GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2005

Status

Accepted

Abstract

There are various ways to oversee police behavior including internal discipline, civilian review boards, civil law suits, and criminal prosecutions. These are important tools but an equally important but less examined mechanism is legislative oversight, and, in particular, the legislative investigation. A legislature may choose to review police policies concerning the use of surveillance, informants and undercover operatives, the implementation of community policing, the use of force, eradication of gang activity, and perhaps most prominently in the post 9/11 world, counter terrorism initiatives. All of these matters involve policy decisions at the departmental level and not actions taken at the discretion of individual officers in the field. The aim of legislative oversight is not to micro-manage police decisions, but to structure those decisions in line with best practices and within constitutional boundaries. Acting through their elected representatives, communities can have a say, for example, about shoot to kill policies, random searches of people on busses and trains, and the keeping of dossiers on individuals and groups. This Article identifies the benefits and limits of local legislative investigations as a means of police oversight by looking at the 2003 investigation of the Metropolitan Police Department by the City Council of the District of Columbia. The investigation focused on the police mishandling of anti-globalization demonstrations held in Washington D.C. from 2000-2003 and led, ultimately, to the drafting of model legislation, "The First Amendment Rights and Police Standards Act of 2004," enacted in 2005. As the Article explains, legislative investigations enable the government to address police practices at a systemic level, are more likely to gain the co-operation of the police since the aim is not to affix blame per se, can more forward with relative speed, and are likely to result in improvements since the legislature is directly invested in the effort and controls the levers of reform. Legislative investigations also have some potential to counter the "dual messages" phenomenon that allows police to acknowledge the rules that limit their behavior but to flout them at the same time. Formal policies and official pronouncements of police departments never approve of violation of rights, or permit brutality, corruption, or unlawful conduct. But informal messages from police leaders, rank and file, citizen groups, or even the media may communicate a different set of norms which appear to look past or even encourage these kinds of transgressions. A legislative investigation can publicly affirm the need to adhere to the rules and show that there are consequences if police rules and constitutional rights are violated. Finally the article discusses the keys to conducting a successful legislative investigation of the police and describes the legislative changes resulting from the District of Columbia police investigation.

GW Paper Series

GWU Law School Public Law Research Paper No. 176

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