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Saturday, August 26, 2006

Part III: Assessing Weaknesses in the Davis Ombudsman Model

This is part three of the seven part series examining the Davis Police Ombudsman and Police Oversight system.

The following is from the Davis City Staff’s report to council on the function of the ombudsman:
  • Development of a police ombudsman function is in addition, not in lieu of, existing processes – We must be clear that the police ombudsman provides a complementary level of oversight to police actions; the position does not replace them. The police ombudsman is not meant to circumvent the Police Department. The position does not normally do investigations in lieu of the police doing them. Rather, the position reviews, audits and provides response to investigations. In addition, the position would communicate with the Police Department concerning citizen complaints. The only time a police ombudsman might actually do a formal investigation is if the original investigation was deemed to be flawed and/or if it falls into a specific category (i.e. excessive use of force, etc.) where the police ombudsman believes that the nature of a complaint warrants an independent investigation. In these cases, the ombudsman shall receive direction by the City Manager.
  • Whenever possible, the police ombudsman should be contacted only after exhausting other opportunities. The police ombudsman should not be a citizen’s first stop if they have a complaint about city services/employees. Every department has a complaint system in place and attempts should be made to resolve the issue through the existing system. If the complainant does not feel that the issue has been resolved or if the complainant believes that the process was somehow flawed, s/he should turn to the police ombudsman.
The basic weakness of the Davis Ombudsman Model is that all complaints go the Police Internal Affairs Department first. Only when that avenue is exhausted may the complainant seek the aid of the Ombudsman.

There are several reasons that this is a problem:

  1. As yesterday’s report indicates, there is a fundamental problem with Internal Affairs departments investigating themselves. The IAD’s generally give the word of police officers the benefit of the doubt and the vast majority of complaints are not sustained.

  2. The Ombudsman does not generally do formal investigations. “The only time a police ombudsman might actually do a formal investigation is if the original investigation was deemed to be flawed and/or if it falls into a specific category (i.e. excessive use of force, etc.) where the police ombudsman believes that the nature of a complaint warrants an independent investigation.” Thus in general, the Ombudsman acts as the city manager does now—simply reviewing the investigation done by the IAD. It is unclear under what conditions or under whose direction the Ombudsman could act as primary investigator, but given that this is a part-time position (more on that shortly), it seems unlikely this would be a frequent occurrence. And it does not seem to provide for the ability of the Ombudsman to do the primary investigation.

  3. The IAD’s findings may bias future investigations. If the IAD already clears the officer that may tend to taint future investigative efforts. Whereas if the Ombudsman and the IAD performed their investigations simultaneously that bias may be averted.

  4. There have been charges by members of the public that the IAD itself has harassed and intimidated witnesses and complainants. If that is true, then allowing the IAD to run the first investigation may contaminate future efforts.

  5. Some citizens are reluctant to file complaints with the police because of fear of reprisals—and would be much more comfortable talking to an Ombudsman who is independent of the police department and their chain of command.

  6. Time considerations. The ombudsman would get the complaints 60 to 90 days after an incident, thus dragging out the process, and potentially hindering additional investigations. The longer an investigation takes—the harder it is to find witnesses and the witnesses will likely remember less about the incident.

  7. Moreover, this is advertised as a part time position. There were 34 citizen complaints in the year of 2005 and likely at least as many this year, it does not seem likely that a part time Ombudsman will be able to adequately review this many complaints.

  8. Along the same lines, there is a question of the quality of individual that a part-time position will attract. Some on the council have suggested that the lack of budget led to the decision for a part-time Ombudsman. That lack of budget will rule out some higher quality options. On the other hand, there has been the suggestion that this decision was intentional, because the police department wanted the Ombudsman to play a lesser role in overseeing the operations of the police. In either case, it seems very unfortunate that the decision was made to potentially weaken this position.
It should be noted that this was not even the original suggestion by the City Council. In their discussion on February 21, 2006, the Davis City Council and Police Chief both suggested that citizens could take their complaints directly to the ombudsman, however, the May 2, 2006 ordinance that was passed only provides for that possibility under very limited conditions.

The goal of a transparent and independent investigation would be better served by allowing citizens to file their complaints directly with the ombudsman and allowing that office to have original jurisdiction of all police complaints. A future report will more thoroughly discuss alternatives; however, briefly there are two alternative approaches that keep this basic structure in place. In one alternative, the IAD still performs the primary role of investigating complaints, but the Ombudsman monitors the investigation throughout the process. This ensures fairness and thoroughness. The other alternative suggests that the Ombudsman have the primary responsibility for deciding who can investigate the complaint. The complainant can request that the Ombudsman conduct that investigation or the Ombudsman can assign the investigation to the IAD or even another law enforcement agency.

A more radical suggestion comes from John Burris, an Oakland Civil Rights Attorney who specializes in police misconduct cases. He recommends in his book Blue vs. Black (1999) that police departments “replace Internal Affairs with an independent review board.” Part II of this series demonstrated some of the flaws of IADs not just in Davis, but nationwide. The structure of this independent review board could be similar to that of the current Police Advisory Board where three individuals with legal and law enforcement experience may be used to review the complaint process. Burris’ suggestion would give them primary authority to investigate all complaints against the police department.

Yesterday, I was told that Bill Emlen, the City Manager, has had difficulty finding an individual to be the Ombudsman. It seems that no one wants to take that position. There are likely a variety of reasons for this difficulty, but it all seems to come back to the fact that this is a part-time position, with part-time pay. If the Davis City Council is serious about oversight, I would suggest strongly that they make the position full-time. At least then we would have someone in that position, even if the position itself is far weaker than it needs to be.

Part IV in this series will discuss the support organizations, most importantly the Police Advisory Committee (PAC).

---Doug Paul Davis Reporting