Police complaint procedure

Police complaint procedure

by Oct 16, 2014

We are seeing in the news increased reports of police abuse across the country. In Ferguson, Missouri, not only is an unarmed teen shot to death, but, in subsequent protests, we saw the substantial infringement of First Amendment rights by the entire police department. In Albuquerque, New Mexico, we saw police shoot dead an unarmed, mentally ill, homeless man. Here in Santa Rosa, where I practice criminal defense, a teen is shot dead for carrying a plastic rifle through a vacant lot. There are many, many other examples.

The fact that police abuse of power is in the headlines more frequently is, perhaps, a function of our increased connectivity. The ability to film and download incidents as they happen and the ability to transmit that footage to the entire world through social media sites allow us instant access to information from previously isolated regions. However, as any criminal defense attorney can tell you, stories about abuse of power are far from unusual. It can be seemingly innocuous, such as exaggerating the truth or fabricating probable cause to stop and search, or extreme examples, such as rape, drug sales, or murder. (see article regarding People v. Sergio Alvarez here). The result is the same: denial of our right to fair treatment by our government.

Aside from turning to social or conventional media, there is little a victim of police abuse can do other than to file a complaint with the offending officer’s department. The process is simple: you can fill out a complaint form provided by the department and file it. The department is obligated to initiate an internal affairs disciplinary investigation. If they find wrongdoing, you will be notified with a simple letter stating that the complaint is “sustained” and the officer will be disciplined in some way. If the complaint is not sustained, you will get a letter stating something to that effect and nothing more.

It is a fact that the vast majority of complaints are not sustained. Most of those who file complaints are also arrestees, thus their perspectives are rarely given any weight. The only sustained complaints are those with some sort of other evidence, such as video footage or truly independent witnesses, such as, on occasion, other officers.  Of those sustained complaints, even fewer officers lose their jobs as a result.  More often than not, they may take a few days off and they are put right back out on the streets.  The findings will remain in their secret personnel file, known only by the officer’s superiors and his counsel.

Obviously, there are some fairly persuasive reasons why one should not file a complaint. The offending officer will know who you are and will likely return to policing your streets, so there is the real fear of retaliation.  If the officer was willing to violate your rights before, it is possible he will be even more willing to do so after returning to work. Moreover, such complaints are investigated by other officers in their internal investigation department, rendering the whole process suspect. However, as a criminal defense lawyer, I find such complaints to be extremely helpful. A complaint may not help you in your particular matter, but it will be of significant help in holding officers accountable in later cases.

The key is the officer’s personnel file. If there are complaints regarding dishonesty and/or excessive use of force, whether or not they are sustained, I will be able to get them through the Pitchess Motion process, or a motion to disclose an officer’s personnel file. (check out Pitchess Motions here). You may have the opportunity to testify about your incident in someone else’s trial and help render the officer’s testimony useless.  When an officer’s testimony is useless, he becomes useless to the department.

Another possibility, albeit a rarer one, is the sheer accumulation of complaints against a particular officer might cause the department to dismiss the officer for fear of incurring liability through potential lawsuits. Or, the department may more closely investigate future complaints if an officer has an extensive history of them. Either way, complaints, taken as a whole, can be an extremely useful tool in holding officers accountable.

A final note about the complaint procedure: since you must give a personal statement regarding the incident to the department, it behooves you to wait until your criminal matter is resolved.  As any criminal defense attorney can tell you, your primary concern is to protect your right to remain silent while your criminal matter is pending. If you are considering filing a complaint, you should first discuss it with your attorney.  By law, generally speaking, you have one year from the incident to do it, so you will likely have plenty of time.  In my practice, I offer consultation and assistance in filing complaints.  And, in the right case, file a lawsuit against the city or county. If you are the victim of police abuse, contact me to discuss your options.