with better recordkeeping procedures for the paper files and better computer software—points he makes in the recommendations section of the report.
Officer-Involved Shootings: An “Inordinately Long” Closure Time
Aubrey’s office is mandated to monitor the investigations of officer-involved shootings (OIS). Again, he found some serious deficiencies. The first thing he noticed when taking office was that there was a huge backlog of cases for which the investigations had not yet been completed. In January 2010, one month after he took office, Aubrey discovered that there were 46 OIS or in-custody death (ICD) cases still open, going back to 2004.
In a pointed criticism, the report says that “the closure rate of OIS/ICDs is inordinately long.” Aubrey calculated that the FPD’s average closure time for an OIS is 39.6 months and for ICDs it is 23.6 months. By way of comparison, the San Diego Police Department closes OIS cases in an average of 7.6 months, and the Los Angeles Sheriff’s Department closes OIS cases in an average of 9 months. Fresno is definitely lagging behind other departments.
This fits in with comments the CCCJC has been hearing from complainants over the past 10 years. When complainants try to get information about an OIS case, all they hear is that it is still under investigation. People want a sense that justice is being done, but the lack of closure prevents that from happening. It seems a classic example of the adage that justice delayed is justice denied.
Aubrey includes some recommendations for speeding up the process of bringing these cases to closure. It remains to be seen if the FPD will adopt his recommendations and if that will result in a more reasonable closure time for OIS/ICDs. The FPD is certainly underperforming in this area at the moment.
Public Confidence, or Lack Thereof
Aubrey’s office is also mandated to monitor public confidence in the FPD. This task was accomplished by hiring an outside polling firm, Wilson Research Strategies. The firm found that 68% of Fresnans were either “very satisfied” or “somewhat satisfied” with the FPD. This finding might sound like good news for the department until you compare it to the national average for comparable cities. That average is 80%, meaning that the FPD lags behind other departments and is significantly below average in terms of the confidence of the public. A 68% approval rating is obviously nothing for the department to crow about.
One argument used in the battle to establish the OIR was that having at least some degree of civilian oversight of the police would help improve public confidence in the department. That may or may not happen. The OIR is required to do this confidence survey annually, so it should be possible to track trends in public confidence in the years to come.
What We Won’t Learn from Reports Like This
If you are like me, you might be wondering what we will learn when that backlog of OIS/ICD cases is finally cleared. Sadly, we might not learn a whole lot about those cases from future reports of the independent reviewer. The OIR does conduct audits of the investigations that are done by the FPD, but it is not empowered to do its own investigations. Therefore, all it can really do is to look at a completed investigation and see if it has been done properly.
Aubrey’s report includes summaries of 12 audits he did of internal investigations completed by the FPD. Ten out of the 12 summaries conclude with a phrase something like “The OIR concluded that the officer(s) acted within Department policy and procedure.” Unfortunately, that does not really tell us whether the officers involved used good judgment. It doesn’t tell us whether they followed best practices for the situation they confronted—just that they acted within existing policies and procedures.
The policies and procedures of the FPD allow officers considerable leeway—perhaps too much leeway. They can use deadly force if they feel threatened. That is a subjective judgment that can easily be influenced by the race, age, gender or manner of dress of the person whom the officer is encountering. Saying that the officers acted within policies and procedures is a bit like saying that soldiers in Afghanistan who kill innocent civilians are acting within the rules of engagement. That does not mean that they did the right thing; the rules of engagement may be way too lax. Phrases like that can cover up a multitude of sins.
I found Aubrey’s summaries of the investigations he audited to be unsatisfying. Of the 10 cases he examined that involved the use of force, he concluded in every case that the officers did not use unreasonable force. Apparently, the FPD is batting 1.000 when it comes to the use of force. Do they never make a mistake in the application of force?
To be fair, the 12 OIR audits summarized in Aubrey’s report represent a small number of the audits he will eventually conduct. Perhaps future audits will be a bit more critical of officer behavior. However, even if that were to happen, we might not learn much from the audit. The OIR cannot name names and cannot identify an officer in any way. That means that the audit summaries released to the public must be written in pretty general terms.
For example, the report cannot say if the same officer has been involved in similar incidents in the past. Also, if the internal FPD report concludes that the officer did something wrong, we are unlikely to find out what happened to him/her. We may have to be satisfied with a generic phrase like “appropriate disciplinary action was taken.” Does that mean a slap on the wrist? Who knows?
In two of the 12 audits in Aubrey’s report, he found that the officer who had used force had indeed done something wrong, but it was not in the use of force itself. Specifically, the auditor wrote that the officers had used profanity or had been discourteous, and that “appropriate corrective measures were taken.” Apparently, in the FPD, you are more likely to be disciplined for swearing at someone than for hitting him or her over the head with a baton. I guess they are supposed to be courteous to us when they are beating on us!
In a way, the independent reviewer’s hands are tied. He cannot do his own investigations, so he has to rely on the internal investigations done by the FPD. He might notice glaring errors in the investigation, such as the failure to interview a critical witness. But what if that witness is interviewed but then the testimony is dismissed because more weight is given to the testimony of their own officers? An OIR with investigative powers could interview the witness in question a second time and make an independent evaluation of the witness’s veracity. That would be hard for our OIR to do, given the limitations of the office.
Are We Any Better Off with an OIR?
Despite the limitations placed on our OIR by the City Council, we are still getting something out of the existence of the office. At last month’s meeting, the Council heard testimony saying that the FPD’s recordkeeping was unacceptably sloppy and that investigations of OIS/ICDs were taking way too long. They heard that the FPD’s approval rating is significantly below the national average. These findings are now part of the official record. Apologists for the FPD will not be able to deny the truth of these findings.
The report makes it clear that there is still much work that must be done to bring the FPD up to national standards. We should recognize that we would not even be talking about these issues at a City Council meeting if it were not for the existence of the OIR and its reports. That is a step forward. Also, we must remember that this was only the first of a series of reports. There is still more to come, including an annual report. If the flaws that have been exposed in past reports are not corrected, they can be brought up again and again so that the pressure to take corrective action builds. The progress may be painfully slow, but I have to think that it is better than no progress at all. I vote in favor of keeping the OIR.
