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The time for a standard code of conduct for police is now 

EDITOR'S NOTE: This essay is one of a pair that debates the concept of standardizing a uniform code of conduct for police and was originally published in the December issue of CITY under the "Two Views" section.

Police officers are charged with upholding the law, and have significant authority and discretion when interacting with the public to stop someone, arrest a person for a minor offense, or to use force — including deadly force — to defend themselves.

Because these interactions have potentially serious repercussions, police officers are often the subject of a complaint of misconduct. Some have no merit — but some do.

What is common to all complaints, however, is that they are adjudicated not by an independent body, but by the police department where the officer is employed. This raises significant concerns as to whether police departments can fairly handle complaints against one of their own, and impose appropriate punishment where warranted.
click to enlarge Monroe County Public Defender Tim Donaher - PHOTO PROVIDED
  • Monroe County Public Defender Tim Donaher
Indeed, in recognition of the difficulties, both real and perceived, with a police agency reviewing misconduct claims against its officers, New York recently began requiring that any use of force by police resulting in death be investigated by the state Attorney General. That is happening right now with the officers involved in the fatal arrest of Daniel Prude.

Police agencies promote professionalism among their collective staff. But the true mark of a professional is dedication to a uniform code of conduct and being subject to oversight by an independent body.

Attorneys, for example, are bound by ethical rules. Complaints about violations of those rules in New York are not handled by the law firm employing the attorney, but by an independent entity known as the Attorney Grievance Committee that is comprised of attorneys who are unaffiliated with the subject of the complaint and non-attorneys. These committees are regional, with oversight over multiple counties, and are supported by a full-time staff of investigators and prosecutors employed by the courts.

Similarly, judges in New York are overseen by an independent entity, the New York Commission on Judicial Conduct. The commission also has staff that investigates complaints made against judges and recommends whether punishment should be imposed.

Physicians have a similar system in the Office of Professional Medical Conduct, which investigates complaints made against doctors and presents its findings to an independent body for determination as to whether the case has merit and warrants punishment.

This type of oversight structure — uniform rules of conduct and an independent entity to investigate complaints — is not limited to the traditional professions. New York’s Division of Licensing Services issues licenses in 35 professions to over 800,000 persons and businesses. It also has a professional staff of investigators who investigate complaints and impose punishment.

When it comes to oversight of police, legitimate concerns as to whether a police agency can police its own has led some communities to establish some form of civilian review board. The success of these community efforts has been mixed at best.

Recently, the city of Rochester attempted to establish a Police Accountability Board (PAB) comprised of civilian members with the power to investigate and discipline police officers. This initiative led to litigation that ultimately rendered the PAB toothless.

Other communities have established civilian oversight boards, but without any investigatory or discipline authority. Those boards can make recommendations to the police chief, who can ignore them. Even in communities that manage to create viable civilian oversight boards, they are often under-resourced, lacking a full-time professional staff. Smaller communities do not have the resources to implement effective civilian review boards, or lack the political will to do so.

Given the challenges faced by these boards, it is time to consider a new oversight model for police, one in which police officers are licensed, follow a uniform code of conduct, and complaints about them assessed by an independent body.

That police agencies implement rules of conduct for their officers is standard practice. However, there is no uniform, statewide code of conduct for police officers. Not all rules of conduct can be uniform throughout the state. But there are rules of conduct that can — and should — be uniform. For instance, the permissible use of force by a police officer should be uniform no matter where that officer is employed, as are rules that prevent discriminatory conduct by police officers. The New York Division of Criminal Justice Services is well-equipped to promulgate these uniform rules, as it already mandates how police officers are trained.

Establishing a set of uniform rules of conduct that all police officers in New York must follow makes creating regional, independent offices to investigate allegations of police misconduct possible. Professional staff would investigate these allegations and either exonerate the officer or determine that a violation occurred. Any possible punishment would be determined by an independent body comprised of police officers and citizens.

This model would require state legislation to implement, and state funding to make effective. But the investment in these resources would provide New York citizens with the assurance that police officers are being uniformly trained, abiding by a uniform code of conduct, and subject to independent oversight — just like the tens of thousands of other professionals in New York.

Timothy Donaher is the Monroe County Public Defender.
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