As Virginia lawmakers weigh civilian oversight of police, some in law enforcement object

By: - August 13, 2020 12:02 am

Police guarded the Rotunda at UVA on Aug. 11, 2018 in Charlottesville, the anniversary weekend of the deadly white supremacist rally that left one dead and dozens injured. (Ned Oliver/Virginia Mercury)

With the General Assembly set to convene for a special session next week, Virginia lawmakers are signaling strong support for legislation empowering local citizen review boards to investigate and in some cases discipline police officers accused of misconduct.

“In my opinion civilian review boards must be the centerpiece of police reform,” Del. Patrick Hope, D-Arlington, who chairs the House committee on public safety, said during a recent hearing. “If done right, they have the potential to create much needed transparency and accountability in law enforcement.”

But the proposals are increasingly drawing opposition from some in law enforcement, particularly elected sheriffs around the state who argue that because they are directly elected by voters every four years they are already accountable to the communities they police.

“That’s the ultimate citizen review board,” said John Jones, executive director of the Virginia Sheriffs’ Association, who said his membership is unanimous in its opposition to additional oversight. “Our concern is you would have the sheriff’s political opponents clamoring to get on the review board because they wanted to defeat him at the next election.”

Meanwhile the reaction from police chiefs, who are appointed and oversee law enforcement in cities and most larger counties, has been decidedly mixed, with some backing the concept and others voicing vigorous opposition. Officers groups have so far argued for guard rails and training for members.

The death of George Floyd in Minneapolis and the widespread civic unrest that followed has prompted local governments around the state to begin discussions about establishing review boards for their police and sheriff’s departments. But under current state law, the bodies they can create operate in an advisory capacity only, typically reviewing investigations conducted internally by the police department’s internal affairs officers and offering recommendations to the chief.

Criminal justice reform advocates have been calling on lawmakers to pass legislation that would give local governments the authority to create boards with more teeth, including the power to conduct their own investigations into complaints and subpoena power to obtain department records and compel witnesses testimony. And they say local governments should have the option to give the citizen panels the final authority over the most serious civilian complaints.

“Law enforcement can’t have a better relationship with the community until the community has a voice and power in how policing functions,” Kim Rolla, an attorney at the Charlottesville-based Legal Aid Justice Center, told House lawmakers earlier this month.

Rolla cited a study of review boards in 80 municipalities by researchers at Indiana University that found advisory and investigative citizen boards reduced racial disparities in certain discretionary stops and arrests. But the study found boards with investigational authority were the only ones that led to a reduction in police homicides of citizens. “In general, the wider the scope of authority, and the broader the discretion afforded by existing institutions, the greater the likelihood of change in institutional outcomes,” the study concludes.

Democratic lawmakers, who hold majorities in both chambers, have embraced the proposals, saying they plan to introduce legislation that will be considered during the special session that begins next week.

They will do so with the backing of at least some law enforcement leaders. Richmond’s new police chief, Gerald Smith, said he welcomed civilian oversight in Richmond with subpoena power, telling reporters that at his last post in Charlotte-Mecklenburg there was a review board, but it had no authority to compel officers to provide testimony, which he said actually made it harder for the department to tell its side of the story.

On the other side of the debate, Chesapeake Police Chief Kelvin Wright told lawmakers he strongly opposed giving review boards authority that has traditionally been his purview as chief. He worried not that the boards would be too harsh, but that they would be too lenient.

In Chesapeake, as in most localities, he said employees facing discipline or termination are entitled to go before a grievance hearing panel made up of civilian city employees. And he said those civilians have sometimes overridden his decision to fire officers.

“For the record, I have terminated people who should not be in law enforcement and the citizen grievance panel has reinstated them,” he said. “The reasons they were terminated were very serious, including theft, lying, assault, excessive use of force and incompetence. So think about that for a moment. A civilian review panel’s decision to put someone back to work who should not be in law enforcement and who I would not hire.”

Del. Don Scott, D-Portsmouth, countered that while he might run a tight ship, other agencies clearly need additional oversight. “Because it’s obvious that some chiefs are not firing people or taking immediate disciplinary action,” he said. “Otherwise we would not be in this position. … You may be the exception.”

Wayne Huggins, the executive director of the Virginia State Police Association, which represents state troopers who work around Virginia, said he had no objections to civilian oversight, but said any civilians who sit on the board should have training, likening it to a layperson reviewing allegations of malpractice against a medical doctor.

“I know nothing about their profession or what they do and it would seem to me, strictly speaking for myself, that any person involved in these processes has to have a basic understanding of our profession, the challenges that we face, the decision-making that we’re called upon to make in a split second,” he said.

Lawmakers pushed back on the idea that police work is comparable to practicing medicine. “Doctors go to school for four years undergrad, four years of med school and then probably two or three years of residency,” Scott said, saying he was tired of the analogy, which came up at least three times during a recent hearing. “There’s no comparison to looking over a doctor’s shoulder and looking over law enforcement’s shoulder and being able to see clear misconduct.”

But lawmakers said they do believe training for potential board members is a good idea. Sen. Ghazala Hashmi, D-Henrico, said training recommendations for members will be incorporated into review board legislation she’s planning to introduce.

She also said her proposed bill will limit the authority of local boards to citizen complaints and serious accusations of misconduct, saying she doesn’t want the boards to supplant internal processes that address routine human resources issues.

But when it comes to serious complaints, she said her legislation would allow localities to vest boards with the authority to petition a local judge for a subpoena to compel testimony and documents and then hand down discipline, including reprimands, suspensions, reassignment and termination. As drafted, her proposal would allow officers to appeal any binding disciplinary decisions through local governments’ existing HR grievance procedures.

In the House, Hope said he expected his chamber’s version of the legislation to follow similar contours. But still up in the air is how lawmakers will handle sheriffs’ departments.

“We are accountable to the citizens every four years,” argued Capt. David Wells of the Fluvanna County Sheriff’s Office. “If they do not approve of or agree with our performance, they hold the power to vote to install a new person to lead and to set new policies. I see no need for separate review boards for sheriffs. Let the people speak on election day.”

Hashmi said she found that argument compelling and her proposed bill would not apply to elected sheriffs.

Hope said he thinks it would be a mistake to exempt sheriffs from additional oversight, noting that it would leave large portions of the state without opportunities for additional law enforcement oversight. “If you look at it, probably having a sheriff that’s elected is even more reason for someone to be accountable,” he said. “How would voters measure how the sheriff is doing unless you have some check?”

ACLU of Virginia Executive Director Claire Guthrie Gastañaga shared a similar view. “Sheriffs as chief law enforcement officers in their community should be even more open to hearing from the people in their community that they’re policing because they are elected officials,” she said. “To hear that they’re opposed to that is really discouraging.”

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.