Performance Oversight Hearing: Committee on the Judiciary & Public Safety

Testimony of Marques Banks, Equal Justice Works Fellow
Washington Lawyers’ Committee for Civil Rights and Urban Affairs

February 7, 2019

Over the past few years, this Council has taken steps to move this City away from a tough-on-crime, broken-windows model of crime control and has embraced a more effective public health approach.  This approach targets the root causes of crime and promotes public safety.  The NEAR Act, the Fare Evasion Decriminalization Act, and community-based initiatives such as CURE the Streets, are prime examples of the important steps this Council has taken to modernize and increase the effectiveness of DC’s criminal justice system.  Unfortunately, the Metropolitan Police Department (“MPD”) has undermined these efforts by using ineffective and outdated tactics that have a disproportionately negative effect on communities of color and by resisting Council and community oversight.

There can be no serious question that the Metropolitan Police Department polices differently in different neighborhoods in the District.  In communities of color, MPD has long used aggressive stop and frisk tactics that purportedly are designed to recover guns and control violent crime.  As the District rapidly gentrifies, many of its African American residents feel the police are being used to push them out of neighborhoods their communities have long called home.

Despite historically low crime, MPD has increased its use of force and continued to employ these aggressive stop and frisk tactics.  Several recent controversial police encounters have been caught on video and held up by community members as emblematic of how the police behave towards DC’s African American residents.

Despite these legitimate concerns, MPD has not taken even the most basic steps to ensure its stop and frisk practices are lawful and effective.  First, its stop and frisk policies are critically deficient and out-of-date.  The gaps are numerous:  for example, because of the coercive nature of interactions between the police and civilians, and the danger that consent to search will be sought in a discriminatory way, MPD should give clear guidance to its officers on when they may ask someone for consent to search and what procedures they must follow in seeking and obtaining that consent.  It also should train officers on the risk that bias may affect their decisions on who they ask to search, and how police-community relationships are strained in neighborhoods where officers routinely ask people for “consent” to search them with no legal basis to suspect them of wrongdoing.  But MPD’s policies are almost completely silent on consent searches.  Its policy on vehicle stops and searches has not been updated since 1972,[1] and the traffic enforcement policy has not been updated since 1992.[2]

Despite concerns expressed by the community and this Council, MPD has resisted providing information about its practices.  To the contrary, Chief Newsham has suggested that even asking the department questions about its practices contributes to violent crime.[3]

MPD has urged the public and this Council to trust that its search and seizure tactics are lawful and non-discriminatory.  But it has resisted implementing the stop-data collection requirements of the NEAR act that would allow it and the public to know whether that is true.  Adequate stop-data collection practices are critical to ensuring constitutional policing.  Police department supervisors—and the public—must have access to accurate information about officers’ stop and frisk practices in order to assess whether officers are policing in a discriminatory way.  It is only with this full information—about who is being stopped, who is being asked to consent to search, who is being patted down, who is being released, and how often contraband is found—that a department can assess whether its crime reduction efforts are effective and fair.

The public also has raised serious questions about MPD’s ability and willingness to scrutinize officer behavior and to hold officers accountable for misconduct.  Each of the stop and search incidents described above were caught on camera by bystanders, raising the question of whether any of those incidents would been acknowledged and seriously examined by MPD had there not been a civilian there to record what happened.

Instead of taking common-sense steps like updating its stop and frisk policies; implementing policies and training on the use of consent searches; implementing data-collection protocols that comply with the law and best practices; providing information to the public quickly in the wake of critical incidents; and having a transparent process for holding officers accountable, Chief Newsham has requested money for more officers.  More officers will exacerbate problems rather than solve them.

First, the District does not need more officers.  It already has one of the highest tallies of officers per capita among large cities.  Communities of color and communities living in poverty already are over-policed and underserved.  Necessary resources such as housing, jobs, and even access to groceries are scarce in these neighborhoods.  Instead of hiring more police offices, we should make investments in communities that create opportunities for housing, employment, education, and recreation as an integral part of the public safety agenda.

Next, it simply is not possible to recruit large numbers of qualified officers and train them effectively in a short period.  Let us not forget the lessons of the past:  DC already is a cautionary tale across the country for its misguided decision in the early ’90s to try to control crime by hiring a large number of officers and get them on the street quickly.  Instead of reducing crime, officer-involved shootings, many of them highly questionable, skyrocketed.[4] A federal investigation of the department’s use of force soon followed.

Instead of hiring more officers, MPD should increase transparency, engage with the community, and create a dialogue about how to increase its effectiveness and community trust.  MPD has the opportunity to improve community relations and become a more effective department.  For years, the Police Complaints Board has been recommending that MPD update and revise its stops and frisk policies, implement protocols around the use of consent searches, and provide more detail to the public about critical incidents like police shootings.  However, MPD has ignored the recommendations, refused to follow the law as enacted by the Council, and questioned the very idea of oversight.

This Council should continue to engage in its essential oversight function and ask questions of police leadership designed to ferret out whether its tactics are lawful and effective.  For example,

• Will MPD collect and report to the public demographic data on stops in which officers do not conduct a search, so that the public can see whether there are racial disparities in who is searched?
• Will MPD implement consent search policies and collect data on who officers are asking to search and why?
• What is the jurisdiction of the Gun Recovery Unit; how many officers are in it; and what is its mandate and search success rate?
• What criteria does MPD use to decide whether and when to release body worn camera footage following a critical incident like a police shooting?

Finally, this Council should continue to make clear that MPD is a democratic institution, answerable to the people of this City it has sworn to protect and serve.

[1] MPD General Order 602.01, Automobile Searches and Inventories

[2] MPD General Order 303.01, Traffic Enforcement.

[3] Peter Hermann, “D.C. police chief says critical council hearing ‘emboldened’ drug dealers,” Washington Post, January 5, 2019, avaialbe at https://www.washingtonpost.com/local/public-safety/dc-police-chief-says-critical-council-hearing-emboldened-drug-dealers/2019/01/04/1c23bdf2-1029-11e9-84fc-d58c33d6c8c7_story.html?utm_term=.cdec53d89db5

[4] Jeff Leen, Jo Craven, David Jackson and Sari Horwitz, “District Police Lead Nation in Shootings,” Washington Post, November 15, 1998, available at https://www.washingtonpost.com/wp-srv/local/longterm/dcpolice/deadlyforce/police1full.htm