Investigating police abuses: Lessons from national human rights institutions

The U.S. and global response to police brutality in the United States and the murders of George Floyd, Breonna Taylor, Rayshard Brooks and many others have cast harsh light on the lack of independence in investigations of police brutality.

By and large, municipal police departments across the United States investigate allegations of police brutality or excessive force through their internal affairs (IA) divisions. IA investigations have long been lacking in most metropolitan police departments for at least two reasons:

• Pressures such as the "blue wall of silence" that discourage IA from making adverse findings against fellow officers and
• Investigations and findings that lack transparency and frequently enable police officers to commit human rights violations with impunity, particularly against members of Black and minority communities.

In response to the protests, several states and cities have recently passed laws forbidding acts of police brutality, including the criminalization of chokeholds by police officers in New York. However, this legislation has largely focused on after-the-fact consequences of police brutality, and more is needed to facilitate the system-wide change that many across the United States continue to call for.

One step in the right direction is to rethink how state and local governments can ensure actual independence in investigations of police abuse. Currently, many U.S. cities have civilian oversight boards charged with independently reviewing police officer conduct, though often these boards have not been up to the task in practice. Perhaps nowhere is this seen more vividly than with Minneapolis' Police Conduct Review Panel, which failed to initiate disciplinary action against one of the officers responsible for George Floyd's death on at least sixteen prior occasions and has also failed historically.

Clearly, it will not be easy to enact comprehensive reforms in how investigations of police abuse are handled—path dependency and the tremendous political force of police unions remain formidable obstacles. However, a reason for optimism is that in civilian oversight boards, the formal body that can be tasked with independent investigatory powers already exists; the key is to endow those boards with such powers.

Thinking through how to encourage independence in investigations of police abuse, I was reminded of a comparable institution in international law defined by its independence and autonomy from government.

In summer 2018, I had the opportunity to work in Sydney, Australia with the Asia Pacific Forum (APF), an independent organization that coordinates the efforts of national human rights institutions (NHRIs) in the Asia-Pacific region. Throughout the Asia-Pacific and indeed much of the world, countries have established NHRIs, also referred to as national human rights commissions or ombudsmen. The Paris Principles, the international guidelines that set the minimum standards for effective and credible NHRIs, call for these institutions to be independent in function, to monitor and receive complaints regarding human rights violations at the national level, to investigate those violations, and to either enforce their findings or send them to appropriate authorities for enforcement.

As the principal bodies charged with promoting governmental accountability, NHRIs have steadily become integrated into many countries' political cultures as an important tool enabling citizens to vindicate their violated civil or human rights. From governmental corruption to police brutality against citizens, these institutions have often demonstrated their capacity to serve as effective and independent investigators in situations where a purely governmental inquiry would face the pitfalls that stymie any institution's attempt to adequately investigate itself.

As I returned from Sydney to New York, where I was about to begin my second year of law school, I was not too surprised to learn that the United States is one of the very few countries that does not have an NHRI-type body. There has been considerable resistance to this type of institution at the federal level. The closest the United States has come to an NHRI—the U.S. Commission on Civil Rights—is not accepted as a member of the Global Alliance of NHRIS (GANHRI), the principal organization that has established a networking forum for NHRIs worldwide. Notably, this commission is limited in its fact-finding powers, only investigating potential violations of federal civil rights laws.

Separate from the federal level, several states and localities have created institutions designed to promote independent oversight and accountability for human and civil rights violations. However, these local commissions and ombudsmen face noticeable limitations in the scope of issues that they are empowered to investigate and address. For instance, the Westchester County Human Rights Commission's mandate is constrained to discrimination in "employment, housing, public accommodation and credit." Valid questions are also raised regarding the accessibility of these institutions to aggrieved citizens and their ability to enforce findings of abuse.

As noted earlier, in the United States numerous states and cities have established civilian oversight boards that often do not adequately hold police officers accountable. But still, there is hope given that these boards already exist; the key is to equip them with stronger protections and more robust powers. To this end, three defining features of NHRIs offer useful lessons that can help to guide how state and local governments bolster civilian oversight boards.

First, the Paris Principles call for NHRIs to be independent in their functioning and autonomous from the government. For civilian oversight boards, this independence should extend to autonomy in budgetary decisions, the ability of the boards to engage in outreach with citizens, and freedom from obstruction by police officers and unions. These objectives can be accomplished in part through a depoliticized process for selecting members to the boards.

Second, NHRIs are required to have a broad mandate to investigate reports of human rights violations. Similarly, civilian oversight boards should have mandates that provide for a broad scope of review and enable investigation of any claim of police misconduct brought before them.

Third, NHRIs must be equipped with adequate investigatory powers. Likewise, oversight boards should be able to develop their own records on cases alleging police misconduct and should be statutorily required to prepare and present findings on all allegations to the appropriate judicial authorities.

This discussion does not mean to suggest that NHRIs are perfectly designed institutions. In practice, they face considerable challenges, including the reality that their budgets are controlled by their governments and that they often lack the ability to enforce their own findings. However, as the United States and the world experience this important moment, the NHRI model serves as a valuable reference point because citizens trust their NHRIs. Likewise, truly independent investigations of police abuse are critical in increasing Americans' trust in and the accountability of law enforcement.