At a city meeting on Monday, Sept. 24, the Citizens Review Board task force offered suggestions in response to the community's outcry for reform of the board, which oversees citizen complaints against Charlotte-Mecklenburg Police. But the recommendations essentially maintain the board's ineffective appeals process.
In its 16 years of existence and of the 79 cases that have come up, the Citizens Review Board has never ruled in a citizen's favor. What's more troubling is the unfortunate reality that a citizen has received a full hearing before the board only four times. This is due to the unreasonably high need for substantial evidence and the inappropriately focused standard of review at the threshold of the appeals process.
As the ordinance stands, the citizen complainant is required to prove by a "preponderance of the evidence" that the police chief "abused his discretion" before the board will even allow a full evidentiary hearing. Preponderance basically means 51 percent, while the abuse of discretion standard forces the board to pay high deference to the decision of the police chief. The citizen must meet this standard both at the start of the appeals process and again at the full evidentiary hearing stage. The recommendation from the task force in that Monday meeting was to change the language to "substantial evidence that an error occurred in the investigation of the complaint or disciplinary action of the police chief." This new standard is the same in practical effect as the original standard for three reasons.
First, requiring a citizen to show a preponderance of or even substantial evidence at a stage in the appeals process when the only evidence offered are the statements by the complainant against any evidence and witnesses or personnel that the police department wishes to present is like a kitten on a seesaw with an elephant. The majority of the evidence comes from the police department. For this reason, the Charlotte School of Law's Civil Rights Clinic has proposed that this standard should be lowered to "reasonable cause to believe." The board members should have some indication that the complaint is not frivolous and that misconduct could have occurred.
Second, the Task Force's cleverly reworded standard of review, focusing on the investigation procedures of Internal Affairs or the disciplinary decision of the police chief, is just another way to impose a deferential review of the complaint that fails to assess the underlying facts of the case. It entirely misses the point of independent oversight of law enforcement. The board was created during a time of community turmoil after several shootings involving police and citizens in the mid '90s. The purpose of oversight was to establish a neutral intermediary between the CMPD and citizens; an avenue for citizens to present their cases outside of the perceived biases of CMPD and Internal Affairs. When the standard that the board is required to apply to citizens' complaints focuses on the procedures of Internal Affairs or the discretionary decisions of the police chief, rather than the underlying merits of the complaint, that neutrality is compromised. For this reason, the Civil Rights Clinic has proposed that the full burden at the threshold stage be "reasonable cause to believe that misconduct occurred."
Third, requiring citizen complainants to meet the same standard at the threshold hearing as in the full evidentiary hearing is not logically sound. In a criminal trial, there is a probable cause hearing where facts must support a reasonable belief that criminal activity occurred. Then at trial, the prosecutor must prove guilt beyond a reasonable doubt. In a civil trial, a plaintiff's complaint must be factually sufficient if taken as true to present a claim upon which relief can be granted; then the trier - a person or group responsible for investigating or deciding a case, like a jury - weighs evidence that is gathered throughout the discovery process to make his or her determination. In no instance that I can imagine is the threshold burden, before the record is factually developed, equal to the burden at final disposition. For this reason, while the clinic proposes lowering the threshold burden, we also promote maintaining a higher burden at the full evidentiary hearing: "preponderance of the evidence that misconduct has occurred."
In a statement published in the Observer in February, board attorney Julian Wright observed that "[i]f the Observer, City Council, or our community wants different results from the CRB, they need only lower the 'abuse of discretion' standard imposed upon the board" which "could yield dramatically different results in CRB appeals." This suggestion provided an early road map for reform that has been lost in the stakeholder process.
I do not assume that all of the nuances of the various community stakeholders' proposed reforms can be understood in a brief hour-long meeting, nor do I think reform can come quickly. I do expect, however, that our representatives thoroughly address the structural and practical obstacles prohibiting the board from building community trust. In the wake of more tragic shootings between officers and unarmed citizens, our city cannot afford to let community distrust in law enforcement linger.
Carson will graduate from Charlotte School of Law in 2014. She is the editor in chief of the Charlotte Law Review and a member of the Moot Court Honor Board and Charlotte School of Law Civil Rights Clinic.