[House Report 106-190]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-190
======================================================================
NATIONAL POLICE TRAINING COMMISSION ACT OF 1999
_______
June 18, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1659]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1659) to reinforce police training and reestablish
police and community relations, and to create a commission to
study and report on the policies and practices that govern the
training, recruitment, and oversight of police officers, and
for other purposes, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 4
Background and Need for the Legislation.................... 5
Hearings................................................... 10
Committee Consideration.................................... 11
Vote of the Committee...................................... 11
Committee Oversight Findings............................... 13
Committee on Government Reform and Oversight Findings...... 13
New Budget Authority and Tax Expenditures.................. 13
Congressional Budget Office Cost Estimate.................. 13
Constitutional Authority Statement......................... 15
Section-by-Section Analysis and Discussion................. 15
Changes in Existing Law Made by the Bill, as Reported...... 16
Minority Views............................................. 19
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Police Training Commission
Act of 1999''.
SEC. 2. ESTABLISHMENT.
There is established, subject to the availability of
appropriations, a commission to be known as the ``National Police
Training Commission'' (hereinafter in this Act referred to as the
``Commission'').
SEC. 3. MEMBERSHIP.
(a) Number and Appointment.--The Commission shall be composed of 5
members appointed as follows:
(1) The majority and minority leaders of the Senate shall
each appoint 1 member.
(2) The Speaker of the House of Representatives and the
minority leader of the House shall each appoint 1 member.
(3) The 4 members appointed under paragraphs (1) and (2)
shall then select 1 member.
(b) Eligibility and Qualifications.--
(1) Eligibility.--The members of the Commission shall be
individuals who have knowledge or expertise, whether by
experience or training, in matters to be studied by the
Commission under this Act. The members may be from the public
or private sector, and may include Federal, State, or local
officers or employees (other than those holding elective
office), members of academia, non-profit organizations, or
other interested individuals.
(2) Qualifications.--The members of the Commission shall be
individuals who possess relevant backgrounds, credentials, and
experience in some or all of the following:
(A) Civil and criminal litigation.
(B) Administrative and management functions of law
enforcement in major cities and smaller communities.
(C) Community relations.
(c) Term.--Each member shall be appointed for the life of the
Commission.
(d) Length of Commission.--The Commission shall cease to exist 1
year after the initial appointment of the 4 members described in
paragraphs (1) and (2) of subsection (a). The initial appointment of
the 4 members so described shall not take effect until the later of
October 1, 1999 or the date on which appropriations are made available
for the expenses of the Commission.
(e) Vacancies.--Except as otherwise provided in this subsection, a
vacancy in the Commission shall be filled in the manner in which the
original appointment was made, and shall not affect the power of the
remaining members to execute the duties of the Commission. If any of
the original appointments are not made by the day that is 30 days after
the date of the enactment of this Act, any members already appointed
shall fill any vacancy existing on that date.
(f) Meetings.--The Commission shall meet at the call of the
Chairperson.
(g) Chairperson.--The Chairperson of the Commission shall be
elected by the members.
SEC. 4. FUNCTIONS.
(a) Study.--The Commission shall conduct a study of the
effectiveness of training, recruiting, hiring, oversight, and funding
policies and practices in law enforcement, including the following:
(1) Training: policies, practices, and organizational
strategies of law enforcement, and training and instruction in
the use of force, the use of non lethal force, tactical and
defensive tactical; arrests, searches and handcuffing; verbal
communication; vehicle use; initial and continuing cultural
diversity training;
community relations and sensitivity training of law enforcement
vis a vis the community and the community vis a vis law
enforcement.
(2) Recruitment and Hiring: policies and practices in
hiring and recruiting law enforcement officers and identifying
and setting standards for hiring regarding educational and
psychological backgrounds; diversity; lengths of probationary
periods.
(3) Oversight: complaint procedures regarding police
officers, including screening, organization, and training of
investigatory staff; the availability and fairness of due
process requirements for members of the public and law
enforcement officers, and obstacles to ensuring objective and
timely investigations; discrimination and harassment, including
the relationship between police and prosecutors; perjury,
including the ``code of silence''.
(4) Funding: the effectiveness of the use of funding for
programs relating to matters described in paragraphs (1)
through (3) of this subsection, whether derived from the
Violent Crime Control and Law Enforcement Act of 1994 or
otherwise, by cities listed in section 210501 of such Act.''.
(b) Report.--Not later than 1 year after the initial appointment of
the 4 members described in paragraphs (1) and (2) of section 3(a), the
Commission shall submit a report to Congress of the results of its
study, including any recommendations the Commission may make with
regard to the matters studied including best practices.
SEC. 5. ADMINISTRATIVE PROVISIONS.
(a) Information From Federal Agencies.--The Commission may secure
directly from any Federal department or agency such information as the
Commission considers necessary to carry out its duties under section 4.
Upon the request of the Commission, the head of such department or
agency may furnish such information to the Commission.
(b) Service Not Compensated.--Each member of the Commission shall
serve without compensation, and members who are officers or employees
of the United States shall serve without compensation in addition to
that received for their services as officers or employees of the United
States.
(c) Travel Expenses.--The members of the Commission shall be
allowed travel expenses, including per diem in lieu of subsistence, at
rates authorized for employees of agencies under subchapter I of
chapter 57 of title 5, United States Code, while away from their homes
or regular places of business in the performance of service for the
Commission.
(d) Staff.--
(1) In general.--The Chairman of the Commission may,
without regard to the civil service laws and regulations,
appoint and terminate an executive director and such other
additional personnel as may be necessary to enable the
Commission to perform its duties. The employment and
termination of an executive director shall be subject to
confirmation by a majority of the members of the Commission.
(2) Compensation.--The executive director shall be
compensated at a rate not to exceed the rate payable for level
V of the Executive Schedule under section 5316 of title 5,
United States Code. The Chairman may fix the compensation of
other personnel without regard to the provisions of chapter 51
and subchapter III of chapter 53 of title 5, United States
Code, relating to classification of positions and General
Schedule pay rates, except that the rate of pay for such
personnel may not exceed the rate payable for level V of the
Executive Schedule under section 5316 of such title.
(3) Detail of government employees.--Any Federal Government
employee, with the approval of the head of the appropriate
Federal agency, may be detailed to the Commission without
reimbursement, and such detail shall be without interruption or
loss of civil service status, benefits, or privilege.
(e) Procurement of Temporary and Intermittent Services.--The
Chairman of the Commission may procure temporary and intermittent
services under section 3109(b) of title 5, United States Code, at rates
for individuals not to exceed the daily equivalent of the annual rate
of basic pay prescribed for level V of the Executive Schedule under
section 5316 of such title.
(f) Meetings.--The Commission shall meet at the call of the
Chairman.
(g) Quorum; Voting; Rules.--Two members of the Commission shall
constitute a quorum to conduct business. Each member of the Commission
shall have one vote, and the vote of each member shall be accorded the
same weight. The Commission may establish by vote of a majority of its
members any other rules for the conduct of the Commission's business,
if such rules are not inconsistent with this Act or other applicable
law.
(h) Use of Information Acquired by the Commission.--Information
acquired by the Commission for its study shall be used only for
research, statistical, and reporting purposes.
(i) Information to be Kept Confidential.--Information the
Commission determines is confidential, including the identity of law
enforcement officers and members of the public, shall not be disclosed
to the public, nor made a part of any public findings, nor made a part
of any report published by the Commission.
(j) Applicability of Federal Tort Claims Provisions.--For purposes
of sections 1346(b) and 2401(b) and chapter 171 of title 28, United
States Code, the Commission is a Federal agency and each of the members
and personnel of the Commission is an employee of the Government. This
subsection shall not be construed to imply that any commission is not a
Federal agency or that any of the members or personnel of a commission
is not an employee of the Government for purposes of sections 1346(b)
and 2401(b) and chapter 171 of title 28, United States Code.
(k) Hearings.--
(1) In general.--The Commission may hold such hearings, sit
and act at such times and places, administer such oaths, take
such testimony, and receive such evidence as the Commission
considers advisable to carry out its duties under section 4.
(2) Witness expenses.--Witnesses requested to appear before
the Commission shall be paid the same fees as are paid to
witnesses under section 1821 of title 28, United States Code.
The per diem and mileage allowances for witnesses shall be paid
from funds appropriated to the Commission.
SEC. 6. TRAINING.
Section 210501 of the Violent Crime Control and Law Enforcement Act
of 1994 is amended--
(1) in subsection (b)(1)(A), by inserting ``, and provide,
under paragraph (4), training, recruitment, hiring, and
oversight assistance'' before the semicolon; and
(2) in subsection (b), by adding at the end the following:
``(4) The training, recruitment, hiring, and oversight
assistance under paragraph (1)(A) shall be given to the
following cities: New York, New York, Chicago, Illinois, Los
Angeles, California, the District of Columbia, and Charlotte,
North Carolina, and to one police department from each of the 4
geographical regions of the country (northeast, south, midwest,
and west) 2 of which have less than 100 police officers and 2
of which have less than 300 police officers, as determined by
the National Police Training Commission. The assistance may
include funding for equipment, not to exceed 10 percent of the
amount of the grant made to each city. The money appropriated
for such assistance shall be distributed to those locations in
proportion to the size of their police departments and upon
receipt of written assurances from the police department that
the department will provide access to its operations to the
Commission. There are authorized to be appropriated for fiscal
year 2000 for the purposes of such assistance the sum of
$3,000,000.''.
SEC. 7. DATA ON DEATHS WHILE IN CUSTODY.
Section 20101(b) of the Violent Crime Control and Law Enforcement
Act of 1994 is amended--
(1) by redesignating paragraphs (6) through (9) as
paragraphs (7) through (10), respectively; and
(2) by inserting after paragraph (5) the following:
``(6) assurances that the State will follow the guidelines
established by the Attorney General in reporting, on a
quarterly basis, information regarding deaths of any person who
is in the process of arrest, has been incarcerated or is en
route to be incarcerated at any municipal or county jail, State
prison, or other local or State correctional facility
(including any juvenile facility) that, at a minimum,
includes--
``(A) the name, gender, ethnicity, and age of the
deceased;
``(B) the date, time, and location of death; and
``(C) a brief description of the circumstances
surrounding the death.''.
Purpose and Summary
H.R. 1659 authorizes a grant of monies to local police
departments to enhance training programs and creates a
Commission to study, training, recruiting, hiring and oversight
policies and practices, particularly relating to use of force
issues. The award of grant monies is conditioned on the
identified police departments providing written assurances of
their cooperation with the Commission.
Background and Need for the Legislation
I. Use of Force By Law Enforcement and Police/Community Relations
Significant controversy has surrounded the use of force by
law enforcement at the local, state and national levels. ``Use
of force'' issues can arise during a variety of police/
community contacts: use of weapons (guns, night sticks and
other objects); use of physical force to restrain; use of non-
lethal force (i.e. pepper spray and like technologies); verbal
communication; tactical and defensive tactical strategies;
arrests, searches and handcuffing; and vehicle use.
All of these tactics are integral and necessary to an
effective policing strategy and to ensuring the protection of
the police and the community. In implementing these strategies
ineffectively or inappropriately, both police and members of
the public have needlessly lost their lives. Further, members
of various police departments across the country have been
indicted and convicted on manslaughter and murder charges after
using their weapons. In some cases, it appears that the police
officers' ongoing training with their weapons is inadequate. In
some major police departments, weapons training is less over a
full career than one year of weapons training received by
agents with the Federal Bureau of Investigation.
Police/community relations are central to the public
safety, impacting on the cooperation of the community members
with the police and in turn the success rate the police may
have in curbing and preventing crime. These relations include
having police officers of varying races and ethnic diversity
who are knowledgeable about and sensitized to members of
diverse communities.
Without effective police/community relations, the policing
function and the safety of our communities are at risk. One
retired police officer, who himself had experienced verbal
assault charges while on the job, has started a program called
``Verbal Judo'' in which he instructs police officers in
effective verbal communication and, particularly, in
confrontational situations. Also, African American police
officers in New York have taken it upon themselves to go out
into the community to acquaint community members and youth with
the requirements of policing and effective means of interacting
with the police so as to avoid unnecessary confrontations.
In addition, the U.S. Civil Rights Commission has
recommended that police officers undergo mediation training to
more effectively resolve conflicts they encounter. Accordingly,
police/community relations can have a direct impact on use of
force issues.
Whether a ``stranger'' policing strategy, ``community
policing'' or some other policing strategy is adopted, the
level of skill and training possessed by individual police
officers impacts on their decision-making about whether to use
force and, if so, what type of force and how much to employ.
Consequently, training in the use of force and in skills which
facilitate police/community relations impact directly on the
quality and effectiveness of the protection afforded to the
community by the police, as well as the ability of the police
to prevent and reduce crime.
Because public safety and security depend upon the
effective, efficient, impartial and nondiscriminatory delivery
of policing services to all communities, it is the intention of
the Committee that the Commission remain bipartisan and non-
political in its study and recommendations. Further, certain
police groups have expressed concern about the politicization
of the composition of the Commission and their view that this
could detrimentally affect the work of the Commission.
The method for selection of the Commissioners is designed
to reflect that intention. A provision excluding those holding
elective office is included and is designed to foster the
Committee's intention that the Commission remain as non-
political in its work as is possible, while at the same time
providing the Commission access to the information and areas of
expertise deemed necessary to accomplish its tasks under H.R.
1659. The decision not to compensate the Commission members is
designed to attract Commissioners who will serve due to the
prestige, not for compensation, and in this way further the
Committee's intention that the Commission remain as bipartisan
and as non-political as possible in its work.
During the week of May 3, 1999, A & E, a cable television
station, has featured a series by Bill Kurtis on the use of
force by law enforcement entitled ``Bad Cops.'' One of the
repeated themes of the program was whether law enforcement
policies regarding the use of force required revamping and/or
reconsideration. In February, of this year, New York, immigrant
Amadou Diallo was the target of 41 bullets shot by four (4)
police officers in the Bronx in New York City. This incident
refocused the nation's attention on the use of force by law
enforcement. While some members of the New York community claim
that it was a racial incident--four white police officers fired
at an immigrant--others have concluded that race is not at the
heart of the incident but, rather, the training of the
particular police officers. The particulars of the incident
raised a number of questions in the minds of many Americans:
How is it that 4 officers shot at one unarmed man? Why is it
that 41 bullets were discharged? What factors contributed to
the public reaction to the incident and the ensuing outcry?
What are the best methods to avoid attitudes and conduct such
as those exhibited by Mark Fuhrman in the O.J. Simpson case?
What is the best method of identifying officers such as Justin
Volpe prior to their abusing inmates as he did in the Abner
Louima case? Why do certain ethnically diverse neighborhoods
experience very little dissatisfaction with police services
where others appear to have heightened unresolved tensions?
Law enforcement groups have asked ``What criteria will be
used to evaluate whether a police program, practice or training
is `effective' or `successful'?'' Will the Commission collect
data? Conduct interviews? Assess curricula? Develop methodology
and models? These are valid questions that the Commission in
consultation with recognized experts in the field of law
enforcement as well as community relations will have to ask and
address. These same groups have questions concerning oversight
issues that may be particular to one community but not
necessarily others. It is expected the Commissioners and
consultants will be able to assess these issues and their
impact on delivery of policing services.
It is contemplated that the Commission will act as a study
commission and not an investigative commission and, therefore,
there is no provision for subpoena power. The limitations on
the authorized use of data received by the Commission as well
as the confidentiality provision are designed to encourage the
unencumbered sharing of information to the greatest extent
possible without fear that the information received as well as
the Commission's analyses and work product will then become
available for use in litigation or to embarrass or attack
members of the police and community. Rather, the Committee is
interested in hearing from the Commission about its findings
and conclusions concerning effective and ineffective training
programs being used or tried by police departments and policies
and practices in hiring, recruiting and oversight for the
Committee's future legislative and funding decisions.
During the Committee's hearing on H.R. 1659 and a U.S.
Civil Rights Commission hearing into police practices in New
York following the Abner Louima and Amadou Diallo shooting,
both civil rights as well as law enforcement witnesses
pinpointed enhanced training as the most important means of
addressing abusive and deteriorated police/community relations.
It is the intention of H.R. 1659 that the Commission's study
will assist in identifying those practices which strike the
right balance between effective law enforcement and positive
relations between police and the community.
A Solution to the Use of Force Controversy
Although individual incidents of excessive use of force can
be addressed through the criminal and civil court systems, this
avenue of redress does not provide overarching, long term
solutions. In addition, the court system has a significant
delay in addressing these matters and does not produce
solutions designed to remedy the root causes of the excessive
or inappropriate use of force. Focusing on the training,
hiring, recruitment, oversight and discipline of officers,
however, can address the underlying causes.
The Police Training Commission Act of 1999 is designed to
be one of the solutions to the occurrences of excessive and
inappropriate uses of force, to recruiting and hiring issues
that may be related thereto, and to oversight and discipline of
officers who engage in inappropriate or excessive use of force.
The Collection of Data on Deaths While In Custody
An estimated 1000 men and women die questionable deaths
each year while in police custody or in jail. A number of
deaths that occur in state and local jails are ruled suicides,
but that determination is often tainted by inadequate record-
keeping, investigative incompetence, and physical evidence that
suggests otherwise. In addition, many of the individuals listed
as ``suicides'' had been arrested for relatively minor
offenses--greatly reducing their incentive to take their own
lives. The FY 1998 Commerce, Justice, State and Judiciary
Appropriations Act directed the Office of Justice Programs at
the Department of Justice to determine the feasibility of
creating a single source for annual statistics on in-custody
deaths--including federal, state and local incidents. The
provision directs the Attorney General to develop guidelines
for the reporting of deaths in custody and requires that at a
minimum, the report include (1) the name of the deceased; (2)
the gender of the deceased; (3) the ethnicity of the deceased;
(4) the age of the deceased; (5) the date, time and location of
the death; and (6) a brief description of the circumstances
surrounding the death. The FY 1998 Commerce, Justice, State and
Judiciary Appropriations Act directed the Office of Justice
Programs at the Department of Justice to determine the
feasibility of creating a single source for annual statistics
on in-custody deaths--including federal, state and local
incidents. In March 1998, DOJ reported that this goal is
achievable. As H.R. 1659 deals with the issue of police
accountability, the committee believes it is appropriate to
require that these statistics be reported.
II. H.R. 1659, the ``National Police Training Commission Act of 1999''
On May 5, 1999, Congressman Serrano introduced H.R. 1659,
the ``National Police Training Commission Act of 1999'', which
Chairman Hyde co-sponsored.
The Act has two components. The first component consists of
a grant of seed money to some of the nation's largest and more
diverse police departments as well as smaller, regional
departments for the purposes of training, hiring and
recruiting, and oversight. The second component provides a
Congressional oversight mechanism; that is, a Commission to
study these departments' use of the grant monies and the
effectiveness of the training programs and policing strategies,
the hiring and recruiting practices and policies, and oversight
policies and practices. In particular, the Commission will
focus on these policies and practices as they relate to law
enforcement's use of force. The Act calls for the Commission to
then report its findings to Congress and to make
recommendations regarding its findings of effective programs
and policies, including ``best practices'' and concerning the
continued involvement of the federal government in these
areas--both in terms of oversight as well as funding. At the
conclusion of the Commission, a report will be forwarded to
Congress detailing the findings of the study and its
recommendations as to further Congressional involvement and
funding of these programs.
The selection of the police departments was not based on
determinations that they had particular excessive use of force
issues. Rather, in recognition that all police departments
around the country have and are experiencing use of force
issues. The bill identifies the following cities: New York, New
York, Chicago, Illinois, Los Angeles, California, the District
of Columbia, Charlotte, North Carolina, and to one police
department from each of the 4 geographical regions of the
country (northeast, south, midwest, and west) 2 of which have
less than 100 police officers and 2 of which have less than 300
police officers, as determined by the National Police Training
Commission. Their police departments are the following sizes:
Washington D.C. (3512 sworn members), New York (39,000 sworn
members), Chicago (14,000 sworn members), Los Angeles (10,000
sworn members), Charlotte (1385 sworn members), two (10 sworn
members each) and 2 (300 sworn members each).
These cities were selected not because they have unique
problems with police training or the use of force. Rather,
these cities were selected because by virtue of their differing
sizes they will present the Commission with data of a wide
array of issues concerning police/citizen contacts and in turn
issues surrounding the use of force. Many of these cities have
a greater diversity in the communities served by the police
departments and also therefore present the opportunity to study
the delivery of policing services to minority and ethnically
and culturally diverse communities. Additionally, the cities
are geographically diverse, with major police departments
spread from Washington D.C. in the East, Chicago in the Midwest
and Los Angeles in the West as well as Charlotte in the
southeast, with four smaller departments (two with less than
300 officers and two with less than 100 officers) in the
northeast, south, Midwest and west. In this way, the Commission
will have access to the greatest array of information to study
on uses of force, hiring and recruitment practices and
oversight and disciplinary matters of local police departments.
It is the intention of the Committee that the police
departments receiving grant monies will direct those monies to
the purposes mentioned in H.R. 1659 and for enhanced training
in these areas. The Commission's study however will not
necessarily be limited by the purposes to which the monies are
directed and can embrace any of the study topics addressed in
H.R. 1659 in addition to the departments' uses of the grant
monies. This decision not to limit the Commission's study is to
reflect the Committee's intention that the Commission provide
meaningful recommendations on effective law enforcement
training, including ``best practices'' as part of its report
and in recognition of the fact that use of force issues are
effected by a number of factors including hiring and recruiting
practices, training and oversight and disciplinary practices.
The $3 million in grant monies for training will be
distributed to the departments identified in proportion to the
number of sworn members of the police departments. It is
estimated that enhanced training, excluding the cost of certain
equipment necessary and incidental to that training, will cost
approximately $50.00 per police officer for a training program
designed to benefit an entire department to a $100.00 per
police officer for a more specialized training program
designed, for example, to train officers in select communities
where there are more pronounced difficulties in police/
community relations or for more specialized training.
Flexibility in administering the grant monies will be necessary
and should not be strictly limited to amounts premised on these
calculation. Further, flexibility will be necessary in the
departments with 100 to 300 officers as the small size of the
departments might increase the costs of training programs they
might select. Thus, it is estimated that Washington D.C would
receive approximately $350,000 in grant monies; that Chicago
would receive approximately $700,000, New York approximately $1
Los Angeles approximately $500,000, Charlotte approximately
$70,000 and approximately $100,000 to be distributed to the
four smaller cities.
Monies for equipment is permitted where the equipment is
necessary and incidental to the particular training programs
selected by the local police departments. However, the monies
that may be spent on equipment are limited to 10% of the total
grant monies received by a department. Thus, it is expected
that to the extent a department seeks to focus some of its
training monies on, for example, non-lethal use of force
training, such as use of pepper sprays and similar
technologies, that up to 10% of the grant monies received may
be devoted to the purchase of the technologies necessary and
incidental to this training. While it is not possible to
anticipate all equipment that could be deemed necessary and
incidental, it is also anticipated that a department could
purchase some video equipment to the extent that the video
equipment might be used in training officers in the area of
community involvement and interaction. Of course, these
training videos must be made available to the Commission
subject to the restrictions on the use of data and
confidentiality provisions contained in H.R. 1659.
It is expected that because these larger departments
experience a wide range of contacts between police and
citizens, their activities will provide better insight into a
wider range of effective training programs in the use of force
areas identified in the bill. In turn, this diversity will
offer greater assistance to Congress and police departments for
future consideration of effective training programs and
policing strategies, hiring, recruiting, and oversight policies
and practices.
The Commission is to be a bipartisan Commission comprised
of knowledgeable professionals with policing, sociological,
organizational and other relevant law enforcement experience.
Four Commission members will be selected by the Speaker of the
House, the House Minority Leader, the Senate Majority Leader
and the Senate Minority Leader. Those 4 members will then
select the fifth member and together they will determine the
Chairman of the Commission. The Commission will have the
ability to call upon appropriate experts and knowledgeable
persons and resources both inside and outside of government in
performing its oversight study.
Hearings
The Full Committee held a day of hearings on H.R. 1659 on
May 12, 1999. Testimony was received from U.S. Representatives
Jose Serrano, Gregory W. Meeks, and James T. Walsh; Julius
Davis, Deputy Chief of the Los Angeles Police Department;
Edward A. Flynn, Chairman of the Police Executive Research
Forum Legislative Committee and Chief of Police for Arlington
County; Martin L. Pfeifer, Trustee for the Fraternal Order of
Police; Callie L. Baird, Administrator In Charge of the Office
for Professional Standards of the Chicago Police Department;
Charles B. Roberts, Assistant Deputy Superintendent for the
Chicago Police Department; Terrence W. Gainer, Assistant Chief
of Police for the District of Columbia Metropolitan Police
Department; Hiliary Shelton, Director of the Washington Bureau
of the NAACP; Ronald Hampton, President of the National Black
Police Association; Gerald Papa, youth community counselor in
New York City; and Madame Kadiato Diallo, mother of Amadou
Diallo. Additional material was submitted by Clarence N. Wood,
President of the Human Relations Foundation of Chicago,
Illinois and Robert T. Scully, Executive Director, National
Association of Police Organizations, Inc.
Committee Consideration
On May 19, 1999, the Full Committee met in open session and
ordered favorably reported the bill H.R. 1659, as amended, by a
voice vote, a quorum being present.
Vote of the Committee
The bill was reported favorably by voice vote. There were
eight amendments resolved by voice vote. Chairman Hyde's
technical amendment passed by voice vote and provided for
language suggested by the Congressional Budget Office, excluded
persons holding elective office from serving as Commissioners,
changed the length of the Commission and the due date for the
report from 180 days to 1 year after the Commission began,
provided that Commissioners would not be compensated for their
service on the Commission, limited the permissible uses of the
information acquired by the Commission and provided for its
confidentiality, added a Federal Tort Claims Act provision to
protect members and personnel on the Commission, allowed the
Commission to conduct hearings, permitted no more than 10% of
the grant monies to be used for the purchase of equipment
necessary and incidental to the training to be conducted by the
police departments in accordance with the bill, and requiring
that the police departments receiving the grant monies provide
written assurances that the Commission will have access to
their operations. Mr. Hutchinson offered an amendment which
passed by voice vote as amended to add one police department
from each of four geographical regions of the country
(northeast, south, midwest and west) to the list of cities
whose police departments would receive grant monies and be the
subject of the Commission's study. Mr. Watt offered an
amendment to Mr. Hutchinson's amendment which passed by
unanimous consent to add Charlotte, North Carolina. Mr. Scott
offered an amendment to Mr. Hutchinson's amendment providing
that 2 of the police departments selected would have less than
100 police officers and 2 would have less than 300 police
officers.
Mr. Scott offered an amendment to amend Section 20101(b) of
the 1994 Violent Crime Control and Law Enforcement Act to
provide for the collection of data on deaths of persons in
custody which was adopted by voice vote as amended. Mr. Conyers
and Ms. Jackson Lee offered an amendment that passed by voice
vote to add the word ``perjury'' to the oversight items to be
studied by the Commission, to add the term ``best practices''
to the Commission's study of effective training programs, to
include the ``relationship between police and prosecutors'' to
the oversight items to be studied by the Commission, and to
include ``initial and continuing cultural diversity training''
as one of the training programs.
Ms. Jackson Lee offered an amendment to strike the cities
of New York, Chicago and Los and insert ten jurisdictions to be
determined by the Attorney General of the United States with
priority given to jurisdictions with a history of law
enforcement misconduct as the cities to receive grant monies
and to strike the grant monies amount of $3,000,000 and to
insert language providing for such sums as may be necessary.
The amendment was defeated by voice vote. Mr. Conyers and Ms.
Waters offered an amendment conditioning all distributions of
grant monies under the bill on the abolition of any provision
that might permit law enforcement officers to delay answering
questions posed by internal review boards. That amendment was
defeated by voice vote. Ms. Waters offered an amendment to
require the Department of Justice to perform its mandate and to
carry out its duties under Section 14141 of the 1994 Violent
Crime Reduction and Law Enforcement Bill by reporting to
Congress every six months the cases being investigated and the
amount of funds spent and needed to comply wit the law which
failed by voice vote.
In addition, there were four recorded votes during the
Committee's consideration of H.R. 1659, as follows:
1. An amendment offered by Mr. Conyers to establish and
adequately funded and effective civilian review board or
comparable agency for all law enforcement officials of the
particular jurisdiction with a history of misconduct. Defeated
9 to 13.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Berman Mr. Gekas
Mr. Boucher Mr. Coble
Mr. Nadler Mr. Gallegly
Mr. Watt Mr. Canady
Ms. Jackson Lee Mr. Goodlatte
Ms. Waters Mr. Jenkins
Ms. Baldwin Mr. Hutchinson
Mr. Weiner Mr. Pease
Mr. Cannon
Mr. Rogan
Ms. Lofgren
Mr. Delahunt
2. An amendment offered by Ms. Waters to authorize not less
than $1,080,000 in new funds for expenses related to the
enforcement against pattern and practice discrimination under
42 U.S.C.A. 14141. Defeated 13 to 15.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Gekas
Mr. Berman Mr. Coble
Mr. Nadler Mr. Smith
Mr. Watt Mr. Gallegly
Ms. Lofgren Mr. Canady
Ms. Jackson Lee Mr. Goodlatte
Ms. Waters Mr. Chabot
Mr. Meehan Mr. Barr
Mr. Delahunt Mr. Jenkins
Mr. Rothman Mr. Hutchinson
Ms. Baldwin Mr. Pease
Mr. Weiner Mr. Cannon
Mr. Rogan
Mr. Scarborough
Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of Rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1659, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 27, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1659, the National
Police Training Commission Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for federal costs), who can be reached at 226-2860,
and Lisa Cash Driskill (for the state and local impact), who
can be reached at 225-3220.
Sincerely,
Dan L. Crippen, Director.
H.R. 1659--National Police Training Commission Act of 1999.
Summary
H.R. 1659 would authorize the appropriation of $3 million
for fiscal year 2000 for the Attorney General to provide
training and other assistance to law enforcement agencies of
selected cities. The bill also would establish the National
Police Training Commission. Assuming appropriation of the
necessary funds, CBO estimates that implementing H.R. 1659
would result in additional discretionary spending of about $4
million over the 2000-2004 period.
This legislation would not affect direct spending or
receipts; therefore, pay-as-you-go procedures would not apply.
H.R. 1659 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Any requirements imposed on states would be a condition of
receiving certain grants under the Violent Crime Control and
Law Enforcement Act of 1994 (Public Law 103-322).
Estimated cost to the Federal Government
The estimated budgetary impact of H.R. 1659 is shown in the
following table. The costs of this legislation fall within
budget function 750 (administration of justice).
For the purposes of this estimate, CBO assumes that the
amounts authorized by the bill for training and other
assistance to law enforcement agencies will be appropriated by
the start of fiscal year 2000 and that outlays will follow the
historical spending patterns of similar programs administered
by the Department of Justice.
SPENDING SUBJECT TO APPROPRIATION
[By Fiscal Year, in Millions of Dollars]
----------------------------------------------------------------------------------------------------------------
2000 2001 2002 2003 2004
----------------------------------------------------------------------------------------------------------------
Spending Under Current Law
Authorization Level \1\.......................................... 6 0 0 0 0
Estimated Outlays................................................ 3 2 1 0 0
Proposed Changes
Estimated Authorization Level.................................... 4 0 0 0 0
Estimated Outlays................................................ 2 1 1 0 0
Spending Under H.R. 1659
Estimated Authorization Level \1\................................ 10 0 0 0 0
Estimated Outlays................................................ 5 3 2 0 0
----------------------------------------------------------------------------------------------------------------
\1\ The 2000 level is the amount authorized for training assistance for law enforcement agencies in Public Law
103-322. That law also authorized funding for training assistance for 1999 and previous years, but to date, no
funds have been appropriated for that purpose.
The National Police Training Commission, composed of five
members appointed by the Congress, would prepare a report
within one year on the effectiveness of various personnel and
funding policies for law enforcement agencies. CBO expects that
the commission would hire a small staff, meet once a month, and
gather extensive testimony from witnesses. Assuming
appropriation of the necessary amounts, CBO estimates that the
commission would cost about $700,000 in fiscal year 2000.
Pay-as-you-go considerations
None.
Estimated impact on state, local, and tribal governments
H.R. 1659 contains no intergovernmental mandates as defined
in UMRA. The bill would authorize $3 million to be distributed
among nine communities for police training and assistance. The
bill also would require states to collect data on deaths
occurring in the process of arrest or in state or local
correctional facilities, as a condition of receiving certain
grants under the Violent Crime Control and Law Enforcement Act
of 1994.
Estimated impact on the private sector
The bill would impose no new private-sector mandates as
defined in UMRA.
Estimate prepared by
Federal Costs: Mark Grabowicz (226-2860), Impact on State,
Local, and Tribal Governments: Lisa Cash Driskill (225-3220).
Estimate approved by
Robert A. Sunshine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8 of the Constitution.
Section-by-Section Analysis and Discussion
Section 1 provides that the short title of the bill is the
``National Police Training Commission Act of 1999''.
Section 2 establishes the Commission and titles it
``National Police Training Commission''.
Section 3 provides the details of the Commission.
Subsection (a) provides that there will be 5 members: the
Senate majority and minority leaders will each appoint one; the
Speaker of the House and minority leader will each appoint one;
and the fifth will be appointed by these four members.
Subsection (b)(1) specifies who is eligible to be appointed
as a member of the Commission and specifies that they are to
have expertise in law enforcement, training, and may be from
the public or private sector (excluding those holding elective
office) and may include federal, state or local police
officers, members of academia, non-profit organizations or
other interested individuals.
Subsection (b)(2) specifies the qualifications necessary
for membership on the Commission and include civil and criminal
litigation experience, administrative and management experience
in law enforcement in major and/or smaller cities, and
community relations.
Subsection (c) specifies a that the term of membership on
the Commission will correspond to the life of the Commission.
Subsection (d) provides that the life of the Commission
will be 1 year following the initial appointment of four
members.
Subsection (e) provides the mechanism for filling vacancies
on the Commission.
Subsection (f) provides that the Commission will meet at
the call of the Chair.
Section 4 provides that the functions of the Commission are
to (a) study the effectiveness of training, recruiting and
hiring, oversight and discipline and the funded programs and
(b) report within 1 year of the initial appointment of 4
members on the results of its study and with recommendations.
Section 5 provides authority for certain administrative
functions including (a) obtaining information from federal
agencies (b) that Commission members will not be compensated
(c) reimbursement of travel expenses (d) staffing of the
Commission, their compensation and the detailing of government
employees (e) the procurement of expert services (f) meetings
(g) a quorum, voting and rules (h) the authorized and limited
uses of the information acquired by the Commission (i) a
confidentiality provision permitting the Commission to restrict
certain information from being made public by the Commission
(j) the application of the Federal Tort Claims Act to
Commission members and personnel and (k) the availability of
hearings by the Commission for the receipt and taking of
evidence and testimony.
Section 5 provides compensation for experts and other
persons hired on an intermittent basis to assist the Commission
in its study and recommendations to Congress.
The bill limits the use of data received by the Commission
to research, statistical and reporting purposes. It provides
for the confidentiality of not only the identity of any law
enforcement officer and member of the public in addition to any
additional confidentiality provisions the Commission may
impose. H.R. 1659 permits the Commission to hold hearings for
the purpose of receiving testimony and other evidence it deems
important to its mission. Rather, this Section requires as a
condition to receiving grant monies that the cities identified
cooperate with the Commission by making its training, hiring
and recruiting and oversight activities available to the
Commission for review and study.
Section 6 amends the Crime Control Act of 1994 to permit
training not simply of management level police but also of the
rank and file officers in the areas addressed in this bill and
authorizes the expenditure of $ 3 M from the Violent Crime
Reduction Trust Fund authorizations FY 2000 to the cities and
locations mentioned in the bill, following receipt by the
Department of Justice, of written assurances from the grant
recipients that they will provide access to their operations to
the Commission.
Section 7 is intended to amend the Crime Control Act of
1994 to require that states receiving certain grant monies
assure that recipients of the grant monies adhere to reporting
guidelines issued by the Attorney General in recording deaths
of persons in custody. The reporting requirements include
reports to the Attorney General on a quarterly basis and
include (1) the name, gender, ethnicity, and age of the
deceased; (2) the date, time, and location of death; and (3) a
brief description of the circumstances surrounding the death.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of Rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994
* * * * * * *
TITLE XXI--STATE AND LOCAL LAW ENFORCEMENT
* * * * * * *
Subtitle E--Improved Training and Technical Automation
SEC. 210501. IMPROVED TRAINING AND TECHNICAL AUTOMATION.
(a) * * *
* * * * * * *
(b) Training and Investigative Assistance.----
(1) In general.--The Attorney General shall,
subject to the availability of appropriations----
(A) expand and improve investigative and
managerial training courses for State, Indian
tribal, and local law enforcement agencies ,
and provide, under paragraph (4), training,
recruitment, hiring, and oversight assistance;
and
* * * * * * *
(4) The training, recruitment, hiring, and
oversight assistance under paragraph (1)(A) shall be
given to the following cities: New York, New York,
Chicago, Illinois, Los Angeles, California, Washington,
District of Columbia, and Charlotte, North Carolina,
and to one police department from each of the 4
geographical regions of the country (northeast, south,
midwest, and west) 2 of which have less than 100 police
officers and 2 of which have less than 300 police
officers, as determined by the National Police Training
Commission The assistance may include funding for
equipment, not to exceed 10 percent of the amount of
the grant made to each city. The money appropriated for
such assistance shall be distributed to those locations
in proportion to the size of their police departments
and upon receipt of written assurances from the police
department that the department will provide access to
its operations to the Commission. There are authorized
to be appropriated for fiscal year 2000 for the
purposes of such assistance the sum of $3,000,000.
* * * * * * *
Minority Views To H.R. 1659, The National Police Training Commission
Act of 1999
It should now be clear to all members, and the nation at-
large, that police misconduct is a manifest issue. The litany
of incidents is familiar and has incendiary potential for our
cities.\1\ Faced with such compelling evidence, the majority
asks for yet another commission to study problems that we all
know to exist. While we understand and applaud the motives
behind this legislation, we, and a host of advocacy groups
spanning the civil rights and law enforcement communities,
believe that the energies of Congress should be focused on the
adoption of legislative priorities that would address the
substance of law enforcement management and strengthen the
current battery of tools available to sanction misconduct.\2\
The incremental approach of H.R. 1659 misses a real opportunity
to initiate reforms that would restore public trust and
accountability to law enforcement.
---------------------------------------------------------------------------
\1\ Amadou Diallo--Unarmed West African immigrant--shot 41 times by
New York City police. Nineteen year old African American shot 12 times
in the back as she sat in her car--Riverside, California. Louima--
Haitian immigrant--sexually assaulted by New York City police. Rodney
King--beaten by four Los Angeles police officers. A New Orleans woman
murdered by police officer against whom she filed a complaint (officer
convicted and on death row).
\2\ See studies by Amnesty International , ACLU, and The NAACP.
---------------------------------------------------------------------------
At the most basic methodological level, H.R. 1659 lacks
recommendations to define the mission and guide the study of
the National Police Training Commission (the ``Commission'')
and selects a random number of cities, without any stated
selection criteria. At best, we are concerned that the
Commission's study will generate the kind of anecdotal data
already in existence on the issue. As to substance, H.R. 1659
fails to address major subjects that impact on the issue of
police misconduct, including, ``so called'' 48-hour rules,
civilian review procedures, pattern and practice enforcement
(42 U.S.C.A. 14141) and deprivation of rights under order of
law (18 U.S.C.A 242). Given the pervasiveness and seriousness
of the issues at hand, our attention is better spent on the
implementation of solutions, rather than merely on the
continuing study of an obvious problem. Our concerns with the
approach taken by the committee-reported bill are as follows:
I. The Commission's Study Will Not Yield New Relevant Data
At the hearing on H.R. 1659, The Police Executive Research
Forum (``PERF'') highlighted the methodological weaknesses of
H.R. 1659's approach to studying the issue of police
misconduct.\3\ PERF was especially critical of H.R. 1659's
short Commission duration and of the ambiguity of its mission.
While the Commission's term was extended from six months to one
year by amendment, we are concerned that its mission remains
clouded in ambiguity. Historically, research in this area has
been particularly hampered by the lack of data for a range of
subjects critical to determining why police officers ``go
wrong'' and to determining the actual effectiveness of programs
designed to address police misconduct.\4\ However, H.R. 1659
gives the Commission no guidance on how to focus its effort.
Further, given the multiplicity of factors tied to the issue of
police misconduct, it is still unclear whether one year is
sufficient to yield sound new recommendations or will simply
result in reiteration of the recommendations already on the
table.
---------------------------------------------------------------------------
\3\ Judiciary Hearing on May 12, 1999.
\4\ Samuel Walker, Citizens Review of the Police--1998 Update,
Department of Criminal Justice, University of Nebraska at Omaha, March
1998, at 4.
---------------------------------------------------------------------------
The lack of selection criteria for participating
jurisdictions also will limit the Commission's study to
anecdotal proof already present in abundance.\5\ As originally
submitted to the Committee, the Commission was to center its
research efforts on four (subsequently expanded to nine) cities
and award their law enforcement agencies grants from a pool of
$3,000,000 to ensure cooperation.\6\ Unfortunately, there was
no scientific methodology guiding the selection process. As a
consequence, there is no evidence that the Commission will
generate statistically significant sample data for the nation's
17,000 law enforcement agencies.
---------------------------------------------------------------------------
\5\ See e.g., Commission to Investigate Allegations of Police
Corruption and the Anti-Corruption Procedures of the Police Department,
New York: The Commission, 1994 at 85; Citizen Review of Police Conduct
Task Force Report, Santa Clara County Bar Association, April 28, 1992;
Christopher Commission, Report of the Independent Commission on the Los
Angeles Police Department, Los Angeles: The Commission, 1991.
\6\ While the number of focus jurisdictions was expanded from four
to nine, the pool of funds for participating cities was held at
$3,000,000.
---------------------------------------------------------------------------
With H.R. 1659, we risk waiting another year to receive
only superficial determinations on an issue that merits our
most serious consideration and action now. Due to its lack of
guidance or methodology, there is a substantial likelihood that
the Commission will merely recount the myriad of training,
recruitment and oversight programs under consideration in
cities across the country.
II. H.R. 1659 Fails to Address the 48-Hour Rule
At our hearings, numerous questions were raised regarding
the appropriateness of the New York City Police Department's
``48-Hour Rule,'' which allows police officers to refuse to
speak to ranking officers conducting internal investigations
for two full business days following the time they are
identified as suspects in alleged misconduct.\7\ Additionally,
under the rule, police who are potential witnesses in a
criminal case are not required to submit to an interview until
four hours after they have been identified as witnesses.\8\ If,
at any time during the investigation of an offense, an officer
acting as a witness becomes a suspect, the 48-hour rule goes
into effect.\9\ We are concerned that this rule, and similar
rules and procedures, have the potential to undermine the
integrity of police misconduct investigations. Yet nowhere is
this concern mentioned or referenced in the legislation's
text.\10\
---------------------------------------------------------------------------
\7\ New York Police Department Patrol Guide, Sec. 118-9.
\8\ Id.
\9\ Id.
\10\ See H.R. 1659 Sec. 4.
---------------------------------------------------------------------------
New York City's 48-hour rule came about, in part, because--
in civil matters--government employees do not have a right
against self-incrimination and can be compelled to respond to
inquiries about their public duties. They also may face
punishment or termination for refusing to answer such questions
or lying in response to such questions. The New York City
Police Department's Patrol Guide states that officers who are
suspects in an alleged offense must answer questions
``specifically directed and narrowly related to official
duties'' or face suspension.\11\ To balance this requirement
with an officers' Fifth Amendment right against self-
incrimination, the 48-hour rule was established to give
officers an opportunity to consult with an attorney before
submitting to questioning. It later became a collective
bargaining issue when it was included in the Police Benevolent
Association's contract with New York City in 1991.\12\
---------------------------------------------------------------------------
\11\ Id.
\12\ Article XIX of the Police Benevolent Association contract with
the City of New York for 1991 (renewed in 1995) states: ``The
Guidelines for Interrogation of Members of the Department, in force at
the execution date of this Agreement, will not be altered during the
term of this Agreement, except to reflect subsequent changes in the law
or final decisions of the Supreme Court of the United States and the
Court of Appeals of the State of New York regarding the procedures and
conditions to be followed in the interrogation of a member of the
Department.''
---------------------------------------------------------------------------
Many--including Chairman Hyde--have expressed concern that
the 48-hour rule merely gives police officers 48 hours to ``get
their story straight'' and, in so doing, reduces the
reliability of police testimony and diminishes the public
perception of police truthfulness.\13\ Beyond the issue of
perception, the delay may allow investigators to lose their
intensity and focus as time passes and as they begin to work on
other matters.\14\ Again, the concern is that, the longer
investigators must wait to question a suspect, the greater the
possibility that vital evidence may disappear or be lost.\15\
---------------------------------------------------------------------------
\13\ Deflecting Blame: The Dissenting Report of Mayor Rudolph W.
Giuliani's Task Force on Police/Community Relations (1998).
\14\ Id.
\15\ Id.
---------------------------------------------------------------------------
Other investigations have determined that extreme versions
of the 48-hour rule are unnecessary and detrimental to
investigations and public confidence in investigations.\16\ In
the wake of the August 8, 1997 assault of Abner Louima by New
York City police officers, New York City Mayor's office
established a ``Task Force on Police/Community Relations'' (the
``Task Force'') and granted the Task Force the power to make
recommendations.\17\ The Task Force recommended, among other
things, that the New York City Police Department abolish the
48- hour rule.\18\
---------------------------------------------------------------------------
\16\ Although the New York rule appears to be anomalous, it is our
nation's largest city and therefore worthy of national study. In
Chicago, officers who injure or kill someone while on duty must give an
oral statement to a commanding officer ``without delay.'' The Los
Angeles Police Department also takes statements from officers at the
scene of a shooting. To avoid subsequent complaints by officers that
they were harassed into talking, those under investigations are assured
by officers that their statements will not be shared with Los Angeles
prosecutors. ``No Questions Asked: New York Rules Means It's Tough to
Convict Police in Diallo Case,'' Wall Street Journal, April 7, 1999.
\17\ Id. Deflecting Blame: The Dissenting Report of Mayor Rudolph
W. Giuliani's Task Force on Police/Community Relations (1998).
\18\ In response, New York Mayor Giuliani denounced the Task Force
as ``small minded,'' ``silly,'' and ``cop bashers'' and, shortly
thereafter, disbanded the Task Force. Id.
---------------------------------------------------------------------------
As these kinds of rules and procedures are becoming more
prevalent with the adoption of law enforcement officer ``bills
of rights,'' serious research should be completed to assist in
the development of guidelines that give officers a reasonable
period of time, depending on the circumstances of the inquiry,
to consult with an attorney before they are questioned.\19\ By
omission, H.R. 1659 fails to provide any guidance to the
Commission on how to address 48-hour type rules and, therefore,
fails to consider an important substantive issue.
---------------------------------------------------------------------------
\19\ Id.
---------------------------------------------------------------------------
III. H.R. 1659 Fails to Address the Issue of Civilian Review Procedures
The bill also fails to address or consider the impact of
civilian review procedures. Civilian review of police activity
was first proposed in the 1950's because of a widespread
dissatisfaction with the internal disciplinary procedures of
police departments. In general, civilian review authorities
receive, process, and investigate claims of abuse against
police officers. Civilian review procedures exhibit a wide
range of variation, from sworn boards with investigatory
authority to groups with mere review authority of internal
police investigations.\20\ Currently, civilian review boards
are in place in some 94 jurisdictions at the state and local
level, including New York and Chicago. This figure represents a
42% increase since 1995 and a 147% increase since 1990.
Estimates indicate that civilian review procedures cover law
enforcement agencies responsible for approximately 25% of the
nation's population, and three-quarters of our 50 largest
cities.\21\
---------------------------------------------------------------------------
\20\ See, Samuel Walker and Betsy Wright Kreisel, Varieties of
Citizen Review: The Implications of Organizational Features of
Complaint Review Procedures for Accountability of the Police, American
Journal Of Police, XV 1996: 65-88. Walker, Citizens Review of the
Police at 3.
\21\ Id. Samuel Walker, Citizens Review of the Police at 1.
---------------------------------------------------------------------------
While civilian review has been opposed by some as being
intrusive, research indicates that if properly structured and
funded, such procedures yield a range of community benefits.
These include the fact that civilian review establishes the
principle of police accountability. Research indicates that a
complaint review system encourages citizens to act on their
grievances and makes it easier and less threatening for
civilians to file complaints against abusive police officers
and practices.\22\ In addition, a civilian review agency can be
an important source of information about police misconduct in a
community. A civilian agency is more likely to compile and
publish data on patterns of misconduct, especially on officers
with chronic problems, than is a police internal affairs
agency.
---------------------------------------------------------------------------
\22\ American Civil Liberties Union of Northern California,
Civilian Review Fact Sheet, May 1999 at 1.
---------------------------------------------------------------------------
Moreover, civilian review can alert police administrators
to the steps they must take to curb abuse in their departments,
eliminating reliance on internal affairs for reporting facts
that may place their department in a negative spotlight. For
example, many well intentioned police officials have failed to
act decisively against police brutality because internal
investigations did not provide them with the facts.\23\ Also,
civilian review creates an atmosphere conducive to further
reform. The existence of a civilian review agency, a reform
itself, encourages a climate of reform that can help ensure
that other needed reforms are implemented. While a police
department can formulate other model policies aimed at
deterring and punishing misconduct, those policies can be
difficult to implement in effective manner unless a system is
in place to guarantee that those policies are aggressively
enforced.
---------------------------------------------------------------------------
\23\ Samuel Walker and Betsy Wright Kreisel, Varieties of Citizen
Review, American Journal of Police, XV, 1996, at 65-88.
---------------------------------------------------------------------------
Many cities and some states have adopted the civilian
review mechanisms, but often times the boards are never given
an opportunity or funding to serve their function. For example,
New York City's board has been plagued by charges of conflict
of interest and Washington D.C.'s board has never been fully
funded.\24\ H.R. 1659 represented a unique opportunity for
Congress to take a stand on the vital issue of civilian review.
Again, the bill does not include civilian review in the list of
items to be studied.\25\ Accordingly, H.R. 1659 misses another
critical opportunity to respond to the issue of police
accountability.
---------------------------------------------------------------------------
\24\ Samuel Walker, Achieving Police Accountability, Research
Brief, Sept. 1998, at 3&5.
\25\ See H.R. 1659 Sec. 4.
---------------------------------------------------------------------------
IV. Full Funding and Empowerment of the Civil Rights Division Will
Enhance Protections Against Police Misconduct
H.R. 1659 fails to provide full funding for the Civil
Rights Division. One of the most effective means of combating
police misconduct was provided through the expanded use of
Justice Department's investigative authority. Major incidents
of police misconduct--King, Louima and Diallo--could be
addressed by expanding the reach of the various statutes
authorizing such investigations or authorizing and providing
for increased funding. Unfortunately, when full funding for the
Civil Rights Division was proposed, it was rejected by the
majority. The legislation similarly ignores the issue of
expanded investigative authority under either 42 U.S.C.A 14141
or 18 U.S.C.A 242. At a time when we are experiencing a
national crisis of police misconduct, we should revisit the
Justice Department's pattern and practice and criminal
investigative authority to ensure that the Justice Department
has the authority and resources necessary to protect the public
interest.
The Administration has requested $82.2 million for the
Civil Rights Division of the Justice Department. We believe
that the Division should be funded at the full request.
Discrimination continues to be a persistent problem in American
society, and there is more than sufficient information
suppoting the request of the Administration to enforce the
civil rights laws. Among other things, the Administration's
budget proposal would provide much needed resources in the
Department's fight against civil rights violations, including
16 positions to combat police misconduct.
One of the principal means of combating police misconduct
against minorities is through Justice Department ``Pattern and
Practice'' investigations under 42 U.S.C. Sec. 14141. Created
as part of the 1994 Crime Bill, Sec. 14141 makes it unlawful
for any police department or other governmental agency to
engage in a ``pattern or practice'' of depriving persons of
their civil rights.\26\ This section also gives the Attorney
General the power to obtain civil equitable and declaratory
relief necessary to eliminate the pattern or practice of
behavior.\27\ The Department of Justice has used this section
to obtain a consent decree with the Pittsburgh Police
Department, is in negotiations with New Jersey and has an
ongoing investigation against the New Orleans Police
Department. Also, as a related matter, section 14142 requires
the Attorney General to collect information regarding the use
of excessive force by police departments nationwide. As of May
14, 1999, the Justice Department has resolved two Sec. 14141
investigations through consent decrees, has nine investigations
in progress, is conducting ten preliminary investigations,\28\
has closed ten preliminary investigations, and resolved
numerous investigations with no further action (indicating the
Department found no Sec. 14141 violations).
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\26\ 42 U.S.C. Sec. 14141(a).
\27\ Id. Sec. 14141(b).
\28\ The Department would give no further definition of
``preliminary investigation'' other than to say that it is when
evidence is gathered.
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The Division's success is compelling and provides a
blueprint for further action. On February 26, 1997, the Justice
Department negotiated its first ever consent decree pursuant to
a Sec. 14141 investigation with the Pittsburgh, PA, Police
Department.\29\ The agreement established guidelines for
training, supervision, discipline, and complaint procedures for
the police department.\30\ Specifically, the agreement requires
that officers complete a brief report for a range of civilian
encounters, including, each stop, use of force, arrest,
shooting or citizen complaint. Salient data (race and gender of
the person stopped) will be reviewed by the police, an auditor
established by the decree, and the Justice Department.\31\
While it has been criticized by some for micro-managing the
police department,\32\ the decree also has been praised for
bringing the Pittsburgh police into the twentieth century.\33\
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\29\ Johnna A. Pro & John Schmitz, City Bows to U.S. on Police
Reforms, Pittsburgh Post-Gazette, Feb. 27, 1997, at A-1. For ten
months, the Department investigated the Pittsburgh police for excessive
use of force, false arrests, and improper searches and seizures. Id.
\30\ Id.
\31\ At the end of the five-year term of the agreement, and if the
city can show that it met the terms of the agreement for two
consecutive years, the city can petition the U.S. District Court to
have the decree terminated. Id.
\32\ Jodi Nirode, What's in Store for Police? Pittsburgh Abuse
Settlement may be Revealing, Columbus Dispatch, Oct. 21, 1998, at 1A;
Chuck Bosetti, Pittsburgh Police: Betrayed and Abused, Pittsburgh Post-
Gazette, Dec. 14, 1997, at B-1.
\33\ Johnna A. Pro, Justice Department Consent Decree Pushes Police
to Overhaul Operations, Pittsburgh Post-Gazette, Mar. 1, 1998, at C-1.
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In addition, the Department and the Steubenville, OH,
Police Department reached an agreement on August 26, 1997, that
aimed to reform police management practices, training,
complaint review, and management of at-risk officers.\34\ This
investigation and the resulting consent decree were the
culmination of several police misconduct lawsuits that had been
filed against Steubenville over twenty years, many of which
resulted in settlements in favor of the victim-plaintiffs.\35\
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\34\ The agreement requires that officers complete a brief report
whenever force is used against an individual, whenever a vehicle is
stopped, or whenever searching or seizing property; salient data (race
and gender of the person stopped) will be reviewed by the police, an
auditor established by the decree, and the Justice Department Id.
\35\ Doug Caruso, Before Columbus, There was Steubenville, Columbus
Dispatch, Aug. 9, 1998, at 1A.
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Aside from these two cases, the Department is negotiating
with the State of New Jersey and the Columbus, OH, Police
Department to resolve pending Sec. 14141 litigation through
consent decrees. On April 30, 1999, the Attorney General of New
Jersey announced that the State of New Jersey would negotiate
with respect to a two-year Justice Department investigation
that the New Jersey State Police were engaged in widespread
racial profiling against black and Hispanic motorists.\36\ This
is the first time a statewide law enforcement agency has
negotiated with the Department pursuant to a Sec. 14141
investigation.\37\ During the Summer of 1998, the Justice
Department began similar negotiations with Columbus, OH.\38\ As
of early 1999, the city was close to reaching an agreement with
the Justice Department.\39\
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\36\ The announcement came ten days after Governor Christine Todd
Whitman acknowledged that the Federal investigation showed some
officers routinely engaged in racial profiling when stopping motorists.
Jerry Gray, New Jersey Plans to Forestall Suit on Race Profiling, N.Y.
Times, Apr. 30, 1999, at A1.
\37\ Id.
\38\ In July 1998, the Department stated that it had found a
pattern of officers using excessive force, making false arrests,
lodging false charges, and conducting illegal searches and seizures.
Doug Caruso, City, Justice Department Near Deal on Changes for Police,
Columbus Dispatch, Feb. 4, 1999, at 8C.
\39\ Id.
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The Justice Department is conducting several investigations
of major metropolitan police departments, many of which have
been expanded several times during their course. For instance,
the Washington, DC police chief himself asked the Justice
Department to investigate the rash of fatal police shootings
that have occurred in the District.\40\ In New York, the U.S.
Attorneys for the Eastern and Southern Districts are
investigating the New York City Police Department for police
brutality; the investigation started because of the Abner
Louima incident.\41\ As a result of the widespread allegations
of abuse on the part of the New York City Police Department,
the Justice Department is considering whether to appoint a
monitor for the department.\42\
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\40\ Cheryl W. Thompson, Trained Teams to Probe Police Shootings,
Wash. Post, Jan 21, 1999, at B1.
\41\ David Kocieniewski, Precinct Silence on Louima is Still under
Investigation, N.Y. Times, Feb. 27, 1998, at B5; Joseph P. Fried, U.S.
Takes over the Louima Case, N.Y. Times, Feb. 27, 1998, at A1. In July
1998, the Federal prosecutors in New York expanded their investigation
into the Anthony Baez incident, in which an officer who had received
numerous complaints choked an individual to death. Benjamin Weiser,
Prosecutors Broaden Investigation into Police Brutality, N.Y. Times,
July 3, 1998, at B4. In February 1999, the investigation was expanded
again because of the Amadou Diallo shooting. Benjamin Weiser, Frisking
Policy of the Police Faces Scrutiny, N.Y. Times, Mar. 19, 1999, at B1;
Robert D. McFadden & Kit R. Roane, U.S. Examining Killing of Man in
Police Volley, N.Y. Times, Feb. 6, 1999, at A1.
\42\ Jack Newfield, Feds May Soon Appoint Monitor for NYPD, N.Y.
Post, Mar. 23, 1999, at 6.
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The Justice Department is conducting a third major
investigation into the Los Angeles Police Department based on
allegations that the police were engaged in a pattern or
practice of civil rights abuses surfaced during the Rodney King
incident.\43\ In 1996, the Department broadened its
investigation into claims that the police generally use
excessive force and are insensitive to minorities.\44\ The
Justice Department is conducting other investigations for
excessive force and improper searches in New Orleans, LA;
Orange County, FL; and Eastpointe, MI, but the exact nature and
status of those investigations is not available to the public.
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\43\ Pierre Thomas, Possible `Pattern' of Abuse in LAPD Probed by
Justice, Wash. Post, Oct. 20, 1995, at A1.
\44\ Pierre Thomas, U.S. Widens Investigation of LA Police, Wash.
Post, Oct 4, 1996, at A3.
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In light of such extraordinary effort and success by the
Justice Department, the majority's failure to provide further
support for pattern and practice enforcement is troubling. In
addition to elevating symbol over substance through the
establishment of yet another Commission, it shows a lack of
commitment to combating police misconduct by the federal
government, where issues of systemic discrimination by local
law enforcement agencies can best be addressed. In this manner,
worse than missing an opportunity, H.R.1659 represents a
failure to understand and act on the critical, time sensitive
nature of the issue.
V. H.R.1659 is Likely Unconstitutional
H.R. 1659 raises a constitutional issue by vesting the
function of selecting the recipients of federal assistance with
the Commission, a majority of whose members would be
legislative branch appointees. In light of the separation of
powers doctrine and the appointments clause, as interpreted by
the Supreme Court, H.R. 1659 would likely be held
unconstitutional.
The Supreme Court has established clear legal guidelines in
several cases involving the relationship of the separation of
powers doctrine to the appointments clause (art. II, sec. 2,
cl. 2),\45\ congressional authority to appoint and remove
government officials, and the related issue of Congress' role
in the enforcement of the laws that it enacts. The Court held
in Buckley v. Valeo that ``any appointee exercising significant
authority pursuant to the laws of the United States'' is either
an ``office of the United States'' required to be appointed by
the President, with the advice and consent of the Senate, or is
an ``inferior officer'' who must be appointed by the President,
a department head, or a court.\46\ In Bowsher v. Synar,\47\ the
Court held that the Comptroller General, who is appointed by
the President but subject to removal by Congress, could not
constitutionally perform the executive functions of making
revenue predictions and specifying budget reductions that would
be binding on the President. And, although not involving an
appointment or removal question, the landmark decision in the
legislative veto case, INS v. Chadha, recognized strict limits
on Congress' role after it enacts legislation.\48\ In brief,
for reasons rooted in the appointments clause and the
separation of powers doctrine, the decisions of the Court noted
above have confined Congress to its legislative role, and have
prohibited the House and Senate from directly or indirectly
enforcing the laws it passes, or from having a power of
appointment or removal over those who execute the laws.\49\
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\45\ The appointments clause states that ``[The President] shall
nominate, and by and with the advice and consent of the Senate, shall
appoint... all officers of the United States, whose appointments are
not herein otherwise provided for, and which shall be established by
law: but the Congress may by law vest the appointment of such inferior
officers, as they think proper, in the President alone, in the courts
of law, or in the heads of departments.''
\46\ 424 U.S. 1, 126 (1976). Buckley invalidated provisions of the
Federal Election Campaign Act that permitted the Federal Election
Commission (FEC)--four of whose six voting members were appointed by
congressional officers and subject to confirmation by both Houses--to
perform various enforcement and administrative functions under the act.
For detailed review of the appointments clause in light of the
separation of powers doctrine, see id. at 111-135.
\47\ 478 U.S. 714, 730 (1986).
\48\ 462 U.S. 919 (1983).
\49\ The limits on congressional involvement in execution of the
laws are reviewed in Antieau, Modern Constitutional Law, Vol. 3, sec.
46.15 (2nd ed. 1997).
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Because four of the five members of the Commission are not
appointed pursuant to the appointments clause but instead are
appointed by the congressional leadership (with the fifth
member being selected by the other four), the Commission will
be considered a legislative branch entity and its members will
neither be officers nor inferior officers of the United States.
No constitutional issue is raised by vesting in the Commission
investigative or study functions, such as those that might be
performed by a congressional committee.\50\ However, selecting
one police department from each of four geographical regions in
the United States to receive training, recruitment, hiring, and
oversight assistance would seem to be an executive
function.\51\ Because the members of the Commission are not
selected in accordance with the appointments clause, vesting in
them the function of selecting the recipients of federal
assistance would likely be held constitutionally dubious.\52\
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\50\ Buckley, 424 U.S. at 137.
\51\ Cf. id. at 134 (determination by FEC of eligibility for funds
was function to be performed by persons selected in accordance with
appointments clause).
\52\ Congressional Research Service, Memorandum: Constitutional
Issue Concerning Proposed National Police Training Commission, May 20,
1999.
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Conclusion
Expert testimony at our hearings supports the contention
that the issue of police misconduct has been subject to a
myriad of studies. With the notable exception of the data on
deaths in custody provision, which was added by amendment, H.R.
1659 does not significantly advance the field.\53\ The current
national climate requires decisive action to implement
solutions. H.R. 1659 is a missed opportunity at each step, as
the above discussion of programs illustrates. As a Congress we
have been enthusiastic about supporting programs designed to
get officers on the street. We must be just as willing to
support programs designed to train and manage them after they
get there. Because H.R. 1659 fails to address substantively the
issue of law enforcement management and conduct, we offer these
minority views.
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\53\ Section 7 of H.R. 1659 amends the violent crime control and
Law Enforcement Act of 1994 to require the Attorney General to collect
data, based upon stated criteria, on the death of any person in the
custody of law enforcement officials. Currently there is no repository
for such information. Systematic collection of death in custody data
will be important to determining the urgency and scope of the issue.
John Conyers, Jr.
Howard L. Berman.
Martin T. Meehan.
Tammy Balwdin.
Maxine Waters.