By Karen Hopkins
In 1999, a Washington Post investigative series entitled “Deadly Force” revealed that the Metropolitan Police Department (MPD) in the District of Columbia had “shot and killed more people per resident in the 1990s than any other large American city police force.” 1 The Post found that in some cases the police investigated themselves and failed to conduct a thorough investigation of shooting incidents. Media attention prompted police leadership to submit an unprecedented request that the Department of Justice (DOJ) conduct a “pattern or practice” investigation.
DOJ’s investigation did in fact reveal a pattern or practice of the use of excessive force by MPD officers. DOJ subsequently monitored the MPD from 2002 to 2008. Since 2008 however, there has been decreased oversight of the MPD. In March 2015, shortly after protests erupted in Baltimore fol – lowing the death of Freddie Gray, the District of Columbia Auditor ordered a review of MPD’s use-of-force policies to determine whether MPD remains in compliance with DOJ’s recommendations. 2 While the audit will review MPD policies for compliance, this article examines whether the MPD has maintained its commitment to reform or has slid back into old habits. This article uses available data to analyze whether the MPD exhibits a pattern or practice of police misconduct sufficient for another DOJ investigation and further reforms to MPD policy and practice.
The first section details the problems MPD faced in the 1990s as identified by the Washington Post investigation and a Human Rights Watch (HRW) report on police brutality. The second section summarizes the DOJ’s investigation and MPD compliance with a Memorandum of Agreement (MOA) between 2002 and 2008. The third section relies on self-reported data from the MPD and the Office of Police Complaints (OPC), as well as external data from the FBI and other sources, to show that practices observed during the post-DOJ oversight era from 2009 to 2014 repeat the patterns from the 1990s. The final section argues that the warning signs of problems persist today along with new challenges and opportunities for reform. This article suggests that these warrant a thorough examination and transformation of present MPD practices relating to transparency and accountability, as steps toward a more just policing system.
MPD Use of excessive force in the 1990s
By the mid-1990s it became apparent that the District of Columbia MPD civilian oversight system was not properly functioning. Activists and leadership both from within the MPD and outside it made attempts to create more effective civilian oversight during the ’90s, but problems persisted. The Washington Post “Deadly Force” series highlighted mounting concerns over MPD abuses, focusing on factors that contributed to its alarming use of deadly force. The Human Rights Watch multi-city report targeted the roots of the MPD’s police brutality as a system-wide lack of transparency and accountability.
Washington Post investigation: “Deadly Force”
Washington Post investigative reporters were awarded a Pulitzer Prize in 1999 for their “Deadly Force” series of articles. The series revealed that MPD officers fired their weapons more than twice as often as other major metropolitan area police departments. 3 Eighty-five people were shot and killed by DC police between 1990 and 1998. 4 The Post series discussed six deficiencies including incomplete reporting and tracking of police use of force, failure to properly train new and continuing officers, off-duty shootings and shooting at cars, failure to discipline officers guilty of misconduct, ineffective complaint investigations, and costly litigation. 5
Incomplete reporting and tracking hinders accountability for officers. The 1998 Washington Post investigation found that shooting incidents were under-reported or misreported by 33 percent. 6 Investigative reporters at the Post found seven fatal shootings were missing from police shooting trend records from 1994 to1997, and seven other fatal shootings were mislabeled as nonfatal. 7 Poor and incomplete background checks of officers during the hiring period from 1989 to 1990 were cited as potential reasons for their increased use of force. 8
Criminologists and police officials agree that training and supervision are often underlying factors impacting the likelihood of police use of excessive force, particularly for shootings. 9 Failure to train officers on proper use of force and use of firearms puts officers and citizens at risk. As of March 1998, approximately half of DC police “had not been certified on their firearms, as required by department regulations.” 10 Experts consider a twice yearly retrain – ing a bare minimum for firearm competence. 11 Department regulations require firearms training every six months, in line with expert recommendations. However, the requirement is not strictly enforced. The Post investigation found that “75 percent of all D.C. officers involved in shootings during 1996 failed to comply with the retraining regulation.” 12 A high demand for street duty and poor management contributed to the training deficiencies, as well as lead contamination at the shooting range, which shut it down in the early 1990s. 13
Geoffrey Alpert, a criminologist at the University of South Carolina and an expert on police violence, used data to compare lethal police shootings 131 involving vehicles in Miami and Washington D.C. 14 Generally, police are instructed to resist shooting at cars due to the increased risk of harming passengers in the vehicle as well as bystanders in the vicinity. Miami had double the population of Washington, with approximately the same size police force and more crime. Yet the MPD had a disproportionately larger number of off- duty police shootings and shootings at cars. 15 MPD officers fatally shot nine people in cars during a five-year period, compared with Miami’s four in ten years. MPD officers also “fired three times as many bullets per car shooting.” 16 Off-duty shootings can be problematic because citizens may not realize they are interacting with a police officer and officers are more likely to feel vulnerable without backup. 17
According to MPD regulations, every gunshot fired by an officer undergoes a rigorous, multilayered review. The Post found however that during the 1990s, the police shooting investigation process was ineffective. 18 In some cases, “Bullet wounds were undercounted. Witness statements disappeared. Basic forensic tests were not conducted. Officers were allowed to shift their accounts or submit vague statements. And investigations of fatal shootings sometimes were conducted by direct supervisors instead of an independent unit.” 19 Essentially, the police were allowed to investigate themselves, and in many cases failed to investigate thoroughly. The MPD review of shootings ruled nine of every ten shootings justified during hearings closed to the public.
In the mid-1990s, police investigators found three shootings to be unjustified. 20 Citizen complaints do not necessarily indicate an officer was in the wrong. However, even officers with multiple complaints and lawsuits faced little discipline from the MPD during the 1990s. Of the 422 police shootings reviewed, 87 percent were declared justified between 1994 and 1997. 21 Only two of the shootings led to criminal charges against officers. 22 Former deputy chief Claude Beheler explained that, “Disciplinary systems are often referred to as “the Bermuda Triangle,” where investigations into officer misconduct languish and even vanish.” 23 Individuals did not specifically protect officers; rather it was the system that protected them.
The city had a public interest in police misconduct cases because litigation cost the city millions of dollars each year. Over 750 civil lawsuits were filed between 1990 and 1998. 24 More than seventy of those lawsuits were related to police shootings. 25
As a result of the Post series, the MPD began implementing non-lethal-force technologies, such as pepper spray. The implementation of these strategies was credited with a 78 percent drop in death or injuries resulting from shootings in just two years. 26 The number of deaths dropped drastically from twelve to one, and the number of times officers fired their weapons declined by 48 percent. 27 Media coverage from the Deadly Force series raised awareness and public pressure on leaders, serving as a catalyst for several MPD reforms addressing use of excessive police force in D.C.
HRW Report “Shielded from Justice”
Human Rights Watch (HRW) published a report in 1998 entitled “Shielded from Justice: Police Brutality and Accountability in the United States.” The report surveyed police brutality in ten major U.S. cities and recommended policy changes to improve transparency, accountability, investigation and civilian review. 28 One of the cities cited in the HRW report was Washington, D.C.
HRW’s requests for information from the MPD and the District government sent in 1996 remained unanswered for two years. One explanation for the lack of public access to information was simply that information was not collected or tracked. For example, data and statistics were not publicly available “regarding prosecution efforts against police officers, reasons for prosecutorial decisions, or prosecutorial success rates in these cases.” 29 HRW observed that district attorney’s offices generally did not track or maintain data related to police officers who were prosecuted. Without this data, HRW warned, it was impossible to know whether local cases were being handled appropriately or if federal prosecutors should have conducted their own investigations. 30 Similarly, many citizen review boards did not track civil lawsuits, settlements, or the costs of abuse for cities. 31 High profile cases, on the other hand, led to increased public scrutiny.
According to a 1999 Amnesty International report, the DOJ “filed criminal charges against 74 officers for excessive force in 1998, a 12-year high.” 32 Prosecutors rarely pursue cases of police abuse because of the high legal threshold required to prevail. Prosecutors must prove an officer had specific intent to deprive a citizen of his or her civil rights. The scarcity of resources devoted to these types of cases may also be an indicator that prosecutions of law enforcement officers for civil rights violations are a low priority. According to HRW, twenty-nine D.C. officers were prosecuted “for assaultive behavior” between 1990 and 1998. 33 Civil lawsuits typically held a city financially responsible rather than the officer. The HRW report added the additional dimension of race, which was over – looked in the Post articles. The report identified problems specific to D.C., which included cultural and linguistic barriers to interactions with the Latino population and inadequate firearms training. 34 D.C.’s Latino task force ob – served “a real or perceived pattern of widespread, endemic racism and physical and verbal abuse by the MPD against the Latino community, particularly in the Third District, which had the highest concentration of Latino residents.” 35
The HRW report recommended that police departments adhere to international human rights treaties ratified by the U.S., standards for police such as the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. 36 HRW also called for proportionality in the amount 133 of force used when required, the adoption of reporting requirements when force or firearms were used, and for governments to ensure that “arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under the law.” 37
DOJ Oversight and Monitoring: 2002–2008
According to 42 U.S.C.S. § 1983, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen . . . deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity.” 38 The DOJ’s Civil Rights Division Special Litigation Section is responsible for suing police departments that violate constitutional rights as a “pattern or practice.” 39 They receive thousands of complaints annually, but prosecute only a handful. Spurred in part by the Post media coverage and the HRW report, the DOJ initiated an investigation into the MPD complaints process.
The Special Litigation Section of the Civil Rights Division of the Justice Department is responsible for prosecuting cases of police abuse. 40 In the early 2000s, MPD Chief Charles Ramsey requested that the DOJ conduct an investigation of the MPD. 41 The DOJ Civil Rights Division’s investigation of MPD’s use of force revealed “a pattern or practice of use of excessive force by MPD” and it recommended policy improvements. 42 It identified deficiencies in critical MPD policies including use-of-force reporting, investigation, training, establishment of an early warning tracking system, and complaint system reforms. 43 A MOA between the DOJ, the Mayor, and the MPD outlined a course of action regarding deficiencies identified by the investigation.
From 2001 to 2008, between 811 and 976 incidents were reported involving use of force by MPD officers. 44 During the monitoring period, the MPD reported 29 fatal police shootings. 45 According to experts, police use of force should be limited to about 1 to 2 percent of all incidents in police departments. 46 Approximately 15 percent of use-of-force incidents involved use of excessive force by MPD officers. 47 The DOJ’s investigation found that MPD policy does not explicitly mandate officers to report the use of all physical force, which meant use-of-force incidents were likely to be under-reported.
The DOJ found that the MPD’s complaint system was ill equipped to conduct thorough, fair, and timely investigations or promote accountability. In some cases, the MPD investigators failed to record the location of physical evidence, perform ballistics comparisons, photograph the scene, or interview witnesses. 48 Despite the number of shootings and use-of-force incidents reported in the media, complaints related to fatal shootings were rare. One reason for this may have been that the complaint process discouraged individuals from filing complaints. The policy required employees to ask individuals to appear in person at MPD in order to file the complaint, which had a deterrent effect. The Office of Police Complaints (OPC) records for use-of-force hearing outcomes do not include deadly force or shooting cases, perhaps because these cases are settled through civil suits or investigated by the Internal Affairs Bureau (IAB). 49 Police departments and citizen review units, as a rule, will not initiate an investigation into alleged police brutality without a formal complaint.
The MPD provided use-of-force training in an uncoordinated manner with insufficient oversight by policy makers or legal staff. 50 Use-of-force training was often in conflict with applicable law and MPD policy. For example, the MPD failed to review training needs after unintentional shootings.
At the time of the DOJ investigation, the MPD did not have a comprehensive risk management process such as an Early Warning Tracking System (EWTS) designed to identify and track officers previously engaged in excessive force or with multiple complaints of misconduct. In 2002, the EWTS database did not capture use-of-force, and only retained data for two years. The MPD unit responsible for the system was understaffed, with only one officer responsible for maintaining the entire database, tracking complaints, reviewing the quality of complaint investigations and conducting financial audits.
In many cases where the MPD ruled use of force “unjustified,” or a citizen complaint of excessive force was “sustained,” the DOJ did not receive evidence that the MPD issued a corresponding disciplinary action for the officer. Only two officers were prosecuted for excessive force during the monitoring period in 2007. 51
In 2005 and 2006, the MPD refused to take disciplinary action against officers in a significant majority of OPC cases where “officers had not cooperated with OPC’s investigation or mediation of police misconduct complaints.” 52 In response, the OPC aggressively publicized the failure to discipline as required by law via the MPD management and D.C. Council. The OPC warned the failure “hindered OPC’s ability to gather the facts in its investigations, jeopardized the agency’s independence, and had the effect of encouraging further non-cooperation by officers.” 53 In April 2007, MPD Chief Cathy Lanier issued directives instructing employees to cooperate fully with the OPC and that officers who did not cooperate would be disciplined. Within a month of the directive “the number of instances of non-cooperation fell dramatically and discipline has been imposed regularly.” 54
Overall, the DOJ investigation concluded that the MPD training, complaint, investigation, and disciplinary processes were inadequate and inefficient. To correct these policy deficiencies, the DOJ recommended that the MPD: (1) expand the definition of the “use of force” to include all physical force and use of an instrument on a civilian; require officers to report every use of force; create a reporting form that tracks the type of force, the particular circumstances, injuries, etc.; train officers on policies; and monitor compliance with policies; (2) ensure the complaint system clearly delineated the respective roles of the OCCR and the MPD; conduct community outreach regarding complaints, track complaints in a database, and improve the investigation of complaints; (3) collect and track all data related to officer use of force, litigation pertaining to excessive force, and the results of all investigations; (4) revise and update disciplinary policies with regard to adequate and timely discipline for excessive force cases; and establish a centralized system for documenting and tracking all disciplinary actions; (5) require that investigations for all serious use of force be conducted by the MPD’s Force Investigation Team; that the MPD provide all use of force investigators with proper training investigation techniques, basic forensics, disciplinary and administrative procedures; supervisory reviews should assess whether the use of force was reasonable; whether misconduct occurred; and any need for additional training; and (6) reform its training program by increasing the quantity and quality of use of force training; enhance its written and applied firearm training; and ensure shooting investigations include a firearm safety perspective. 55
By 2007, the MPD had achieved substantial compliance with 61 percent of the provisions listed in the MOA. 56 This is an average of about 10 percent progress per year. In 2008 the MPD was able to bring compliance levels up to 80 percent, 57 an increase of 20 percent in just three months, at which point the DOJ agreed to release the MPD from monitoring. 58 Such a quick turnaround occurred in conjunction with a new police chief, Cathy Lanier, being appointed. There was hope that new leadership would summon renewed commitment to reform, but without adequate follow-up about the changes made during the course of those three months it would be difficult to assess whether the reforms were real or merely cosmetic.
Four broad provisions of the MOA were not implemented as of the June 2008 final report. These included community outreach, revising the complaint process, documenting complaint and disciplinary action, and field training related to use of force. 59 First, paragraph 91 of the MOA required the MPD to conduct quarterly community outreach programs in each district to inform citizens of the complaint process and to receive complaints. 60 In Fiscal Year 2013, the OPC continued this outreach work, conducting or participating in twenty-six outreach events, including at least one in each of the District’s eight wards. 61 Second, paragraph 94 of the MOA required the MPD’s Office of Professional Responsibility (OPR) to receive and record all citizen complaints filed with the MPD within twenty-four hours. 62 Third, paragraphs 107–117 of the MOA related to the database documentation of use of force incident com – plaints, investigation results, disciplinary actions and adjudication. 63 Fourth, paragraph 121 of the MOA required oversight of the Field Training program including curriculum, trainers, evaluation, and needs assessments related to use of force. 64 These components of the MOA, left unresolved despite six years of “deadly force” revisited oversight, were arguably the underlying cause of the MPD’s problems. Fol – lowing the final report, the MPD was required to submit bi-monthly progress reports for these specific MOA provisions. 65 Despite reforms, many of the issues identified by the Post , HRW and the DOJ investigations have resurfaced since 2008. Some previously instituted reforms have relaxed enforcement, and some were never implemented. If the MPD fails to implement the DOJ recommendations, the DOJ’s Civil Rights Division lacks the authority to file a civil lawsuit against the police department. 65
However, community organizations or individuals are able to supply evidence necessary to initiate a DOJ investigation by monitoring and reporting incidents to the Civil Rights Division’s Special Litigation Section. 66 Current facts demand such an investigation begin immediately.
Hybrid complaint system: 2001–present
At the time of the DOJ investigation and up to the present, the MPD has had a dual complaint process whereby citizens can submit police misconduct complaints directly to the MPD or to the OPC. In 2001 the Office of Citizen Complaint Review (OCCR) with its governing Citizen Complaint Review Board (CCRB) and were inaugurated as an independent agency in charge of reviewing and resolving police misconduct complaints. 67 The CCRB consisted of five volunteer members, including a member of the MPD, and four private citizens with no current affiliation with law enforcement agencies. 68 Board members were appointed by the mayor with the approval of the D.C. Council and served staggered three-year terms. 69 In 2001, an OCCR staff of fourteen, including two senior investigators and five line investigators had the daunting task of addressing a backlog of hundreds of complaints left over from the previous CCRB. 70 The statute creating the CCRB and OCCR followed a hybrid model for citizen oversight in that the office was independent and could make policy recommendations to the MPD. 71 However, the OCCR was still dependent on MPD cooperation for access to evidence and officer interviews. 72
Currently, complaints submitted to the MPD are investigated by the IAB. The IAB has the authority to investigate any type of complaint, including lethal and serious non-lethal use of police force. 73 Once a complaint is received, an MPD official contacts the complainant to inform him/her that the complaint is being investigated and to obtain any necessary information. 74 As part of the IAB investigation, the officer against whom the complaint is alleged is interviewed, along with any witnesses. Unless complainants request to remain anonymous, officers are entitled to know their names. 75 Once an investigation is completed, a finding of either Sustained, Insufficient Facts, Exonerated or Unfounded is made. If complainants are not satisfied with the outcome they may appeal to the Chief of Police in writing. 76
In 2004, D.C. passed a law changing the name of the CCRB and OCCR to the Police Complaints Board (PCB) and the Office of Police Complaints 137 (OPC), while leaving the structure intact. 77 The OPC and its investigative staff are independent of MPD and not under the direct control of the Mayor. 78 The OPC has authority to investigate complaints that allege abuse or misuse of police powers, including use of unnecessary or excessive force filed within forty-five days of the underlying incident. 79 Each complaint is assigned to an OPC staff investigator. 80 After conducting interviews and collecting evidence, an investigative report is drafted for each complaint.The Executive Director of OPC determines whether the complaint should be dismissed, referred to third party mediators for resolution, or where there is “reasonable cause to believe” that police misconduct occurred it is referred to an independent complaint examiner. 81 With the approval of a PCB member, complaints can be dismissed if they are deemed to lack merit, if complainants refuse to cooperate with the investigation, or if they fail to participate in the mediation process. 82 A survey and comparison of mediation programs used by different police departments cited OPC’s performance “at or near the top of all of the programs around the United States.” 83 If the complaint is sustained, the MPD uses a progressive discipline system whereby officers with multiple sustained complaints against them receive increasingly harsh penalties.
The OPC is required to refer complaints alleging criminal conduct by police officers to the U.S. Attorney’s Office, which determines whether to prosecute officers, including for all lethal shootings involving police. 84 Mediation through the Community Dispute Resolution Center is voluntary and provides an opportunity for the officer and complainant to reach a mutual understanding without the expense of formal litigation. 85
Officers have an opportunity to submit written objections to the OPC’s investigative report for review by complaint examiners. 86 As of 2007, OPC was utilizing a pool of fourteen complaint examiners. Officers and complainants may be represented by counsel during hearings. 87 The complaint examiner issues a written decision on the merits of the complaint based on the investigative report and/or an evidentiary hearing. 88 The Police Chief is bound by any complaint examiner decisions sustaining complaints and is required to discipline officers. 89 If the Police Chief believes the examiner “clearly misapprehends the record . . . and is not supported by substantial, reliable, and probative evidence in that record” the Chief can request a final review by a panel of three complaint examiners. 90
Methodology of this study
The findings in this report are based on MPD and the OPC annual reporting on use of force incidents. This study used the MPD annual reports posted on MPD’s website from 1998–2000 and 2006–2013. 91 The MPD annual reports do not account for citizens killed by police with other weapons or bodily force, nor do they include details of whether police shootings were justified or unjustified. “deadly force” revisited 138 national lawyers guild review The OPC annual reports fill some of these gaps and provide greater detail than the MPD annual reports. 92 National data is drawn from the Center for Disease Control and FBI databases to draw comparisons between DC and other large metropolitan areas in the U.S. 93 The FBI and DOJ already collect some data, but could improve tracking and monitoring of police department use of force with additional data collection. The Uniform Crime Reporting (UCR) database and National Incident Based Reporting System (NIBRS) used by the FBI and DOJ were not designed to regulate police. They were designed to compile national crime data. 94 Police departments produce extensive data through “arrest reports, COMPSTAT, Early Intervention Systems, and other computer databases that might provide a basis for governing or regulating the police.” 95 Yet police departments are not required to report this or any other data to the DOJ or FBI. Submission of any data to the FBI database on officer-involved shootings, including “justifiable homicides” by law enforce – ment, is voluntary. 96 MPD does not report data on officer-involved shootings to the DOJ or FBI. 97 Therefore, publicly available data on MPD use of force is limited. Data used in section III of this article admittedly presents an incomplete picture of the MPD’s implementation of use of force policies. However, the available data does show striking similarities between patterns and practices implicated in the DOJ MOA from 2001, as well as current statistics indicative of problems of excessive use of force and failure to hold officers accountable for such use of force. Post-monitoring police misconduct 2009–2014 At first glance, D.C. police have made great strides in reforms to reduce police brutality. However, data presented in this section indicate the MPD’s reforms may be superficial. Since the cessation of the DOJ monitoring in 2008, the data show suspicious trends in citizen complaints and officer use of force. The MPD and the OPC self-reported data raise enough questions to warrant a DOJ investigation to determine the scope of problems in D.C. A DOJ investigation would provide for the collection of data sufficient to de – termine whether a “pattern or practice” of misconduct exists, would monitor police behavior and ensure accountability in cases of confirmed misconduct. A new investigation by the DOJ is required to summon the data required to adequately show a continuing pattern or practice of police misconduct in DC. Lethal force Twenty-two people have been killed and nineteeen injured by police fire – arms discharge in DC since 2009. 98 Graph 1 shows the number of intentional shootings at persons, resulting fatalities and injuries between 2007 and 2013 as reported by the MPD. 99 The MPD annual reports do not indicate whether police shootings were justified or unjustified. In addition, it is difficult to gauge whether there has been a decline or increase in fatal police shootings because annual reports for 2001–2006 are 139 not posted on the MPD website. The author requested previous annual reports from the MPD and received no response. The OPC annual report data include information on the number of complaints of guns fired. In some cases the number of firearm discharges in the OPC reports does not correspond with the number of reported injuries and deaths from police shootings in the MPD reports. For example, an OPC annual report cited police firing a gun ten times in 2010, yet MPD cited thirteen intentional discharges of firearms at persons or animals plus another five accidental discharges for a total of eighteen. 100 Once again in 2009, a year after DOJ monitoring stopped, we see that the number of intentional firearm discharges at persons doubled from fourteen to twenty-eight incidents and fatalities increased from three to eight. 101 Graph 1 also shows that the number of police shootings is creeping back up after a decline in 2010. Furthermore, the number of OPC complaints of firearm dis – charge is much lower than reported incidents, which may indicate that citizens are not filing complaints or are using other means such as civil lawsuits to resolve grievances. The MPD annual reports don’t account for citizens killed by police with other weapons or bodily force. For this reason, deaths due to the MPD’s use of force are likely underreported in Graph 1. The CDC defines “death by legal intervention” as a person “killed by a police officer or other peace officer (a person with specified legal authority to use deadly force), including military police, acting in the line of duty.” 102 Graph 2 shows legal intervention death rates reported by the CDC, which tracks causes of death. 103 The graph illustrates that African-Americans are much more likely to be killed by legal intervention in DC compared with other large metropolitan areas in the U.S. DC has a legal intervention with firearms death rate three times higher than the national average. 104 Use-of-force complaints The MPD and OPC data show a steady increase in use-of-force complaints. Graph 3 shows that the number of complaints of force has increased signifi – Graph 1. Number of deaths and injuries from intentional police shootings in D.C. “deadly force” revisited 140 national lawyers guild review cantly since 2008 when the DOJ ceased monitoring, and remain higher than they were during the monitoring period. 105 This could be explained by reforms in the complaints process leading to more complaints being filed or that there has simply been an increase in instances of police misconduct, particularly when juxtaposed with a drop in violent crime levels in DC since 2009. 106 In the last five years, DC police officers have been arrested for a wide va – riety of on- and off-duty offences running the gamut from murder to money laundering. 107 According to the Huffington Post , “the latest instances have increased concerns about training, supervision and accountability,” prompting hearings before the DC Council. 108 A Pew Research Center study reveals that across the country, “the gun homicide rate has dropped 49 percent since 1993, with non-fatal gun crimes dropping 75 percent.” 109 However, complaints of police use of force in D.C. have increased. The average number of complaints during the five-year period between 2003 and 2008 was 400.5, 110 compared with the average between 2009 and 2013 at 540.8 complaints. 111 Furthermore, the combined total number of complaints for the MPD and the OPC was 600 in 2008 and increased to 798 in 2013. 112 Graph 2. Legal Intervention by Firearm Discharge Death Rates 1999-2011 Graph 3. Number of Excessive Force Complaints in DC per Year 141 The dual complaint system in place is still struggling to meet the level of demand for investigations to resolve complaints. As shown in Graph 4, the OPC has had a consistent backlog of cases since 2005. 113 As of 2013, the OPC still had a backlog of 312 complaints. 114 The backlog of complaints significantly increases the likelihood that the complaint will remain unresolved, and makes it less likely that victims will receive justice or the officer held accountable. Over the last ten years, an average of 40 percent of complaints remained open from year to year despite a rule requiring that cases be investigated within 120 days. 115 Unfortunately, access to information about the types of claims that are backlogged is not available to the public, so it is not possible to discern how many excessive force cases are part of the backlog. Delays occur in part because OPC is understaffed for the volume of com – plaints compared with other large police departments. The ratio of investi – gators to police officers is more favorable in San Francisco (1/113) than in D.C. (1/324). 116 San Francisco sets a legal requirement that there must be at least one investigator for every 150 officers. 117 On average since 2008, OPC complaint examiners heard eleven cases per year 118 compared with eighteen cases prior to 2008. 119 DC police misconduct allegations went unresolved for most of 2011 because no acceptable bids were received for the contract to administer the independent examination program. 120 Johnny Barnes, Executive Director of D.C.’s chapter of the American Civil Liberties Union noted, “The police cannot and will not police themselves. If that board isn’t functioning and cannot function, then there is likely no way to seek and find justice when citizens have complaints.” 121 The OPC recommended several programs to resolve less serious complaints more quickly in order to reduce the backlog. First, the OPC recommended legislation that would authorize a Rapid Response Program (RRP). 121 In 2013, PCB reiterated its recommendation that legislation be enacted “ that would cre – Graph 4. Total Number of OPC Complaints by Year “deadly force” revisited 142 national lawyers guild review ate a ‘rapid resolution’ process, to refer some relatively minor or service-oriented citizen complaints to MPD for resolution . . . [to] free up some OPC resources so that the agency could more efficiently resolve the most serious complaints filed with OPC, and allow MPD supervisors to address potential deficiencies in officers’ job performance more rapidly.” 122 The RRP would enable supervisors to resolve minor complaints directly. 124 Second, OPC planned to pilot a conciliation program in 2014 for complaints that are less serious than those sent to mediation. 125 The conciliation program would be distinguished from mediation in that participation is voluntary, ses – sions are via telephone, and “the complaint will be closed after the conciliation session, regardless of whether any understanding or agreement is reached.” 126 Third, PCB formally adopted a written Open Meetings policy on September 30, 2010. 127 The policy established procedures for notifying the public of dates, times, and locations of PCB meetings. The policy also requires PCB to publish the minutes of board meetings. 128 The OPC faces persistent understaffing and lack of resources. To remedy these challenges, OPC needs to have an adequate ratio of investigators and perhaps legislation requiring a specific ratio as in San Francisco. In addition, it needs a parallel system such as RRP and/or conciliation programs for minor complaints so OPC can focus resources on the most serious complaints. Discipline MPD’s historical use of excessive force and failure to discipline officers continues, according to statistics from MPD’s and OPC annual reports. Graph 5 shows the percentage of sustained use of force complaints. 129 The OPC re – ported that zero use of force complaints were sustained in 2009 and only 1.1 percent of all use of force complaints were sustained in 2013. 130 The graph shows a significant drop in the number of sustained complaints after the end of the DOJ monitoring period. A general complaint has only a 4.7 percent chance of being sustained or mediated by the OPC. 131 Of the 456 complaints 146 national lawyers guild review 2009 report shows a total of 351 complaints of force in 2009. 163 Similar data discrepancies occur for 2008 in the same report, representing a total of 271 complaints missing or misrepresented over a two-year period. 164 It’s unlikely that the use of different calculations accounts for this discrepancy since all other years correspond exactly. Obtaining this information is difficult as the MPD has one of the worst transparency ratings in the country. 165 While the MPD annual reports provide a breakdown of how many com – plaints involve each of the twenty-one categories of excessive force, the resulting decisions in such complaints are not detailed. Data in MPD and OPC reports show how many shooting injuries and deaths occurred each year between 2009 and 2013, but do not include the results of these investigations or subsequent discipline for officers involved. Both the MPD and the OPC can improve public access to documentation regarding misconduct investigations and resulting disciplinary actions. The MPD and the OPC should also improve information sharing between the two organizations. Prior to 2013 several OPC annual reports “cited long delays in receiving access to documents needed to investigate allegations of police misconduct thoroughly.” 166 As of 2010, the OPC was facing challenges in obtaining police reports and other documentation from the MPD that was required for OPC investigations. The MPD provided less than 48 percent of the documents requested in the first quarter of FY 2010. 167 The OPC recommended that electronic access to forms and reports would improve efficiency and cost- effective fulfillment of document requests, shorten the OPC’s investigatory process, and align the MPD with best practices in the field of independent police review. 168 Although the MPD may report that a document could not be located, many of the requested documents that “could not be located” must be completed according to MPD policies. 169 In 2013, the MPD significantly reduced the backlog of document requests and acceded the OPC’s request to obtain records directly from the Office of Unified Communications (OUC). Both the MPD and the OUC significantly reduced the turnaround time needed to process new document requests. 170 The OPC also reported that the MPD will soon provide “direct computerized access to certain basic police reports stored electronically.” 171 To remedy the backlog problem, the OPC originally recommended the Police Monitoring Enhancement Act in 2009. According to OPC, “MPD opposed the legislation, especially the portions relating to access to underlying documents.” 172 The bill was reintroduced before D.C. Council in 2013 and remains under Council review as of July 2014. 173 National trends support D.C. data The FBI estimates that nationally there are about 400 “justifiable homicides” by police officers each year. 174 The FBI UCR database offers an incomplete picture since most agencies don’t report data. 175 The DOJ’s Bureau of Justice 147 Statistics also tracks “arrest-related deaths” but stopped releasing the data in 2009 due to concerns about reliability. 176 Graph 8 compares the number of citizen-justified homicides of felons to the number of citizens killed justifiably by police each year. 177 This data does not include unjustifiable homicides, off- duty police killings, or deaths from police that do not result from the use of a weapon. Some journalists and academics estimate the number of fatal police encounters is closer to 1,000 each year. 178 As shown in Graph 8, the CDC also tracks data due to legal intervention with a firearm, pegging the number of such deaths around 100 more than that reported by the FBI. Graph 8 raises questions as to whether DOJ monitoring can be effective where there is insufficient or underreported data. According to James O. Pasco, executive director of the Fraternal Order of Police, “an accurate database would require Congress to pass a law requiring police departments to report their shooting data to a federal agency, presumably the FBI.” 179 Graph 8 appears to confirm the suspicions that lethal force may be under-reported. One explanation for the significant number of police shootings could be linked to the number of police officers killed yearly. The FBI tracks the num – ber of officers killed each year for a special report entitled Law Enforcement Officers Killed and Assaulted that includes summaries of incidents by state, demographics, and circumstances such as type of weapon. Nationwide,173 officers were killed in the line of duty in 2011. 180 The FBI reported that “in 2012, 48 law enforcement officers died from injuries incurred in the line of duty during felonious incidents.” 181 The same data report shows that two D.C. officers were feloniously killed between 2003 and 2012. 182 This could lead to a heightened perception of vulnerability when interacting with citizens and vice versa . In general, the public has the perception that they are at greater risk for violent crime despite the fact that violent crime rates have actually dropped across the U.S. Graph 8. National Citizen and Police Justifiable Homicides 2007-2012 “deadly force” revisited 148 national lawyers guild review Back to the future: the need for a DOJ investigation and reforms The primary purpose of this article is to set forth an argument for the DOJ to investigate the MPD for a pattern or practice of police misconduct and to spark reform. While all the data required to show patterns and trends in D.C. are not publicly available, the data that is available shows a disturbing trend since the cessation of monitoring in 2008. Current annual reporting fails to track officers with multiple complaints, unjustified use of deadly force, and resulting disciplinary action. Reforms must include mandatory reporting to the DOJ and FBI, improved transparency in the MPD and the OPC reports, the maximization of the use of new technologies, a shift in police culture, and mandatory independent investigations of police shootings. Mandatory reporting to FBI and DOJ Michael Planty, one of the chief statisticians for the DOJ said, “We do not have information at the national level for police shootings that result in non- fatal injury or no injury to a civilian.” 183 The FBI and DOJ surveys have been critiqued for failing “to identify many of the metrics that would be necessary to measure the existence of a pattern or practice of misconduct” even for those police departments that do submit surveys. 184 In short, the data needed for the DOJ to assess trends in police misconduct are not being collected as part of vol – untary self-reporting. Experts have suggested that such data reporting be both mandatory and more comprehensive. 185 A standardized system of reporting and tracking misconduct may be required to enable police departments across the country to comply with the reporting requirements. 186 Congress recently reauthorized the “Death in Custody Act” which requires states “to report the number of people killed during an arrest or while in police custody.” 187 The bill has some teeth in that the DOJ is authorized under the bill to “withhold federal funds from states that don’t comply in sending the information to federal agencies.” 188 While the bill is a step in the right direction, it could take years to collect data required to show trends. 189 Academics have suggested that the database should also include informa – tion on nonfatal shootings and other forms of non-lethal excessive force. 190 Experts also note that simple access to data is not sufficient. 191 Public access to data must be given in a workable format. For instance, the FBI track and analyze data to issue a special report on “Law Enforcement Officers Killed and Assaulted” that includes summaries of incidents by state, demographics, and circumstances such as type of weapon. 192 A parallel report on “Civilians Killed and Assaulted by Law Enforcement,” tracking similar details and issued annually, could provide a starting point for improving transparency. Improve transparency in MPD and OPC annual reports In a 2008 article, Noah Kupferberg advocates the use of DOJ consent de – crees as a “means of requiring the recording and public release of data, thus forcing openness and transparency in law enforcement.” 193 A simple improve – 149 ment could be for the MPD, the IAB and the OPC to consolidate summaries of serious use of force and deadly force investigations and hearing results, disciplinary actions, and any explanation for exonerations into their annual reports or a combined use of force report. Having the information from all three agencies accessible in a consolidated report would ensure that the breadth of information is more easily accessed and reviewed by the Mayor , the Police Chief, and the public. There are some areas where legislation could strengthen oversight and accountability. D.C. could imitate San Francisco by requiring that the OPC maintain a certain ratio of investigators to police officers to ensure timely investigation of complaints. Furthermore, D.C. Council’s passage of the Police Monitoring Enhancement Amendment Act of 2013 Bill #20-0063, introduced in July 2014, would allow the PCB “to review and publicly report on the number, types, dispositions, and disciplinary outcomes of citizen complaints of police misconduct filed with the MPD and the D.C. Housing Authority Office of Public Safety (OPS).” 194 Incoming mayor Muriel Bowser is one of the bill’s co-sponsors. 195 Initially proposed and rejected in 2009, the bill would also enable OPC to compare “proposed discipline and the actual discipline imposed in any complaints sus – tained by MPD.” 196 The dual nature of the complaints system in D.C. makes it more difficult to analyze patterns and trends of misconduct and discipline. The proposed legislation would enable PCB to view MPD, OPC complaints and resulting discipline for a overview of the complaints process and trends. The current language of the bill provides OPC with “reasonable access” to information and supporting documentation. 197 The OPC is concerned that “reasonable access” may be too vague a phrase, thus limiting the effectiveness of the legislation. 198 Professor Samuel Walker, an expert in police oversight, believes the language should be changed to “unfettered access” to ensure PCB and OPC “remain in the forefront of carrying out the widest possible range of functions among independent police review agencies in the United States.” 199 Maximize the use of technology The public has a right to know what happened in cases of police use of excessive and deadly force. In September 2014, Chief Lanier announced the use of body cameras as part of a pilot program beginning in October. 200 Lanier predicts that the body cameras will reduce the number of complaints filed against police officers up to 80 percent. 201 The body cameras will provide unbiased evidence and help to make the MPD more transparent. Christian J. Klossner, acting Executive Director of the OPC , believes the cameras “will reduce the amount of time supervisors have to spend investigating allegations … increase accountability, improve training and promote respectful encounters between police and the public.” 202 The D.C. Crime Policy Institute reviewed promising practices of the MPD in 2010. 203 The MPD has a Research and Analysis Branch charged with using “deadly force” revisited 150 national lawyers guild review t echnology and databases to compile crime statistics and identify patterns and trends that inform MPD decisions and initiatives. The MPD uses this technol – ogy to target potential criminals and reduce crime. Similarly, the MPD should be using technology to target officers at risk or those with multiple complaints to reduce the use of excessive force. 204 Crime mapping software used to show trends in various types of crime by neighborhood could possibly be used to track complaints against officers and provide valuable visual representations of any emerging patterns of misconduct. 205 Currently, citizens can report police misconduct via email. However indi – viduals may not include all necessary information. Another suggestion would be to initiate an online complaint form that citizens could use to report police misconduct. The online form could have optional fields so citizens could sub – mit as much of the necessary information as possible. This could reduce the workload for the OPC or the MPD who now input data by hand and reduce human error in transcribing from complaints submitted on paper or over the phone. It would also ensure that those complainants who are uncomfortable interacting with law enforcement could submit complaints from home. Police culture University of Virginia School of Law Professor Barbara Armacost identi – fies as the primary defect in common solutions to police misconduct that they are based on assumptions putting individual behavior and judgments at the center of the controversy, “rather than as part of a distinctive and influential organizational culture.” 206 Individual officers guilty of wrongdoing are seen as scapegoats to “satisfy society’s moral outrage while deflecting attention away from the institutional structures that lie at the root of the problem of police brutality.” 207 Instead, when incidents occur, police departments should be “examining the organizational norms and policies that framed his [the officer’s] judgment” 208 in situations where excessive or deadly force was used. Armacost goes on to assert that the vast majority of studies in the last thirty or forty years “have concluded that the patterns of repeated, wrong – ful incidents identified . . . were at least partly caused by systemic features of police culture.” 209 One of the primary reasons civilian review boards may be less effective in changing the organizational culture of police departments is that civilian mechanisms have an adversarial and punitive orientation, not a reform orientation. 210 She suggests that professional peer review may promote “a change in the organizational values and systems” from the inside out. 211 As part of a shift in police culture, the MPD should review the records all of the officers with multiple complaints of police misconduct and consistent use of unnecessary excessive force despite previous disciplinary action to determine whether termination is appropriate. While the police should certainly not be tasked with policing themselves, initiatives for police reform from within could be valuable in conjunction with civilian review systems 151 Police culture can also be shifted through training for new officers and periodic retraining for veteran officers. Training should include not only fire – arms and use of force training, but also diversity training. The MPD should be internally and independently monitored to ensure officers are receiving initial and periodic firearms and use of force training. Local laws should require mandatory diversity training for all officers, including training on interact – ing with citizens of all racial backgrounds, non-English speakers, immigrant communities, persons with disabilities, and LGBTQ communities. The MPD should also be held accountable for failing to train officers as required. 212 Michael Bell, a retired lieutenant colonel in the U.S. Air Force whose son was killed by police, recommends that police departments should also establish a system for whistle-blowers to report ethical and safety concerns anony – mously. 213 A strong example of such a non-punitive program is the Aviation Safety Reporting System (ASRS). The ASRS program collects and analyzes whistle-blower reports before forwarding findings to the Federal Aviation Administration (FAA). 214 This ensures no pilot or mechanic is identified by the FAA and subject to retribution by employers or colleagues. The public should also be made aware of their rights when interacting with police through community outreach. The MPD’s community outreach program engages D.C. youth and educators in interactive trainings about an individual’s rights during encounters with police. 215 The training is also conducted for community-based organizations, which are then able to pro – vide the information to their clients. 216 Organizations like Street Law and the ACLU also conduct “Know Your Rights” campaigns, hosting trainings and distributing information. Independent investigations of police shootings Currently, the IAB investigates use of deadly force. 217 Since IAB is part of the MPD it does not fulfill the independence test. Based on annual reports, it is unclear whether OPC investigates cases of deadly force. The OPC, which is an independent body, can only investigate complaints. 218 Most lethal force victims do not file complaints because they are advised police may use the investigation to prepare a defense, to intimidate witnesses or manipulate facts, aand give police a head start in potential civil cases. 219 Michael Bell urges lawmakers to enact legislation that would require ex – ternal professional investigations conducted by a trusted body and “reviewed by an independent board to determine cause and attribute responsibility.” 220 Bell suggests that the National Transportation Safety Board (NTSB) could be used as a model for such independent investigations that protect against natural biases. 221 Wisconsin Act 348 is the first statewide mandate requiring independent investigations of deaths involving police. 222 The D.C. Council should consider enacting similar legislation that would enable elected officials who do not directly oversee MPD to appoint reviewers who do not have an “deadly force” revisited 152 national lawyers guild review institutional or personal stake in the outcome. As demonstrated above, problems highlighted in Cox during the 1990s and identified by the DOJ’s investigation appear persist today. Similar warning signs are apparent, such as higher lethal use of force incidents compared to other cities, consistent failure to discipline officers, inadequate resources for OPC to conduct independent investigations and hold hearings, and perhaps inadequate training for new officers as well as periodic retaining. There is a need for DOJ oversight of the MPD again. The fact that there have been investigations in fifty major cities is a sign of deep-rooted problems with the justice system. As the police force of the nation’s capital, the MPD should be leading the way in progressive police accountability mechanisms. Instead it lags behind similarly situated police departments. Conclusion As part of the Police Executive Research Forum, Jonathan Smith, Chief of the DOJ Civil Rights Division Special Litigation Section writes “our goals are the same as those of police chiefs across the country: to protect the civil rights of all people, while ensuring that communities have confidence in their police departments. The proper question really is, ‘How do we deliver police services in an effective manner that complies with the Constitution and builds public confidence?’” 223 Two answers to this question are improved transpar – ency and accountability at the local and national levels. Media playing its role as watchdog combined with stricter self-reporting requirements for police departments are key aspects of this strategy. Citizens in D.C. are more likely to be shot by a police officer than citizens in many other cities. 224 Those killed by police officers are less likely to get justice. According to HRW, most police departments continue with “‘business as usual’ until scandals emerge . . . [and] human rights violations persist in large part because the accountability systems are so defective.” 225 Leadership should not wait for D.C. families to experience what Ferguson families are going through to ensure that comprehensive policies are in place for transparent and accountable reporting and investigation of use of force by police. The Police Chief, D.C. Council and Mayor receive OPC annual reports containing the data cited in this paper each year. 226 Yet politics may be the most promising tool for mitigating police misconduct, because generally the laws in place are sufficient—provided they are enforced. As Rachel Harmon suggests, “The difficulty is that it is either not enforced or is deliberately disobeyed — and by the very persons charged with its enforcement.” 227 While there is not enough publicly available data to definitively determine whether pattern or practice of police misconduct exists, the MPD and the OPC self-reported data raise enough questions to warrant a DOJ investiga – tion to determine the scope of problems. A DOJ investigation would provide for the collection of data sufficient to determine whether a pattern or practice 153 of misconduct exists, would monitor police behavior and ensure account – ability in cases of confirmed misconduct. D.C.’s leadership should not wait for another shooting incident in D.C. to occur before taking action to ensure comprehensive policies are enforced for transparent and accountable report – ing, investigation of use of force by police.
NOTES 1. Jeff Leen, Jo Craven, David Jackson & Sari Horwitz, D.C. Police Lead Nation in Shootings Lack of Training, Supervision Implicated as Key Factors , w ash . P ost , Nov. 15, 1998, at A1, available at http://www.washingtonpost.com/wp-srv/local/longterm/dcpolice/deadlyforce/ police1page1.htm. 2. Peter Herman, Auditor to Review District Police Use-of-Force Policies , w ash . P ost , May 7, 2015, available at http://www.washingtonpost.com/local/crime/auditor-to-review-district- police-use-of-force-policies/2015/05/07/c6272de6-f4e6-11e4-bcc4-e8141e5eb0c9_story.html 3. Leen, et al., supra note 1 at A1. 4. Id. 5. Id. The series focused on the department’s poor training, supervision and investigation, rather than race, unlike other cities with similar police brutality issues. See also Q&A With Jeff Leen and Sari Horwitz , w ash . P ost , Apr. 13, 1999, http://www.washingtonpost.com/ wp-srv/zforum/99/metro/pulitzertalk0413.htm. 6. Washington Post researchers found 14 additional fatal police shootings for a total of 43, compared with MPD report of 29 fatal shootings. 7. Leen, et al., supra note 1 at A1. 8. Id. 9. Cheryl W. Thompson, Half of Officers Lack Firearm Certification , w ash . P ost , Mar. 28, 1998, at B1. 10. Id. 11. Id. 12. Jeff Leen & Sari Horwitz, Armed and Unready: City Pays for Failure to Train Officers With Sophisticated Weapon, w ash . P ost , Nov. 18, 1998, at A1. available at http://www.wash – ingtonpost.com/wp-srv/local/longterm/dcpolice/deadlyforce/police4page1.htm 13. Id. 14. Jeff Leen, Moving Targets: Despite Department Rules, Officers Often Have Used Gunfire to Stop Drivers , w ash . P ost , Nov. 16, 1998, at A1, available at http://www.washingtonpost. com/wp-srv/local/longterm/dcpolice/deadlyforce/police2page3.htm 15. Id. 16. Id. 17. Id. 18. David Jackson, Holes in the Files: Investigations of Police Shootings Often Leave Questions Unanswered , w ash . P ost , Nov. 17, 1998, at A1. 19. Id. 20. Leen et al., supra note 1 at A1. 21. Id. 22. Jackson, supra note 18 at A1. 23. Sari Horwitz, When Officers Go Too Far: Confrontations Lead to Beatings, Complaints, Lawsuits , w ash . P ost , Nov. 19, 1998, at A1. 24. Id. 25. Leen, et al., supra note 1. 26. Ta-Nehisi Coates, Black and Blue: Why does America’s richest black suburb have some of the country’s most brutal cops? , w ash . M oNthly , Jun. 2001, http://www.washingtonmonthly. com/features/2001/0106.coates.html “deadly force” revisited 154 national lawyers guild review 27. Id. 28. h uMaN r iGhts w atch , s hielded fro M J ustice : P olice B rutality aNd a ccou Nta Bility iN the u Nited s tates , (1998). 29. Id at 4. 30. Id. 31. Id at 7. 32. Amnesty International , USA: Race, Rights and Police Brutality 28 (1999), http://www.am – nesty.org/en/library/asset/AMR51/147/1999/en/735f2b8c-e038-11dd-865a-d728958ca30a/ amr511471999en.pdf. 33. h uMaN r iGhts w atch , supra note 28 at 383 (citing Avis Thomas-Lester, DC Officer Indicted in Brutality Case , w ash . P ost , May 19, 1996). 34. h uMaN r iGhts w atch , supra note 28, at 373–74. 35. u.s. c oMM issio N oN c ivil r iGhts , r acial aNd e th Nic t eNsio Ns iN a Merica N c oMM uNities : t he M ou Nt P leasa Nt r ePort 20 (January 1993). 36. h uMaN r iGhts w atch , supra note 28, at 11–12. 37. h uMaN r iGhts w atch , supra note 28, at 9. 38. 42 U.S.C.S. § 1983. 39. U.S. Dept. of Justice, Conduct of Law Enforcement Agencies , http://www.justice.gov/crt/ about/spl/police.php (last visited Jan. 9, 2014). 40. Id. 41. U.S. Dept. of Justice, Findings Letter Re Use of Force by the Washington Metropolitan Police Department , http://www.justice.gov/crt/about/spl/documents/dcfindings.php (MOA resulting from Department of Justice’s review of use of force issues in MPD pursuant to our authority under the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. § 14141)). 42. Id. 43. Id. 44. P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear (2001–2009). 45. M etro Polita N P olice d ePart MeNt , a NN ual r ePort 2010 , 30. MP d f orce i Nvesti Gatio N t ea M a NN ual r ePorts 2002–2006. 46. Findings Letter Re Use of Force by the Washington MPD, supra note 41. 47. Id. 48. Id. 49. o ffice of P olice c oMP lai Nts , c oMP lai Nt e xa MiNer d ecisio Ns (2003–2013). 50. Findings Letter Re Use of Force by the Washington MPD, supra note 41. 51. P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear 9 (2007) [ hereinafter oPc a NN ual r ePort 2007). 52. Id. 53. Id. 54. Letter from Kurt Vorndran, Chair of the Police Complaints Board and Philip Eure, Execu – tive Director of the Office of Police Complaints, to Mayor Fenty, Members of the District of Columbia Council, Chief Lanier, and Chief Pittman 4 (Jan. 28, 2008). See also oPc a NN ual r ePort 2007. 55. Findings Letter Re Use of Force by the Washington MPD, supra note 41. 56. Michael R. Bromwich, Twenty-Third Quarterly Report of the Independent Monitor for the Metropolitan Police Department, o ffice of the i Nde PeNde Nt M oNitor , f ried , f ra Nk , h ar – ris , s hriver & J aco Bso N ll P, Jan. 31, 2008, at 2. 57. Id. at at 8. 58. Id. at 3. 59. Id. at 73. 60. P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear 2013, 49 ( 2013) [hereinafter oPc a NN ual r ePort 2013]. Graph 7. Number of Officers with Multiple Complaints by Year 177 155 61. Bromwich, supra note 56, at 73–74. 62. Id. at 83–86. 63. Id. at 90–102. 64. Id. at 10. 65. Critical Issues in Policing Series, Civil Rights Investigations of Local Police: Lessons Learned , P olice e xecutive r esearch f oru M , 4 (July 2013). 66. Alexandra Holmes, Bridging the Information Gap: The Department of Justice’s “Pattern or Practice” Suits and Community Organizations , 92 t ex . l. r ev . 1241, 2 (2014). 67. c itize N c oMP lai Nt r eview B oard aNd o ffice of c itize N c oMP lai Nt r eview , f iscal y ear 2001 a NN ual r ePort 10 (2001). 68. Id. at 6. 69. Id. 70. Id. at 7–8. 71. Id. at 5. 72. Id. at 10. 73. M etro Polita N P olice d ePart MeNt , a NN ual r ePort 2013, 50. 74. Id. 75. Id. 76. Id. 77. Letter from Maria-Christina Fernandez, Chair of the Police Complaints Board and Philip Eure, Executive Director of the Office of Police Complaints, to Anthony Williams, Mayor of the District of Columbia, and Charles H. Ramsey, Chief of Police for the Metropolitan Police Department, 1 (January 11, 2005). 78. Office of Police Complaints , dc . Gov , http://policecomplaints.dc.gov/page/about-office-police- complaints (last visited Jan. 10, 2015). 79. M etro Polita N P olice d ePart MeNt . a NN ual r ePort , a NN ex e: c itize N c oMP lai Nts 51 (2013). 80. oPc a NN ual r ePort 2007, supra note 51 , at 6. 81. Id. at 7. 82. Id. at 11. 83. Id. at 9. 84. Id. at 11 85. oPc a NN ual r ePort 2007, supra note 51 , at 4–5. 86. Id. at 4 . 87. Id. at 6. 88. Id. 89. Id. 90. Id. at 5. 91. M etro Polita N P olice d ePart MeNt , a NN ual r ePort (2007). Although the 2007 MPD an – nual report table of contents indicates that there was reporting on use of force that year, the page that details use of force incidents and complaints appears to be missing. The statistical analysis report for 2001-2005 posted on MPD’s website does not include use of force data, so MPD data for these years is omitted from this analysis. 92. Complaint examiner decisions for use-of-force complaints from 2003–2013 are posted online and indicated in the OPC annual reports are also taken into account for this article. Data drawn from OPC Annual Reports from 2001-2013 indicate use-of-force incidents and complaints, including data from 2001-2007 unavailable in MPD annual reports. 93. Centers for Disease Control and Prevention ( cdc ) , About Underlying Cause of Death, 1999- 2013 , http://wonder.cdc.gov/ucd-icd10.html (last visited Oct. 23, 2014). 94. Rachel Harmon, Why Do We (Still) Lack Data on Policing? , 96 M arq . l. r ev . 1119, 1133 (Summer 2013). 95. Id. at 1135–1136. “deadly force” revisited 156 national lawyers guild review 96. Wesley Lowery, How many police shootings a year? No one knows , w ash . P ost , Sept. 8, 2014, http://www.washingtonpost.com/news/post-nation/wp/2014/09/08/how-many-police- shootings-a-year-no-one-knows/. 97. Id. 98. M etro Polita N P olice d ePart MeNt , a NN ual r ePort , 34 (2013). 99. Graph 1: See M etro Polita N P olice d ePart MeNt , a NN ual r ePort 30 (2010); M etro Polita N P olice d ePart MeNt , a NN ual r ePort 34 (2013). 100. See P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear 28 (2010) [hereinafter OPC a NN ual r ePort 2010] ; M etro Polita N P olice d ePart – MeNt , a NN ual r ePort 34 (2013). 101. OPC a NN ual r ePort 2010 , supra note 100 at 28. 102. Centers for Disease Control and Prevention ( cdc ), Surveillance for Violent Deaths—National Violent Death Reporting System, 16 States , 2009, M or Bidity aNd M ortality w eekly r ePort 2012; 61 (No. SS-6): 4, available at http://www.cdc.gov/mmwr/pdf/ss/ss6106.pdf. 103. Graph 2: About Underlying Cause of Death , supra note 93. (Data are from the Multiple Cause of Death Files, 1999-2011, as compiled from data provided by the 57 vital statistics jurisdictions through the Vital Statistics Cooperative Program. This data excludes legal executions. Data from the CDC’s WONDER database is used for the period 1999-201 to show the number of D.C. “deaths by legal intervention”). See also Surveillance for Violent Deaths , supra note 102. 104. About Underlying Cause of Death , supra note 93. 105. Graph 3: See Cox v. District of Columbia, 821 F. Supp. 1, 6 (D.D.C. 1993 ). Data for years 1989-1991, OPC a NN ual r ePorts 2001–2013, MP d a NN ual r ePorts 1998-2000 and 2009-2013. MPD Annual Reports 2007–2008 do not include data on complaints of use of force. MPD Annual Reports for 2001-2006 are not available on the MPD website. Data drawn from the Cox v. District of Columbia decision from 1989 and 1990 is used to show a baseline in Graph 3, indicating a distinct drop in sustained excessive force complaints since 2007. 106. Allison Klein, Drop in Violent Crime in D.C. Area and Some Other Major Cities Puzzles Experts, w ash . P ost , Jul. 20, 2009, http://www.washingtonpost.com/wp-dyn/content/ar – ticle/2009/07/19/AR2009071902154.html. 107. Eric Tucker, 110 D.C. Police Officers’ Arrests Since 2009 Leads To Questions, Scrutiny , h uffi NG to N P ost , Jan. 24, 2014, http://www.huffingtonpost.com/2014/01/24/dc-police- officers-arrested_n_4658497.html. 108. Id. In a 2013 case, Jenkins v. District of Columbia , a female officer followed Jenkins on Georgia Ave NW, verbally harassing him after telling him to “move on.” Jenkins informed the officer he was going to file a complaint against her for harassment at the local station and headed in that direction. Jenkins called to another officer in a cruiser for assistance. Jenkins was unarmed and not acting aggressively, yet he was struck several times with an ASP baton, suffering injuries to his head, hand and wrist. The defendant pleaded guilty to two counts of misdemeanor assault in a separate criminal case, served a brief jail sentence, and resigned from the police department. Jenkins v. District of Columbia, 4 F. Supp. 3d 137, (D.D.C. 2013). 109. Americans Think Chicago is Most Dangerous US City, Even as Crime Drops , RT (Sept. 18, 2014, 4:14 AM), http://rt.com/usa/188584-dangerous-cities-perception-poll/. 110. P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear 200 9 [hereinafter oPc a NN ual r ePort 2009]; P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear 19 (2006). 111. oPc a NN ual r ePort 2013, supra note 60, at 30. 112. OPC a NN ual r ePort 2009, supra note 110, oPc a NN ual r ePort 2013, supra note 60, and M etro Polita N P olice d ePart MeNt , a NN ual r ePort ( 2009); M etro Polita N P olice d ePart – MeNt , a NN ual r ePort ( 2013). 113. Graph 4: OPC a NN ual r ePort 2009, supra note 110, at 21-22; oPc a NN ual r ePort 2013, supra note 60, at 30. 114. oPc a NN ual r ePort 2013, supra note 60. 115. oPc a NN ual r ePort 2009, supra note 110, at 21–22; oPc a NN ual r ePort 2013, supra note 60, at 30. 157 116. oPc a NN ual r ePort 2013, supra note 60, at 21. 117. Id. For 2013 New York’s CCRB investigators had an average caseload of 20.4 and San Fran – cisco’s Office of Citizen Complaints (OCC) had an average caseload of 16.2. Washington, DC’s OPC investigators had an average caseload of 25.8. 118. oPc. c oMP lai Nt e xa MiNer d ecisio Ns 2009–2013. 119. oPc. c oMP lai Nt e xa MiNer d ecisio Ns 2003–2008. 120. Alan Blinder, D.C. police misconduct reviews shut down for much of 2011 , w ash . e xa MiNer , Feb. 01, 2012, http://washingtonexaminer.com/d.c.-police-misconduct-reviews-shut-down- for-much-of-2011/article/212526. 121. Id. 122. oPc a NN ual r ePort 2013, supra note 60, at 77. 123. Id. at 4. 124. Id. at 77. 125. Id. at 55. 126. Id. 127. OPC a NN ual r ePort 2010, supra note 120, at 48. 128. Id. 129. Graph 5: M etro Polita N P olice d ePart MeNt , a NN ual r ePort , 28 (1998); M etro Polita N P olice d ePart MeNt , a NN ual r ePort , 30(1999); P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear ( 2003-2013); o ffice of P olice c oM – Plai Nts , c oMP lai Nt e xa MiNer d ecisio Ns (2003-2013), available at http://policecomplaints. dc.gov/page/complaint-examiner-decisions. 130. OPC a NN ual r ePort 2009, supra note 110, at 6; oPc a NN ual r ePort 2013, supra note 60, at 10 . 130. oPc a NN ual r ePort 2013, supra note 60, at 10. 131. Id. 132. Id. 133. oPc a NNual r ePort 2010, supra note 120, at 3. 134. Graph 6: oPc a NN ual r ePort 2009, supra note 60, at 11; oPc a NN ual r ePort 2013, supra note 60, at 25. 135. MPD General Order 120.25(V)(F)(6)(d). 136. oPc a NN ual r ePort 2013, supra note 76, at 25 . 137. M etro Polita N P olice d ePart MeNt , a NN ual r ePort 2009, 46 and 2010, 49. 138. Id. 139. M etro Polita N P olice d ePart MeNt , a NN ual r ePort 46 (2009); M etro Polita N P olice d ePart MeNt , a NN ual r ePort 49 (2010). 139. National Police Misconduct Statistics and Reporting Project, 2010 Annual Report , c ato i Nst .’ s N atio Nal P olice M isco Nduct r ePorti NG P ro Ject (2010). 140. Id. 141. oPc a NN ual r ePort 2007, supra note 51 , at 10. 142. Id. 143. P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear (2008) [hereinafter OPC a NN ual r ePort 2008] ; OPC a NN ual r ePort 2009, supra note 110 . 144. oPc a NN ual r ePort 2010, supra note 100, at 120. 145. oPc a NN ual r ePort 2013, supra note 60, at 25-26. 146. Id. 147. Id. at 3. 148. Id. 149. oPc a NN ual r ePort 2010, supra note 100, at 3. 150. oPc a NN ual r ePort 2007, supra note 51, at 11. N 113: en dash for page span N 115: en dash for page span N 118: en dash for page span N 119: en dash for page span N 120: no period after 2012 replace with comma; period at end of citation N 133: period at end of citation missing N 134: font color for 134 is different N 139: space needed before 2010 “deadly force” revisited 158 national lawyers guild review 151. Editorial: D.C. Police Chief Cathy Lanier has to obey the law, too, w ash .e xa MiNer , Feb. 28, 2013, http://washingtonexaminer.com/examiner-local-editorial-d.c.-police-chief-cathy- lanier-has-to-obey-the-law-too/article/2522851. 152. oPc a NN ual r ePort 2013, supra note 60, at 47. 153. Id. 154. Id. 2009 and 2010 were years in which individual officers had 9-10 complaints filed against them. 155. Graph 7: oPc a NN ual r ePort 2009, supra note 110, at 39 and 2013, at 47. 156. oPc a NN ual r ePort 2009, supra note 110, at 39; oPc a NN ual r ePort 2013, supra note 60, at 47. 157. Id. at 47. 158. Samuel Walker, et al., Early Warning Systems: Responding to the Problem Police Officer , National Institute of Justice Department of Justice, 7 (Jul. 2001). 159. Id at 3. 160. Bromwich, supra note 56. 161. o ffice of P olice c oMP lai Nts , c oMP lai Nt e xa MiNer d ecisio Ns (2012). 162. Id. 163. oPc a NN ual r ePort 2009, supra note 110, at 23-24, Table 9, Chart 9a. 164. Id. 165. Id. 166. National Police Misconduct Reporting Project. supra note 138. 167. oPc a NN ual r ePort 2013, supra note 60. 168. Letter from Kurt Vorndran, Chair of the Police Complaints Board and Philip Eure, Execu – tive Director of the Office of Police Complaints, to Mayor Gray, Members of the District of Columbia Council, Chief Lanier, and Chief Pittman 3 (Mar. 17, 2011). See also oPc a NN ual r ePort 2010, supra note 120. 169. Id. 170. oPc a NN ual r ePort 2010, supra note 120, at 19 171. oPc a NN ual r ePort 2013, supra note 60, at 3. 172. Id. 173. Id. at 77. 174. B ill 20-63 P olice M oNitori NG e Nha Nce MeNt a MeNdMeNt a ct of 2013 ( July 2, 2014), available at http://lims.dccouncil.us/_layouts/15/uploader/Download.aspx?legislationid=29 219&filename=B20-0063-HearingRecord2.pdf. 175. Expanded Homicide Table 14, f ederal B ureau of i Nvesti Gatio N , https://www.fbi.gov/ about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/tables/expanded-homicide- data-table-14 (last visited Sept. 28, 2015). 176. Reuben Fischer-Baum, Nobody Knows How Many Americans the Police Kill Each Year, f ive t hirty e iGht , Aug. 19, 2014, http://fivethirtyeight.com/features/how-many-americans- the-police-kill-each-year/. 177. Lowery, supra note 115. 178. Id. 179. Graph 8: Fed. Bureau of Investigation, Expanded Homicide Table 15, https://www.fbi.gov/ about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/tables/expanded-homicide- data-table-15 (last visited Sept. 28, 2015) (defined as the killing of a felon, during the com – mission of a felony, by a private citizen); fBi , Expanded Homicide Table 14, https://www. fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/tables/expanded- homicide-data-table-14 (last visited Sept. 28, 2015) (defined as the killing of a felon by a law enforcement officer in the line of duty); fBi , Expanded Homicide Data , http://www.fbi. gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/offenses-known-to-law- enforcement/expanded-homicide (last visited Sept. 28, 2015); Legal Intervention by Firearm , wisqars M ortality r ePort 2007–. 159 180. Lowery, supra note 115. 181. Fed. Bureau of Investigation, About Law Enforcement Officers Killed and Assaulted, 2011 , http://www.fbi.gov/about-us/cjis/ucr/leoka/2011 (last visited Sept. 28, 2015). 182. Fed. Bureau of Investigation, Officers Feloniously Killed , http://www.fbi.gov/about-us/cjis/ ucr/leoka/2012/officers-feloniously-killed/felonious_topic_page_-2012 (last visited Sept. 28, 2015). 183. Fed. Bureau of Investigation, Law Enforcement Officers Feloniously Killed: Table 1 , http:// www.fbi.gov/about-us/cjis/ucr/leoka/2012/tables/table_1_leos_fk_region_geographic_divi – sion_and_state_2003-2012.xls (last visited Sept. 28, 2015). 184. Lowery, supra note 115. 185. Holmes, supra note 81. 186. Id. 187. Id. 188. Lowery, supra note 115. 189. Hunter Schwarz, Congress decides to get serious about tracking police shootings , w ash . P ost , Dec. 11, 2014, http://www.washingtonpost.com/blogs/post-politics/wp/2014/12/11/ congress-decides-to-get-serious-about-tracking-police-shootings/. 190. Id. 191. Id. 192. Id. 193. About Law Enforcement Officers Killed and Assaulted, 2013 , f ed . B ureau of i Nvesti Gatio N , http://www.fbi.gov/about-us/cjis/ucr/leoka/2013 (last visited Sep. 28, 2015). 194. Noah Kupferberg, Transparency: A New Role for Police Consent Decrees , 42 c olu M . J. l. & s oc . P ro Bs . 129, 129 (2008). 195. OPC Director Testifies on Legislation to Expand Agency’s Authority, dc .G ov (July 9, 2014), http://policecomplaints.dc.gov/release/opc-director-testifies-legislation-expand- agency%E2%80%99s-authority . 196. B ill 20-63 P olice M oNitoriNG e NhaNceMeNt a MeNdMeNt a ct of 2013 ( July 2, 2014), available at http://lims.dccouncil.us/_layouts/15/uploader/Download.aspx?legislationid=2 9219&filename=B20-0063-HearingRecord2.pdf . 197. oPc a NN ual r ePort 2013, supra note 60, at 56. 198. Id. 199. Id. 200. Id. 201. Mike DeBonis & Victoria St. Martin, D.C. police will wear body cameras as part of pilot program, w ash . P ost , Sep. 24, 2014, http://www.washingtonpost.com/local/crime/dc- police-will-wear-body-cameras-as-part-of-pilot-program/2014/09/24/405f7f5c-43e7-11e4 -b437-1a7368204804_story.html. 202. Id. 203. Id. 204. Jocelyn Fontaine, Joshua Markman, & Carey Nadeau, Promising practices of the DC MPD , dc c ri Me P olicy i Nstitute 11-14 (Dec. 2010). 205. Civil Rights Investigations of Local Police: Lessons Learned , P olice e xecutive r esearch f oru M , 16–18, 41 (2013). 206. DC Police Crime Mapping , M etro Polita N P olice d ePart MeNt , http://crimemap.dc.gov/ (last visited Jan. 10, 2015). 207. Barbara E. Armacost, Organizational Culture and Police Misconduct , 72 G eo . w ash . l. r ev . 453, 455 (2004). 208. Id. 209. Id at 456. 210. Id. 211. Id. at 541. “deadly force” revisited 160 national lawyers guild review 212. Id. 213. oPc a NN ual r ePort 2013, supra note 76, at 49–50; Civil Rights Investigations of Local Police: Lessons Learned , P olice e xecutive r esearch f oru M , 25, 42 (2013). 214. Michael Bell, How We Can End “Cop Hunting,” P olitico , Dec. 22, 2014, 3, http://www.politico. com/magazine/story/2014/12/how-to-stop-cop-hunting-113742_Page3.html#ixzz3NU1iHxnq. 215. Id. 216. P olice c oMP lai Nts B oard aNd o ffice of P olice c oMP lai Nts , a NN ual r ePort f iscal y ear 2004 30–31 (2004). 217. Internal Affairs Bureau , dc . Gov , http://mpdc.dc.gov/page/internal-affairs-bureau (last visited Jan. 10, 2015). 218. About Office of Police Complaints , dc . Gov , http://policecomplaints.dc.gov/page/about-office- police-complaints (last visiteded January 10, 2015). 219. David Packman, A Police Misconduct Victim’s Guide, cato i Nst ., N atio Nal P olice M is – co Nduct r ePorti NG P ro Ject , (2010). 220. Bell, supra note 214. 221. Id. 222. Bell. What I did After Police Killed my Son , P olitico , Aug. 15, 2014. 223. Civil Rights Investigations of Local Police: Lessons Learned , P olice e xecutive r esearch f oruM 10 (2013). 224. See Graph 2, Legal Intervention by Firearm Discharge Death Rates 1999-2011 and accom – panying note 103. 225. h uMaN r iGhts w atch , supra note 28. 226. The first four pages of each OPC report contain a letter addressed to the Mayor, Police Chief and DC Council. 227. Harmon, supra note 98.