Police unions fail to kill civilian oversight

Two police unions — the Fraternal Order of Police, which serves as the collective bargaining unit for city of Miami police officers, and the Police Benevolent Association, which represents the police in scores of other departments throughout the state — tried their best to topple civilian oversight of police in Florida.

They failed.

In its recent decision in D’Agostino vs. City of Miami, issued on June 22, the Florida Supreme Court rejected these two unions’ challenge to the very existence of the city’s Civilian Investigative Panel (CIP).

Contrary to statements made to the press by the head of Miami’s police union, the upshot of this decision is not that the CIP now has “no power and responsibilities.” Indeed, as a result of the decision, the CIP has retained not only its legitimacy in general, but also its specific powers and authority to investigate complaints of police misconduct by Miami police officers, to review investigations conducted by the department’s Internal Affairs divisions, to critique the department’s policies, and to make recommendations to which the police chief must respond.

To be sure, the court ruled that the CIP may not use its subpoena power to summon and interrogate an “officer under investigation” by the CIP. Such use of subpoena power, the court said, would be inconsistent with the special rights conferred on police officers by the Police Bill of Rights (“PBR”) — a state statute that gives affirmative interrogation protections to police suspects that go far beyond the Fifth and 14th amendment protections the rest of us receive.

The wisdom and fairness of the PBR are worthy of a critical discussion — which the court did not undertake. It ruled only that, as the PBR currently stands, it protects an officer accused of violating department polices from compelled interrogation by the CIP.

This narrow ruling does not cripple the CIP. Not only does the decision recognize that the CIP’s subpoena power “may continue to exist undisturbed” as long as it is applied to subjects other than the officer under investigation; it also leaves intact all other methods of investigation the CIP may employ — such as conducting voluntary interviews, visiting the scene, studying videos and photos, obtaining medical records, listening to 911 calls, and reviewing records as they become public (including, as the court noted, “all of the investigatory materials arising from the investigation conducted by Internal Affairs”).

Many investigative bodies — including police departments investigating crime — conduct comprehensive, reliable investigations without the power to issue subpoenas. There are many ways to discern the truth; not all involve the use of a subpoena. The court’s ruling will not affect the effectiveness of civilian oversight by the CIP — or by any other civilian oversight body in Florida. As the court itself noted, even with its ruling, “Law enforcement officers remain very much exposed to public scrutiny.”

Because the arguments deployed by the two police unions, if accepted, would have resulted in the demise of civilian oversight in the state, three organizations — the ACLU, the NAACP, and the National Association for Civilian Oversight of Law Enforcement — joined together to submit an amicus brief to the court emphasizing the benefits to the community from robust civilian oversight. Justice Barbara Pariente, in a separate concurring opinion, took note of that brief, saying, “I also recognize, as does the amicus in support of … the CIP, the importance of the CIP to promote transparency and trust in the justice system.”

The narrow ruling in D’Agostino will not deter the CIP from continuing to diligently perform its work on behalf of the community — thereby fulfilling its mission of promoting transparency and trust vis-à-vis the police. Fulfillment of that mission can and should now proceed throughout Florida.

Cristina Beamud, a former police officer, is executive director of Miami’s Civilian Investigative Panel. Jeanne Baker, is a board member of the ACLU of Florida and was lead counsel on the amicus brief filed in D’Agostino vs. City of Miami.