Police unable to investigate their own
Last week, Oakland police chief LeRonne Armstrong was put on administrative leave after an independent report found “systemic deficiencies” in how the Oakland Police Department (OPD) handled two police misconduct allegations. The report, filed in the U.S. District Court in Northern California, concluded there was “a failure of leadership and a lack of commitment to hold members of the Oakland Police Department accountable for violations of its own rules.”
Given the department's success in recent years to meet court-mandated reforms stemming from federal oversight that's been in place since 2003, many were shocked by the report's findings.
As a former independent police auditor, I was not.
Police departments across the country typically have Internal Affairs Units — divisions created for the sole purpose of objectively investigating allegations of misconduct lodged against their own. That's mission impossible.
Why? Because officers have no incentive to hold their colleagues accountable. Rather, their incentive is to circle the wagons to protect their own.
From 2010 to 2015, I served as the independent police auditor for the city of San Jose. Appointed to that position by the mayor and city council, my job was to objectively review police misconduct investigations conducted by San Jose Police Department's Internal Affairs Unit and to propose policy recommendations to the city council.
During my tenure, there were numerous instances in which our office determined that the investigations and findings by that police department's Internal Affairs Unit were biased in favor of their own officers. For example, in 2012, when a complainant claimed that officers had no right to detain him when he was sitting in his car, parked in his carport, Internal Affairs exonerated the officers, finding that their explanation — that they smelled marijuana coming from the car — was credible. Our office disagreed, pointing out that the patrol car the officers were in was 25 feet from the complainant's car, making it highly unlikely that they smelled anything emanating from the car.
In the case of the incidents that triggered the investigation of OPD, the report found that a sergeant appeared to have committed a misdemeanor hit and run but that information was withheld from, rather than referred to, the District Attorney's office for investigation. Moreover, an OPD captain allegedly took it upon himself to direct Internal Affairs to falsify and minimize its findings so that the only consequence the sergeant faced was counseling.
Reports of instances of bogus internal affairs investigations are not limited to Oakland and San Jose's police departments. A 2020 Los Angeles Times review of California law enforcement agencies found that internal affairs units routinely whitewash complaints of racial bias and racial profiling. OPD, California Highway Patrol and the sheriff 's departments in San Bernardino and San Diego counties were among the more than 200 agencies that upheld none of the profiling complaints lodged against their officers. Nationwide, there have been reports of similarly biased internal investigations going as far back as the 1990s.
Then there's the problem of retaliation. A 2021 USA Today report found an unofficial system of retaliation in police departments large and small across the country, concluding that “Police leaders protect those accused of wrongdoing and then punish the officer who accused them.” So, even when officers want to do the right thing by reporting misconduct, they have good reason not to.
So, what is to be done at OPD? First, federal monitoring of the department should stay in place. When the dysfunction in OPD is systemic and ongoing, the last thing that the department and the community needs is for that oversight to end. Second, it is important to understand that this is not a case of “a few bad apples.” This is a case of a “bad orchard.” It is the culture of policing in OPD that is the problem. No amount of lecturing or counseling or tightening of the rules will change a culture that places the protection of its own over the protection of the public from bad actors.
The federal judicial monitor over OPD has the power to dismantle its Internal Affairs Unit and to replace it with an independent civilian oversight unit whose sole purpose is to investigate allegations of police misconduct and recommend discipline, should misconduct be found. That being said, Oakland's Mayor, City Council and Chief Armstrong could take the initiative to dismantle the Internal Affairs Unit themselves without waiting for a court order to do so.
When I was the Independent Police Auditor in San Jose, I recommended such an approach for their police department in response to the failure of its Internal Affairs Unit to objectively investigate their own. Despite opposition from the police union, with strong community support, the Mayor and the San Jose City Council appear to be moving in that direction.
The creation of an Independent Civilian Internal Affairs Unit would make the OPD a model for police departments throughout the country. If that doesn't happen, just look for more of the same.