From the INDY archives: Durham Civilian Police Review Board

For more than 10 years, a little-known group of Durham volunteers has been monitoring the city’s police department, fielding citizen complaints about excessive force and other alleged misconduct. But an examination of Durham’s Civilian Police Review Board shows a disheartening reality: The board itself holds little power. It can’t hear complaints unless the police department has vetted them first. It can’t initiate its own investigations. It can’t force the department to change its policies. The board can only trust that when it finds abuses, city and police leaders will listen.

In a decade-long quest to help build the public’s trust in police, the board has received a mere 27 complaintsappeals from citizens dissatisfied with original police findings. Yet, despite this small number, Durham’s Civilian Police Review Board has found repeatedly that documents accusing police of mistreatment or excessive force have been misplaced, forgotten or only partially investigated.

And when the board has voiced its concerns and recommendations on police procedure and conduct, police officials have failed to formally respond or show evidence of improvement. As a result, board members have seen scant proof that their scrupulous work actually improved deficiencies in the department’s complaint investigations.

“I think everyone on the board genuinely believes we’re trying to improve life in Durham,” said Ethan Hertz, who has served on the board since 2001. “Part of that is certainly to make sure any recommendations are taken seriously. Otherwise, why would we bother? But we don’t always know. As far as our mandate goes, we think we have done a complete job. Has the city always appropriately closed the loop? … The answer is no.”

Given the number of scandals in recent years that have besmirched the city and its police department, neither institution can afford to be seen as failing to investigate claims of misconduct. Every accusation only deepens the negative impression many residents hold of Durham police. In 2006, investigators lodged false rape charges against members of the Duke lacrosse team; last year, two officers allegedly forced a woman to perform sex acts on them to stay out of jail. Just last month, two veterans of the police department, including Deputy Chief Beverly “B.J.” Council, were forced out after false claims of overtime bilked the department out of more than $60,000.

An effective, transparent civilian police review board can mitigate widespread suspicion of police, said Philip Eure, president of the National Association for Citizen Oversight of Law Enforcement (NACOLE). When the public doubts how thoroughly police are investigating their own officers, a board can restore confidence in the process. It can help protect citizens’ constitutional rights and assure that everyone has an avenue for redress, particularly those who can’t afford to sue police. And, most important, an attentive board ensures that the powerful figures charged with protecting citizens aren’t harming them.

But review boards are limited by their own bylaws, and, like Durham’s board, most are staffed by volunteers. To boost their clout, many boards engage politicians, the public and the mediaentities that can pressure police to change policy, Eure said. But in Durham, even after the board has identifiedin writingthat investigators have mishandled or forgotten some citizen complaints, problems persist.

This fall, City Manager Tom Bonfield vowed to improve the process. Though the board’s bylaws don’t require that police formally offer feedback to its recommendations, Bonfield has said his office will now respond in writing and involve the police department and its chief, when necessary. He said he was surprised to hear the board’s qualms that it lacked feedback on its findings. “If the board took an action or adopted a resolution, then clearly that’s something that we absolutely need to know about and have a responsibility to respond to,” Bonfield said.

It would help if the board had copies of the recommendations it has made over the past 10 years. It has addressed issues such as lost complaints and policies on how thoroughly plain-clothes officers need to identify themselves.

But the board’s record-keeping has been shoddy. Though tasked with keeping copies of all recommendations the board has made on police policy, the city clerk to the board was unable to produce them. They were not kept in the minutes. Upon a reporter’s request, Hertz located a couple of the recommendation letters from a personal file at his home.

“I apologize for not having a complete public record,” Hertz said when notified of the gaps. “I don’t think anyone on the board is trying to hide anything.”

The filing problems are almost as troublesome as the ones the board itself has highlighted at the police department.

In 2006, Durham police lost an 18-page complaint filed by a woman named Merle Carr, who said police roughed her up while searching a neighbor’s house for drugs. Only after a newspaper reported that police had not responded to the complaint more than a year after Carr had filed it did police locate it and complete the investigation.

And in 2005, Jonathan Rivers accused police of breaking his hand and stealing money from him when he was arrested. The board found that police never fully investigated his claims.

In the winter of 2008, Kimberly “Reneé” Turman filed a complaint after she was pulled over on Interstate 85. But shortly after she filed her grievance, police misplaced her file, and the complaint wasn’t resolved for six months.

Turman said she police arbitrarily pulled her over at 2 a.m. on Feb. 19, 2008, while she driving from her home in Washington, D.C., to visit a friend in Charlotte. The officer told Turman she had changed lanes erratically, which was unsafe and suspicious. Turman told him she didn’t change lanes. When she asked for the officer’s supervisor, he became angry”red in the face”she said. Turman’s teenage daughter and two other young children were sleeping in the car and were awakened when the officer pulled Turman from the driver’s seat, handcuffed her and put her in the back of his police car.

While police were taking Turman to the squad car, she told her teenage daughter to call 911. The officer also talked to the 911 dispatcher and said Turman was being “irrational.” When the officer’s supervisor arrived and sided with the officer, Turman vowed to lodge a formal complaint: that the officer was rude, handcuffed her unnecessarily and that she had been pulled over by two white officers because she was black, not because of suspicious driving.

Turman filed a complaint later the same day, but after weeks with no response, she climbed the chain of command by phone. Five months later, she reached Police Chief José Lopez, who called investigators and learned about the lost file. Lopez reassigned the case to a supervisor and urged him to complete it quickly. Lopez said the delay was unintentional. “We are human beings,” he said. “It wasn’t a procedural error, it was a filing error. If we filed a flawless system, I would trademark it.”

After Lopez told Turman her complaint had been misplaced, she also learned that only the two white officers at the scene had been interviewed. Two black officers who later arrived at the scene hadn’t been interviewed.

Once the probe was completed, an internal affairs investigator said there was insufficient evidence to determine whether the officer who handcuffed and yelled at Turman acted inappropriately. Turman appealed the investigator’s findings to the review board. The board ruled last December that the police department abused its discretion by delaying a resolution in Turman’s case for six months. When Lopez learned of the board’s findings, he called board chairman Hertz and asked the board to reconsider. Abuse implies the department intentionally lost the file, Lopez said. But Hertz maintained the board’s decision.

“When we find abuse of discretion, we are finding that somebody did something wrong,” Hertz said. “Whether through negligence or willful action or inaction.”

Trying to hold the police accountable, Turman said, made her feel like a “peon” up against a badge. “You would give up dealing with these people. That’s why citizens feel the way they feel.”

The helplessness and suspicion that Turman felt as one woman trying to take on an institution is precisely what civilian review boards can improve. In fact, that’s why, in 1998, the city created the nine-member board. Then-City Manager Lamont Ewell wanted to restore public confidence after the city settled out of court for nearly $300,000 with Reta Scarlett and Margaret Dukes, two sisters who say police wrongfully searched them and roughed them up.

Several 1997 articles published in The News & Observer report that Dukes and Scarlett complained after a Jan. 7, 1994 incident, when police went to Shirley Street to investigate allegations of drug dealing and gunfire. Police say that Dukes and Scarlett walked from behind a house, looked at the officers and then quickly walked away.

Then, the women said, the four officers forced them to the ground, wrongfully searched them and twisted Scarlett’s arm.

According to the news reports, a police captain who supervised an investigation into the officers’ conduct overruled internal departmental findings that would have implicated one of the officers for excessive force. The apparent cover-up seemed to prove to doubtful citizens that police couldn’t be trusted to investigate their own conduct. So Ewell, who had worked with a civilian review board, established Durham’s panel to scrutinize internal police investigations.

Reactions to the board were mixed, but the N.C. Police Benevolent Association supported the idea, said Andy Miller, a former Durham police officer and former president of the NCPBA.

“We think that it brings an air of transparency that you often don’t get within the normal channels of the city,” said Miller, now president of the N.C. Sheriff Police Alliance, which also favors civilian review boards.

Among the more than 100 boards and police review committees in some of the country’s largest cities, such as New York and Washington, D.C., the scope of their power varies widely. While some boards look only at police policies, not individual complaints, others have full investigative powers and can arrive at their own conclusions. Durham’s board falls somewhere in the middle.

All citizen complaints must first be filed with the police or city’s human relations commission and then investigated by the police department. A citizen may appeal to the review board only after the police have completed an internal investigation. The board, composed of students, professionals and retirees, reviews police investigative materials, such as interview transcripts and witness lists. The board can’t make changes, but it may ask the police department to reopen a case if it feels a case was clearly unfair. But that has never happened, Hertz said.

“There’s certainly a general belief on the behalf of many people that, since the Durham Police Department is investigating its own members, there’s a potential for bias there,” he said. “We take great pains … to look at both sides very fairly and not jump to the conclusion that either the citizen or the police officer is in the right.”

But to the disappointment of its members, Durham’s board has few opportunities to examine cases. Few citizens have sought its help, and the lack of interest has concerned board members for a decade. In its first 18 months, the board received only five cases and held no hearings to investigate them. Since then, the pace has slowed even further. Since 2004, the board has received just five appeals. Most of the time, its duties have been to meet quarterly to handle minor business items. Yet, during those same five years, the police department has logged 252 citizen complaints of alleged misconduct, most related to use of force and harassment. Police found that in roughly two-thirds of the allegations there wasn’t enough evidence to prove or disprove the complaint, or the allegation was false or unfounded.

The low number of citizen complaints could be interpreted several ways, said Eure of NACOLE. “Often it comes down to that people just don’t know it exists, either because the review entity itself doesn’t do an effective job of outreach, or it could be a problem with the police department not adequately publicizing it,” he said.

The board has long been concerned with its lack of publicity. Meeting minutes from the past 10 years show that members sought a more prominent presence on city and police Web sites. The board is currently listed on the city manager’s Web page and on a page on the police department’s Web site, but no current information or complaint forms are available there. Information about the board is in one key placeand it’s not public: It is included with letters complainants receive when the police department finishes its investigation. Citizens have 14 days to appeal.

The board’s incoming chairman, David Harris, said he’s unsure whether publicity is to blame for the lack of cases. Maybe, overall, the public is more satisfied with the way the police department investigated its complaints, he and others have said.

In Greensboro, a volunteer police review panel received about 15 complaints annually, until this year, when it increased public outreach, and the number of complaints doubled, said Yamile Nazar Walker, the city’s liaison to the police review committee. The committee’s five volunteers regularly speak to groups such the NAACP.

In Greensboro, citizens can file a police complaint directly with the Complaint Review Committee, Walker said, instead of having to go to the police department. Filing a complaint with a review committee member could be less intimidating than interacting with police, Walker said.

In addition, Greensboro’s board recently expanded its powers to allow itself to initiate its own complaints, Walker said. This is not something the Durham board can do. Hertz said he doubts the volunteer board would have the time or resources to do so.

Other cities have undertaken the power to initiate and investigate complaints but have done so by creating funded, professional, full-time staffs, said Eure, an attorney who serves as the director for one such agency in Washington, D.C. That city’s Office of Police Complaints was established eight years ago and has more than 15 staffers. It’s an effective model, he said, but few cities can spend the money to operate such a task force.

Although Durham’s board has nowhere near the resources as those in larger cities, it did begin with more power than it has now. For a short time, in 1999, people who sued police could also appeal to the board for its opinion. But in 2000, the board changed its bylaws, to much criticism from the public and agencies such as the NAACP. The change excluded the case of a woman who sought the board’s help after she said police manhandled her elderly and deaf aunt.

According to a report in The News & Observer, the woman, Shirley Smith, said her aunt, Catherine Capps, was injured when police rushed into the 73-year-old’s home and forced her and a friend to the floor while investigating the home for drugs that were reportedly being sold from the home. Capps died a few months later.

Though Smith wasn’t suing the city, the elderly man in the home, James Cates, asked the city for a monetary settlement. According to news reports, the board said that Cates’ civil lawsuit prevented Smith’s complaint from being heard. At the time, board members told reporters that considering cases associated with pending lawsuits could interfere with the city’s interest and potentially give plaintiffs ammunition in court.

At the time, Smith’s lawyer, Alex Charns, criticized the board changing the rules. Today, he still asserts the police review board should examine cases in which lawsuits have been filed. Those often are the most serious allegations, he said, from which much could be learned.

“If they would look at it, we might avoid the problem in the future,” said Charns, a Durham attorney of nearly 30 years who has represented both citizens and police officers in brutality-related cases. “Litigation can sometimes lead to change, but most of the time it just leads to loads of money being spent.”

Records show that in forming the board, the city manager tried to reduce the number of civil lawsuits. If the public could air some of its complaints against the police department, it could shield the city from some expenses related to legal costs and settlements, such as in the case of sisters Scarlett and Dukes.

Whether the review board actually has reduced the number of lawsuits filed against the city is debatable. In the past nine years, 22 lawsuits have been filed against the city regarding the police department, said Senior Assistant City Attorney Kimberly Grantham. All but two of the cases involved complaints about police working with the public. Grantham noted that no lawsuits were filed in the last fiscal year and that the last lawsuit related to police brutality was filed in the fall of 2007.

If Turman had her way, hers would be the next lawsuit against the Durham police. She wasn’t injured, she said, but she and her children are emotionally shaken.

“My kids are still dreaming about it,” she said. She called the officer a liability to the city and the police department, and wants him to attend anger-management training. However, complaints don’t disappear after police investigate them, Chief Lopez said. They stay on file, in case other incidents arise and point to a pattern, he said. Lopez also said he has mandated that all complaint investigations be completed within 30 days.

A timely response is a reasonable expectation, Bonfield said. There is no excusewhether it’s a lack of manpower or a heavy workloadfor a delay.

“There always is the opportunity for some extenuating circumstance that an investigation will take a longer period of time, because of not being able to contact witnesses or complications of an investigation,” he said. “But simply because somebody lost the paperwork, that’s not acceptable.”

Speaking on behalf of the board, Hertz told Bonfield he wondered if it might be time to expand the panel’s functions or authority. Bonfield has said he’s open to changes the board might soon seek. But with a new chairman and two new members, it’s unclear what changes the group might pursue.

In its current form, the board may serve only to magnify problems within the police department, but cannot change them for the better without the buy-in of the city manager and police leaders. Without accountability and action from the city, the board is a mere spectator, its members peering through a window through which they cannot reach.