INDEPENDENT CRITICAL INCIDENT INVESTIGATION AGENCIES: A UNIQUE FORM OF POLICE OVERSIGHT.

• Author: Rosenthal, Richard A.

Table of Contents Introduction 858 I. Independent Critical Incident Investigation Agencies World-Wide 860 II. The Academic Literature Relating to Independent Investigations of the Police 862 III. Summary of Agency Histories and Powers 865 A. ICIIAs of Canada 865 1. The Ontario SIU (Established 1990) 866 2. The Alberta Serious Incident Response Team (ASIRT) (Established 2008) 868 3. The Nova Scotia Serious Incident Response Team (SiRT) (Established 2012) 869 4. The British Columbia Independent Investigations Office (IIOBC) (Established 2012) 870 5. The Manitoba Independent Investigations Unit (IIU) (Established 2015) 872 6. The Quebec Bureau des Enquetes Independantes (BEI) (Established 2016) 872 B. ICIIAs of the United Kingdom and Ireland 873 1. The Police Ombudsman for Northern Ireland (PONI) (Established 2000) 873 2. The Independent Office for Police Conduct (IOPC) for England and Wales, Formerly the Independent Police Complaints Commission (IPCC) (Originally Established 2004; Renamed and Reconstituted 2018) 874 3. The Garda Ombudsman Commission for the Republic of Ireland (GSOC) (Established 2007) 875 4. The Police Investigation and Review Commissioner (Scotland) (Established 2013) 876 C. Other ICIIAs 877 1. The New Zealand Independent Police Conduct Authority (IPCA) (Established 2007) 878 2. The Civilian Office of Police Accountability (COPA) for the City of Chicago, Illinois; Formerly the Independent Police Review Authority (Originally Established 2007; Reconstituted 2017) 879 3. The Independent Police Investigative Directorate (IPID) for South Africa; Formerly the Independent Complaints Directorate (ICD) (Originally Established 1995; Reconstituted 2012) 880 4. The Independent Commission on Investigations (INDECOM) for Jamaica; Formerly the Police Public Complaints Authority (Originally Established 1992; Reconstituted 2010) 881 IV. Comparing the Statutory Foundations of ICIIAs Around the World 882 A. Comparison of Canadian ICIIA Agency Enabling Acts 882 1. Canadian ICIIA Regulations 886 B. Comparison of U.K. and Ireland ICIIA Enabling Acts 895 1. U.K./Ireland ICIIA Regulations 896 C. Comparison of Other Global Agency Enabling Acts 902 1. Other Global ICIIA Regulations 902 D. Amendments to Enabling Acts 909 V. Discussion and Underlying Rationale for Statutory Choices Made in the Creation of ICIIAs 911 A. Statutory Provisions Emphasizing Independence 911 B. Independence and "Civilian-ness" 914 C. Independence and Capture Theory 915 1. The Application of Capture Theory to the Two Models of ICIIAs of Canada 918 D. Independence and Cost 920 E. Independence and Conflict of Interest 923 F. Confirmation Bias 923 G. Independence, Deterrence, and Police Resistance 924 H. Independence and Risk Management Theory 927 Conclusion 927 INTRODUCTION

Police misconduct and the use of excessive force by police have had a major impact on public perceptions of the police and the public's willingness to cooperate with the police in promoting and ensuring public safety. (1)

Over the last two decades, many jurisdictions throughout the world have created [professional] 'Civilian Oversight of Law Enforcement' [COLE] agencies with the intent that the investigation, monitoring, auditing or adjudication of police complaints, police discipline and police use-of-force by independent civilian-led organizations will encourage public confidence in the police and help ensure accountable, effective and Constitutional policing. (2) Although these oversight programs have been created in many different jurisdictions facing similar issues and controversies in policing, the programs tend to be extremely diverse. (3) In fact, the specific politics, cultures, and histories of each jurisdiction determines what powers and attributes each agency will have. Although the concept of "best practice" is often the stated goal of oversight professionals, in actuality the term "best fit" is likely more apropos to an overall comparison of each oversight agency and the community that it serves. (4)

A recent research project, sponsored by the United States Office of Justice Program's Diagnostic Center, identified a total of 144 oversight agencies in the United States and another 24 oversight agencies in Canada. (5) Of those agencies, only seven jurisdictions, all but one in Canada, have created what this work will call independent critical incident investigation agencies (ICIIAs) (6) to conduct criminal investigations against on or off-duty police officers. (7)

This Article examines and compares the statutory framework for ICIIA agencies in the English-speaking world and examines theoretical best practices in this unique area of police oversight. ICIIAs have been created, in large part, to improve public perceptions regarding the conduct of criminal investigations of police uses of force and police misconduct. (8) The jurisdictions that have created these agencies have expended significant resources in the pursuit of this unique form of civilian oversight of law enforcement, even though it is largely unknown to what extent theoretical best practices have been implemented through the various renditions of this oversight model. Outstanding questions exist relating to the quality of the investigations they conduct and the extent to which specific ICIIA agencies have been or could be successful in their quest to improve police accountability and the public's faith in law enforcement.

In order to better understand the significant government resources that have been expended to support ICIIA programs and determine how best to use those resources, this Article will explore the academic literature as it relates to the conduct of independent investigations of the police, the circumstances under which each agency has been created, the specific statutory frameworks that have been used to create these agencies, and the underlying theories and rationales supporting the creation of these agencies. The extent to which these agencies have been successful is still subject to legitimate debate, particularly given the significant costs associated with implementing and sustaining a competent program. However, certain best practices can be identified at this time even though additional research is needed.

This Article provides the first comprehensive look at these programs and can be used to identify what legislative foundations have been identified as needed to create a sustainable program and examines the circumstances under which such programs have been created to enhance community faith in the integrity of police accountability and oversight.

1. INDEPENDENT CRITICAL INCIDENT INVESTIGATION AGENCIES WORLD-WIDE

   Outside of Canada and the United States, the United Kingdom created similar programs in Northern Ireland, England and Wales, and Scotland. (9) Additional programs have also been created in Ireland, New Zealand, South Africa, and Jamaica. (10) Only one such agency exists on a municipal level, located in the City of Chicago, Illinois, in the United States. (11)

   Three models of ICIIAs can be identified: 1) the Canadian model wherein the agency is solely responsible for criminal investigations against the police (and separate oversight agencies are responsible for administrative investigations involving public complaints against the police); 2) the U.K. model wherein the agency has both criminal and administrative investigation responsibilities (United Kingdom, Ireland, South Africa, and Jamaica); and 3) a pseudo-ICIIA model (New Zealand and Chicago), wherein although the agency is statutorily authorized to conduct original criminal critical incident investigations, it does not have the resources to conduct such investigations and instead conducts and adjudicates administrative investigations, with the occasional referral of potentially criminal cases to prosecuting authorities. (12)

   The chronology for the establishment of the fourteen identified ICIIA (English-speaking) programs globally is provided in table l. (13)

2. THE ACADEMIC LITERATURE RELATING TO INDEPENDENT INVESTIGATIONS OF THE POLICE

   Although there is "[a] reasonably large body of academic and policy writing on civilian oversight dat[ing] back to the 1970s" in the United States (14) and there are a substantial number of public reports relating to the creation and review of Canadian oversight agencies, (15) the literature comparing civilian oversight of law enforcement mechanisms globally is relatively limited; particularly when it comes to the specifics of agencies involved in the independent investigations of police-involved crimes and critical incidents.

   Literature evaluating the "Civilian Control Model" of civilian oversight, defined as "involv[ing] genuinely independent investigation of complaints," identifies two main arguments against the independent investigation model of oversight. "The first concerns the competency of the investigators and their capacity to penetrate the police world." (16) "The second main charge against civilian control--[is] that external investigation will destroy the authority and responsibility of police managers." (17)

   Criticisms of this model include comments made by multiple independent commissions investigating the causes and consequences of police corruption. (18) These criticisms aside, many of the ICIIA agencies identified here have been created specifically as the result of independent inquiry (or commission) reports that generally recommended the creation of such agencies only as a last resort after systemic failures in police accountability were identified. (19)

   Some of the programs identified in this Article have been discussed in various books that have compared and discussed civilian oversight programs on an international basis. (20) However, only one published article has spoken specifically to the need to enhance accountability and trust through the creation of ICIIAs in the United States. (21) Katz used recent controversial police shootings in the United...