Civilian Oversight of Law Enforcement (commonly misnamed “Civilian Review Boards” or “CRBs” — the field is much more expansive than just CRBs) is a bit of a mixed bag. Most are relatively ineffective. This may come as a surprising statement to those who know how hard I (and many others!) worked to create meaningful police oversight in Charlottesville, Virginia over the past few years. But it’s true. And it’s a problem.
Many civilian oversight bodies are seen as “toothless” agencies that just rubber stamp police actions or policies. In my opinion, an ineffective oversight body is likely to be more harmful to the community than helpful. If it merely gives the illusion of oversight but has no authority to make meaningful findings that side with the people who complain about police misconduct, then what does it do? Or if you can’t access the data, documents, and policies to make meaningful public reports about the ways policing in your community must change? If you rely on the police department’s cooperation to give you access to documents and evidence you need, when your job is to oversee that same police department? All it does is further erode trust.
In the wake of tragedies across this country— and in the face of innumerable ongoing instances of police violence and murder — we are finally discussing these issues across every state in the nation. Some are calling for police reform. Others are calling for divesting resources from police departments and re-investing resources into community care programs. Others still are advocating that we abolish the police, as well as our prison systems. Some folks don’t know where they fall on this spectrum. Much of our conception of public safety is based on centuries of white supremacist and racist doctrine. It can be hard to unravel the ways that that doctrine has invaded our concepts of safety, who needs to be kept safe from whom, and who is best at keeping communities safe.
Whether your goal is reform or abolition, I believe civilian oversight can play a role in achieving your goals. So much of meaningful oversight is simply opening up the black box of policing that has kept information and data from the public eye for too long. That might be information about the way your communities are policed (which, to be fair, you likely already know if you’re experiencing that daily) and the policies or data-keeping practices that allow that type of policing to continue. Or it might be that you can create an oversight mechanism that digs deeply into how your police department makes money (Who is privately funding your police department or police foundation? How much does your locality rely on asset seizures? What other agencies are actually paying for policing in your community? Etc). You can also create an oversight body to examine how the police department in your area spends its (likely) tens or hundreds of millions of dollars. (Does that reflect the values of your community? Does anyone in power actually challenge the need for these resources? Are your teachers buying their own markers and reading supplies while your taxpayer dollars shell out millions for militarized equipment for your police department? How is overtime pay affecting the ways your police department react to protests?) Of course, you can also create an oversight body that simply reviews complaints of police misconduct, but to that I’d say: please think bigger. (Ahem: I’m not speaking to the communities impacted by policing. I’m speaking to local politicians and authorities.)
Uncreative and un-individualized oversight bodies are yesterday’s news. Or at least they should be. Examples of those oversight bodies are Civilian Review Boards built to review singular complaints against an officer. Even traditional CRBs usually don’t allow the civilian oversight body access to all complaints and all dispositions. They are reactive measures that often have little impact. They may have been created with good intentions, but they don’t meet specific community needs.
I believe that the main problems leading to ineffective oversight are primarily two-fold.
The first problem is that localities create oversight mechanisms with limited engagement with (and often without providing positions of power to) the people in the community most impacted by policing. Many localities create oversight because they are subject to a consent decree — where a judge forces the creation of oversight. Oversight is dictated from above. Those that create oversight of law enforcement for a reason other than a consent decree often do so as a result of a tragedy — perhaps an officer has killed someone and the community demands action. Mayors or City Councilors will rush to produce an oversight mechanism that (maybe) meets that immediate demand. In both of these circumstances, the powers-that-be are the ones dictating the type of oversight that they deem necessary. The communities most impacted by policing are often left out of these conversations entirely.
The second problem leading to ineffective oversight is that police officers, police departments, and police unions have unprecedented power. It is no secret that police departments have extraordinary power. They have the power to take civilians’ liberty and lives. But beyond that basic — yet highly relevant — point, they have institutionalized power that many people don’t even know about. Take Virginia, for example, where I live. There are two state statutes that come to mind that afford extraordinary protections to officers that people rarely talk about. The first is the Law Enforcement Officers Procedural Guarantees Act. The second is the Freedom of Information Act. The Law Enforcement Officer Procedural Guarantees Act gives police — and no other municipal employee— the power in Virginia to bypass the normal municipal grievance- and disciplinary-process. Law Enforcement Officers may exercise these “rights” that provide insulation and protection against misconduct and punishment. These are not their constitutional rights; these are more like “bonus” rights. Beyond that, the Freedom of Information Act allows localities to discretionarily exempt certain records from the public eye. So, for example, the public cannot find out which police officers have repeated patterns of misconduct allegations. The public often can’t even know the name of an officer that engages in a violent interaction caught on camera. The public cannot know what disciplinary action was taken against an officer. The public cannot know if an officer who was hired in their locality had been fired or punished in a previous police department for serious misconduct. Even civilian oversight bodies can’t touch disciplinary matters in most localities in Virginia.
And I haven’t even gotten to the issues of qualified immunity, powerful police union and benevolent associations’ lobbies, and more (which are more frequently discussed). (I will tell you anecdotally that our local Police Benevolence Association’s retained lawyer attended all of the Charlottesville Initial CRB’s meetings, video recorded us, and threatened CRB members and the City with lawsuits. Some — including me — even argue that it made the City skittish and unwilling to create an oversight body that is powerful and meaningful.)
With all of these protections and powers, policing culture has been allowed to thrive in darkness, without meaningful oversight from the people who pay for it and bear the brunt of its power. Combine that with historical and present-day racist, sexist, heteronormative, warrior-style policing culture and…here we are. A group of civilian oversight practitioners can do little to unveil these issues, much less change them. But that is not due to a lack of willpower. It is because there are structural barriers in place in almost every state (if not every state) to prevent anyone from looking beneath the hood.
To address these two problems, I propose the following local and statewide solutions.
Let’s start locally. The first solutions is to give the power to the people most impacted by policing. In your locality, that could include mandating civilian oversight bodies’ membership to include Black residents, low-wealth residents, members of religious groups that experience persecution, youth or young adults, unhoused individuals, immigrant populations, members of the LGBTQIA community, and others. Allow those individuals to be the ones to conduct outreach in the community to determine what kind of policing change is demanded in your area and then build oversight mechanisms around those demands. Localities should allow them to create the most powerful oversight body (staff- and volunteer-based) that is permissible under state law. And, importantly, oversight bodies should be made up of members of the civilian public — specifically those who are over-policed — and should not be made up of police officers. If oversight is not created, driven, and operated by the people most impacted by policing, it risks being a politically-motivated bandaid and/or just being a waste of resources and time. Beyond that civilian oversight needs to be well-funded both financially and in terms of human resources. Localities cannot skimp on this. Funds could even be diverted from the police departments themselves that oversight bodies are tasked with overseeing. This should be at a rate of no less than 1% of the local law enforcement agency’s budget. And finally, as oversight is created, all discussions of civilian oversight and business of the civilian oversight body should be held in public. (If police chiefs or officers have opinions on how oversight should be conducted, they can and should say so publicly.)
The second set of solutions necessitate statewide changes. We need to demand serious legislative changes. The Virginia General Assembly is holding a special session in August 2020 specifically to address reform of the criminal legal system and policing. The legislature should expressly allow localities to create civilian oversight bodies. Those localities should be able to give civilian oversight bodies subpoena power. Those localities should also be able to permit their civilian oversight bodies to have access to and make commentary on police discipline, at a bare minimum, or (if demanded by the specific community) more authoritative power in police disciplinary matters. Civilian oversight bodies should be given broad mandates to address any significant issue of public concern. The state should not define civilian oversight for localities. Prescriptive enabling language hinders their ability to actually meet community needs. State statutes or local ordinances (like the ones described above) that shield information from the public or that afford law enforcement officers extraordinary protections should be re-examined and partially or wholly repealed. Statutory barriers to public access of law enforcement data, documents, and records has become a shield behind which localities can hide. The state legislature needs to provide localities with the ability to create meaningful oversight, the ability to access disciplinary records and other important data to oversight, and communities need to then hold their localities to task.
It would be glorious if our state and local leaders would simply work to create these solutions. Yet, even in a progressively-minded locality, they often don’t. There is too much institutional power to protect and the policing lobby is powerful in resisting change. In that case, it is left — as it often is — to the people who protest in the streets for months on end, who show up to 8-hour City Council meetings to express themselves, who apply for boards and commissions knowing how dysfunctional they are, and who are intimately involved in community work and grassroots organizing to carry the message. Just once I would love to see these folks able to take a damn break with the knowledge that their leaders will do what’s best for them. But, alas. (I’d like to take this brief moment to thank the people, specifically the Black and Brown community organizers, who work so tirelessly on these issues with so little recognition.)
Given that community groups are likely the ones who will have to push these issues at every step of the way, some of us here in Virginia are trying to ensure that you have the tools you need to advance your campaigns. Legal Aid Justice Center, Justice Forward Virginia, and the National Association for Civilian Oversight of Law Enforcement has created a few flyers (1) to help localities understand what civilian oversight is (and what it isn’t) and (2) to help community grassroots organizations use civilian oversight as a way to build power and community control. Those flyers can be found here:
And remember, civilian oversight is one of many valuable tools necessary to reimagine public safety, wellness, and racial equity in our communities. Establishing a civilian review board will not solve all policing problems. But, research shows it is a meaningful first step and that it has the potential — when done well — to reduce racial disparities (including in police homicides of civilians). (See Ali, M. U., & Pirog, M. (2019). Social Accountability and Institutional Change: The Case of Citizen Oversight of Police. Public Administration Review, 79(3), 411–426.)
Let’s take these first steps at demanding community power and meaningful civilian oversight.