Connecticut Activists Work to Establish Effective Police Civilian Complaint Review Board

Posted April 26, 2017

MP3 Excerpt of presentation by Dan Barrett, legal director of the American Civil Liberties Union of Connecticut, recorded and produced by Melinda Tuhus

police

A group of community activists met at a local church in New Haven, Connecticut on April 19 to continue a discussion of how to establish an effective civilian review board that has real power to reduce the incidence of police brutality and illegitimate arrests. Like many cities across the country there is rising concern in New Haven about police shootings and abuse of unarmed black men that spurred the organization of the Black Lives Matter movement from coast-to-coast.

Currently, there are three proposals being considered in New Haven – one from the Board of Alders, which makes the most limited changes to a former, discredited review board – and two from grassroots groups, one of which is more far-reaching than the other. That proposal, called the Community Executive and Review Board, or CERB, would create a board of elected community members who would review all complaints related to police conduct before they can be referred to the state’s attorney’s office, something that is not possible under existing state law.

Dan Barrett, the legal director of the American Civil Liberties Union of Connecticut, attended the church meeting to provide legal context and other insights that might help guide the activist’s work in establishing a community board to review complaints lodged against the city’s police. Barrett made clear the ACLU would not take a position in favor of any one proposal being considered by the city.

DAN BARRETT: I think civilian review boards are vital. It’s something that’s both depressing and uplifting at the same time. Depressing because across the country, we’ve never managed to get one that gets it right. And so it’s sort of this topic among civil libertarians – oh, it’s like the Loch Ness monster. But uplifting at the same time because, here’s a bunch of us in this room who all agree that it’s the way to go. And it’s one element; there are many, many elements we need to exert control over the police department. It’s one of them. It’s righteous. It’s a worthwhile activity even if it’s very difficult and it takes a long time.

On the question of the maybe legal hurdles you’re going to run into – and again, I enumerate these not because I want to pour water on what you’re doing – I think what you’re doing is groundbreaking and it can be a model. I mean, one of the reasons we’re interested in what’s happening in New Haven right now is because if a city in Connecticut gets a system that works and it produces justice and it changes facts on the ground, it can be a model – maybe not one for one. Maybe the conditions in New London are different; but it can be a way for us to turn around and tell, for example, police and prosecutors, yes, it does work and it’s working in one of Connecticut's biggest cities. So, I’m not trying to pour water on it. The things you’re going to run into … at least with respect to the CERB proposal; it sounds like there’s two sides of it. One is addressing police misconduct, as we know it today. Like internal affairs, complaints about how cops do their jobs. That’s one side of it. CERB sounds like it’s adding another side, which is interjecting a layer in the prosecution decision process. So, just talking about cop discipline and getting cops who behave poorly to change their ways, there are a few things to think about.

First of all, you definitely want subpoena power. If you don’t have subpoena power for people and documents, people and documents are not going to show up. That’s the way it works; they’re just going to ignore you. Attendant with that, you’re going to need counsel of some kind to enforce the subpoena. So when the subpoena is issued and the police ignore it, you need somebody who’s going to go to court and get the subpoena enforced. There is no universe in which that’s going to be the corporation counsel’s office; they are the city’s defense lawyers.

The other thing you want to think about is how the existing civil service system and especially the existing collective bargaining agreement (CBA) affects what you’re trying to do. Not only that, the collective bargaining agreement is a way in which – and I don’t blame them; I’d like this as an employee, too – it’s a way in which the police insulate themselves from oversight. They’re just like us – any other human being – they don’t want to be supervised. For example, your New Haven CBA specifies that before any disciplinary hearing, a police officer is guaranteed the right to review all the materials against him or her. It’s not going to be a surprise attack; they get to see everything ahead of time and they get a lawyer provided by the union, typically. All of that’s in place; you cannot modify that in the rear-view mirror, so you’d have to wait ‘til the existing collective bargaining agreement runs out and it would be the subject of negotiation in the future. Again, I’m not telling you you can’t do this. I’m just saying these are the kind of objections that are going to be raised. So that’s on the side of disciplining police officers.

The one element the CERB brings in that I never heard before and is very interesting is the idea of interposing a level of community control between the police and prosecutors for charging decisions. That has some significant state law hurdles. If the prosecutors are aware that in their view a law has been broken, they have the ability – and they would argue, the right – to go to court and get redress for it. Criminal law, if you go back, is an interesting collective concept, because in criminal law there is no one wronged party. The wronged party, allegedly, is all of us, society as a whole. And so each state makes a decision as to who or what it’s going to designate to act on our behalf in the criminal courts. They have the sole authority to bring criminal charges in court; what they say goes. That’s the state of the law now; you would have to change that in order for this strand of what CERB is saying – the prosecutorial arm of it – to make a difference. I’m not telling you couldn’t. I mean I think there’s a compelling case for what this proposal is coming up with, but it would involve a trip to Hartford and tangling with prosecutors who – I hardly need to tell this crowd – are really used to be the sole authority on criminal law; they’re very used to having their way. So it would be an interesting discussion but in that aspect, I think you’d have to change state law.

I think you would also have to provide, with that system, a fair amount of training because … prosecutors are supposed to review the charges that come in from the cops, and every crime can be broken down into what we call elements. So, for example, burglary is breaking into an occupied dwelling, at night, with the intent to commit a felony inside, so there are four elements to it. So, everyone who’s on the board who’s adjudicating and making these decisions should probably know the elements of each and every crime. I think what we don’t want is, for example, somebody gets robbed and the person who’s reviewing the case doesn’t know the elements of a robbery, and says no, it didn’t happen, and so the victim doesn’t get justice. There are two sides to it, even though the system is a system of oppression and injustice, it does occasionally have a use.

For more information, visit the Civil Liberties Union of Connecticut at acluct.org.

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