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The Police-Community Partnership: Civilian Oversight as an Evaluation Tool for Community Policing

Authors:
  • The Alliance of Co-Resolution Professionals

Abstract

Citizen review boards (CRBs) tend to act as unofficial criminal courts for police misconduct. Without the binding, legal powers of a court, these civilian oversight bodies are often ineffective and draw resistance from law enforcement. “Community policing,” or community-oriented policing (COP) is a law enforcement strategy that emphasizes the use of problem-solving skills through community engagement and partnerships, but remains limited so long as it evaluates “community‑friendly” officer performance through arrest/citation statistics only. Without a process to evaluate public relations skills, the COP strategy encourages officers to reduce distance between them and the community while retaining a crime-fighting focus—a dynamic that increases tension and violence between police and crime‑prone neighborhoods. If civilian oversight organizations were to review both positive and negative instances of police conduct, and law enforcement were to use this input to evaluate individual officers, then the review board would be able to promote community‑friendly officers over problematic ones, thereby deterring police misconduct. This proposal presents an optimal use of civilian oversight and a partnership that would improve the effectiveness of both the CRB, and the COP strategy currently utilized by the police.
The Police-Community Partnership: Civilian Oversight as an Evaluation Tool for
Community Policing
*Nathan Witkin1
Abstract
Citizen review boards2 (CRBs) tend to act as unofficial criminal courts for police
misconduct. Without the binding, legal powers of a court, these civilian oversight bodies
are often ineffective and draw resistance from law enforcement. “Community policing,”3
or community-oriented policing (COP) is a law enforcement strategy that emphasizes the
use of problem-solving skills through community engagement and partnerships, but
remains limited so long as it evaluates “community-friendly” officer performance
through arrest/citation statistics only. Without a process to evaluate public relations
skills, the COP strategy encourages officers to reduce distance between them and the
community while retaining a crime-fighting focus—a dynamic that increases tension and
violence between police and crime-prone neighborhoods.
If civilian oversight organizations were to review both positive and negative
instances of police conduct, and law enforcement were to use this input to evaluate
1 Nathan Witkin is a criminal defense attorney and dispute systems designer in Marion, Ohio. His other
dispute resolution innovations include co-resolution, consensus arbitration, interest group mediation, and
the interspersed nation-state system.
2 SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 5 (2001) (“Citizen
oversight is defined as a procedure for providing input into the complaint process by individuals who are
not sworn officers.”) (emphasis in original). See also PETER FINN, CITIZEN REVIEW OF POLICE:
APPROACHES AND IMPLEMENTATION, at vii and 6 (2001) (describing the four types of civilian oversight
methods, including the citizen review board). For the purposes of clarity and consistency, the author will
refer to these bodies as “citizen review boards” and refer to the broader category of similar processes as
“civilian oversight.”
3 “Community policing is . . . a collaborative effort between law enforcement and citizens to identify crime
and disorder and work together to solve ongoing problems and create an atmosphere in which serious crime
will not occur.” W. VA. ADVISORY COMM., U.S. COMMN ON CIVIL RIGHTS, COPING WITH POLICE
MISCONDUCT IN WEST VIRGINIA 20 (2004),
https://www.law.umaryland.edu/marshall/usccr/documents/cr122004024296.pdf.
1
individual officers, then the review board would be able to promote community-friendly
officers over problematic ones, thereby deterring police misconduct. This proposal
presents an optimal use of civilian oversight and a partnership that would improve the
effectiveness of both the CRB, and the COP strategy currently utilized by the police.
Introduction
This article proposes an alternative vision for civilian oversight of law
enforcement. Currently, civilian oversight organizations review instances of police
misconduct using a process that mirrors criminal trial procedures, even though they often
do not have the resources to independently investigate these situations and consequently
cannot punish officers. Meanwhile, police departments are in need of structured
community input in evaluating officers’ problem-solving and community policing skills.
The two ideas set forth below aim to maximize the effectiveness of CRBs by tailoring the
process and function of civilian oversight to also meet the needs of the modern police
department.
First, CRBs should replace the adversarial trial model used for reviewing police
misconduct with facilitated discussions on effective policing in the community. Second,
these oversight organizations should review not only police misconduct, but also
exemplary instances of police action. Together, these changes should allow citizen
oversight to better monitor the low-visibility instances of problem-solving4 by law
enforcement officers and serve as an evaluation tool so that police executives can
promote officers who exemplify the modern COP strategy.
4 Low-visibility instances of problem-solving describe police decisions that do not “invoke the criminal
process . . . and consequently are seldom the subject of review.” Joseph Goldstein, Police Discretion Not to
Invoke the Criminal Process: Low- Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543,
543 (1960).
2
This argument is supported by a review of the purposes, powers, and problems of
CRBs, and an examination of the COP movement. An analysis of these various factors
supports a number of significant conclusions. First, CRBs currently use criminal
trial-like procedures to investigate police misconduct. CRBs, however, are not equipped
to carry out these investigatory duties because individual members of the CRB do not
have the training necessary, nor does the CRB as a whole possess the power to effectively
investigate misconduct (or duplicate internal affairs’ investigations). Instead, CRBs
should organize the community’s perspective concerning both positive and negative
police action. Second, the core function of CRBs is to channel input from opinionated
members of the community and mediate their interaction with individual police officers.
If CRBs apply this valuable insight, police departments could utilize CRB input as an
important evaluation tool to monitor police conduct, measure the effectiveness of the
COP strategy in the community, and promote community-friendly officers. An effective
application of these findings would bring together the community and the police to work
towards the common goal of promoting a safe environment by deterring officer
misconduct.
I. The Powers and Limitations of the Citizen Review Board
As originally conceived, citizen oversight introduces the input of individuals who
are not sworn officers into police practices and instances of police-community contact.5
This function is largely carried out by CRBs that examine officer complaints and make
disciplinary recommendations for police misconduct occurring within the community.6
5 See SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 5 (Sabra Horne et
al. eds., 2001) (defining citizen oversight).
6 See Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for Democratically
Negotiated Community Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L. L. REV. 461,
476 (2001) (stating that civilian oversight schemes are an established method for handling citizen
complaints involving police officers).
3
Responsibilities of CRBs can vary depending on the respective jurisdiction,7 but duties
usually involve investigating complaints, reviewing internal affairs (“IA”) investigations,
handling appeals of IA decisions, or working alongside a professional auditor.8
The basic goal of these CRBs is to deter police misconduct and improve police
practices by adding a layer of non-police oversight.9 Independence from the police is a
unique characteristic10 that lends legitimacy (from the community’s view) to the
mechanism’s monitoring of police conduct.11 A key concern, however, is that CRBs lack
authoritative power.12 This limitation ranges from the inability to compel officer
testimony and conduct independent investigations in some cases, to the incapacity to
reprimand officers that is shared by all CRBs.13 Without direct authority over the police,
7 See Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for Democratically
Negotiated Community Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L. L. REV. 461,
476 (2001) (describing the lack of uniformity in civilian oversight systems and discussing how the
composition varies based on certain factors).
8 See PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION, at vii (2001)
(describing the four types of civilian oversight methods); see also SAMUEL WALKER, POLICE
ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 62 (Sabra Horne et al. eds., 2001) (providing a
general overview of the mechanics of the four main classes of oversight systems).
9 See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal
Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 504 (2008) (reporting
greater transparency will deter police misconduct because it will increase political accountability); see also
SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT (Sabra Horne et al. eds.,
2001) (stating the purpose of citizen oversight is to allow citizens to vocalize their concerns and
perspectives through complaints).
10 See Kristen Chambers, Note, Citizen-Directed Police Reform: How Independent Investigations and
Compelled Officer Testimony Can Increase Accountability, 16 LEWIS & CLARK L. REV. 783, 797 (2012)
(defining true independence and discussing its significance to the effectiveness of an oversight agency).
11 SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 61–67 (Sabra Horne et
al. eds., 2001) (describing the concept of independence and its three dimensions: structural, process, and
perceived); see Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for
Democratically Negotiated Community Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L.
L. REV. 461, 478 (2001) (arguing that by improving police accountability, external review enhances police
legitimacy); see also Debra Livingston, The Unfulfilled Promise of Citizen Review, 1 OHIO ST. J. CRIM. L.
653, 657 (2004) (describing the benefit of visibility and how it encourages citizens’ participation in the
review process).
12 SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 75 (Sabra Horne et al.
eds., 2001).
13 SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 75 (Sabra Horne et al.
eds., 2001) (explaining a sustained complaint is only a recommendation and not a disciplinary action,
defining the proper role of citizen oversight, and providing justifications for why disciplinary power is best
left to law enforcement administration); PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND
4
it is difficult to determine if CRBs have any substantive impact on the practices and
decisions of police departments and their officers.
A. The Current Model of Civilian Oversight
The idea of developing the CRB emerged as a result of criticisms that police are
an insular group, incapable of self-regulation.14 The debate over whether citizen
oversight is effective is basically determinative on whether IA is able to investigate and
successfully deter police misconduct.15 While the effects and benefits of citizen oversight
are largely unproven,16 the lasting presence of independent review boards in almost every
major city indicates that the general public favors participation in the oversight and
accountability of local law enforcement.17 Though CRBs have critics, it is clear that they
IMPLEMENTATION iii (2001), http://www.ncjrs.org/pdffiles1/nij/184430.pdf. (describing the range of CRB
powers). The exceptions Walker discusses pertain to civil service agencies overturning a police chief’s
disciplinary action and mandated policy changes. SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE
OF CITIZEN OVERSIGHT 75–77, 103 (Sabra Horne et al. eds., 2001).
14 Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV. 151,
152 (2003) (stating civilians are concerned that law enforcement is incapable of self-regulation); see Ryan
P. Hatch, Coming Together to Resolve Police Misconduct: The Emergence of Mediation as a New Solution,
21 OHIO ST. J. ON DISP. RESOL. 447, 454 (2006) (explaining the skepticism most citizens have when filing
a complaint with internal affairs); see also David Alan Sklansky, Police and Democracy, 103 MICH. L.
REV. 1699, 1735 (2005) (stating that police are a unified, alienated group that require outside regulation
because they are segregated from mainstream society).
15 See SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 154–55 (Sabra
Horne et al. eds., 2001) (explaining the difficulty of accurately measuring the effectiveness of determent
programs, and providing examples of other factors that assist with reducing misconduct).
16 SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 45 (Sabra Horne et al.
eds., 2001) (stating it is impossible to evaluate the effectiveness of the oversight movement); Julian
Darwall & Martin Guggenheim, Funding the People's Right, 15 N.Y.U. J. LEGIS. & PUB. POLY 619, 642
(2012) (reiterating that there is no persuasive evidence of the effectiveness of civilian oversight review
boards in preventing police misconduct); Kami Chavis Simmons, The Politics of Policing: Ensuring
Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. &
CRIMINOLOGY 489, 504 (2008) (arguing that civilian oversight has proven to be ineffective and has not had
a noticeable influence on police misbehavior thus far).
17 See PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 4 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (reporting that by 2000, about 80% of the most populated
cities in America had some form of citizen review); see also Stephen Clarke, Arrested Oversight: A
Comparative Analysis and Case Study of How Civilian Oversight of the Police Should Function and How It
Fails, 43 COLUM. J.L. & SOC. PROBS. 1, 2 (2009) (identifying civilian oversight as commonplace in most
American jurisdictions); see also Samuel Walker & Carol Archbold, Mediating Citizen Complaints Against
the Police: An Exploratory Study, 2000 J. DISP. RESOL. 231, 232 (2000) (reporting that citizen oversight
agencies have increased from approximately 20 in 1985 to around 100 in 1999).
5
promote police department transparency by allowing the public to participate in the
evaluation of individual officers.18
The key element of any citizen oversight process is an independent body of
elected or appointed volunteers that represent the interests of the community as a whole.19
Under the current approach, the CRB is charged with the investigatory duty to review
police complaints using public hearings,20 prehearing conferences,21 witness interviews
by professional investigators,22 or a private review of the IA file23 to determine if any
misconduct occurred.24 These complaints are either sustained, not sustained, unfounded,
or exonerated; this disposition is then forwarded to the police chief, who makes the final
determination if disciplinary action is warranted.25 This current structure addresses the
18 See Kristen Chambers, Note, Citizen-Directed Police Reform: How Independent Investigations and
Compelled Officer Testimony Can Increase Accountability, 16 LEWIS & CLARK L. REV. 783 (2012)
(stressing independent investigations of police are essential to an objective evaluation of law enforcement
because independent investigations are not subjected to the same bias as internal investigations).
19 See PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION, at xi (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (reporting the talent and competence of key participants is
more important to the procedure’s success than the system’s structure).
20 PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 17, 22–23 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (describing the hearing’s procedural sequence, and providing
an example of using a hearing to create and implement new policies for police officers to utilize during
campus demonstrations to prevent future discord).
21 See generally PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 32–36
(2001), http://www.ncjrs.org/pdffiles1/nij/184430.pdf (discussing the Minneapolis Civilian Police Review
complaint process, which allows for prehearing conferences).
22 See generally PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 63–64
(2001), http://www.ncjrs.org/pdffiles1/nij/184430.pdf (discussing the citizens oversight process in Tucson,
allowing for a professional auditor to work side by side with a CRB).
23 See generally PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 47–48
(2001), http://www.ncjrs.org/pdffiles1/nij/184430.pdf (discussing the procedure employed by Rochester’s
Civilian Review Board, which allows for a panel of citizens to review IA files regarding allegations of
mistreatment by police against members of the community).
24 See SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 62–63 (Sabra
Horne et al. eds., 2001) (providing an overview of different forms of citizen review boards); see also PETER
FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION, at vii (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (summarizing types of citizen oversight). See generally
Kevin King, Note, Effectively Implementing Civilian Oversight Boards to Ensure Police Accountability and
Strengthen Police-Community Relations, 12 HASTINGS RACE & POVERTY L. J. 91, 100–04 (2015)
(identifying types of civilian oversight boards).
25 See PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 5 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (defining terms used by review boards and police officers to
identify their findings).
6
public’s demand for influence over police practices through the investigation of officer
misconduct.
To carry out this function, a typical review board uses a criminal trial process26 in
which a citizen brings forward a complaint, the officer under investigation enjoys a
presumption of innocence, and the board makes a finding based on the strength of the
evidence proffered.27 A general concern with this process is that it is adversarial in
nature,28 it mirrors the investigations previously conducted by IA, and it directs the CRB
to primarily focus on punishing guilty officers.29 Mediation on the other hand focuses on
facilitating dialogue between complaints and the police30 that is non-public and
confidential.31 While some oversight bodies offer mediation, experts contend that this
type of conflict resolution it is vastly underused.32
26 See Samuel Walker & Carol Archbold, Mediating Citizen Complaints Against the Police: An
Exploratory Study, 2000 J. DISP. RESOL. 231, 233 (2000) (characterizing complaint procedures as criminal
proceedings).
27 See Samuel Walker & Carol Archbold, Mediating Citizen Complaints Against the Police: An
Exploratory Study, 2000 J. DISP. RESOL. 231, 232 (2000) (addressing the elements of citizen complaint
procedures which resemble that of criminal proceedings).
28 See Ryan P. Hatch, Coming Together to Resolve Police Misconduct: The Emergence of Mediation as a
New Solution, Note, 21 OHIO ST. J. ON DISP. RESOL. 447, 456 (2006) (“Internal Affairs Divisions and
Citizen Review Boards are adversarial in nature.”).
29 See Samuel Walker & Carol Archbold, Mediating Citizen Complaints Against the Police: An
Exploratory Study, 2000 J. DISP. RESOL. 231, 233 (2000) (“From the perspective of the sociology of law,
complaint procedures represent a ‘penal’ style of social control, with the ultimate solution being
punishment.”); see also Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO.
WASH. L. REV. 453, 536 (2004) (arguing internal affair review and civilian review take on a primarily
individual and punitive approach, with insufficient focus on systemic reform).
30 See generally SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 80–81
(Sabra Horne et al. eds., 2001) (discussing the benefits of mediation, which allows for face to face
interactions to resolve issues).
31 See PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 7 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (“Mediation, usually held in private and kept confidential,
may have less ‘teeth’ than a public hearing.”).
32 See generally Samuel Walker & Carol Archbold, Mediating Citizen Complaints Against the Police: An
Exploratory Study, 2000 J. DISP. RESOL. 231, 231 (2000) (suggesting mediation of citizen complaints
against the police is not used enough within the alternative dispute resolution movement).
“Mediation occupies a very small place in the handling of citizen complaints against the police in
the United States. The national survey identified a total of sixteen mediation programs. Two of
these programs were only recently authorized, however, and are not yet operational. Additionally,
a mediation program operated by the Flint, Michigan, Ombudsman is currently non-functional.
All but one of the current mediation programs are operated by or in conjunction with citizen
7
Besides addressing instances of misconduct, these citizen oversight bodies also
monitor patterns of police activity,33 engage in community outreach activities,34 and act as
the community’s voice in suggesting policy changes to police departments.35
Unfortunately, when performing these non-punitive functions, citizen oversight bodies
often focus on the negative aspects of the police force—identifying problem officers
rather than exemplary ones,36 making policy suggestions that only address misconduct,37
and conducting community outreach that focuses entirely on publicizing citizen
complaint procedures.38 Citizen oversight agencies therefore have the potential to liaise
oversight agencies. These programs represent a tiny percentage of the estimated 17,120 state and
local law enforcement agencies in the United States. The fifteen programs associated with citizen
oversight agencies, meanwhile, represent only about 15% of the estimated 100 oversight
agencies.”
Id. at 235–36.
33 See generally SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 86–113
(Sabra Horne et al. eds., 2001) (explaining the methods used to monitor police behavior to ensure a better
relationship between officers and the community).
34 See Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How Civilian
Oversight of the Police Should Function and How it Fails, 43 COLUM. J.L. & SOC. PROBS. 1, 32 (2009)
(“Community outreach is the one aspect of a civilian-oversight agency’s operations that is most likely to
have a positive impact on relations between the police and the community, and between the community and
the oversight process.”); see also SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN
OVERSIGHT 87–91 (Sabra Horne et al. eds., 2001) (discussing the goals, benefits, and impacts of
community outreach services on citizen oversight agencies).
35 See generally Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How
Civilian Oversight of the Police Should Function and How it Fails, 43 COLUM. J.L. & SOC. PROBS. 1, 32
(2009) (suggesting that through community outreach, civilians can influence policy changes between
officers and the community).
36 See generally SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 110
(Sabra Horne et al. eds., 2001) (suggesting while implementation of an early warning system is helpful at
indicating “problem officers,” it does not do enough to honor officers who have a positive influence on the
community).
37 See SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 93 (Sabra Horne et
al. eds., 2001) (“Policy review is a process through which an oversight agency examines a police
department’s policies and procedures (or the lack thereof) and recommends new or revised policies. The
basic goal is preventative: to identify problems or potential problems and to correct them . . . .”).
38 See Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department ‘Pattern
or Practice’ Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3, 27–28 (2003) (stating the role of community
outreach in citizen oversight agencies); see also PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES
AND IMPLEMENTATION 103 (2001), http://www.ncjrs.org/pdffiles1/nij/184430.pdf (describing how
neighborhood groups distribute information to the community). See generally SAMUEL WALKER, POLICE
ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 88–90, 147 (Sabra Horne et al. eds., 2001)
(discussing, in depth, the role of outreach activities, including providing informational materials, targeting
special populations, facilitating complaint intakes, and holding community meetings).
8
between the police and the community, but “little thought has been given to those cases in
which someone contacts an oversight agency but does not file a formal complaint.”39
B. Problems with the Criminal Process Model of Civilian Oversight
1. The Lack of Investigative Resources
While punishing police officers could effectively deter misconduct, the current
adversarial, criminal court model is not effective when used by CRBs.40 Because civilian
oversight is independent of law enforcement, it does not have the expertise or powers to
carry out an adversarial review of police misconduct.41 Furthermore, the CRBs
subsequent reviews heavily depend on information given to them, such as IA
investigations, often resulting in the same findings, which has garnered criticism from
citizens who believe that the review board has been co-opted by the police department.42
Specifically, in many jurisdictions, excluding certain unprivileged information
such as witness testimony, police departments have complete control over their sources of
information.43 This limits the investigatory power of CRBs to establish findings based on
the same materials or a redacted version of what the IA division has already examined.44
Under these constraints, the board often makes decisions based solely on the testimony of
39 SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 91 (Sabra Horne et al.
eds., 2001).
40 See Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department “Pattern
or Practice” Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3, 19–20 (2003) (commenting on the
effectiveness of criminal prosecution of officers guilty of criminal activity).
41 See Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV.
151, 156 (2003) (pointing out issues with investigations by lay persons).
42 See Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV.
151, 163 (2003) (commenting on the problems with citizen review boards).
43 See Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department ‘Pattern
or Practice’ Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3, 19–20 (2003) (stating how difficult it is to
obtain convictions of police officers because of the deference given to police officers’ reasons for their
actions).
44 See Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV.
151, 163 (2003) (referring to the power of citizen review boards).
9
witnesses that it can gather on its own.45 As a result, the review board process often
comes down to the civilian’s word against the officer’s, which does not carry the required
burden of proof to establish a viable case against the officer.46 This type of procedural
shortcoming is partly responsible for complainants’ dissatisfaction with the review
process47 and the inability of these organizations to affect police behavior.48 Furthermore,
this structural deficiency is a potential reason why CRBs often fail as independent
investigators and why their findings rarely contradict IA investigations.49
2. The Unqualified Citizen
CRBs are faced with a number of problems when conducting investigations and
hearings on instances of police misconduct, beyond the inherent shortcomings of taking a
retrospective and punitive approach to changing police behavior.50 When unqualified
civilians attempt to evaluate police departments, they often encounter institutions that are
45 See Ryan P. Hatch, Coming Together to Resolve Police Misconduct: The Emergence of Mediation as a
New Solution, Note, 21 OHIO ST. J. ON DISP. RESOL. 447, 456 (2006) (explaining there is usually little to
no evidence available other than the word of the complainant and the officer).
46 See Debra Livingston, The Unfulfilled Promise of Citizen Review, 1 OHIO ST. J. CRIM. L. 653, 656
(2004) (noting most confrontations involving a police officer are isolated situations involving only the
officer and a citizen); Richard S. Jones, Processing Civilian Complaints: A Study of the Milwaukee Fire
and Police Commission, 77 MARQ. L. REV. 505, 515 (1994) (explaining the citizen has the burden of
proving the officers misconduct beyond a reasonable doubt when complainants often have no real
evidence). See generally PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION
101 (2001), http://www.ncjrs.org/pdffiles1/nij/184430.pdf (stating that one of the structural issues involved
in deciding whether to create a citizens review board is in deciding what standard of proof will be
required).
47 See Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How Civilian
Oversight of the Police Should Function and How it Fails, 43 COLUM. J.L. & SOC. PROBS. 1, 31–32 (2009)
(stating there is a consensus among complainants that the process is “lengthy, time consuming, impersonal,
and unlikely to result in a finding that misconduct occurred”).
48 See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the
Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 504 (2008)
(showing even those in support of citizen oversight agencies have found the agencies to be ineffective in
impacting police misconduct).
49 See Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV.
151, 163 (2003) (explaining CRBs can be seen as ineffective because, in most instances, they agree with
the conclusion reached by the police department).
50 See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the
Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 504 (2008)
(critiquing citizen oversight agencies).
10
inherently insular and resistant to dissidence.51 As a result, police have vehemently
fought to prevent CRBs from acquiring any real power over their actions.52 The
argument centers on the notion that ordinary civilians do not possess the same
knowledge, experience, and responsibilities of police officers.53 The law enforcement
community’s overarching perception of CRBs is that they are comprised of untrained
individuals who are incapable of evaluating, assessing and questioning officer decisions,
especially in situations where the necessity of force is determined in moments of urgency
and potential danger.54 Police also fear that CRBs will be dominated by disgruntled
citizens with ulterior motives rather than responsible citizens who aim to improve
police-community relations.55 In addition to believing civilians are not properly
motivated and trained to put officers on trial, police feel that citizens’ interests are already
protected by officers who have entered law enforcement with a desire to serve the
51 See Kristen Chambers, Citizen- Directed Police Reform: How Independent Investigations and
Compelled Officer Testimony Can Increase Accountability, 16 LEWIS & CLARK L. REV. 783, 790–92
(2012) (describing the “code of silence” pressures that officers place on each other and the resistance to
outside criticism created by this extreme camaraderie).
52 Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department ‘Pattern or
Practice’ Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3, 39 (2003); see Kevin King, Effectively
Implementing Civilian Oversight Boards to Ensure Police Accountability and Strengthen
Police-Community Relations, 12 HASTINGS RACE & POVERTY L.J. 91, 110 (2015) (claiming police protest
granting power to oversight boards); see also SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF
CITIZEN OVERSIGHT 182 (2001) (showing some agencies have little power and depend on police
departments); Robert H. Doherty, The Politics of Public Sector Unionism, 81 YALE L.J. 758, 764 (1972)
(discussing police unions oppose CRBs). See generally Stephen A. Rosenbaum, Keeping an Eye on the
I.N.S.: A Case for Civilian Review of Uncivil Conduct, 7 LA RAZA L.J. 1, 27 (1994) (explaining when
boards are more likely to face resistance by police departments).
53 See Mark Iris, Police Discipline in Chicago: Arbitration or Arbitrary?, 89 J. CRIM. L. & CRIMINOLOGY
215, 219 (1998) (expressing police feel like civilians do not understand police pressures).
54 See Ryan P. Hatch, Coming Together to Resolve Police Misconduct: The Emergence of Mediation as a
New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 456 (2006) (restating police criticisms of review
boards). “Another frequent criticism leveled against Civilian Review Boards, mostly by the police
themselves, is that ‘lay-persons lack a sufficient understanding of police practices and operating conditions
to knowledgeably perform a meaningful evaluation’ of police work.” Id.
55 See Stephen A. Rosenbaum, Keeping an Eye on the I.N.S.: A Case for Civilian Review of Uncivil
Conduct, 7 LA RAZA L.J. 1, 30 (1994) (discussing the fears of law enforcement in regards to CRBs’ power
and influence).
11
public.56 This point of view has led police organizations to resist the active
empowerment of civilian oversight mechanisms through collective bargaining,57
boycott,58 legal action,59 and political pressure.60
3. The Limited Powers of the Citizen Review Board
For CRBs to be effective, they should have independent investigatory power,
subpoena power, and the power to punish accused officers.61 Under the current model
many CRBs do not have the subpoena power to compel testimony and, without this
power, uncooperative officers can undermine the accuracy, thoroughness, and
effectiveness of the entire process.62 Furthermore, even if the review board gathers
56 See Louis D. Bilionis, Conservative Reformation, Popularization, and the Lessons of Reading Criminal
Justice as Constitutional Law, 52 UCLA L. REV. 979, 1014 (2005) (indicating police officers’ intentions
should be trusted). See generally Law and Disorder: Is Effective Law Enforcement Inconsistent with Good
Police-Community Relations?, 28 FORDHAM URB. L.J. 363 (2000) (asserting the reason people go into law
enforcement is to do the right thing).
57 See Kristen Chambers, Citizen-Directed Police Reform: How Independent Investigations and
Compelled Officer Testimony Can Increase Accountability, 16 LEWIS & CLARK L. REV. 783, 803 (2012)
(establishing the success of police unions in blocking oversight agencies from gaining power).
58 See generally Mark Iris, Police Discipline in Chicago: Arbitration or Arbitrary?, 89 J. CRIM. L. &
CRIMINOLOGY 215, 221 (1998) (describing the refusal of police unions to honor subpoenas issued by
review boards).
59 See, e.g., Citizen Police Review Bd. v. Murphy, 819 A.2d 1216, 1221–22 (Pa. Commw. Ct. 2003)
(providing examples of cases supportting the dismissal of the Citizen Police Review Boards’s claim again
the Pittsburg Police Department). See generally Justina R. Cintrón Perino, Developments in Citizen
Oversight of Law Enforcement, 36 URB. LAW. 387, 394 (2004) (reporting on actions taken by unions
representing police officers, sergeants, lieutenants, captains, and detectives).
60 See Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America: Direct and
Judicial Access to the Grand Jury as Remedies for Victims of Police Brutality When the Prosecutor
Declines to Prosecute, 53 MD. L. REV. 271, 281–82 (1994) (reporting on the political influence of police
unions).
61 See Kevin King, Effectively Implementing Civilian Oversight Boards to Ensure Police Accountability
and Strengthen Police-Community Relations, 12 HASTINGS RACE & POVERTY L.J. 91, 108–09 (2015)
(highlighting the importance of subpoena power and investigations); see also Kristen Chambers, Citizen-
Directed Police Reform: How Independent Investigations and Compelled Officer Testimony Can Increase
Accountability, 16 LEWIS & CLARK L. REV. 783, 800 (2012) (emphasizing the significance of officer
testimony for investigations). See generally Erik Luna, Race, Crime, and Institutional Design, 66 LAW &
CONTEMP. PROBS. 183, 217 (2003) (detailing the ideal process CRBs would undertake after receiving a
grievance).
62 See generally Kevin King, Effectively Implementing Civilian Oversight Boards to Ensure Police
Accountability and Strengthen Police-Community Relations, 12 HASTINGS RACE & POVERTY L.J. 91, 109
(2015) (reiterating the fact that police resistance to civilian oversight boards creates a tense loyalty
environment in the police department, thus taking away the review board’s ability to maintain
independence).
12
sufficient evidence condemning an officer, the board can only make recommendations for
disciplinary action.63 Though CRB procedures imitate criminal trials, these oversight
bodies do not wield the court’s authority to compel evidence (subpoena power) and
punish wrongdoers. Without the ability to independently investigate or punish
misconduct, the citizen review board may not fully replicate the function and effect of a
criminal court or the IA discipline system within the police department.64
In addition, the CRB undermines its function by attempting to replicate the police
department’s public complaint procedures used by IA.65 As explained, the findings are
redundant because the board reviews the same information, and questions the same
witnesses as IA—leading the oversight body to almost always agree with IA’s findings.66
A survey of nine citizen oversight bodies found that these CRBs agreed with IA 80% to
95% of the time, with one body reporting that it “disagreed with IA’s finding in about a
half dozen cases in its history.”67 As a result, Samuel Walker, a major authority on citizen
oversight, notes that “only a few [external complaint agencies] have clearly demonstrated
63 See SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 76 (Sabra Horne et
al. eds., 2001) (discussing how even when a CRB sustains a complaint, all they can do is send a
recommendation to the police chief).
64 See generally Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How
Civilian Oversight of the Police Should Function and How it Fails, 43 COLUM. J.L. & SOC. PROBS. 1, 11
(2009) (stating the common weaknesses of citizen-oversight bodies is that they “lack the authority to
directly discipline officers and modify police department policies”).
65 Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How Civilian Oversight
of the Police Should Function and How it Fails, 43 COLUM. J.L. & SOC. PROBS. 1, 11–12 (2000)
(explaining if an oversight body cannot ensure its recommendations are being followed, it will likely
concede to the police department; this results in “deference to the police department regarding matters of
department policy”).
66 See Stephen Clarke, Arrested Oversight: A Comparative Analysis and Case Study of How Civilian
Oversight of the Police Should Function and How it Fails, 43 COLUM. J.L. & SOC. PROBS. 1, 11–12 (2009)
(noting the CRB is likely to appease the police department in an effort to ensure that the board’s
recommendations are followed). See generally David Alan Sklansky, Is the Exclusionary Rule Obsolete?, 5
OHIO ST. J. CRIM. L. 567, 572 (2008) (discussing the irony that although CRBs come in a variety of shapes
and functions they are often more lenient toward officers than expected by both supporters and opponents
of the boards).
67 PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 39, 48, 54, 58 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf.
13
that they in fact do a better job of handling complaints than police departments.”68 In
fact, by mirroring IA and thereby agreeing with its findings in the vast majority of cases,
the CRB is often perceived by the public as being co-opted by the police department and
becoming part of the “system” rather than an advocate for the community.69
Independent citizen oversight bodies should be restructured to confront their
shortcomings so that CRB procedures address their inability to carry out officer discipline
and avoid redundancy of the police department’s investigation.
C. Alternative Sources of Power
While the adversarial trial function is no more effective in deterring police
misconduct than the department’s own citizen complaint procedures, the review board is
not limited to these punitive powers and processes.70 Because of its democratic,
communicative nature, the CRB possess an alternative source of power— independence
and openness to public participation.71 Shifting focus on these inherent powers would
enable CRBs to have a more substantive impact on police practices.72
1. Identifying Good Cops
The first of these democratic, communicative powers is the ability of CRBs to
provide public opinion information regarding the conduct of individual officers.73 While
68 SAMUEL WALKER, THE NEW WORLD OF POLICE ACCOUNTABILITY 73 (2005).
69 See SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 67 (Sabra Horne
et al. eds., 2001) (stating many advocates of citizen oversight agencies now perceive them as part of the
“system” which they were created to review); Merrick Bobb, Civilian Oversight of the Police in the United
States, 22 ST. LOUIS U. PUB. L. REV. 151, 163 (2003) (conveying the ineffectiveness of CRBs due to their
conformity with the police departments which they are supposed to review).
70
71 See JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF
FORCE 225 (1993) (noting the foundation of civilian oversight agencies is the “theory of representation and
participation”).
72 See generally JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE
USE OF FORCE 225 (1993) (discussing that although there are flaws, citizen representation within CRBs
gives members of society the opportunity to shape police practices and policies that they would not have
otherwise).
73 See, e.g., JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE
OF FORCE 225 (1993) (illustrating how, despite their effectiveness, the public may deem the use of police
14
police departments assess officers using objective criteria such as numbers of arrests and
citations issued,74 there is currently no tool to measure the subjective, interpersonal
manner of an individual officer’s problem-solving skills.75 Early warning systems are the
only means to track officer behavior and order specific training or counseling, when
necessary.76 These early warning systems have been implemented by IA departments77
when targeting a small number of officers who cause a disproportionate number of citizen
complaints,78 and have been demanded in litigation against problematic police
departments.79 Although these early warning systems track the interactions between
specific officers and the broader community, they only focus on negative behavior,
leaving the minority of officers who are particularly skilled at interacting with the
dogs to be an offensive crowd control method).
74 See L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L.
115, 144–45 (2014) (stating the practice of evaluating officers based on “the number of arrests made”
continues today).
75 See GEOFFREY P. ALPERT & MARK H. MOORE, COMMUNITY POLICING: CONTEMPORARY READINGS 222
(Geoffrey P. Alpert, Alex R. Piquero 2d. ed. 2000) (explaining there is no way to evaluate the quality of an
officer’s response to non-criminal complaints in which an arrest cannot be made).
76 See Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV. 453,
529 (2004) (stressing a combination of four features which allow timely tracking of repeating disciplinary
issues with police officers); Erik Luna, Race, Crime, and Institutional Design, 66 LAW & CONTEMP.
PROBS. 183, 216 (2003) (arguing if the goal is to limit officer misconduct, police departments must improve
oversight and discipline of officers though civilian oversight boards and independent investigative
agencies); see also Debra Livingston, Police Reform and the Department of Justice: An Essay on
Accountability, 2 BUFF. CRIM. L. REV. 815, 819 (1999) (stating early warning systems are a key solution to
abate police misconduct).
77 See John Middleton-Hope, Misconduct Among Previously Experienced Officers: Issues in the
Recruitment and Hiring of “Gypsy Cops”, 22 ST. LOUIS U. PUB. L. REV. 173, 178–79 (2003) (discussing a
case study of an early warning system successfully implemented by the internal affairs department).
78 See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the
Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 513 (2008)
(highlighting in a large police department such as the LAPD, there were few complaints filed when looking
at the total size of the police force).
79 See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the
Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 512–13 (2008)
(identifying early warning systems as a common reform provision negotiated in consent decrees and
settlement agreements between the DOJ and local city police departments for discovering a “pattern or
practice of unconstitutional behavior”); see also Debra Livingston, Police Reform and the Department of
Justice: An Essay on Accountability, 2 BUFF. CRIM. L. REV. 815, 818–19 (1999) (emphasizing the
importance of the early warning system in identifying officers with problematic behavior and putting a stop
to their practices before any abuse occurs).
15
public80 invisible to their supervisors.81 Similar to early warning systems, CRBs provide
negative feedback about problematic officers to their supervisors82 and recommend
individual sanctions83 or policy changes.84
It appears that CRBs could use their more developed democratic powers to
influence police behavior by identifying community-friendly officers.85 Specifically, if
CRBs were to serve as the overall voice of the community by commending officers who
emulate problem-solving policing, and if department officials relied on this feedback by
promoting and rewarding officers, then the practical implication would be that CRBs
indirectly deter police misconduct.86 Research demonstrates that positive reinforcement
80 See generally L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J.
CRIM. L. 115, 145 (2014) (attempting to show that if police departments implement community policing,
they could foster cooperative relationships without dehumanizing individuals within the community and
boost their own legitimacy through improving perceptions).
81 See Mary Newman, Barnes v. City of Cincinnati: Command Presence, Gender Bias, and Problems of
Police Aggression, 29 HARV. J.L. & GENDER 485, 488 (2006) (implying police departments’ promotional
and hiring criteria tend to be discriminatory, thus officers that could implement greater police -community
cooperation never receive the opportunity to go in the field).
82 See Eileen M. Luna, Seeking Justice: Critical Perspectives of Native People: Law Enforcement
Oversight in the American Indian Community, 4 GEO. PUB. POLY REV. 149, 155 (1999) (discussing any
kind of oversight is effective and essential in preserving police accountability and gathering information
about misconduct).
83 See Sean Hecker, Race and Pretextual Traffic Stops: An Expanded Role for Civilian Review Boards, 28
COLUM. HUM. RTS. L. REV. 551, 596 (1997) (addressing the fact that citizen review boards are not all
powerful—they can only recommend disciplinary action they cannot actually take action themselves—
therefore, it is the police department’s responsibility to actively pursue disciplinary hearings against
officers).
84 See SAMUEL WALKER, POLICE ACCOUNTABILITY: THE ROLE OF CITIZEN OVERSIGHT 93 (Sabra Horne et
al. eds., 2001) (encouraging policy review of police departments by oversight agencies, because while the
process might be seen as unfavorable by officers, the review is valuable and brings long-term, effective
improvements).
85 See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities,
and the New Policing, 97 COLUM. L. REV. 551, 665 (1997) (suggesting that citizen review boards have
several functions: they serve as mechanisms for monitoring the police and increase law
enforcement-community communication).
86 See generally Law and Disorder: Is Effective Law Enforcement Inconsistent with Good Police-
Community Relations?, 28 FORDHAM URB. L.J. 363, 402 (2000) (suggesting that changing the culture of
police departments is needed so bad officers fear good officers and not vice versa).
16
improves job performance87 and scholars recommend police departments focus on
community policing skills in making promotions.88
2. Fostering Community Relations
CRBs may have the ability to impact the behavior and practices of individual
officers by bringing them into contact with civilians that feel wronged by the officers’
actions.89 Studies show that most citizens who are offended by police conduct do not
want to punish the officer,90 but would rather publicly express their views and receive
acknowledgement from the individual officer.91 Since most police officers enter the force
with the intent to serve the public,92 they may be more receptive to engaging in personal
discussions of community perspectives than to an adversarial review of their past
87 See James K. Harter et al., Well-Being in the Workplace and its Relationship to Business Outcomes: A
Review of the Gallup Studies, in FLOURISHING: POSITIVE PSYCHOLOGY AND THE LIFE WELL-LIVED 205,
205 (Corey L.M. Keyes & Jonathan Haidt eds., 2003) (examining studies on well-being factors of
employees that generate higher job satisfaction, commitment, creativity, and over time, better business
outcomes).
88 See William D. McColl II, Book Review, 9 B. U. PUB. INT. L. J. 161 (1999) (reviewing JOHN L. BURRIS
WITH CATHERINE WHITNEY, BLUE VS. BLACK: LETS END THE CONFLICT BETWEEN COPS AND MINORITIES
(1999)) (noting many police theorists recommend that police departments “[m]ake community policing
skills essential for promotion”).
89 See generally Stephen A. Rosenbaum, Keeping an Eye on the I.N.S.: A Case for Civilian Review of
Uncivil Conduct, 7 LA RAZA L.J. 1, 18–22 (1994) (stressing the importance of community outreach for
review boards to be successful).
90 See Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence of Mediation
as a New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 460 (2006) (suggesting methods for resolving
citizen complaints against officers, such as mediation and counseling).
91 See Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence of Mediation
as a New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 460 (2006) (arguing filing a lawsuit against a
police officer is costly and slow, and juries are reluctant to punish an officer; therefore, other forms of
dispute resolution will be more effective for such claims); see also PETER FINN, CITIZEN REVIEW OF
POLICE: APPROACHES AND IMPLEMENTATION 77 (2001), https://nacole.org/wp-content/uploads/184430.pdf
(citing a study that found CRB complainants wanted to interact with the officer and were more satisfied
when they did).
92 See Louis D. Bilionis, Conservative Reformation, Popularization, and the Lessons of Reading Criminal
Justice As Constitutional Law, 52 UCLA L. REV. 979, 1014 (2005) (contending the good intentions of the
police is a necessary presumption); Johnnie L. Cochran Jr., Law and Disorder: Is Effective Law
Enforcement Inconsistent with Good Police-Community Relations?, 28 FORDHAM URB. L.J. 363, 390
(2000) (commenting that the majority of individuals entering the law enforcement profession want to do the
right thing).
17
actions.93 In order to maximize participation from both parties,94 the CRB would have to
facilitate this effort using a mediation or conciliation-based approach instead of the
current adversarial, criminal trial process model.95
3. Serving as a Voice for the Community
The CRB is a means to bring the police department’s internal investigations into
the public eye.96 As a provider of credible, independent oversight on police practices, the
review board has the ability to educate the public, either by revealing cover-ups or by
enhancing the credibility of the department’s internal investigations.97 However, by
focusing on whether officers followed police procedures that the general public is not
entirely trained to understand,98 civilian oversight bodies often operate beyond their
93 See SAMUEL WALKER ET AL., MEDIATING CITIZEN COMPLAINTS AGAINST POLICE OFFICERS: A GUIDE
FOR POLICE AND COMMUNITY LEADERS 7 (Washington, DC: Government Printing Office, 2002),
http://www.cops.usdoj.gov/pdf/e04021486web.pdf (examining police officers may benefit from mediation
as a way of self-reflection without feeling the need to be defensive).
94 See SAMUEL WALKER ET AL., MEDIATING CITIZEN COMPLAINTS AGAINST POLICE OFFICERS: A GUIDE
FOR POLICE AND COMMUNITY LEADERS 7 (Washington, DC: Government Printing Office, 2002),
http://www.cops.usdoj.gov/pdf/e04021486web.pdf (citing research conducted outside the United States that
shows informal dispute resolution results in more approval from officers than accusatorial approaches);
Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence of Mediation as a
New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 460–61 (2006) (asserting mediation has several
advantages, such as finding inventive solutions, reducing the cost of potential litigation, and increasing
satisfaction for both police officers and individual citizens).
95 See SAMUEL WALKER ET AL., MEDIATING CITIZEN COMPLAINTS AGAINST POLICE OFFICERS: A GUIDE
FOR POLICE AND COMMUNITY LEADERS 7 (Washington, DC: Government Printing Office, 2002),
http://www.cops.usdoj.gov/pdf/e04021486web.pdf (emphasizing how mediation can produce change by
offering police officers a chance to explain their conduct openly to the complainant); Wayne D. Brazil,
Hosting Mediations as a Representative of the System of Civil Justice, 22 OHIO ST. J. ON DISP. RESOL. 227,
264 (2007) (discussing the mediation theory allows parties to freely formulate their own views,
uninfluenced by others’ opinions).
96 See Jesus A. Trevino, Border Violence Against Illegal Immigrants and the Need to Change the Border
Patrol's Current Complaint Review Process, 21 HOUS. J. INT'L L. 85, 114 (1998) (arguing the creation of
CRBs halts police departments from internally concealing themselves away from public scrutiny); Reenah
L. Kim, Legitimizing Community Consent to Local Policing: The Need for Democratically Negotiated
Community Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L. L. REV. 461, 497 n.168
(2001) (identifying civilian review agencies as a mechanism for balancing police and civilian complaint
oversight).
97 See generally Randall Peerenboom, Out of the Pan and into the Fire: Well-Intentioned but Misguided
Recommendations to Eliminate All Forms of Administrative Detention in China , 98 NW. U. L. REV. 991,
1043 (2004) (recommending the use of CRBs in the case of China in order to decrease abuses by police).
98 See Christopher A. Love, The Myth of Message-Sending: The Continuing Search for a True Deterrent
to Police Misconduct, 12 J. SUFFOLK ACAD. L. 45, 46 (1998) (explaining how an evaluator’s experience
and guidelines for judgment can result in differences in police misconduct evaluations).
18
legitimate authority.99 Instead of monitoring internal investigations and duplicating its
function, civilian oversight bodies should review police action under the standards of the
community rather than the department.100 By reviewing and publicizing questionable
police practices while seeking feedback from the community, the CRB would serve as the
voice, as well as the eyes and ears, of the community.101
Though the CRB is not designed to be a coercive, punitive authority, its
democratic and communicative powers create opportunities for positive, personal
solutions to problems facing police-community interactions.102 However, these two
organizations continue to fight each other in adversarial forums, despite the fact that the
review board’s facilitative powers offer greater influence over and better relations with
the police department.103 If the police department were to become receptive to these
99 PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION, at xii (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (arguing a lack of police experience will always be inherent
in citizen reviews, and preparations can take place to inform citizens on police work to facilitate their
evaluation).
100 See Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control:
Should One Make us More Comfortable with the Others?, 34 GA. L. REV. 1253, 1258, 1268 (2000)
(claiming that police departments are already being “policed by the will of the community,” and in creating
this alliance, community policing is able to transform “the internal dynamics and values of a police
department itself”). See generally PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND
IMPLEMENTATION, at vii (2001), http://www.ncjrs.org/pdffiles1/nij/184430.pdf (describing formal
investigation practices of review boards, which are typically similar to internal investigation with the only
difference being these are focused on the legitimacy of the internal investigation rather than a true
community review of the event or complaint).
101 See PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 66 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (identifying CRBs as the police department’s connection to
the community, which provides the board with an opportunity to represent community interests).
102 See Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV.
453, 538–41 (2004) (recognizing the CRB’s tendency to move towards combative methods to determine
internal review legitimacy, which means officers are reluctant to change based upon either method of
oversight, internal or external). See generally Stephen A. Rosenbaum, Keeping an Eye on the I.N.S.: A
Case for Civilian Review of Uncivil Conduct, 7 LA RAZA L.J. 1, 20–24 (1994) (exploring examples of
police review boards to include citizen review as an alternative to intimidating agency review, as seen in the
area of immigration, and by interaction with the community and media, as seen in Canada).
103 See Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV.
453, 536 (2004) (noting that, like internal affairs, in their current form, CRBs are punitive rather than
forward-thinking).
19
non-combative efforts, a review board may be more effective by shaping its strategy
around democratic rather than punitive powers.104
When analyzing the form and function of the CRB, a comparison of the
deficiencies of the criminal trial model with the promises of the communicative,
democratic powers indicates that CRBs could enhance their effectiveness by shifting
from punishing to problem-solving. CRBs should operate as facilitators between officers
and the citizens they serve. Also, if citizen oversight groups identify officers who have a
positive impact within the community—instead of focusing entirely on misconduct and
negative police action—then the police department will be better able to act on its
strengths in building a positive relationship with the community.105
The next question is whether the police will both use and work with positive input
from citizen oversight bodies. As the following section explains, the prevalence of the
community policing model indicates that the modern police department needs input from
a coherent voice that represents the volatile segments of the community.
II. Community Policing in Search of a Community Partner
CRBs hold potential power through giving a voice to the community by
proffering public concerns, suggestions, and opinions to police departments.106 However,
the law enforcement community must be responsive to this information for it to have any
substantial impact.107 The same pressures that motivate citizens to demand the ability to
104 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1, 45
(2004) (stating the Chicago and Boston’s community policing models contain an aspect of “direct
democracy” with members of society).
105 See PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 10–11 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (including publicity of exemplary officer performance under
“benefits to elected officials” to show positive routes to be taken in implementing CRBs).
106 PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 12–14 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf.
107 PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION 12–14 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (expressing limitations to CRBs, including that its
effectiveness depends on the actions taken by the principal individuals involved).
20
review allegations of police misconduct, motivate the police to seek a positive
relationship with the community108 and, furthermore, to wield this cooperation as the
preferred tool for promoting a safe society.109 Because listening to the community has
become the dominant strategy for protecting citizens,110 this “community policing,” or
COP approach to peacekeeping and crime-fighting may present an opportunity for CRBs
to use democratic, communicative powers to impact police policies more effectively.111
A. The Promise of Community Policing
Though varying in scope and detail,112 the general idea of COP, is that police
officers should abandon the warrior model of aggressive law enforcement, and replace it
108 See Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for
Democratically Negotiated Community Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L.
L. REV. 461, 475–76 (2001) (opining police accountability and legitimacy hinges on collaborative efforts
from both civilian oversight and community policing representatives to have an instrumental voice in
matters of police practices); Shawn Monterastelli, Note, Using Law and Law Enforcement to Prevent
Violence and Promote Community Vibrancy Near Bars, Clubs, and Taverns, 16 NOTRE DAME J.L. ETHICS
& PUB. POLY 239, 256 (2002) (describing both the police and community’s vested interests in addressing
concerns of police legitimacy). See generally James Forman, Jr., Community Policing and Youth as Assets,
95 J. CRIM. L. & CRIMINOLOGY 1, 4–6 (2004) (illustrating how community policing grew out of the
public’s disapprobation towards the “warrior model” the police followed).
109 See Steven G. Brandl, Back to the Future: The Implications of September 11, 2001 on Law
Enforcement Practice and Policy, 1 OHIO ST. J. CRIM. L. 133, 140 (2003) (depicting our current time
period as the “community problem-solving era” where the combined efforts of police and citizens are
necessary for the prevention of crimes). See generally Mathieu Deflem, Book Note, 41 LAW & SOCY
REV. 255, 256 (2007) (reviewing STEVE HERBERT, CITIZENS, COPS, AND POWER: RECOGNIZING THE
LIMITS OF COMMUNITY (2006)) (commenting on how community policing improves relationships between
police and citizens).
110 DAVID COLE, NO EQUAL JUSTICE (The New Press, 1999) (approving community policing as an
effective means of communication between society and police, and ameliorating broken relationships
between both).
111 See Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for Democratically
Negotiated Community Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L. L. REV. 461,
481–82 (2001) (discussing that police officers work more effectively when community policing is allowed
to participate in “management and power sharing,” and simultaneously providing a newfound legitimacy in
police departments).
112 See LINDA S. MILLER, KÄREN MATISON HESS & CHRISTINE HESS ORTHMANN, COMMUNITY
POLICING: PARTNERSHIPS FOR PROBLEM SOLVING 4–5 (6th ed. 2011) (noting there is not a definitive,
widely-accepted definition of community policing beyond a problem-solving approach and philosophy of
working with rather than against the community); Matthew J. Parlow, The Great Recession and its
Implications for Community Policing, 28 GA. ST. U. L. REV. 1193, 1197 (2012) (commenting that while
there is no settled definition for community policing, it endorses an alliance between the public and the
police department).
21
with a problem-solving, social work approach.113 The idea is based on the principal that
public input is valuable, prevents crime, maintains order, and increases the legitimacy of
the law by fostering a workable relationship between citizens and law enforcement
officials.114 Community policing recognizes the best way to achieve a safe environment,115
is through the reciprocity of citizens communicating with the police116 and the police
seeking input from the community.117 Though it appears to be compatible with a
communicative approach to civilian review, COP remains undefined and incomplete.118
While the reform-era professional policing model organized the police with
coherent, top-down strategies, COP decentralizes authority, allowing officers more
discretion to assess and respond to individual circumstances and changing trends within
the community. 119 This modernized policing strategy is structured as a bottom-up
113 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1,
4–6 (2004) (explaining the new methodology of co-producing public safety, known as community policing,
arose in response to problems with the “warrior model” that pitted officers against the public); L. Song
Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L. 115, 143–44
(2014) (describing fundamental tenets of community policing, such as social work and effective
communication, “to address underlying causes of crime and disorder”).
114 See Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control:
Should One Make us More Comfortable with the Others?, 34 GA. L. REV. 1253, 1254–55 (2000) (pointing
out prevention factors external to police action such as improvements in transportation and city services,
which need to be integrated in the community approach to support the community image of the police).
115 See David Thacher, Conflicting Values in Community Policing, 35 LAW & SOCY Rev. 765, 776 (2001)
(recognizing that holding police officers accountable involves support and cooperation from the community
as a whole).
116 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1,
7–8 (2004) (describing community policing as an organizational strategy with two main elements: regular
neighborhood meetings and local involvement, including ownership of the process for addressing problems
in the community).
117 See Steven G. Brandl, Back to the Future: The Implications of September 11, 2001 on Law
Enforcement Practice and Policy, 1 OHIO ST. J. CRIM. L. 133, 140 (2003) (implicating the importance of
communication between police and the community). “According to the ideals of community policing, it is
only when police and citizens work together that crime can be prevented.” Steven G. Brandl, Back to the
Future: The Implications of September 11, 2001 on Law Enforcement Practice and Policy, 1 OHIO ST. J.
CRIM. L. 133,140 (2003).
118 See generally Tracey L. Meares, Praying for Community Policing, 90 CAL. L. REV. 1593, 1599 (2002)
(“[T]here is no consensus around what community policing is. . . .”).
119 See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts,
Communities, and the New Policing, 97 COLUM. L. REV. 551, 576 (1997) (describing the necessity of
decentralized decision making within a large, urban police department). See generally WESLEY G.
SKOGAN & SUSAN M. HARTNETT, COMMUNITY POLICING: CHICAGO STYLE 5–9 (Oxford Univ. Press 1997)
22
approach that places more decision-making in the hands of the individual officer in hopes
of achieving a more unified voice in the community.120 The development of the COP
model coincided with a similar movement toward decentralized decision making that has
been empirically tested121 and applied with success in governance,122 business,123 and
other fields.124
Community policing is a vague, broadly idealistic concept because the idea
developed as a response to problems with the prior organizational philosophy.125 Instead
of arising through the successful application of its tenets, COP emerged as an alternative
to the “rapid response” procedures used by the traditional, professional policing model.126
(identifying organizational decentralization as one of four basic principles of community policing).
120 Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities,
and the New Policing, 97 COLUM. L. REV. 551, 658–60 (1997).
121 See Philip M. Nichols, Regulating Transnational Bribery in Times of Globalization and
Fragmentation, 24 YALE J. INTL L. 257, 265 n.42 (1999) (explaining advantages to decentralization are
environment specific; the effectiveness of a citizen’s participation in a political system’s decision -making
process is dependent on the size of the system).
122 See James Anderson et al., The Effects of Government Decentralization During Transition: Evidence
from Enterprise-State Relations in Mongolia, in 38 POST-SOVIET GEOGRAPHY AND ECONOMICS 230, 245
(1997) (suggesting devolution in government systems provides some benefits similar to those of
privatization, at least enough to show devolution does not hinder reform by allowing decisions to be made
at the local level).
123 See Peter H. Schuck, Citizenship in Federal Systems, 48 AM. J. COMP. L. 195, 205 n.42 (2000)
(claiming that in the business environment, the need for flexibility in competitive markets, emphasized by
evolved theories of management, influenced the new conventional wisdom of U.S. corporations’ adoption
of decentralized decision-making).
124 See Benjamin F. Wyman, Note, Decentralization Continued: A Survey of Emergency Issues in Site-
Based Decision Making, 29 J.L. & EDUC. 255, 255 (2000) (describing public education’s emerging trend of
decentralization, more commonly known as site-based decision making, which engages teachers, parents,
and administrators in policymaking related to the daily management of their schools).
125 See generally Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts,
Communities, and the New Policing, 97 COLUM. L. REV. 551, 565 (1997) (discussing the idea of
community policing originated through the concern of corruption within police departments); GEOFFREY P.
ALPERT & MARK H. MOORE, COMMUNITY POLICING: CONTEMPORARY READINGS 215 (Geoffrey P. Alpert
& Alex R. Piquero eds., 2d ed. 2000) (explaining the concepts and goals of community policing are strong;
however, the formula to reach those goals and assess their success has not yet been found).
126 See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts,
Communities, and the New Policing, 97 COLUM. L. REV. 551, 565–67 (1997) (implying the role of the
police no longer simply involves control through rapid response, and community policing was influenced
by these previous policing strategies which have failed in the past); Tracey L. Meares, Praying for
Community Policing, 90 CAL. L. REV. 1593, 1599 (2002) (discussing how community policing rejects
policing strategies that became popular in the sixties and seventies, including rapid response); Steven A.
Lautt, Note, Sunlight is Still the Best Disinfectant: The Case for a First Amendment Right to Record the
Police, 51 WASHBURN L.J. 349, 353 (2012) (showing the once predominant model of policing in the 1950s
23
Developed in the 1920’s, the traditional, professional policing strategy was structured as a
centralized, quasi-military organization characterized by its strict, by-the-book approach
to efficient crime-fighting127 and reduction in the corruption previously associated with
officers being immersed in the community in regularly walked beats.128 Professional
policing emphasized crime control using the rapid response tactic, as it was believed the
community would be best served by investigating and punishing crime soon after it
happens—the growing availability of police cars and dispatch radio networks allowed
officers to quickly intervene in emergency situations.129 However, empirical comparison
of the mechanisms of the rapid response approach (response times, arrest rates, clearance
rates, etc.) to crime rates have shown that these mechanisms may not have an impact on
the incidence of crime.130 Perhaps, beyond maintaining rule of law perceived to be
and 1960s, police professionalism, has since been supplanted by the more democratic community policing
model).
127 See David Alan Sklansky, Police and Democracy, 103 MICH. L. REV. 1699, 1730 (2005) (“Police
professionalism meant politically insulated police departments organized along hierarchical, quasi-military
lines, with strong commitments to efficient operations, centralized command, technological sophistication,
well-trained personnel, and high standards of integrity.”).
128 See David Cole, Discretion and Discrimination Reconsidered: A Response to the New Criminal
Justice Scholarship, 87 GEO. L.J. 1059, 1063 (1999) (discussing how in order to avoid corruption, police
departments distanced themselves from the community by engaging in more patrol-car riding and less
beat-walking); Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts,
Communities, and the New Policing, 97 COLUM. L. REV. 551, 565–66 (1997) (implying police chiefs
implemented police professionalism (centralizing command) to insulate the police from corruption).
129 See Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood District
Attorney, 78 WASH. L. REV. 985, 994 (2003) (“The rapid-response model’s immediate objective is to arrest
and punish an individual offender. Through specific and general deterrence, the punishment of that
individual offender and others like him might lead to an overall decrease in crime . . . .”).
130 See Montré D. Carodine, “Street Cred”, 46 U.C.D. L. REV. 1583, 1605 (2013) (stating that, according
to research, the traditional methods of policing promoted during the reform era were not as effective as they
were believed to be at reducing crime); Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A
Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055, 1102–
03 n.210 (1998) (citing a variety of studies with conflicting conclusions about whether arrest rates and
clearance rates have a deterrent impact on crime rates); James Forman, Jr., Community Policing and Youth
as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1, 5 (2004) (stating community policing gained support when
research from the 1970s demonstrated the inadequacy, value, and efficacy of traditional police tactics);
Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and
the New Policing, 97 COLUM. L. REV. 551, 569 (1997) (providing a study conducted in 1972 and 1973
concluded that variation in the level of random, motorized police patrol in Kansas City had no significant
effect on crime statistics, citizen fears, or response time of police to calls of service).
24
legitimate by those who are socialized to accept it,131 the law enforcement function of the
police is no more able to affect crime rates than they are able to change the sociological
conditions that may be at the root of criminal activity.132 While the effectiveness of rapid
response is debatable, the purposeful distance from citizenry adopted as the goal of
professionalism and aided by rapid response technologies133 has undoubtedly resulted in a
schism between the police and the community.134 Thus, the problems stemming from the
“us versus them” mentality that comes with policing the community at an arm’s length,
has led police departments to strive towards fostering a more cooperative relationship
with local citizens.135
This is not to say that COP does not have sound theoretical underpinnings. A
wide body of research illustrates that law-abiding tendencies are shaped by an
individual’s perception of fair treatment by the police.136 As a result, negative
131 See Samuel Walker, Too Many Sticks, Not Enough Carrots: Limits and New Opportunities in
American Crime Policy, 3 U. ST. THOMAS L.J. 430, 435 (2006) (explaining citizens have been socialized
into law-abiding behavior and that the possibility of punishment most likely only deters individuals who
exhibit this behavior).
132 See Marian J. Borg & Karen F. Parker, Mobilizing Law in Urban Areas: The Social Structure of
Homicide Clearance Rates, 35 LAW & SOCY REV. 435, 436 (2001) (explaining disadvantaged areas
lacking economic, social, and institutional resources to fight crime suffer high crime rates).
133 See L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L.
115, 144 (2014) (explaining the distance between police officers and communities resulted from the
adoption of patrolling neighborhoods in cars rather than on foot).
134 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1,
4–5 (2004) (discussing how, in the 1970s and 1980s, the relationship between citizens and police weakened
—over 70% of policemen believed the public hated the police, and a study found that big city policemen
believed the public saw them as inconsiderate).
135 See Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control:
Should One Make us More Comfortable with the Others?, 34 GA. L. REV. 1253, 1265–67 (2000)
(explaining under the “us versus them” mentality police viewed themselves as distinct from the community,
which makes partnerships with the community difficult; thus, in order for community policing to work
there had to be a subculture change). See generally Angela P. Harris, Gender, Violence, Race, and
Criminal Justice, 52 STAN. L. REV. 777, 797–98 (2000) (exemplifying issues of racism brought about by
the “us versus them” mentality).
136 See Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping
Public Support for Policing, 37 LAW & SOCY REV. 513, 519 (2003) (citing research concluding that a
citizen’s view of whether procedures adopted by police are fair influence the way they react during
encounters with police officers); Irina Elliott et al., Procedural Justice in Contacts with the Police: Testing
a Relational Model of Authority in a Mixed Methods Study , 17 PSYCHOL. PUB. POL'Y & L. 592, 604–05
(2011) (discussing the results of a study supporting the hypothesis that “higher perceived antecedents of
25
experiences with the police—representatives of state authority—will bring people
struggling to follow the norms embodied in state law to develop alternative, “street”
norms of justice.137 And because people break or follow the law based on the social
norms of their communities, a valid strategy for preventing crime may be to shape the
community’s perception of the police.138 In fact, since arrests and incarceration have the
inherent effect of disrupting the social networks on which the community depends,139 the
tools of the rapid response model would seem to naturally erode the legitimacy of the
laws being enforced.140
Police departments are improving their image within communities by eliminating
the warrior strategy and shifting more focus on treating citizens as equals.141 This
collaborative approach follows evidence-based models from other fields by including
stakeholders (the community, the police, and other social services apparatuses) in the
procedural justice would be associated with higher perceived legitimacy (obligation to obey the law),
outcome fairness, and satisfaction with the contact”); James Forman, Jr., Community Policing and Youth as
Assets, 95 J. CRIM. L. & CRIMINOLOGY 1, 3 (2004) (explaining empirical research shows that people’s
satisfaction with the police is determined by whether they believe the process coming to a decision in the
legal system was fair). “[P]eople’s assessment of whether authorities behaved fairly influences the
likelihood that they will comply with future legal directives.” Id. at 35.
137 James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1, 4
(2004).
138 See Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control:
Should One Make us More Comfortable with the Others?, 34 GA. L. REV. 1253, 1255 (2000) (expressing
those who wish to control crime should focus on regulating the social dynamics that create community
norms of law breaking within communities).
139 See Jeffrey Fagan et al., Reciprocal Effects of Crime and Incarceration in New York City
Neighborhoods, 30 FORDHAM URB. L.J. 1551 (2003) (stating high rates of incarceration aggravate social
and economic disadvantages in areas concentrated with former inmates because of their hindered ability to
return to the labor market). See generally Matthew J. Parlow, The Great Recession and Its Implications for
Community Policing, 28 GA. ST. U. L. REV. 1193, 1205–06 (2012) (discussing the repercussions from
low-level, quality-of-life crime arrests, including loss of time, money, and possibly even employment).
140 See Shawn Monterastelli, Using Law and Law Enforcement to Prevent Violence and Promote
Community Vibrancy Near Bars, Clubs, and Taverns, 16 NOTRE DAME J.L. ETHICS & PUB. POLY 239, 256
(2002) (“Even if they arrest a person for such a petty crime, ‘[t]he effects of an arrest experience over a
minor offense may permanently lower police legitimacy, both for the arrested person and their social
network of family and friends.’ In this way, arrestees and their social networks may become more
defiant.”).
141 See Montré D. Carodine,Street Cred”, 46 U.C.D. L. REV. 1583, 1605 (2013) (reiterating the concept
of increased communication and treatment of people as an officer’s equal as ways of improving police and
community relations).
26
decision-making process.142 By partnering with citizens to strengthen the community
against the causes of social disorder, the community policing strategy promotes the rule
of law.143
B. The Problems with Community Policing
Despite its promising theoretical foundation and improvement upon previously
used policing strategies, community policing remains an unattained goal at best144 and a
deceptive façade at worst.145 The most significant issues involving the COP strategy
appear to be (1) difficulties in fostering a cultural shift by redefining the identity of the
traditional rank-and-file officers from crime-fighting warriors to problem-solving social
workers146 and (2) organizing citizens from a diverse population—especially those who
struggle to adhere with laws and values—to serve as effective partners with law
142 See Matthew J. Parlow, The Great Recession and its Implications for Community Policing, 28 GA. ST.
U. L. REV. 1193, 1227 (2012) (explaining a collaborative approach leads to a better decision-making by
implementing sounder polices and practices).
143 Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control:
Should One Make us More Comfortable with the Others?, 34 GA. L. REV. 1253, 1254–55 (2000); see
Tracey L. Meares, Praying for Community Policing, 90 CAL. L. REV. 1593, 1601 (2002) (suggesting
instead of analyzing offenders on an individual basis, it may be more helpful to involve the community to
encourage third party efforts in securing neighborhoods). See generally David Alan Sklansky, Book Note,
42 LAW & SOCY REV. 233 (2008) (reviewing WESLEY G. SKOGAN, POLICE AND COMMUNITY IN
CHICAGO: A TALE OF THREE CITIES (2006)) (opining Wesley Skogan’s book on community policing is an
intensive evaluation of the notion that collaboration between the community and the police officers is
paramount to building public support, especially among minority groups).
144 See L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L.
115, 144–45 (2014) (describing reasons why police officers have created more distance between
themselves and the community they once collaborated with may be attributed to a “professionalism era”).
See generally James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY
1 (2004) (arguing the reason community policing does not work is because young people are excluded).
145 See Michael E. Buerger, The Challenge of Reinventing Police and Community, in POLICE INNOVATION
AND CONTROL OF THE POLICE: PROBLEMS OF LAW, ORDER, AND COMMUNITY 103, 105 (David Weisburd
& Craig Uchida eds., 1993) (declaring community policing is merely symbolic and has no real value in the
manner the police conduct themselves); Jack R. Green, Community Policing and Police Organizations, in
COMMUNITY POLICING: CAN IT WORK? 30, 50 (Wesley Skogan ed., 2004) (warning that police may not
have changed their practices, but have instead used the label of community policing as a pretext).
146 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1,
16 (2004) (“Community policing also requires a re-orientation in thinking, so that officers begin to see
community members as allies, rather than enemies.”).
27
enforcement.147 More succinctly, the apparent disconnect seems to stem from a
combination of the community’s inability to effectively communicate its concerns to the
police, and the failure of law enforcement officials to respond to community feedback.148
Rooted in the misapplication of mindsets and tools from the professionalism model, these
issues could be resolved by building a better system of exchanging information between
the police and the communities they serve.
1. New Role, Old Mentality
In order to apply the COP strategy, officers must change their thinking from
fighting crime against the community to problem-solving with the community.149 Though
the ranking officers in most departments express commitment to the COP strategy, the
officers who regularly interact with the public continue to apply the traditional,
crime-focused mentality.150 One aspect of the traditional, professional policing model
was the purposeful barriers it created between officers and the community.151 While COP
aims to reduce these barriers by allowing individual officers greater autonomy,152 the
147 See Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood District
Attorney, 78 WASH. L. REV. 985, 1006–07 (2003) (noting community policing is not effective because
people are not informed of existing programs, and the few that are informed do not necessarily reflect the
voice and will of the whole community).
148 Mathieu Deflem, Book Note, 41 LAW & SOCY REV. 255, 255–56 (2007) (reviewing STEVE HERBERT,
CITIZENS, COPS, AND POWER: RECOGNIZING THE LIMITS OF COMMUNITY (2006)) (considering the reason
why police do not effectively communicate is because they base their profession on “autonomy and
expertise,” which the community does not possess).
149 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1,
16 (2004) (stating that officers must adopt a reorientation in thinking to apply the community policing
strategy, seeing community members as a whole as assets and not as an encumbrance).
150 See L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L.
115, 144 (2014) (noting because of police corruption before the “professionalism era” there is still residue
of the crime-fighting mentality).
151 See L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L.
115, 144–45 (2014) (listing ways for the police force to prevent individual officers from forming personal
bonds with certain communities).
152 See Mathieu Deflem, Book Note, 41 LAW & SOCY REV. 255, 256 (2007) (reviewing STEVE HERBERT,
CITIZENS, COPS, AND POWER: RECOGNIZING THE LIMITS OF COMMUNITY (2006)) (“[C]ommunity policing
has become the definitive strategy to reduce distance between the police and the citizenry by devolving
authority from central power to localized self-determination.”).
28
problem is that these officers continue to possess a warrior type mentality.153 Instead of
fostering trust through increased contact, this reform-era approach to community policing
exposes the community more directly to crime-focused officers,154 allowing these officers
to abuse their expanded discretion by confronting “undesirable” members of the
community.155 In other words, police attempt to improve the community by cracking
down on low-level offenses, arresting only the people who are disfavored by the
upstanding citizens, thus creating a de facto division in the legal system between how
wealthy and poor people are treated.156
Though this “order maintenance” approach (increasing arrests for low-level
offenses) has been correlated to a reduction in serious crimes157 and was touted as the
cause of the decline in crime in New York City in the 1990s,158 crime rates simultaneously
153 See Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control:
Should One Make us More Comfortable with the Others?, 34 GA. L. REV. 1253, 1279 (2000) (“By
targeting disorder with arrest—a traditional law enforcement tool—police were able to convert
misdemeanor arrests into felony arrests, and thereby further validate their crime -fighting image.”); see also
L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. Crim. L. 115, 144–
45 (2014) (emphasizing officers measure success in the number of arrests and response times to the scene
in question, which tends to lead to more truculent enforcement practices).
154 See Suzanne Meiners, A Tale of Political Alienation of Our Youth: An Examination of the Potential
Threats on Democracy Posed by Incomplete “Community Policing” Programs, 7 U.C. DAVIS J. JUV. L. &
POLY 161, 171–73 (2003) (noting the increased COP foot patrols occur in high-crime areas, leading to
more arrests).
155 Mary I. Coombs, The Constricted Meaning of “Community” in Community Policing, 72 ST. JOHNS L.
REV. 1367, 1371 (1998).
156 See MATT TAIBBI, THE DIVIDE: AMERICAN INJUSTICE IN THE AGE OF THE WEALTH GAP 57 (Spiegel &
Grau eds., 2014) (providing an alarming statistic, in NYC, that in 2011 alone, 88% of stop and searches
involved minority groups; meanwhile, nobody on Wall Street was arrested in connection with the 2008
financial crisis); Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and
Disorder in New York City, 28 FORDHAM URB. L.J. 457 (2000) (discussing order-maintenance policing uses
more aggressive tactics to enforce the law for any low-level offenses).
157 See Mary I. Coombs, The Constricted Meaning of "Community" in Community Policing, 72 ST.
JOHNS L. REV. 1367, 1370 n.18 (1998) (indicating studies conducted through Chicago’s community
policing program demonstrated a correlation between policing against low-level offenses and a decrease in
serious crime).
158 See Lawrence Rosenthal, Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio, 43
TEX. TECH L. REV. 299, 322–23 (2010) (discussing the changes in policing tactics that contributed to New
York’s crime drop throughout the 1990s).
29
declined in cities using other crime-control strategies.159 Regardless of whether it is
effective, aggressive quality-of-life policing160 is a major source of inner-city tension,161
affecting race relations,162 community stability,163 and the legitimacy of police and the law
in the eyes of the targeted community-members.164 A policing strategy that forces contact
between aggressive police officers and less stable elements of the community may
therefore be the root of violence between police and minorities that is garnering national
attention.165 Aggressive order-maintenance policing, however, may not be a deliberate
159 See David Cole, Discretion and Discrimination Reconsidered: A Response to the New Criminal
Justice Scholarship, 87 GEO. L.J. 1059, 1065 (1999) (stating the drop in crime occurred nationwide, even
in areas that did not adopt quality-of-life policing like New York City).
160Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-
City Social Experiment, 73 U. CHI. L. REV. 271, 272 n.1 (2006) (including crimes such as “loitering, public
drunkenness, and vandalism”.
161 See David Cole, Discretion and Discrimination Reconsidered: A Response to the New Criminal
Justice Scholarship, 87 GEO. L.J. 1059, 1092–93 (1999) (stating an aggressive quality-of-life policing does
not improve conditions that cultivate inner-city crime and in fact, maintains its impoverishment and
segregation); see also Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and
Disorder in New York City, 28 FORDHAM URB. L.J. 457, 462 (2000) (stating order-maintenance policing
transformed into an aggressive form of racial profiling and policing which intensified hostility in minority
neighborhoods).
162 See Paul Hoffman, The Feds, Lies, and Videotape: The Need for an Effective Federal Role in
Controlling Police Abuse in Urban America, 66 S. CAL. L. REV. 1453, 1515 (1993) (stating one of the
major origins of racial separation and tension in today’s society is police abuse against inner -city minority
communities); Mia Carpiniello, Note, Striking A Sincere Balance: A Reasonable Black Person Standard for
“Location Plus Evasion” Terry Stops, 6 MICH. J. RACE & L. 355, 369 (2001) (discussing stop and frisk
methods are a major source of racial tension).
163 See Jeffrey Fagan et al., Reciprocal Effects of Crime and Incarceration in New York City
Neighborhoods, 30 FORDHAM URB. L.J. 1551, 1552–53 (2003) (suggesting incarceration for crimes
committed in New York City neighborhoods can disrupt family ties and social networks within those
neighborhoods); Matthew J. Parlow, The Great Recession and its Implications for Community Policing, 28
GA. ST. U. L. REV. 1193, 1205–06 (2012) (discussing individuals arrested for low-level, quality-of-life
crimes waste time and money paying processing fees for their arrest, losing employment opportunities, and
missing school).
164 See Shawn Monterastelli, Note, Using Law and Law Enforcement to Prevent Violence and Promote
Community Vibrancy Near Bars, Clubs, and Taverns, 16 NOTRE DAME J.L. ETHICS & PUB. POLY 239, 256
(2002) (stating when an individual is arrested for a petty crime, defiance against police is provoked and
police legitimacy is permanently lowered from the perspective of the arrested individual and his or her
social network of family and friends).
165 See David Von Drehle, The Roots of Baltimore’s Riots, TIME (Apr. 30, 2015),
http://time.com/3841451/the-roots-of-baltimores-riot/ (discussing how violence between police and
minorities has become a common crisis in Baltimore, and police brutality has induced riots that have
garnered national attention following years of systematic failure); David Von Drehle, In the Line of Fire,
TIME (Apr. 9, 2015), http://time.com/3814970/in-the-line-of-fire-2/ (observing the troubled relationship,
lacking trust, between black citizens and police officers in minority neighborhoods is found on a national
level).
30
style of community policing or the remnants of waning habits, but rather the unavoidable
consequence of placing officers in new roles while evaluating their performance using
outdated standards.166
2. Unclear Evaluation Standards
The professional policing model used simple, quantifiable indicators such as
arrest and citation rates to measure the effectiveness of department policies and to
evaluate officer performance.167 The COP strategy, however, reinvents the role of the
police officer from simple enforcer of the law, to multifaceted agents of social stability.168
As such, analyzing an individual officer’s effectiveness within the community is more
complicated than just evaluating arrest rates.169 Police departments have had difficulty
with implementing objective methods to measure the actions and skills of individual
officers170 and overall effectiveness of broad community initiatives.171 Without any
universally accepted criteria to manage performance, departments revert back to
166 Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities,
and the New Policing, 97 COLUM. L. REV. 551, 652 (1997).
167 See GEOFFREY P. ALPERT & MARK H. MOORE, COMMUNITY POLICING: CONTEMPORARY READINGS
215 (Geoffrey P. Alpert & Alex R. Piquero eds., 2d ed. 2000) (stating reported crime rates, overall arrests,
clearance rates, and response times are the four practices police agencies have generally used to evaluate
police performance).
168 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1,
16 (2004) (discussing community policing depends on community involvement and on the police officer’s
view of these community members as allies rather than enemies).
169 See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts,
Communities, and the New Policing, 97 COLUM. L. REV. 551, 652 (1997) (suggesting new policing reforms
require addressing the difficult task of revising police performance measures to include internal discipline
and mechanisms to measure and reward less dramatic police interventions, not just recognition for felony
arrests).
See GEOFFREY P. ALPERT & MARK H. MOORE, COMMUNITY POLICING: CONTEMPORARY READINGS 215
(Geoffrey P. Alpert & Alex R. Piquero eds., 2d ed. 2000).
170 See Irina Elliott et al., Procedural Justice in Contacts with the Police: Testing a Relational Model of
Authority in a Mixed Methods Study, 17 PSYCHOL. PUB. POL'Y & L. 592, 607 (2011) (suggesting that
additional qualitative approaches should be utilized to measure police performance, because a major
problem with today’s measures is that they do not adequately quantify what police officers do to serve their
communities).
171 See Robert Weisberg, Restorative Justice and the Danger of "Community", 2003 UTAH L. REV. 343,
363 (2003) (stating there is a broad range of community policing initiatives that are being applied without
measuring benchmark criteria, so consistency cannot be assessed).
31
traditional performance measures,172 making decisions about pay raises, promotions, and
demerits based on arrest rates and response times.173 This results in many talented,
ambitious officers focusing more attention on solving crimes, while ignoring
neighborhood/domestic disputes and the conflict resolution skills they require.174 As a
result of the misplaced fixation on numbers in the community policing context, officers
are motivated to solve community problems by enforcing social norms through arrests.175
Despite departments’ declarations about partnering with the community, the retention of
172 See Jeffrey Fagan and Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in
New York City, 28 FORDHAM URB. L.J. 457, 468 (2000) (“By emphasizing the aggressive pursuit of social
disorder, or disorderly persons, police returned to the more comfortable performance indicators of stops and
arrests, while restoring to the workplace their traditional cultural dichotomy of ‘disorderly people and law
abiders.’”).
173 See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts,
Communities, and the New Policing, 97 COLUM. L. REV. 551, 567 (1997) (“Although peacekeeping and
order maintenance were still a large part of the police officer’s day-to-day activities, police departments,
founding their legitimacy in the criminal law and in professional law enforcement, began to measure their
performance by reference to crime statistics . . . .”); Eric Blumenson & Eva Nilsen, Policing for Profit: The
Drug War's Hidden Economic Agenda, 65 U. CHI. L. REV. 35, 79 (1998) (“[P]ersonal rewards often accrue
to those police officers who most zealously enforce the drug laws. Because drug detail generally reaps large
numbers of . . .arrests and . . .court appearances for the arresting officer, it is an avenue to both overtime
pay . . .and better evaluations (which are often linked to arrest rates).”); see also Seth W. Stoughton,
Policing Facts, 88 TUL. L. REV. 847, 877 (2014) (“Officer evaluation forms used by both large and small
police departments do not mention, let alone put weight on, convictions, though most include some
evaluation of arrests.”); L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO
ST. J. CRIM. L. 115, 144–45 (2014) (noting response times and number of arrests have been primary
methods for measuring officer success).
174 See GEOFFREY P. ALPERT & MARK H. MOORE, COMMUNITY POLICING: CONTEMPORARY READINGS
222 (Geoffrey P. Alpert & Alex R. Piquero eds., 2d ed. 2000) (observing that operational indicators showed
there was no legitimate way to assess the quality of the responses officers made to citizen calls, except for
criminal offenses for which an arrest was made, and officers tended to ignore non-crime complaints); Debra
Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New
Policing, 97 COLUM. L. REV. 551, 652 (1997) (stating it is crucial to develop mechanisms to review and
reward police officers’ order maintenance activities, such as successful dispute resolutions, rather than only
rewarding officers for meeting a designated number of felony arrests, despite the fact that it is a
burdensome task to develop these mechanisms).
175 See Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control:
Should One Make Us More Comfortable with the Others? , 34 GA. L. REV. 1253, 1259 (2000) (“[W]hen an
order-maintenance agenda is introduced into a department that retains the traditional reform-era subculture,
the agenda can devolve from an effort to enforce norms and creatively solve community problems to an
effort to increase felony arrests and unearth the ‘big collar.’ Such a devolution entails a number of risks,
particularly the antagonization of young male minorities.”).
32
an arrest-based model for measuring officer performance motivates aggressive policing
which, in turn, alienates the community from authorities.176
To combat this problem, experts agree that officer performance should be
evaluated by identifying and rewarding individuals who possess the skills and behavior
that exemplify the mission of COP.177 Bad cops should fear the good cops instead of vice
versa.178 Positive reinforcement helps to cultivate this type of attitudinal and behavior
shift away from the professional policing model—a shift that is necessary to gain support
from the community.
3. The Lack of Public Participation
Another aspect of the current police-community disconnect is the police have not
developed a forum for channeling feedback from critical elements of the community.
COP is a policing strategy that recognizes law enforcement agencies rely on the
assistance of citizens in establishing a safe community.179 A key element to this model
requires police to communicate effectively with every segment within a community,
especially in poor, crime-prone areas.180 This approach to policing therefore demands
176 L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L. 115,
144–45 (2014).
177 See Erwin Chemerinsky, An Independent Analysis of the Los Angeles Police Department's Board of
Inquiry Report on the Rampart Scandal, 34 LOY. L.A. L. REV. 545, 580 (2001) (stating officers ought to be
recognized for their community and crime prevention activities in their assessment and promotion
standards as opposed to being rewarded solely for the number of citations issued and arrests made).
178 See Law and Disorder: Is Effective Law Enforcement Inconsistent with Good Police-Community
Relations?, 28 FORDHAM URB. L.J. 363, 402 (2000) (suggesting improving the culture of police
departments is necessary to influence officer conduct and behavior for the better).
179 See Charles L. Stearns, Reviews of Professional Periodicals, 58 FED. PROB. 70, 70 (1994) (reviewing
Randolph M. Grinc, “Angels in Marble”: Problems in Stimulating Community Involvement in Crime and
Delinquency, 40 CRIME & DELINQ. 437 (1994)) (stating that one of the main reasons community policing
emerged was because police are highly dependent on cooperation from citizens who share a desire to
reduce crime).
180 See Charles L. Stearns, Reviews of Professional Periodicals, 58 FED. PROB. 70, 71 (1994) (reviewing
Randolph M. Grinc, “Angels in Marble”: Problems in Stimulating Community Involvement in Crime and
Delinquency, 40 CRIME & DELINQ. 437 (1994)) (explaining a crucial part of community policing consists
of involvement between the police and the community).
33
that citizens from crime-prone areas gather together and work with the police.181 The fact
that crime-prone communities have not responded to this invitation marks a critical flaw
in community policing that appears to be outside of the control of the police.182
Studies examining various community policing strategies revealed consistent
difficulties in stimulating community participation.183 Furthermore, the small faction that
does volunteer to meet with the police184 tend to be the wealthy and politically powerful185
rather than the young minorities who are most in need of outside intervention.186
This is not to say that crime-prone citizens are not willing or able to work with
authorities to take control of their neighborhoods.187 Despite a lack of public
participation, COP has enjoyed widespread popularity as a tool for bridging the divisive
gap between the police and the community.188 Clinical research on the benefits of
181
182 See Charles L. Stearns, Reviews of Professional Periodicals, 58 FED. PROB. 70, 71 (1994) (reviewing
Randolph M. Grinc, “Angels in Marble”: Problems in Stimulating Community Involvement in Crime and
Delinquency, 40 CRIME & DELINQ. 437 (1994)) (“[W]hat is clear is that the apparent popularity of
community policing among residents is not sufficient to promise their active involvement in the process.”).
183 Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood District Attorney,
78 WASH. L. REV. 985, 1006 (2003).
184 Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for Democratically
Negotiated Community Representation on Civilian Advisory Councils, 36 HARV. C. R.–C. L. L. REV. 461,
482 (2001).
185 See Suzanne Meiners, A Tale of Political Alienation of Our Youth: An Examination of the Potential
Threats on Democracy Posed by Incomplete “Community Policing” Programs, 7 U.C. DAVIS J. JUV. L. &
POLY 161, 162 (2003) (explaining how those who reap the benefits of community policing are the small
group of people who are vocal, and therefore, influential); see also Alafair S. Burke, Unpacking New
Policing: Confessions of a Former Neighborhood District Attorney, 78 WASH. L. REV. 985, 1006 (2003)
(showing community policing programs are dominated by white residents and homeowners, reflecting only
a small proportion of the residents in racially-mixed neighborhoods).
186 See Nicole Stelle Garnett, Private Norms and Public Spaces, 18 WM. & MARY BILL RTS. J. 183, 196–
97 (2009) (quoting a student’s observation that people who attend community meetings are “[o]ld people
with nothing better to do” to illustrate the real problem with community policing: It paints an incomplete
picture of events in the community); see also James Forman, Jr., Community Policing and Youth as Assets,
95 J. CRIM. L. & CRIMINOLOGY 1, 2, 16 (2004) (stating the composition of the attendees at community
meetings hardly reflects the entire community as youth have been left out of the community policing
model, meaning only a small fraction of the community participates).
187 See Curtis Blakely, American Criminal Justice Philosophy Revisited, 72 FED. PROB. 43, 44 (2008)
(stating although there is a lack of citizen participation, the public has shown it is willing to work with
authorities, as evidenced by its demands for police to take “a more proactive and personal approach”).
188 See WESLEY G. SKOGAN, COMMUNITY POLICING: CAN IT WORK?, at xii (2004) (recognizing the
popularity of community policing with the public and city councils leads police chiefs to claim to be on
34
empowerment to vulnerable people predicts attraction to the idea of community policing
by crime-prone communities.189 “Legal empowerment” initiatives have used this theory
to improve many aspects of impoverished communities.190 This indicates that the type of
problem-solving approach established by COP resonates with citizens. Therefore, the
lack of participation issue could be mitigated through a different approach by police
departments to reach out to the more vulnerable demographic of the community.
Research shows that the most common explanation for lack of involvement in
community outreach programs was fear of targeted retaliation by police against a
population that has felt mistreated by them in the past.191 Inviting these mistrustful
citizens to submit their feedback to the police leads to the “free-rider” problem—critical
voices will not reach out to the police if others can192 unless they feel personally
affected.193 The outcome of this dynamic is that vulnerable communities will prefer a
board with the model by the adoption of “this or that community-friendly program”); Curtis Blakely,
American Criminal Justice Philosophy Revisited, 72 FED. PROB. 43, 44 (2008) (explaining how community
dissatisfaction ultimately stimulated participation in community policing).
189 Molly J. Walker Wilson, The Expansion of Criminal Registries and the Illusion of Control, 73 LA. L.
REV. 509, 541–42 (2013).
190 See Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative 3–4
(Carnegie Endowment for Int’l Peace, Working Paper No. 41, 2003),
http://www.carnegieendowment.org/files/wp41.pdf (“[L]egal empowerment has helped advance poverty
alleviation, good governance, and other development goals.”).
191 Charles L. Stearns, Reviews of Professional Periodicals, 58 FED. PROB. 70, 71 (1994) (reviewing
Randolph M. Grinc, “Angels in Marble”: Problems in Stimulating Community Involvement in Crime and
Delinquency, 40 CRIME & DELINQ. 437 (1994)).
192 See Damien Schiff, Samaritans: Good, Bad and Ugly: A Comparative Law Analysis, 11 ROGER
WILLIAMS U. L. REV. 77, 112 (2005) (discussing the “bystander effect” phenomenon in which persons are
less likely to help others if they are “among a group of people present at the scene” due to “fear of being
reproved by others or of impeding a better rescuer”); John M. Darley & Bibb Latane, Bystander
Intervention in Emergencies: Diffusion of Responsibility, 8 J. PERSONALITY & SOC. PSYCHOL. 377, 378
(1968) (“When there are several observers present, however, the pressures to intervene do not focus on any
one of the observers; instead the responsibility for intervention is shared among all the onlookers and is not
unique to anyone. As a result, no one helps.”).
193 See Monica K. Miller & Samantha S. Clinkinbeard, Improving the AMBER Alert System: Psychology
Research and Policy Recommendations, 30 LAW & PSYCHOL. REV. 1, 13-14 (2006) (discussing a study that
explored conditions in which people would intervene to disrupt behaviors that negatively affected their
communities, e.g., a “small neighborhood park as opposed to a large shopping mall,” and noted that “when
people felt personally implicated, intervention was not inhibited by the presence of bystanders”).
35
police department that is responsive to their input while their members will not enter the
lion’s den or voice criticism as individuals.194
The police can invite local leaders to speak for the community as an alternative to
involving individual citizens.195 However, problems with this approach arise in the
designation of select figures to serve as unofficial proxies for the entire community.
Feedback from community leaders can be seriously misleading and not representative of
popular will, largely due to the fact that these individuals are not held accountable if the
community is not present at meetings with the police.196 This has led many to view the
meetings between community leaders and the police “largely pointless” when compared
to the impact of open meetings with the citizens themselves.197 Furthermore, it takes
considerable effort by the police to identify people who have influence in the community
and are able to maintain that influence while working with the police.198 Thus, the
194 Charles L. Stearns, Reviews of Professional Periodicals, 58 FED. PROB. 70, 71 (1994) (reviewing
Randolph M. Grinc, “Angels in Marble”: Problems in Stimulating Community Involvement in Crime and
Delinquency, 40 CRIME & DELINQ. 437 (1994)) (describing the reasons ordinary community residents
hesitate to become involved in community policing programs despite the popularity of such programs).
195 Catherine Therese Clarke, Comment, From CrimINet to Cyber-Perp: Toward an Inclusive Approach
to Policing the Evolving Criminal Mens Rea on the Internet, 75 OR. L. REV. 191, 227 n.166 (1996).
196 See Josephine Unger, Note, Frisky Business: Adapting New York City Policing Practices to
Ameliorate Crime in Modern Day Chicago, 47 SUFFOLK U. L. REV. 659, 680 n.160 (2014) (providing an
example of when the priorities of both the NYPD and community leaders diverged from those of the
community—the police department and community leaders focused on preventing major crimes, whereas
community wanted to curb petty crimes); cf. Najeeba Syeed-Miller, Developing Appropriate Dispute
Resolution Systems for Law Enforcement and Community Relations: The Pasadena Case Study , 22 OHIO
ST. J. ON DISP. RESOL. 83 (2006) (discussing the use of dialogue sessions between community leaders and
their constituents to ensure representations made are legitimate and can be substantiated).
197 See David Alan Sklansky, Book Note, 42 LAW & SOCY REV. 233, 234 (2008) (reviewing WESLEY G.
SKOGAN, POLICE AND COMMUNITY IN CHICAGO: A TALE OF THREE CITIES (2006)) (comparing beat
meetings, which are well attended and productive, with committees of appointed community leaders which
only meet periodically with police middle-managers). “Beat meetings—monthly open forums for residents
of particular neighborhoods and officers assigned to patrol it . . . District Advisory Committees—appointed
panels of community leaders who meet periodically with police middle managers . . . .” Id.
198 See Anna Akbar, National Security’s Broken Windows, 62 UCLA L. REV. 833, 857–58 (2015)
(recognizing the importance of cultivating contacts, and describing the efforts made by government
agencies to engage in this type of community outreach); cf. Sahar F. Aziz, Policing Terrorists in the
Community, 5 HARV. NATL SEC. 147, 147–48 (2014) (providing an example of how a community leader’s
collaboration with law enforcement may conflict with the collective interests of the community).
36
top-down approach of inviting the input of community leaders may solicit feedback that
is too abstract, potentially unrepresentative, or simply not useful.199
Even if selected members of a community were consolidated into one advisory
board, critics argue that modern communities are too complex and diverse to express
their issues, concerns, and problems with one voice.200 Under this reality, partnering with
only one interested group could be perceived as unequal treatment, possibly leading to
turmoil, especially when the conflicting interests of a volatile community are at stake.201
Even if it were possible, narrowing the community’s diverse array of perspectives into a
single “partner” may not be an appropriate approach to COP.
Community policing appears to be a good idea that is severely limited by (1) a
lack of tools for motivating and evaluating effective application of the COP’s philosophy
by individual officers, and (2) difficulties in convincing the typical victims and offenders
of crime to provide substantive feedback to police officers and administrators. An
analysis of these criticisms draws important parallels between community policing and
civilian oversight. Citizen review boards attempt to influence the police using an
adversarial approach that the police do not perceive to be legitimate. Police departments
199 See Najeeba Syeed-Miller, Developing Appropriate Dispute Resolution Systems for Law Enforcement
and Community Relations: The Pasadena Case Study, 22 OHIO ST. J. ON DISP. RESOL. 83, 91 (2006)
(describing methods employed to ensure reports by community leaders are in fact representative of
concerns that legitimately exist within the community).
200 See David Cole, Discretion and Discrimination Reconsidered: A Response to the New Criminal
Justice Scholarship, 87 GEO. L.J. 1059, 1062 (1999) (echoing the concern that in a diverse community
reliance on a political process may result in minority interests being ignored); see also Reenah L. Kim,
Legitimizing Community Consent to Local Policing: The Need for Democratically Negotiated Community
Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L. L. REV. 461, 487 (2001) (discussing the
impossibility of achieving a unified position on policing issues within a community); Charles L. Stearns,
Reviews of Professional Periodicals, 58 FED. PROB. 70, 71 (1994) (reviewing Randolph M. Grinc, “Angels
in Marble”: Problems in Stimulating Community Involvement in Crime and Delinquency, 40 CRIME &
DELINQ. 437 (1994)) (identifying intragroup conflict among community leaders and community residents
as one of several problems with the nature of community policing programs).
201 See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts,
Communities, and the New Policing, 97 COLUM. L. REV. 551, 656 (1997) (describing the tensions that
police face by enforcing subjective norms (e.g., loitering) in a community where norms differ).
37
attempt to use a community-oriented approach to improve their perception within a
community, but then apply these strategies under a rewards system that promotes
combative rather than problem-solving behaviors. Though community policing and
civilian oversight are contemporaneous innovations, each setting out to transform
police-community relations,202 these mechanisms have not been fully integrated with each
other.203 However, the weaknesses of community policing seem to match up with the
strengths of civilian oversight in a way that hints at promising synergies.
C. The Potential Role of Civilian Oversight in Community Policing
A strength of the civilian oversight processes is that they have the potential to
assess the public relation skills of individual officers, evaluating instances of
problem-solving that would not be visible to police supervisors. As indicated, the COP
model has many perceived flaws.204 CRBs, when used as a mechanism for facilitating
and testing feedback from the community regarding certain police action, have the
potential to improve upon these shortcomings.205 Because civilian oversight groups and
202 See David Alan Sklansky, Not Your Father’s Police Department: Making Sense of the New
Demographics of Law Enforcement, 96 J. CRIM. L. & CRIMINOLOGY 1209, 1210 (2006) (discussing and
attributing the transformation of American policing to the mantra of community policing, civilian oversight,
and the diversity of police workforces). See generally Michael A. Schuett et al., Making it Work: Keys to
Successful Collaboration in Natural Resource Management, 27 ENVTL. MGMT. 587 (2001) (discussing the
keys to successful collaboration in Natural Resource Management, which may be a model for blending
community policing and civilian oversight).
203 See Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for
Democratically Negotiated Community Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L.
L. REV. 461 (2001) (contending, under current practice, community policing and review boards operate as
mutually exclusive projects); cf. Eileen M. Luna, Law Enforcement Oversight in the American Indian
Community, 4 GEO. PUB. POLY REV. 149, 159 (1999) (describing the relationship and particular success of
civilian oversight in the Native American community with the concurrent formation of the tribal police
department and how that may work to create an effective working relationship between the two).
204 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1,
16 (2004) (explaining how the “us versus them” mentality is a problem because police have a difficult time
relating to people other than police); Alafair S. Burke, Unpacking New Policing: Confessions of a Former
Neighborhood District Attorney, 78 WASH. L. REV. 985, 1006–07 (2003) (noting participation within the
community is low because people do not trust the police and people are not informed of existing programs
to facilitate a working relationship).
205 See Eileen M. Luna, Law Enforcement Oversight in the American Indian Community, 4 GEO. PUB.
POLY REV. 149, 159 (1999) (noting that tribal oversight bodies in American Indian communities have
38
police departments share the common goal of enhancing the legitimacy and public
perception of community order, both entities would benefit from a process that combines
their strengths to combat their separate weaknesses.206
1. Increasing Community Involvement
As previously mentioned, one major weakness of the COP strategy is the lack of
cooperation from citizens within the community.207 Police departments can remedy this
problem by utilizing the insight and information provided by CRBs, which would, in
turn, lead to a stronger relationship with the citizenry.208
While many citizens have been apprehensive about attending meetings organized
by the police, the CRB is more likely to be perceived as safe because the community
organizes it.209 In fact, police departments that operate in conjunction with CRBs appear
to be much more likely to attract feedback from citizens.210 Furthermore, an independent
CRB will carry greater legitimacy in these highly police-targeted areas because those
enjoyed particular success because they were developed concurrently with and integrated into the tribal
police departments).
206 See Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for
Democratically Negotiated Community Representation on Civilian Advisory Councils, 36 HARV. C.R.-C.L.
L. REV. 461, 495 (2001) (claiming that public accountability through civilian oversight and community
policing creates a basis for police legitimacy in the community); David Alan Sklansky, Not Your Father’s
Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. CRIM. L. &
CRIMINOLOGY 1209, 1210 (2006); see also Kami Chavis Simmons, The Politics of Policing: Ensuring
Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. &
CRIMINOLOGY 489, 504 (2008) (“Underlying the trend to develop citizen review boards is the argument
that greater transparency increases the political accountability of police, thereby deterring police
misconduct.”).
207 See Charles L. Stearns, Reviews of Professional Periodicals, 58 FED. PROB. 70, 71 (1994) (reviewing
Randolph M. Grinc, “Angels in Marble”: Problems in Stimulating Community Involvement in Crime and
Delinquency, 40 CRIME & DELINQ. 437 (1994)) (“[W]hat is clear is that the apparent popularity of
community policing among residents is not sufficient to promise their active involvement in the process.”)..
208 See Debra Livingston, The Unfulfilled Promise of Citizen Review, 1 OHIO ST. J. CRIM. L. 653, 665
(2004) (stating CRBs could play a role in evaluating the police department’s COP strategy).
209 See Charles L. Stearns, Crime and Delinquency, FED. PROBATION, December 1994, at 70, 71; Debra
Livingston, The Unfulfilled Promise of Citizen Review, 1 OHIO ST. J. CRIM. L. 653, 657 (2004) (pointing
out that a clear benefit of civilian oversight is it is more accessible to the community).
210 See David Alan Sklansky, Is the Exclusionary Rule Obsolete?, 5 OHIO ST. J. CRIM. L. 567, 572-73
(2008) (citing a study that found twice as many citizen complaints per officer in police departments with
CRBs than in departments without such civilian oversight).
39
affected by police action perceive boards as a type of oversight, “watch-dog” group who
function independently from the police.211 Also, civilian oversight meetings offer those
directly affected by police action redress and the opportunity to be heard, using the
self-interest of citizens affected by police action to attract their participation.212
Therefore, an optimal way to motivate people who clash with the police to provide the
feedback that is crucial to the community policing strategy is through civilian oversight
processes.213
Police listen to community concerns as a primary form of direction, but the
problem in practice is that citizens who provide this feedback are not from crime-prone
communities that are the focus of COP initiatives.214 Police departments rely on
volunteers, identified leaders, or polls taken from the general public to attract feedback
from the community.215 This feedback, however, is not indicative of the society as a
whole, as volunteers are usually not members of the vulnerable segments within the
211 See David Alan Sklansky, Is the Exclusionary Rule Obsolete?, 5 OHIO ST. J. CRIM. L. 567, 573 (2008)
(reinforcing the idea that CRBs create legitimacy for the police due to their involvement in investigation of
police complaints); Hazel Glenn Beh, Municipal Liability for Failure to Investigate Citizen Complaints
Against the Police, 25 FORDHAM URB. L. J. 193, 220 (1997) (indicating transparency in the police force
builds confidence in the community to file complaints, and sustains a general satisfaction with police
actions); see also Debra Livingston, The Unfulfilled Promise of Citizen Review, 1 OHIO ST. J. CRIM. L. 653,
220 (2004) (concluding investigation of police misconduct may be more visible and legitimate with the
transparency of citizen review).
212 See Steven D. Seybold, Note, Somebody’s Watching Me: Civilian Oversight of Data-Collection
Technologies, 93 TEX. L. REV. 1030, 1048 (2015) (stating civilian oversight includes multiple mechanisms
that enable the system to properly operate and protect the citizens).
213 See Steven D. Seybold, Note, Somebody’s Watching Me: Civilian Oversight of Data-Collection
Technologies, 93 TEX. L. REV. 1030, 1048 (2015) (asserting that civilian oversight can strongly influence
local police departments in ways that are more in tune with local concerns of the people).
214 James Forman, Jr., Criminal Law: Community Policing and Youth as Assets, 95 J. CRIM. L. &
CRIMINOLOGY 1, 16–17 (2004–2005).
215 Josephine Unger, Note, Frisky Business: Adapting New York City Policing Practices to Ameliorate
Crime in Modern Day Chicago, 47 SUFFOLK U. L. REV. 659, 680 (2014).
40
community,216 leaders do not represent the viewpoints of the entire community,217 and the
individuals polled may not be interested in police policies. Many do not trust that
self-proclaimed community leaders or volunteers who attend beat meetings are providing
departments with valid feedback based on personal experience, especially when abstract
police policies are being discussed.218 A more accurate portrayal of important
police-community interactions could be produced by a continual stream of input from
actual interactions between law enforcement and crime-prone citizens through CRBs.219
Focusing on specific instances of police-community interaction will better organize
discussions around concrete behaviors and create the salience needed to bring both sides
to more fully understand each other.220 Through subpoena power, the CRB process may
be able to avoid apathy and resistance to ensure that both viewpoints are fully
216 See James Forman, Jr., Criminal Law: Community Policing and Youth as Assets, 95 J. CRIM. L. &
CRIMINOLOGY 1, 16–17 (2004–2005) (pointing out the highest participation rates regarding community
policing come from people with higher socio-economic status, homeowners, and married couples with
children); see also Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood
District Attorney, 78 WASH. L. REV. 985 (2003) (indicating homeowners and white residents
predominantly make up the groups relied on for community policing efforts).
217 See Josephine Unger, Note, Frisky Business: Adapting New York City Policing Practices to
Ameliorate Crime in Modern Day Chicago, 47 SUFFOLK U. L. REV. 659, 680 (2014) (discussing the
problem with choosing a community leader to accurately represent the needs of the community); see also
David Alan Sklansky, Book Note, 42 LAW & SOCY REV. 233 (2008) (reviewing WESLEY G. SKOGAN,
POLICE AND COMMUNITY IN CHICAGO: A TALE OF THREE CITIES (2006)) (arguing appointed panels of
community leaders who meet with police managers are ineffective).
218 See Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood District
Attorney, 78 WASH. L. REV. 985, 1006 (2003) (suggesting a small percentage of citizens are involved in
community policing programs, and of those that come to meeting only a few treat the meeting as anything
but a social function).
219 See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1,
16–17 (2004) (recognizing the disparities between race and socio-economic status in who participates with
the community policing programs).
220 See Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood District
Attorney, 78 WASH. L. REV. 985, 1009–10 (2003) (exploring the idea that an inner-city community might
choose a new policing policy because the community does not have the ability to actually influence city
governance as they see fit).
41
expressed.221 Many factors indicate that community feedback on police action created
through consistent civilian oversight will be more accurate than alternative sources.222
2. Influencing Police Behavior
Perhaps the greatest deficiency in the COP strategy, however, is a lack of tools to
evaluate community-friendly, problem-solving behavior in individual officers. When
police departments rely on arrest statistics—a performance evaluation tool that ultimately
drives job incentives rather than community outreach—to measure the effectiveness of
their officers, the departments promote aggressive behavior and ignore community
policing skills.223 To incentivize community-friendly policing, these departments could
utilize input from CRBs in promoting and disciplining officers.224 Not only would this
partnership cause officers to be more conscientious of their treatment of citizens, but also,
CRBs that identify exemplary police behavior could reward officers who believe in the
principles of the COP strategy.225 As a result, civilian oversight processes may provide
221 See Kevin King, Note, Effectively Implementing Civilian Oversight Boards to Ensure Police
Accountability and Strengthen Police-Community Relations, 12 HASTINGS RACE & POVERTY L.J. 91,
(2015) (pointing out for community oversight to work, the oversight organizations must attain power (such
as the ability to subpoena) to remedy civilian complaints).
222 See Kristen Chambers, Note, Citizen-Directed Police Reform: How Independent Investigations and
Compelled Officer Testimony Can Increase Accountability, 16 LEWIS & CLARK L. REV. 783, 794 (2012)
(reiterating that short-term reforms through oversight commissions have been unsuccessful at providing
long-term result’s to decrease citizen complaints against police officers).
223 See L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L.
115, 145 (2014) (focusing on the problems with law enforcement practices used today as methods of
measuring success).
224 See Mark Iris, Police Discipline in Chicago: Arbitration or Arbitrary?, 89 J. CRIM. L. &
CRIMINOLOGY 215, 218 (1998) (discussing the advantages of civil service regulations and their impact on
correcting and deterring an officer’s misconduct).
225 GEOFFREY P. ALPERT & MARK H. MOORE, COMMUNITY POLICING: CONTEMPORARY READINGS 227
(Geoffrey P. Alpert & Alex R. Piquero eds., 2d ed. 2000). “Activities that should receive more attention
include exemplary service to the community and the reduction or diffusion of violence. Those who provide
meritorious service may be recognized but often their actions are lost behind the brave shooting incident or
heroic rescue.” Id.
42
the missing, and much needed, evaluation tool for community-friendly behavior by
individual officers.226
Furthermore, the CRB process may also impact officer behavior through direct,
appropriately facilitated interactions with affected citizens.227 Currently, officers learn to
interact with the community only through abstract teaching and emotionally heated,
on-the-ground experiences.228 A forum that provides feedback from citizens directly
affected by police actions may offer powerfully salient lessons for officers interested in
honing their community policing skills.229 In order for this to occur, however, the
feedback should be facilitated in a non-adversarial manner so that citizens and police will
be able to fully express their perspectives in a manner that is best heard and understood
by the other side.230 CRBs may therefore impact police behavior by evaluating good and
bad officer performance and by facilitating communication between participants in
police-community interactions.231
226 See Samuel Walker & Carol Archbold, Mediating Citizen Complaints Against the Police: An
Exploratory Study, 2000 J. DISP. RESOL. 231, 232 (2000) (suggesting citizen review panels can lead to
more community-friendly behavior since its procedures are different than internal police procedures in that
they are not directed by sworn in officials, which could potentially lead to biased decisions).
227 See Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence of
Mediation as a New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 447–48 (2006) (providing an example
of an event where mediation between a police officer and two victims led the officer to apologize as well as
agree to attend a stress management course to address his behavior).
228 See generally Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence of
Mediation as a New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 461 (2006) (suggesting that conflicts
between individuals is what ultimately shapes every individual’s social interaction skills).
229 See Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence of
Mediation as a New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 462 (2006) (“At a deeper level,
mediation can provide the parties with a sense of empowerment and recognition, which will allow the
respective parties to better understand themselves and relate to one another through and within
conflict.’”).
230 See Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence of
Mediation as a New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 460 (2006) (discussing the objectives
and benefits of resorting to mediation as a non-adversarial alternative when there is a civil lawsuit against
an officer). “Instead of dismissing an aggrieved citizen's complaint outright, mediation seeks to provide a
constructive environment for citizens and the police to express their feelings, understand and appreciate the
other side’s perspective, seek an explanation, or any number of other possible solutions.” Id.
231 See generally Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence of
Mediation as a New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447 (2006) (discussing the need for CRBs
and the benefits of non-adversarial alternatives to resolve conflicts, such as mediation, in order to facilitate
43
The CRB has many redeeming qualities that seem to counter the deficiencies of
community policing.232 While community policing lacks the participation of citizens
most affected by crime and lacks an evaluation tool for measuring good community
policing skills in its officers, civilian oversight processes appear to offer a solution to
both.233 However, such an impact by the CRB will require substantive modifications to
the existing approach used to address police misconduct.
III. A New Vision for the Citizen Review Board
By acting as an external review of police internal affairs without the expertise or
the power to put officers on trial, CRBs often undermine their effectiveness in changing
police behavior.234 Meanwhile, as indicated above, the modern police department relies
on skewed information to evaluate the effectiveness of community policing and whether
or not individual officers exhibit the problem-solving skills necessary to ensure the
strategy’s success.235 However, review boards possess two important tools, independence
and their ability to gather people directly affected by problematic police-civilian
interactions, which make them the ideal channel of community feedback regarding COP
officer behaviors.236
communication).
232 See PETER FINN, CITIZEN REVIEW OF POLICE: APPROACHES AND IMPLEMENTATION, 8 (2001),
http://www.ncjrs.org/pdffiles1/nij/184430.pdf (listing the many key benefits of citizen oversight for police
evaluation). Contra Ryan P. Hatch, Note, Coming Together to Resolve Police Misconduct: The Emergence
of Mediation as a New Solution, 21 OHIO ST. J. ON DISP. RESOL. 447, 455—56 (2006) (discussing the
flaws and weaknesses that CRBs face and their inability to create reform).
233 See generally Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U.
PUB. L. REV. 151 (2003) (highlighting the benefits of a civilian oversight approach compared to
community policing).
234 See Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV.
151, 163 (2003) (arguing CRBs have been unsuccessful in creating reform because they lack expertise and
are restricted to reviewing already completed internal police investigations).
235 See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the
Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 489 (2008)
(stating current reforms exclude community members and police officers, which is inconsistent with
police-community partnerships).
236 See generally Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in
the Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489 (2008)
44
If the CRB served as an evaluation tool to assess police-community interactions,
the board could more effectively motivate community-friendly behavior by influencing
officers’ pay and promotional opportunities.237 Evaluating the soft, problem-solving skills
of individual officers, not only contributes to the community policy strategy, but would
aid the CRB in deterring police misconduct because community-friendly behavior would
be promoted while unnecessarily aggressive tactics would be chastised.238
Despite the inherent shortcomings of a punitive, retrospective approach, and the
particular weaknesses of civilian oversight investigations, there has been little discussion
of collaborative processes for CRBs.239 The above-drawn functional comparison of
civilian oversight and community policing identifies potential synergies between the two
groups that are supported by the general wisdom that lasting change requires
collaboration between community and police.240 Therefore, an approach to civilian
review that is compatible with community policing would present untapped potential in
promoting better police-community relations.
(discussing the importance of allowing those who are directly impacted to participate in developing policies
for police conduct); Kristen Chambers, Note, Citizen-Directed Police Reform: How Independent
Investigations and Compelled Officer Testimony Can Increase Accountability, 16 LEWIS & CLARK L. REV.
783, 797 (2012) (emphasizing the importance of independent oversight of the police by community
policing organizations in order to quell citizen complaints)..
237 See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the
Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 500 (2008)
(suggesting civil remedies would be more effective if they could hold police officers financially responsible
for their actions).
238 See generally GEOFFREY P. ALPERT & MARK H. MOORE, COMMUNITY POLICING: CONTEMPORARY
READINGS 227 (Geoffrey P. Alpert & Alex R. Piquero eds., 2d ed. 2000) (suggesting an institutional reward
system for police officers who do not engage in unnecessary aggressive behavior can deter other officers
from doing so).
239 Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal
Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 495 (2008).
240 See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the
Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 546 (2008)
(arguing collaboration between community members and police officials is essential in developing lasting
institutional reforms of law enforcement).
45
The new approach to civilian oversight produced by the above analysis has two
elements: First, CRBs should abandon the criminal trial model that focuses only on
instances of misconduct; and second, CRBs should evaluate both good and bad instances
of police-community interactions so police supervisors can identify both exemplary and
problematic officers.241 This approach will encourage individual officers and community
members to learn from each other, will serve as a necessary evaluation tool for
low-visibility problem-solving actions by police officers, and will allow the larger police
organization to better understand and react to community input.242
A. From Criminal Trial to Structured Discussion
1. Abandoning the Current Criminal Trial Model
Citizen oversight groups should abandon the adversarial, criminal trial model and
replace it with a structured discussion forum using mediation-based strategies to facilitate
communication.243 The overall focus would shift from citizens leveling accusatory
complaints at officers to citizens and officers discussing their perceptions, concerns, and
ideas that promote police-community contact.244 To weigh the value of this shift, the
below analysis contrasts CRBs and the current punitive, adversarial forums that they
241 See GEOFFREY P. ALPERT & MARK H. MOORE, COMMUNITY POLICING: CONTEMPORARY READINGS
227 (Geoffrey P. Alpert & Alex R.