5.8 Complaints Against Personnel

Centreville Police Department Title: Complaints Against Personnel Section: 5.8 Issued: 10.1.2016 Revised: 10.1.2016 Approved by: Charles M. Rhodes, Jr.

Chief of Police A. Policy The CPD will investigate all complaints against officers in a fair and timely manner according to established procedure and laws.

B. Definitions

COMPLAINT:

• an allegation, if proven factual, which would constitute misconduct; differences of opinion between a

officer and a citizen over the issuance of a traffic citation and/or criminal arrest are not complaints unless the allegation involves misconduct such as improper demeanor, use of force, etc.

RECORD:

• in the appropriate context, such as interviews and interrogations, includes audio recordings or audio and

video recordings.

C. Procedures

1. Complaints

a. A complaint can be made against an officer in any of the following ways:

(1) In person.

(a) If a citizen wishes to make a complaint in person, he may be accompanied by another person

of his choice when speaking with the CPD employee receiving the complaint.

(b) The additional person:

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(1) may not accompany the complainant during the interview if they are a witness to the

incident from which the complaint arose; and

(2) will be excluded from the interview if they become disruptive or interfere with the

interview.

(c) The citizen will be offered every opportunity to document the complaint in writing.

(2) In writing.

(a) Written complaints may be received via US Mail or electronic mail (email)

(3) By telephone.

b. Verbal complaints by citizens of misconduct will be documented when practical, however, due to the very nature of misinterpretation of verbiage, it may not be investigated or acted upon. Citizens will be offered every opportunity to document the complaint. Serious complaints should be supported by a written statement by the complainant.

c. A sworn statement alleging brutality must be filed by the complainant within 366 days of the alleged act, however such complaints filed after 366 days may still be investigated by the CPD.

d. Nothing precludes the Department from investigating allegations against employees from whatever source received, consistent with the law when it is determined that such investigation is in the best interest of the Department.

2. Processing Complaints

a. A complaint may be received by any sworn employee at any time; it is preferred that the initial complaint be taken by a supervisor.

b. It is imperative that complainants are met with respect, courtesy, and understanding; a cynical or negative attitude only aggravates the situation and does nothing to further the core values or mission of the CPD.

c. CPD employees will:

(1) not delay the initiation or documentation of a complaint;

(2) record complaints on a ‘Complain Against Personnel’ form;

(3) make every effort to identify the complainant; Anonymous complaints should not, per se, be

excluded from investigation. Efforts should be made to gain the cooperation of the complainant.

Many anonymous complaints, by their very nature, are difficult to substantiate; yet, this should not preclude a preliminary inquiry into the matter. Where possible, a preliminary investigation into the complaint will be made. The investigation will be terminated when no additional Page 2 of 11 evidence can be obtained. The case will be documented and the officer may be informed of the nature of the complaint and the result of the investigation.

d. Supervisors may be immediately assigned to investigate serious complaints.

e. Employees receiving a complaint will not discuss the nature of the complaint with the involved officer or other unauthorized persons.

f. Upon receiving a complaint, The Chief, Lieutenant or Patrol Supervisor, will initiate a ‘Complaint Against Personnel’ form and all pertinent information will be recorded on the report. Complaints registered against an employee of the Department by either civilians or Department employees not authorized to exercise supervisory or administrative control over the employee involved, shall be recorded on a ‘Complaint Against Personnel’ form. Supervisory personnel may initiate an immediate

investigation if such is warranted.

g. Any employee desiring to file a complaint against another employee of the Department of lower rank or classification may submit the complaint directly to the Chief of Police or to the employee's immediate supervisor. Such complaints must be submitted in writing.

h. Any employee desiring to file a complaint against another employee of the Department of the same or superior rank or classification, may submit the complaint directly to the Chief of Police. Such complaints must be submitted in writing and signed by the employee initiating the complaint.

i. Once a complaint is made or received, the Chief of Police may direct a Lieutenant or Patrol Supervisor to investigate it. The Investigator will then complete a ‘Complaint Against Personnel’ form.

j. Brutality Complaint Processing

(1) A complaint against a law enforcement officer, alleging brutality in the execution of his duties, may

not be investigated unless the complaint be duly sworn to by the aggrieved person, a member of the aggrieved person's immediate family, or by any person with first-hand knowledge obtained through presence at and observation of the alleged incident, or by the parent or guardian in the case of a minor child, before an official authorized to administer oaths. An investigation which could lead to disciplinary action for brutality may not be initiated and an action may not be taken

unless the complaint is filed within three hundred sixty-six days of the alleged brutality.

(2) When a complainant fails to swear to a brutality complaint, he will be advised that pursuant to

law, the Department may not investigate an allegation of brutality unless sworn to, and an effort will be made to obtain the cooperation of the complainant. If the complainant still refuses to swear to the complaint of brutality and the allegation, if factual, would constitute misconduct, the receiving officer will document the complaint on a ‘Complaint Against Personnel’ form. The form will contain a notation that the complainant refused to swear to the complaint of brutality

and will allege a specific act of misconduct other than brutality, e.g. unbecoming conduct, mistreatment of persons in custody, unnecessary use of force, etc. Such complaints will be processed in the same manner as other citizen complaints.

3. Investigation Process for Complaints Against Officers

Page 3 of 11 a. An internal investigation is complete when:

(1) the complainant and witnesses have been interviewed;

(2) employees have been questioned;

(3) all physical evidence has been examined;

(4) all leads have been explored; and

(5) the case has been accurately reported.

b. For the complainant/witness interview, the investigator will, when feasible:

(1) conduct all interviews in-person and obtain all pertinent identifiers from the person interviewed;

(2) audibly record all statements;

(3) preserve all statements as part of the investigative case file;

(4) determine every relevant fact known to the complainant and/or witnesses; and

(5) determine the motivation of the complainant and/or witnesses, such as his relationship with the

complainant or officer.

c. The investigator will, when feasible:

(1) pursue all leads developed through complainant and witness interviews;

(2) handle all physical evidence in accordance with established procedures;

(3) obtain all pertinent records (e.g., MVA records, telephone bills, court documents, MSP records)

that could be used to:

(a) assist the investigation; and

(b) corroborate or refute statements;

(4) develop leads;

(5) if photographs are useful for evidentiary purposes (e.g., identification, to document injury),

photograph the complainant, trooper and the scene of the incident;

(6) when photographs are used for identification purposes, follow the MSP’s established photo lineup

guidelines;

(7) obtain sketches which may supplement photographs, where appropriate;

(8) treat firearms in accordance with established procedures;

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(9) whenever an officer discharges a firearm, other than on the range or to destroy an injured animal,

the supervisor conducting the administrative investigation will complete a ‘Review of Shooting Incidents’ form;

(10) when a firearm is discharged by an officer, determine:

(a) if the weapon is an approved weapon;

(b) if it was issued by the MSP;

(c) if it is a primary or secondary weapon; and

(d) if the ammunition is MSP approved;

(11) document the condition of the firearm, including a complete description of its:

(a) make, model and caliber;

(b) serial number; and

(c) the number of rounds of ammunition in the weapon, in the officer’s possession and

in each individual magazine.

4. Statements from the Accused Officer

a. As a general rule, the interrogation of the officer occurs after the complainant and all witnesses have been interviewed.

b. The investigator determines the sequence of interviews.

c. The verbal statements of the officer will be audibly recorded.

5. Written Reports

a. Generally, a recorded interview/interrogation is preferred; however, officers may still be required to submit reports detailing the facts concerning their involvement in an incident.

b. If the report is likely to contain information that may be used as evidence against an officer in a disciplinary hearing, the report is considered an interrogation and the supervisor ordering the report will:

(1) provide the officer with a completed copy of ‘Notification of Complaint’ and ‘Waiver of Rights’

form;

(2) provide the officer with an order to submit the written report;

(3) allow up to 5 business for the officer to consult with counsel or other representative of his choice

prior to submitting the report; and Page 5 of 11

(4) before ordering a report from an officer where criminal charges may result, the supervisor

will consult with the investigator of the criminal complaint.

6. Interrogation of Accused Officers

a. Interrogations of officers will be in conformance with the Law Enforcement Officers’ Bill of Rights (LEOBR).

b. Probationary officers are not entitled to LEOBR provisions unless the allegation involves brutality in the performance of the officer’s duties.

c. Before every interrogation, including the submission of a detailed report, the supervisor conducting the interrogation will complete ‘Notification of Complaint’ and ‘ Waiver of Rights’ form.

d. The ‘Notification of Interrogation’ and ‘ Waiver of Rights’ form advise the officer that the investigation and interrogation must be conducted in conformance with LEOBR and that he may retain or waive any or all of the rights that he is afforded under LEOBR.

e. The ‘Notification of Complaint’ form should clearly:

(1) state that the officer is the subject of an investigation, and

(2) briefly describe the nature of the investigation.

f. The officer subject to the interrogation will be allowed to read or have read to him the ‘Notification of Complaint’ form prior to the interrogation.

g. The interrogating supervisor must be certain the officer is provided with the opportunity to waive or retain his LEOBR rights before any statement can be taken.

h. If the officer waives his LEOBR rights, he will indicate by signing his name and writing his rank and ID number in the space provided on the ‘Waiver of Rights’ form.

i. The officer will note those rights he wishes to retain in the space provided.

j. The officer subject to the interrogation will sign the ‘Notification of Interrogation’ form and receive a copy.

k. The original ‘Notification of Complaint’ and ‘Notification of Interrogation’ forms will be placed in the case file.

l. The interrogating supervisor will provide the officer with a ‘Notification of Interrogation’ form ordering him to submit to the interrogation.

m. The officer has the right to be represented by counsel or any other representative of his choice who will be present and available for consultation at all times during the interrogation, unless the officer waives this right.

n. All questions directed to the officer during the interrogation will be asked by and through one interrogator during any single interrogating session.

Page 6 of 11 o. The interrogation will take place at any reasonable and appropriate place designated by the investigator, unless the officer waives this right.

p. The interrogator will audibly record the interrogation and include the date and time the interrogation begins, all interruptions, and the time the questioning concludes.

q. Upon completion of an investigation, and no less than 10 days prior to any hearing, the trooper or his representative may request to review the record of the interrogation.

7. Compelled Tests

a. Officers may be compelled to submit to blood tests, breath tests and urinalysis tests for controlled dangerous substances.

b. Officers may be compelled to submit to other forensic testing (e.g. providing handwriting samples or hair samples) as may be required to conduct a thorough investigation.

c. Officers may be compelled to disclose financial information to the extent that the information is necessary to investigate a possible conflict of interest with respect to the performance of the officer’s official duties or the disclosure is required by federal or State law.

8. Polygraph Examinations of Officers

a. Polygraph examinations of officers will be conducted in accordance with MD. CODE ANN., PUB.

SAFETY § 3-104.

b. Officers may voluntarily submit or be ordered to submit to polygraph examinations.

c. The results of a polygraph examination may not be used as evidence in any administrative hearing when the officer has been ordered to submit to an examination by the CPD unless the CPD and the officer agree to the admission of the results at the administrative hearing per MD. CODE ANN., PUB.

SAFETY § 3-104.

d. The officer’s representative need not be present during the actual administration of a polygraph examination if:

(1) the questions to be asked are reviewed with the officer or his representative prior to

administering the examination;

(2) the representative is allowed to observe the administering of the polygraph examination;

and

(3) a copy of the final report is made available to the officer or his representative within 10 days.

e. A post-polygraph interrogation will require the issuance of a new ‘Notification of Complaint’ form, briefly detailing the nature of the investigation, and a ‘Notification of Interrogation’ directing the officer when and where to appear for the interrogation.

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9. Failure to Comply

Before ordering a officer to submit detailed reports; or submit to an interrogation, interview, blood, breath, or urine tests, and/or polygraph examination; the officer must first be advised that:

a. information supplied through an officer’s answers will not be used against him in subsequent criminal proceedings.

b. the following actions are separate violations of the rules of conduct, constitute grounds for disciplinary action and may cause the officer’s termination:

(1) refusal to cooperate in an investigation;

(2) refusal to submit to a blood alcohol test, or a blood, breath, or urine test for use of controlled

dangerous substances;

(3) refusal to submit to a polygraph examination, an interrogation or an interview; and

(4) refusal to submit a detailed report.

10. Investigative Report Format

The completed investigation case file will be organized as follows:

a. Complaint Against Personnel Report.

b. Report of Investigation (follow the detailed report format to ensure the uniformity of internal investigative reports).

c. Appendices:

(1) Statement of complainant, if different from that of the victim.

(2) Statement of victim, if different from that of complainant.

(3) Statement of witnesses.

(4) Notification of Complaint, if applicable.

(5) Detailed Report from the accused officer.

(6) Notification of Interrogation, if applicable.

(7) Other statements or detailed reports.

(8) Additional exhibits (e.g., photographs, diagrams, charts).

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11. Completion of the Investigation

a. The investigator will recommend for each violation, based upon a preponderance of evidence, a finding of:

(1) NON-SUSTAINED if the investigation fails to disclose sufficient information to clearly prove the

allegation;

(2) SUSTAINED if the investigation disclosed sufficient information to substantiate the allegation; or

(3) UNFOUNDED if the investigation revealed that the reported incident did not occur.

b. The Chief, upon receipt of the completed investigation, will prepare an endorsement.

(1) The endorsement will include whether the Chief agrees with the investigator’s findings.

(2) If the Chief disagrees with the findings, he will state the factual basis for not accepting the

investigator’s conclusions.

12. Time Limits

Except in cases of criminal activity or excessive force, administrative charges must be brought against an officer within one year after the act that gives rise to the charges comes to the attention of the CPD.

13. Unfounded/Non-Sustained/ADP Cases

a. When an investigation involving an officer has been disposed of under ADP or is unfounded/nonsustained, the case file will include the Chief’s endorsement and a copy of the letter of case disposition to the complainant.

14. Sustained Cases

a. Disciplinary actions involving probationary troopers are not covered by LEOBR and are processed in accordance with Directive # 5.6.

b. Summary Punishment, found in Directive #5.6, may be offered to an officer when a Category A, B or C violation has occurred.

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15. Cases for Prosecution

a. Case Screening by Prosecutor

(1) In all sustained cases where the potential offense carries a Category “D” or “E” penalty in the

Disposition Matrix (Directive #5.12), the case will be screened by the Department Prosecutor.

b. Preparation for Hearing Board For cases deemed legally sufficient for prosecution by the Department Prosecutor, the Chief will:

(1) upon filing the charges and prior to serving the accused officer, will fax or email a copy of the

‘Notification of Admin. Charges’ form to the Department Prosecutor;

(2) present the ‘Notification of Admin. Charges’ form to the accused trooper for acknowledgment and

signature;

c. give a copy of the signed ‘Notification of Admin. Charges’ form to the officer;

d. route the case file to the Department Prosecutor for prosecution of the charges.

16. Routing of Investigative Case for Scheduling of the LEOBR Hearing

a. The Chief will forward the case file to the Department Prosecutor.

b. The prosecutor will provide a copy of the investigation materials, as described and limited by LEOBR, at no cost, to the accused officer or his representative not less than 30 days prior to the officer’s disciplinary hearing.

17. Resolution of Case Prior to LEOBR Hearing

a. An officer may waive all rights afforded by the LEOBR after being charged with a violation of CPD rules or regulations.

b. The Department Prosecutor can be contacted by the officer or his representative to engage in negotiations to resolve a Category A, B or C case at any time.

c. When it would be in the best interest of the officer and the CPD to resolve the case, the Department Prosecutor can offer the officer an opportunity to waive the hearing board process.

d. The prosecutor may facilitate negotiations in which there is a waiving of the LEOBR Hearing.

Page 10 of 11 e. Recommendations for transfer, demotion or suspension exceeding 15 days will be reviewed by the Chief.

18. Final Disposition

a. Upon completion of the investigation, the involved officer’s commander will notify the complainant of the final disposition of all charges (sustained, non-sustained or unfounded) and if disciplinary action was taken; no details related to the specific disciplinary action will be disclosed.

b. If an investigation will take a great deal of time, the complainant should be updated on the case status periodically, generally every two to three months.

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