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Chief's Counsel

Code of Silence: Fact or Fiction?

Craig E. Ferrell Jr., Deputy Director, Administrative General Counsel, Houston Police Department, Houston, Texas

Recently, intense public scrutiny has been focused on highly publicized police misconduct cases across the country, from the Los Angeles Police Department's Rampart corruption incident to the Houston Police Department's shooting of a Mexican immigrant to the New York City Police Department's broomstick incident. With each new headline, anxiety and mistrust of police officers and their departments increases. Police executives now find themselves confronted with the same question: is the so-called code of silence really fact or fiction, reality or perception?

Because one of the primary goals of law enforcement is to instill public trust, the significance of the question overshadows the actual answer. Regardless of the reality of the existence of a code of silence or blue wall, as it is often called, the perception by the public of its existence inhibits the ability of the officers and their departments to perform their duties and to implement strategies such as community oriented policing. Police scandals have not only the general public wondering if the police can be trusted but also supporters and critics of the police calling for civilian review boards and other external oversight mechanisms.

Officers Do Not Tolerate Misconduct by Peers


Contrary to the portrayal of police by Hollywood, it would be difficult to find police departments that have a significant number of officers who are willing to accept or ignore serious misconduct within their own ranks. An examination of the internal affairs investigations in the Houston Police Department from 1992 to 2002 found that in seven of the 11 years examined, more than 50 percent of all the complaints investigated were generated by internal officer complaints as opposed to external citizen complaints. In one year, almost two-thirds of the complaints were initiated from internal sources. These internally initiated complaints are not limited in nature; rather, they run the gamut from minor procedural violations to felony criminal activity.

To see whether Houston's Internal Affairs Division data was different from that of other major departments, our Planning and Research Division obtained statistics from 15 departments among the nation's 50 largest cities. Seven of those departments (Arlington, Texas; Dallas; Baltimore; Jacksonville, Florida; Columbus; Memphis; and El Paso) keep statistics on whether complaints were generated internally or externally. These departments' numbers were similar to Houston's. These statistics would tend to indicate that the blue wall or code of silence exists only in the minds of the Hollywood movie directors. So why does the perception persist?

Pattern or Practice Investigations


Concerns about police integrity and corruption are not a recent phenomenon. Police corruption and misconduct have been the subjects of investigation by several high-profile police commissions such as Mollen, Knapp, Christopher, and Rampart. The federal government has also involved itself in this issue. With the passage of recent federal legislation, the Civil Rights Division of the U. S. Department of Justice has been given the authority to investigate, and initiate civil litigation to eliminate, a "pattern or practice" of misconduct by law enforcement under authority of 42 U.S.C. 14141 and 42 U.S.C. 3789d(c)(3). Misconduct by law enforcement, in this regard, includes excessive force and racially discriminatory practices. Although International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977), is actually an employment discrimination suit, the Justice Department quotes the Supreme Court when it says that a pattern or practice violation exists when police misconduct is the agency's "standard operating procedure-the regular-rather than the unusual practice."

As of June 1, 2000, the Justice Department was investigating 14 cases of alleged pattern or practice misconduct. The Justice Department has said that it will litigate a pattern or practice claim only if it is unable to negotiate a consensual resolution of the problems identified. As of March 30, 2000, the Justice Department had initiated litigation in four such cases:

  • Suits in Steubenville, Ohio, and Pittsburgh both focused primarily on claims of excessive force, false arrest, and improper searches. These cases were both resolved through consent decrees.

  • A New Jersey State Police suit involving claims of racial discrimination in traffic stops and searches was also resolved through a consent decree.

  • A Columbus suit was filed in October 1999 and litigation is ongoing. No consent decree has been negotiated in this matter.

But the existence of the Justice Department investigations, however, do not support the theory that all or even many of this country's police departments have a culture of condoning or ignoring police officer misconduct.

What Police Executives Can Do to Debunk the Myth


So how does the police executive combat this public perception? The key to influencing and changing public perception is the same as that for reducing municipal liability-proper training, proactive supervision, and open communication with the public.

Although we teach our officers how to deal with and be prepared for life-threatening situations, we must also focus on teaching them to deal with ethical issues that will also confront them daily. Just like life-and-death situations, compromising situations frequently occur without warning and with little if any time to think, and, as in life-and-death situations, a wrong decision in the ethical arena can have life-changing consequences for the officer. When confronted with a life-threatening situation, our officers to rely on the training they received. We should expect no less of our officers when they are dealing with ethical issues.

Although the ultimate responsibility for proper and ethical behavior lies with the individual officer (see Monroe v. Pape, 365 U.S. 167 (1961) overruled by Monell v. Department of Social Services of New York, 436 U.S 658 (1978) on other grounds), each police agency and its supervisors must share in some of that responsibility. During the past 30 years, federal civil rights law has evolved to hold law enforcement agencies liable when civil rights are violated as a result of "deliberate indifference" from inadequate training or supervision or both (see City of Canton v. Harris, 489 U.S. 378 1989). It is imperative that the agencies and their supervisors do not merely react to the complaints of misconduct but also take a proactive role in preventing the misconduct. This is achieved not just through proper and regular training but also by setting a proper example to follow. Supervisors and the command staff must be prepared, as the old saying goes, to not only talk the talk but also walk the walk. Proper training and supervision will create an environment that will not tolerate corruption and misconduct and that will take proactive steps to eliminate it when it occurs.

Even after an agency has taken all possible internal steps necessary to combat police misconduct, open communication with the public is required before public perception can be influenced. Many police executives will gladly discuss their training techniques and programs with the public and praise their various investigative units for solving some criminal case. However, it is very rare to hear a police executive touting the work of his proactive internal affairs unit, or commending an officer for not remaining silent about officer misconduct. Many police executives are hesitant to publicly discuss these matters for fear of raising liability issues or because they do not want to be seen as publicly "sliming" the officer that they just fired for misconduct.

Although liability issues should always be considered, the police executive must also consider issues involving the integrity of the department and the reputations of the other officers. When the public sees news stories about seven police officers being fired for collectively engaging in some form of misconduct or corruption, it is imperative for the police executive to explain to the public that those seven are not representative of the rest of the department. The executive should also explain the affirmative steps taken by the department to remove those officers engaged in the misconduct.

Dispelling the myth of a code of silence is not a simple or quick task. Just like I always tell my children, trust is something that takes a lifetime to achieve but only seconds to destroy. Through proper training, proactive supervision, and open communication with the public, we can gain the public's trust and confidence, and convince them that a code of silence exists only in the movies.

Sergeant Charles G. Dunn, staff attorney and law office manager for the Houston Police Department, assisted in the preparation of this column.

 

From The Police Chief, vol. 70, no. 11, November 2003. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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