Memorandum of Agreement, United States Department of Justice and the District of Columbia and the D.C. Metropolitan Police Department
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MEMORANDUM OF AGREEMENT
Between the United States Department of Justice
and the
District of Columbia and
the District of Columbia Metropolitan Police Department,
June 13, 2001
TABLE OF CONTENTS
I. INTRODUCTION
A. Background
B. General Provisions
C. Definitions
II. GENERAL USE OF FORCE POLICY REQUIREMENTS
A. General Use of Force Policy
B. Use of Firearms Policy
C. Canine Policies and Procedures
D. Oleoresin Capsicum Spray Policy
E. Implementation Schedule
III. INCIDENT DOCUMENTATION, INVESTIGATION, AND REVIEW
A. Use of Force Reporting Policy and Use of Force Incident
Report
B. Investigating Uses of Force and Misconduct Allegations
1. Use of Force Investigations
2. Investigations of Misconduct Allegations
IV. RECEIPT, INVESTIGATION, AND REVIEW OF MISCONDUCT ALLEGATIONS
A. Coordination and Cooperation Between MPD and OCCR
B. Public Information and Outreach
C. Receipt of Complaints
D. OCCR Misconduct Investigations
E. Evaluating and Resolving MPD Misconduct Allegations
V. DISCIPLINE AND NON-DISCIPLINARY ACTION
VI. PERSONNEL PERFORMANCE MANAGEMENT SYSTEM
A. Performance Evaluation System
VII. TRAINING
A. Management Oversight
B. Curriculum
C. Instructors
D. Firearms Training
E. Canine Training
VIII. SPECIALIZED MISSION UNITS
IX. PUBLIC INFORMATION
X. MONITORING, REPORTING, AND IMPLEMENTATION
A. Independent Monitoring
B. MPD Compliance Coordinator
C. Reports and Records
D. Implementation, Termination, and Enforcement
E. Compliance
F. Modifications
MEMORANDUM OF AGREEMENT
Between the United States Department of Justice
and the
District of Columbia and
the Washington Metropolitan Police Department,
I. INTRODUCTION
A. Background
1. In January 1999, District of Columbia Mayor Anthony A. Williams and
Chief Charles H. Ramsey requested the Department of Justice to review all aspects
of the Washington Metropolitan Police Department's use of force. This unprecedented
request indicated the City and the Chief's commitment to minimizing the risk
of excessive use of force in the Washington Metropolitan Police Department (MPD)
and to promoting police integrity. Because of the unusual genesis of the investigation
-- at the request of the agency to be investigated -- the Department of Justice
agreed that, parallel with its pattern or practice investigation, it would provide
MPD with technical assistance to correct identified deficiencies during the
course of the investigation. The Department of Justice conducted the investigation
requested by the City, and analyzed every reported use of force and citizen
complaint alleging excessive use of force during the period from 1994 to through
early 1999. The Department of Justice also examined MPD's policies, practices,
and procedures related to use of force.
2. In addition to conducting an investigation, the Department of Justice
has provided MPD with on-going technical assistance recommendations regarding
its use of force policies and procedures, training, investigations, complaint
handling, canine program, an early warning tracking system. Based upon these
recommendations, MPD has begun to implement necessary reforms in the manner
in which it investigates, monitors, and manages use of force issues.
3. The Department of Justice, the District of Columbia, and the District
of Columbia Metropolitan Police Department, share a mutual interest in promoting
effective and respectful policing. They join together in entering this agreement
in order to minimize the risk of excessive use of force, to promote the use
of the best available practices and procedures for police management, and to
build upon recent improvements MPD has initiated to manage use of force issues.
The parties acknowledge that additional reforms may be appropriate in order
to identify and to prevent discriminatory law enforcement. The parties are currently
reviewing officer communications on Mobile Data Terminals to identify unlawful
or otherwise inappropriate conduct. Based upon the outcome of this review, MPD
agrees to implement appropriate reforms.
B. General Provisions
4. This agreement is effectuated pursuant to the authority granted DOJ under
the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. §14141)
to seek declaratory or equitable relief to remedy a pattern or practice of conduct
by law enforcement officers that deprive individuals of rights, privileges or
immunities secured by federal law.
5. Nothing in this Agreement is intended to alter the lawful authority of
MPD police officers to use reasonable and necessary force, effect arrests and
file charges, conduct searches or make seizures, or otherwise fulfill their
law enforcement obligations to the people of the District of Columbia in a manner
consistent with the requirements of the Constitution and laws of the United
States and the District of Columbia.
6. Nothing in this Agreement is intended to: (a) alter the existing collective
bargaining agreements between the City and MPD employee bargaining units; or
(b) impair the collective bargaining rights of employees in those units under
law.
7. This Agreement constitutes the entire integrated agreement of the parties.
With the exception of thelatestworking drafts and correspondenceresulting from
the technical assistance described in paragraph 2, no prior drafts or prior
or contemporaneous communications, oral or written, shall be relevant or admissible
for purposes of determining the meaning of any provisions herein in any litigation
or any other proceeding.
8. This Agreement is binding upon the parties hereto, by and through their
officials, agents, employees, and successors. This Agreement is enforceable
only by the parties. No person or entity is intended to be a third party beneficiary
of the provisions of this Agreement for purposes of any civil, criminal, or
administrative action, and accordingly, no person or entity may assert any claim
or right as a beneficiary or protected class under this Agreement. This Agreement
is not intended to impair or expand the right of any person or organization
to seek relief against the District Columbia for its conduct or the conduct
of MPD officers. This Agreement does not constitute an admission, adjudication,
or finding on the merits in any action or proceeding. This Agreement does not
authorize, nor shall it be construed to authorize, access to any City or MPD
documents, except as expressly provided by this Agreement, by persons or entities
other than DOJ, the City, and the Independent Monitor.
C. Definitions
9. The term "actively resisting" means the subject is making physically
evasive movements to defeat the officer's attempt at control, including bracing,
tensing, pushing, or verbally signaling an intention not to be taken into or
retained in custody, provided that the intent to resist has been clearly manifested.
10. The term "CCRB" means the Citizen Complaint Review Board.
11. The term "City" means the City of the District of Columbia.
12. The term "complaint" means any complaint by a member of the public regarding
MPD services, policy or procedure, claims for damages (which allege officer
misconduct) or officer misconduct; and any allegation of possible misconduct
made by an MPD officer. All complaints shall be recorded on the complaint form
described in paragraph 88. A complaint may be initiated by any of the methods
set forth in paragraph 92. For purposes of this Agreement, the term "complaint"
does not include any allegation of employment discrimination.
13. The term "complainant" means any person who files a complaint against
an officer or MPD.
14. The term "consult" means an exchange of information in a timely manner
between the parties intended to consider the parties' respective positions.
This exchange of information shall include, but not be limited to, preliminary
investigative files, reports, statements, photographs, and radio runs, as such
items become available.
15. The term "deadly force" means any use of force likely to cause death
or serious physical injury, including but not limited to the use of a firearm
or a strike to the head with a hard object.
16. The term "Department" means the Washington Metropolitan Police Department.
17. The terms "document" and "record" include all "writings and recordings"
as defined by Federal Rules of Evidence Rule 1001(1).
18. The term "DOJ" means the United States Department of Justice and its
agents and employees.
19. The term "effective date" means the day this Agreement is signed by
all the parties.
20. The term "FIT" means the Force Investigation Team.
21. The term "including" means "including, but not limited to."
22. The term "Independent Monitor" or "Monitor" as used in this document
means the Monitor established by Section X of this Agreement, and all persons
or entities associated by the Monitor to assist in performing the monitoring
tasks.
23. The term "MPD" means the Chief of Police of the Department and all employees
under his or her command.
24. The term "MPD employee" means any employee under the command of the
Chief of Police, including civilian employees.
25. The term "MPD unit" means any officially designated organization of
officers within MPD, including Regional Operation Centers, Districts, Divisions,
Groups, Patrol Service Areas, Teams, and specialized units.
26. The term "manager" means an MPD supervisor at the rank of lieutenant
or above.
27. The term "non-deadly force" means any use of force that is neither likely
nor intended to cause death or serious physical injury.
28. The term "non-disciplinary action" refers to action other than discipline
taken by an MPD supervisor to enable or encourage an officer to modify his or
her performance. It may include: oral or written counseling; training; increased
field supervision for a specified time period; referral to Police/Fire Clinic;
referral to the Employee Assistance Program; a change of an officer's partner;
or a reassignment or transfer.
29. The term "OCCR" refers to the Office of Citizen Complaint Review.
30. The term "OPR" refers to the Office of Professional Responsibility.
31. The term "police officer" or "officer" means any law enforcement officer
employed by MPD, including supervisors and managers.
32. The term "PPMS" means Personnel Performance Management System.
33. The term "serious use of force" means lethal and less-than-lethalactions
by MPD officers including: (i) all firearm discharges by an MPD officer with
the exception of range and training incidents and discharges at animals; (ii)
all uses of force by an MPD officer resulting in a broken bone or an injury
requiring hospitalization; (iii) all head strikes with an impact weapon: (iv)
all uses of force by an MPD officer resulting in a loss of consciousness, or
that create a substantial risk of death, serious disfigurement, disability or
impairment of the functioning of any body part or organ; (v) all other uses
of force by an MPD officer resulting in a death; and (vi) all incidents where
a person receives a bite from an MPD canine.
34. The term "supervisor" means sergeant or above (or anyone acting in those
capacities) and non-sworn personnel with oversight responsibility for other
officers and managers.
35. The term "use of force" means any physical coercion used to effect,
influence or persuade an individual to comply with an order from an officer.
The term shall not include unresisted handcuffing. The term "use of force indicating
potential criminal conduct by an officer" shall include all strikes, blows,
kicks or other similar uses of force against a handcuffed subject.
II. GENERAL USE OF FORCE POLICY REQUIREMENTS
A. General Use of Force Policy
36. DOJ acknowledges that MPD has initiated a number of important use of
force policy reforms. The provisions in this section build upon MPD's ongoing
initiatives.
37. MPD shall complete development of a Use of Force Policy that complies
with applicable law and current professional standards. The policy shall emphasize
the goal of de-escalation and shall encourage officers to use advisements, warnings,
and verbal persuasion when appropriate. The policy shall advise that the use
of excessive force shall subject officers to discipline and possible criminal
prosecution and/or civil liability.
38. The policy shall define and describe the types of force and the circumstances
under which use of such force is appropriate. The policy shall prohibit officers
from unholstering, drawing, or exhibiting a firearm unless the officer reasonably
believes that a situation may escalate to the point where deadly force would
be authorized.
39. The policy shall require officers, when feasible, to identify themselves
as police officers and to issue a warning before discharging a firearm.
40. The policy shall require officers, immediately following a use of force,
to inspect subjects for injury resulting from the use of force, and to obtain
any necessary medical care.
B. Use of Firearms Policy
41. MPD shall complete development of a Use of Firearms policy that complies
with applicable law and current professional standards. The policy shall prohibit
officers from possessing or using unauthorized firearms or ammunition and shall
inform officers that any such use may subject them to disciplinary action. The
policy shall establish a single, uniform reporting system for all firearms discharges.
The policy shall prohibit officers from obtaining service ammunition from any
source except through official MPD channels, and shall specify the number of
rounds MPD authorizes its officers to carry.
42. Within 30 days from the effective date of this agreement, the Mayor
of the District of Columbia shall submit a request to the City Council for the
District of Columbia for an amendment to Section 206.1 of Title 6A of the District
of Columbia Municipal Regulations. The requested amendment shall permit the
Chief of Police to determine the policy concerning the off-duty carrying of
firearms by MPD officers while in the District of Columbia, including, but not
limited to appropriate prohibitions regarding the carrying and or use of firearms
in situations where an officer's performance may be impaired.
43. The policy shall require that when a weapon reportedly incurably malfunctions
during an officer's attempt to fire, the weapon shall be taken out of service
and an MPD armorer shall evaluate the functioning of the weapon as soon as possible.
The policy shall require that, following the evaluation by the armorer, MPD
shall document in writing whether the weapon had an inherent malfunction and
was removed from service, malfunctioned because it was poorly maintained, or
if the malfunction was officer-induced and a determination of the causes.
C. Canine Policies and Procedures
44. DOJ acknowledges that MPD has implemented an interim canine policy via
teletype and has initiated significant improvements in its canine operations,
including the introduction of a new handler-controlled alert curriculum and
the use of new canines.
45. The policy shall limit off-leash canine deployments, searches and other
instances where there is otherwise a significant risk of a canine bite to a
suspect, to instances in which the suspect is wanted for a serious felony or
is wanted for a misdemeanor and is reasonably suspected to be armed. MPD shall
continue to require canine officers to have approval from an immediate supervisor
(sergeant or higher) before the canine can be deployed. If the handler is unable
to contact a canine unit supervisor, approval must be sought from a field supervisor
before the canine can be deployed. The approving supervisor shall not serve
as a canine handler in the deployment. MPD shall continue to issue a loud and
clear announcement that a canine will be deployed and advise the suspect to
surrender and remain still if approached by a canine.
46. The policy shall also require that in all circumstances where a canine
is permitted to bite or apprehend a suspect by biting, the handler shall call
off the dog at the first possible moment the canine can be safely released.
Whenever a canine-related injury occurs, immediate medical treatment must be
sought either by rescue ambulance, transportation to an emergency room, or admission
to a hospital.
D. Oleoresin Capsicum Spray Policy
47. MPD shall complete development of an Oleoresin Capsicum Spray (OC Spray)
policy that complies with applicable law and current professional standards.
The policy shall prohibit officers from using OC Spray unless the officer has
legal cause to detain, take into legal custody or to maintain in custody a subject
who is, at a minimum, actively resisting the officer. The policy shall prohibit
officers from using OC spray to disperse crowds or others unless those crowds
or others are committing acts of public disobedience endangering public safety
and security.
48. The policy shall provide that, absent exceptional circumstances, officers
shall not use OC spray on children and elderly persons. The policy shall prohibit
officers from using OC spray to prevent property damage except when its use
meets the standard defined in paragraph 47 above.
49. The policy shall require officers to issue a verbal warning to the subject
unless a warning would endanger the officer or others. The warning shall advise
the subject that OC spray shall be used unless resistance ends. The policy shall
require that prior to discharging the OC spray, officers permit a reasonable
period of time to allow compliance with the warning, when feasible.
50. The policy shall require officers to aim OC spray only at a person's
face and upper torso. The policy shall require officers to utilize only two,
one second bursts and to do so from at least 3 feet away from the subject, unless
exceptional circumstances require otherwise. The policy shall require that,
absent exceptional circumstances, officers shall decontaminate every sprayed
subject with cool water or a decontamination solution within 20 minutes after
the application of the spray. Officers shall transport sprayed subjects to the
hospital for treatment when they complain of continued effects after having
been contaminated, or they indicate that they have a pre-existing medical condition
(e.g., asthma, emphysema, bronchitis, heart ailment, etc.) that may be aggravated
by OC Spray. The policy shall prohibit officers from keeping any sprayed subject
in a face down position, in order to avoid positional asphyxia.
E. Implementation Schedule
51. MPD shall complete development of the policies and procedures referenced
in this section within 30 days from the effective date of the agreement. In
developing the final policies and procedures, MPD shall build upon the latest
working drafts and correspondence exchanged between DOJ and MPD during the course
of the investigation.
52. Prior to implementation of the policies and procedures referenced in
this section, MPD shall submit them to DOJ for approval. In the event MPD revises
any of the policies, procedures, or forms referenced in this section during
the term of this agreement, it shall obtain approval from DOJ prior to implementation
of the revised policy or form.
III. INCIDENT DOCUMENTATION, INVESTIGATION, AND REVIEW
A. Use of Force Reporting Policy and Use of Force
Incident Report
53. MPD shall complete development of a Use of Force Reporting policy and
Use of Force Incident Report. The policy shall require officers to notify their
supervisor immediately following any use of force or receipt of an allegation
of excessive use of force and to complete a Use of Force Incident Report. Additionally,
the policy shall require officers to complete a Use of Force Incident Report
immediately following the drawing of and pointing of a firearm at, or in the
direction of, another person. The policy shall require supervisors, upon notification
of a use of force or allegation of excessive force, to respond to the scene.
In every incident involving deadly force, as defined by paragraph 15, a serious
use of force, as defined by paragraph 33, or any use of force indicating potential
criminal conduct by an officer, as defined by paragraph 35, the supervisor shall
ensure that the Force Investigation Team (FIT) is immediately notified.
54. MPD shall notify the Office of the United States Attorney for the District
of Columbia (USAO) immediately, in no case later than the next business day,
following a deadly use of force or a serious use of force by an MPD officer
or following any use of force indicating potential criminal conduct by an officer.
55. Data captured on the reports described above in paragraph 53 shall be
entered into MPD's Personnel Performance Management System (PPMS). Hard copies
of these reports shall be maintained centrally by the Office of Professional
Responsibility.
B. Investigating Uses of Force and Misconduct Allegations
1. Use of Force Investigations
56. MPD created the Force Investigation Team (FIT) to conduct fair, impartial
and professional reviews of firearm discharges. The provisions in this section
build upon the investigative techniques employed by FIT and expand FIT's role
within MPD.
57. Within 60 days from the effective date of this Agreement, MPD shall
fully implement its plan, subject to approval of DOJ, to reallocate responsibility
for MPD criminal investigations of officer use of force from District Violent
Crime Unit supervisors or other District supervisors to the Force Investigation
Team (FIT). The plan shall include procedures to address the rights and responsibilities
of officers and supervisors in carrying out their duties, including the preparation
of both preliminary investigative files and complete investigative files.
58. MPD shall consult with the USAO regarding the investigation of an incident
involving deadly force, a serious use of force, or any other force indicating
potential criminal misconduct by an officer. If the USAO indicates a desire
to proceed criminally based on the on-going consultations with MPD, or MPD requests
criminal prosecutions in these incidents, any compelled interview of the subject
officers shall be delayed, as described in paragraph 60. However, in order to
ensure the collection of all relevant information, all other aspects of the
investigation shall proceed. The USAO shall respond to a written request by
MPD for charges, declination, or prosecutorial opinion within three business
days, by either filing charges, providing a letter of declination, or indicating
the USAO's intention to continue further criminal investigation.
59. In every incident involving deadly force, a serious use of force, or
any use of force indicating potential criminal misconduct by an officer, the
USAO shall notify and consult with the Chief of Police or the appropriate OPR
official whenever possible, unless doing so would compromise the investigation,
or is otherwise prohibited by law, rule, or regulation.
60. MPD and the USAO jointly acknowledge the need to continue consultation
throughout the course of an investigation; and recognize the investigative process
may ultimately proceed to an administrative conclusion and/or criminal charges.
MPD agrees that it will not compel or order a subject officer to make a statement
if the USAO has not yet issued a written criminal declination, for all incidents
subject to the notice and consultation provisions described in paragraphs 58
and 59.
61. FIT shall respond to the scene of every incident involving deadly force,
a serious use of force, or any use of force indicating potential criminal misconduct
by an officer. In each of these incidents, FIT shall conduct the investigation
of the use of force. That investigation may result in criminal charges, administrative
action or both. Investigators from the involved officers' District shall not
conduct the investigation. Based upon its review of use of force incidents from
throughout MPD, FIT shall forward policy and training recommendations to the
Chief of Police or his designee.
62. FIT shall complete its administrative use of force investigations within
90 days from the criminal declination described in paragraph 60, absent special
circumstances which must be documented, and shall continue to conduct investigations
in accordance with paragraphs 81 and 82, below. At the conclusion of each use
of force investigation, the investigator shall prepare a report on the investigation,
which shall be made a part of the investigation file. The report shall include
a description of the use of force incident and any other uses of force identified
during the course of the investigation; a summary and analysis of all relevant
evidence gathered during the investigation; and proposed findings and analysis
supporting the findings. The proposed findings shall include the following:
1) a determination of whether the use of force is consistent MPD policy and
training; 2) a determination of whether proper tactics were employed; and 3)
a determination whether lesser force alternatives were reasonably available.
63. Within 120 days from the effective date of this Agreement, MPD shall
train and assign a sufficient number of personnel to FIT to fulfill the requirements
of this Agreement.
64. Chain of command district supervisors may investigate all use of force
incidents except for those incidents involving a serious use of force, serious
physical injury, or any use of force indicating potential criminal conduct by
an officer. At the discretion of the Chief of Police or designee, any incident
that may be investigated by chain of command district supervisors may be assigned
for investigation to FIT or to chain of command supervisors from a district
other that the district in which the incident occurred. No supervisor who was
involved in the incident shall be responsible for the investigation of the incident.
65. Chain of command use of force investigations shall be completed within
90 days following the use of force incident, absent special circumstances which
must be documented, and shall be conducted in accordance with paragraphs 81
and 82, below. At the conclusion of each use of force investigation, the investigator
shall prepare a report on the investigation, which shall be made a part of the
investigation file. The report shall include a description of the use of force
incident and any other uses of force identified during the course of the investigation;
a summary and analysis of all relevant evidence gathered during the investigation;
and proposed findings and analysis supporting the proposed findings. The proposed
findings shall include the following: 1) a determination of whether the use
of force is consistent and MPD policy and training; 2) a determination of whether
proper tactics were employed; and 3) a determination whether lesser force alternatives
were reasonably available.
66. Upon completion of a chain of command use of force investigation, the
investigator shall forward the investigation to the Unit Commander, who shall
review the investigation to ensure that it is complete and that the findings
are supported by the evidence. The Unit Commander shall order additional investigation
when necessary. When the Unit Commander determines the investigation is complete
and the findings are supported by the evidence, the investigation file shall
be forwarded to the Use of Force Review Board (UFRB). Whenever there is evidence
of criminal wrongdoing, the Unit Commander shall suspend the investigation immediately
and notify FIT and the USAO.
67. Within 60 days from the effective date of this Agreement, MPD shall
complete the development and implementation of a policy to enhance the UFRB,
subject to approval by DOJ. The policy shall require the UFRB to conduct timely
reviews of all use of force investigations. The policy shall set forth the membership
of the UFRB and establish timelines for UFRB review of use of force investigations.
The policy shall authorize the UFRB to recommend discipline for violations of
MPD's policies and training. The policy shall authorize the UFRB to direct District
supervisors to take non-disciplinary action to enable or encourage an officer
to modify his or her performance . The policy shall require the UFRB to act
as a quality control mechanism for all use of force investigations, with the
responsibility to assign to FIT, or return to the investigating unit, all incomplete
or mishandled use of force investigations. The policy shall provide the UFRB
the authority and responsibility to recommend to the Chief of Police, or his
designee, investigative protocols and standards for all force investigations.
The policy shall require the UFRB to conduct annual reviews of all use of force
cases examined to detect patterns/problems and to issue a report to the Chief
of Police with findings and recommendations.
2. Investigations of Misconduct Allegations
68. The Office of Professional Responsibility shall be responsible for the
investigation of allegations of criminal misconduct set forth in the categories
in paragraph 72, (a) through (i) below. Within 60 days from the date of this
Agreement, MPD shall develop a plan, subject to approval of DOJ, to allocate
sufficient personnel and establish procedures to accomplish this new responsibility.
69. MPD shall notify the USAO immediately, in no case later than the next
business day, following the receipt or discovery of any allegations of criminal
misconduct referred to in paragraphs 72 and 73. In every incident involving
allegations of criminal misconduct referred to in paragraphs 72 and 73, the
USAO shall notify and consult with the Chief of Police or the appropriate OPR
official whenever possible, unless doing so would compromise the investigation,
or is otherwise prohibited by law, rule, or regulation.
70. MPD shall consult with the USAO regarding the investigation of an incident
involving allegations of criminal misconduct in the categories of matters described
in paragraphs 72 and 73. If the USAO indicates a desire to proceed criminally
based on the on-going consultations with MPD, or MPD requests criminal prosecutions
in these incidents, any compelled interview of the subject officers shall be
delayed, as described in paragraph 71. However, in order to ensure the collection
of all relevant information, all other aspects of the investigation shall proceed.
The USAO shall respond to a written request by MPD for charges, declination,
or prosecutorial opinion within three business days, by either filing charges,
providing a letter of declination, or indicating the USAO's intention to continue
further criminal investigation.
71. MPD and the USAO jointly acknowledge the need to continue consultation
throughout the course of an investigation; and recognize the investigative process
may ultimately proceed to an administrative conclusion and/or criminal charges.
MPD agrees that it will not compel or order a subject officer to make a statement
if the USAO has not yet issued a written criminal declination, for all incidents
involving allegations of criminal misconduct in the categories of matters described
in paragraphs 72 and 73.
72. Within 60 days from the date of this Agreement, MPD shall develop a
plan, subject to approval of DOJ, to reallocate responsibility for MPD administrative
complaint investigations of misconduct complaints from chain-of-command District
supervisors to OPR with respect to the following:
a. all referrals pursuant to paragraphs 76 and 77;
b. all civil suits alleging any misconduct by an officer while acting
in an official capacity;
c. all civil suits against an officer for off-duty conduct (while not
acting in an official capacity) that alleges physical violence, threats of
physical violence, or racial bias;
d. all criminal arrests of or filing of criminal charges against an officer;
e. all allegations of unlawful discrimination (e.g., on the basis of
race, ethnicity, gender, religion, national origin, sexual orientation, or
disability), including improper ethnic remarks and gender bias, but excluding
employment discrimination;
f. all allegations of unlawful search and stops;
g. all allegations of unlawful seizure (including false imprisonment
and false arrest);
h. any act of retaliation or retribution against an officer or person;
and
i. all allegations of strikes, blows, kicks, or other similar uses of
force against a compliant subject or administered with a punitive purpose;
and
j. OPR shall assign for investigation outside of the District Chain of
Command all allegations of misconduct related to the types of misconduct covered
by "a" to i" of this paragraph; and
OPR shall assign to FIT all allegations of excessive force by an officer
involving a use of deadly force, as defined in paragraph 15, a serious use of
force, as defined in paragraph 33, or any use of force indicating potential
criminal conduct by an officer, as defined in paragraph 35.
73. OPR, shall also assign for administrative investigation outside of the
District chain of command the following:
a. all incidents in which both (i) a person is charged by an officer
with assault on a police officer, resisting arrest, or disorderly conduct,
and (ii) the prosecutor's office notifies MPD either that it is dismissing
the charge based upon officer credibility or a judge dismissed the charge
based upon officer credibility;
b. all incidents in which MPD has received written notification from
a prosecuting agency in a criminal case that there has been (i) an order suppressing
evidence because of any constitutional violation involving potential misconduct
by an MPD officer, or (ii) any other judicial finding of officer misconduct
made in the course of a judicial proceeding or any request by a federal or
District of Columbia judge or magistrate that a misconduct investigation be
initiated pursuant to some information developed during a judicial proceeding
before a judge or magistrate. MPD shall request that all prosecuting agencies
provide them with written notification whenever the prosecuting agency has
determined that any of the above has occurred.
74. All administrative investigations of misconduct allegations conducted
pursuant to paragraphs 72 and 73 shall be completed within 90 days from MPD
receiving the complaint, or within 90 days from the criminal declination described
in paragraph 71, where applicable, absent special circumstances which must be
documented. At the conclusion of each such investigation, the investigator shall
prepare a report on the investigation, which shall be made a part of the investigation
file. The report shall include a description of the misconduct incident and
any other misconduct identified during the course of the investigation; a summary
and analysis of all relevant evidence gathered during the investigation; and
proposed findings and analysis supporting the findings.
75. The Corporation Counsel's Office shall notify OPR whenever a person
files a civil claim against the City alleging misconduct by an officer or other
employee of MPD.
76. MPD shall continue to require all officers promptly to notify MPD of
the following: the officer is arrested or criminally charged for any conduct;
the officer is named as a party in any civil suit involving his or her conduct
while on duty (or otherwise while acting in an official capacity); or the officer
is named as a party in any civil suit regarding off-duty conduct (while not
acting in an official capacity) that alleges any of the following: physical
violence, threats of physical violence, racial bias, dishonesty, or fraud by
the officer. Officers shall report this information either directly to OPR or
to a supervisor who shall report the information to OPR.
77. MPD shall require officers to report to MPD without delay: any conduct
by other officers that reasonably appears to constitute (a) an excessive use
of force or improper threat of force; (b) a false arrest or filing of false
charges; (c) an unlawful search or seizure; (d) unlawful discrimination; (e)
an intentional failure to complete use of force reports required by MPD policies
and in accordance with procedures; (f) an act of retaliation for complying with
any MPD policy or procedure; or (g) an intentional provision of false information
in an MPD or OCCR investigation or in any official report, log, or electronic
transmittal of information. Officers shall report such alleged misconduct by
fellow officers either directly to OPR or to a supervisor who shall report the
information to OPR. This requirement applies to all officers, including supervisors
and managers who learn of evidence of possible misconduct through their review
of an officer's work. Failure to voluntarily report as described in this paragraph
shall be an offense subject to discipline if sustained.
78. The City shall in fiscal year 2002 provide all necessary funds to fully
implement paragraphs 68 and 74. Misconduct investigation responsibilities shall
be transitioned as positions are filled. Prior to positions being filled, investigation
responsibilities shall be transitioned commensurate with available resources.
Positions shall be filled and investigation responsibility transition shall
be completed by December 31, 2002.
79. OPR shall continue to review all misconduct complaints as they are received.
OPR shall determine whether a misconduct complaint meets the criteria (set forth
in paragraphs 72 and 73 ) for being assigned for investigation outside of the
District Chain of Command.
80. MPD shall prohibit any officer who has a potential conflict of interest
related to a pending misconduct investigation from participating in any way
in the conduct or review of that investigation.
81. In conducting administrative misconduct investigations (whether conducted
by FIT, Chain of Command, or OPR, following a criminal declination, where applicable)
MPD shall, subject to and in conformance with applicable law, at a minimum:
a. tape record or videotape interviews of complainants, involved officers,
and material witnesses in investigations involving a serious use of force
or serious physical injury (if a complainant or non-officer witness refuses
to be tape-recorded or videotaped, then MPD shall prepare a written narrative
of the statement to be signed by the complainant or non-officer witness);
b. whenever practicable and appropriate, interview complainants and witnesses
at sites and times convenient for them, including at their residences or places
of business;
c. prohibit group interviews;
d. notify the supervisors of the involved officers of the investigation,
as appropriate;
e. interview all appropriate MPD officers, including supervisors;
f. collect, preserve, and analyze all appropriate evidence, including
canvassing the scene to locate witnesses and obtaining complainant medical
records, where appropriate; and
g. identify and report in writing all inconsistencies in officer and
witness interview statements gathered during the investigation.
82. In conducting misconduct investigations, MPD shall continue to assess
the propriety of all officer conduct during the incident in which the alleged
misconduct occurred. If during the course of an investigation the investigator
has reason to believe that misconduct occurred other than that alleged, the
investigator also shall investigate the additional potential misconduct to its
logical conclusion.
83. Within 120 days from the effective date of this Agreement, MPD shall
develop a manual, subject to approval by DOJ, for conducting all MPD misconduct
investigations. The manual shall include timelines and shall provide investigative
templates to assist investigators in gathering evidence, conducting witness
interviews, and preparing investigative reports.
84. Within 90 days from the effective date of this Agreement, MPD shall
develop a plan, subject to approval by DOJ, to ensure that all MPD investigators
(whether conducting use of force investigations or misconduct investigations)
receive adequate training to enable them to carry out their duties. All MPD
investigators shall receive training and re-training in MPD policies and procedures,
including, but not limited to, use of force and use of force reporting, canine
deployment, transporting individuals in custody, restraints, arrests, report
writing; investigative and interview techniques, including examining and interrogating
witnesses, and collecting and preserving evidence; cultural sensitivity; ethics;
integrity; and professionalism. MPD shall provide specialized training to investigators
who conduct shooting investigations. The training shall occur within 180 days
of the approval of the plan.
IV. RECEIPT, INVESTIGATION, AND REVIEW OF MISCONDUCT
ALLEGATIONS
A. Coordination and Cooperation Between MPD and OCCR
85. Within 60 days from the effective date of this Agreement, the City and
MPD shall develop a written plan, in timely consultation with DOJ, that clearly
delineates the roles and responsibilities of OCCR and MPD regarding the receipt,
investigation, and review of complaints. At minimum, the plan shall specify
each agency's responsibility for receiving, recording, investigating, and tracking
complaints; each agency's responsibility for conducting community outreach and
education regarding complaints; how, when, and in what fashion the agencies
shall exchange information, including complaint referrals and information about
sustained complaints; and the role and responsibilities of MPD official serving
on the Citizen Complaint Review Board (CCRB).
86. The City shall provide OCCR sufficient qualified staff, funds, and resources
to perform the functions required by this Agreement and by District of Columbia
Law 12-208 creating OCCR, including the conduct of timely, thorough, and independent
investigations of alleged police misconduct; the conduct of mediation; the conduct
of hearings; and the operation of a professional office.
B. Public Information and Outreach
87. MPD shall continue to require all officers to provide their name and
identification number to any person who requests it.
88. Within 90 days of the effective date of this agreement, the City and
MPD shall develop and implement an effective program to inform persons that
they may make complaints regarding the performance of any officer. This program
shall, at a minimum, include the development and distribution of complaint forms,
fact sheets, informational posters, and public service announcements describing
both the Office of Citizen Complaint Review (OCCR) and MPD complaint processes.
The City shall make such materials available in English, Spanish, and other
appropriate languages.
89. Within 120 days of the effective date of this agreement, the City shall
make complaint forms, and informational materials available at OCCR, MPD headquarters,
all MPD District stations and sub-stations, libraries, the internet, and, upon
request, to community groups and community centers. At each MPD District station
and sub-station, MPD shall permanently post a placard describing the complaint
process and include the phone number of MPD's Office of Professional Responsibility.
90. MPD shall require all officers to carry informational brochures and
complaint forms in their vehicles at all times while on duty. MPD shall require
all officers to inform persons who object to an officer's conduct that persons
have a right to make a complaint. MPD shall prohibit officers from discouraging
any person from making a complaint.
91. For the term of this agreement, MPD shall conduct a Community Outreach
and Public Information program for each MPD District. The program shall require
the following:
a. to continue at least one open meeting per quarter in each of the patrol
service areas for the first year of the Agreement, and one meeting in each
patrol service area semi-annually thereafter, to inform the public about the
provisions of this Agreement, and the various methods of filing a complaint
against an officer. At least one week before such meetings the City shall
publish notice of the meeting (i) in public areas, including libraries, schools,
grocery stores, community centers; (ii) taking into account the diversity
in language and ethnicity of the area's residents; (iii) on the City and MPD
website; and (iv) in the primary languages spoken by the communities located
in such area.
b. the open public meetings described above shall continue to include
presentations and information on MPD and MPD operations in order to enhance
interaction between officers and community members in daily policing activities.
C. Receipt of Complaints
92. Within 90 days from the effective date of this Agreement, MPD shall
make it possible for persons to initiate complaints with MPD in writing or verbally,
in person, by mail, by telephone (or TDD), facsimile transmission, or by electronic
mail. MPD shall accept and investigate anonymous complaints and complaints filed
by persons other than the alleged victim of misconduct. MPD shall ask anonymous
and third-party complainants for corroborating evidence. MPD shall not require
that a complaint be submitted in writing or on an official complaint form to
initiate an investigation.
93. Within 120 days from the effective date of this Agreement, the City
shall institute a 24-hour toll-free telephone hotline for persons to call to
make a complaint regarding officer conduct. The hotline shall be operated by
OCCR. The City and MPD shall publicize the hotline telephone number on informational
materials and complaint forms. The City shall tape record all conversations
on this hotline and shall notify all persons calling the hotline of the tape
recording. The City shall develop an auditing procedure to assure that callers
are being treated with appropriate courtesy and respect, that complainants are
not being discouraged from making complaints, and that all necessary information
about each complaint is being obtained. This procedure shall include monthly
reviews of a random sample of the tape recordings.
94. Within 60 days from the effective date of this Agreement, MPD's Office
of Professional Responsibility (OPR) shall be responsible for receiving all
complaints filed directly with MPD. MPD shall assign and record a control system
number for each complaint immediately. All complaints made at MPD locations
other than OPR shall be forwarded to OPR within 24 hours, or the next business
day. Within 24 hours, or the next business day OPR shall notify OCCR of any
complaint alleging any of the following: harassment; use of unnecessary or excessive
force; use of insulting, demeaning, or humiliating language; or discriminatory
treatment..
95. The City shall continue to locate OCCR offices separate from any building
occupied by other MPD personnel.
D. OCCR Misconduct Investigations
96. Within 90 days from the effective date of this Agreement, the City shall
develop and implement a plan, in timely consultation with DOJ and the Monitor,
to ensure that the investigative staff of OCCR receive adequate training to
enable them to carry out their duties. OCCR investigative staff shall receive
training and re-training in MPD policies and procedures, including, but not
limited to, use of force and use of force reporting, canine deployment, transporting
individuals in custody, restraints, arrests, report writing; investigative and
interview techniques, including examining and interrogating witnesses, and collecting
and preserving evidence; cultural sensitivity; ethics; integrity; and professionalism.
97. Within 90 days from the effective date of this Agreement, the City shall
develop a manual, in timely consultation with DOJ , for conducting all OCCR
complaint investigations. The manual shall include timelines and provide investigative
templates to assist investigators in gathering evidence, conducting witness
interviews, and preparing investigative reports.
E. Evaluating and Resolving MPD Misconduct Allegations
98. MPD shall continue to make findings based on a "preponderance of the
evidence" standard. Within 90 days, MPD shall develop a policy and training
implementing this standard.
99. In each misconduct investigation, MPD shall consider all relevant evidence
including circumstantial, direct and physical evidence, as appropriate, and
make credibility determinations, if feasible. There shall be no automatic preference
for an officer's statement over a person's statement. MPD shall make efforts
to resolve inconsistent statements between witnesses.
100. MPD shall resolve each allegation in a misconduct investigation by
making one of the following dispositions:
a. "Unfounded," where the investigation determined no facts to support
that the incident complained of actually occurred;
b. "Sustained," where the person's allegation is supported by sufficient
evidence to determine that the incident occurred and the actions of the officer
were improper;
c. "Insufficient Facts," where there are insufficient facts to decide
whether the alleged misconduct occurred;
d. "Exonerated," where a preponderance of the evidence shows that the
alleged conduct did occur but did not violate MPD policies, procedures, or
training.
101. MPD shall not close any misconduct investigation without rendering
one of the dispositions identified above. Withdrawal of a complaint or unavailability
of the complainant or the victim of the alleged misconduct to make a statement
shall not be a basis for closing an investigation without further attempt at
investigation. MPD shall investigate such matters to the extent reasonably possible
to determine whether or not the allegations can be resolved.
102. At the conclusion of each misconduct investigation, the individual
responsible for the investigation shall prepare a report on the investigation,
which shall be made a part of the investigation file. The report shall include
a description of the alleged misconduct and any other misconduct issues identified
during the course of the investigation; a summary and analysis of all relevant
evidence gathered during the investigation; and proposed findings and analysis
supporting the findings.
103. MPD shall complete all misconduct investigations within 90 days after
receiving the allegations unless the complexity of the case dictates otherwise,
or within 90 days from a criminal declination, where applicable.
104. MPD shall require its Unit Commanders to evaluate all misconduct investigations
to identify underlying problems and training needs. After such evaluations the
Unit Commander shall implement appropriate non-disciplinary actions, if any,
or make a recommendation to the proper MPD entity to implement such actions.
Sustained misconduct allegations will be handled pursuant to the disciplinary
policy described in paragraph 105.
V. DISCIPLINE AND NON-DISCIPLINARY ACTION
105. Within 120 days from the effective date of this Agreement, MPD shall
revise and update its disciplinary policy, General Order 1202.1 (Disciplinary
Procedures and Processes), subject to the approval of DOJ. The policy shall
describe the circumstances in which non-disciplinary action is appropriate.
The policy shall describe the circumstances in which District-level discipline
or corrective action is appropriate. The policy shall establish a centralized
and formal system for documenting and tracking all forms of discipline and corrective
action, whether imposed centrally or at the District level. It shall also specify
the procedure for notifying complainants in writing of the resolution, including
significant dates, general allegations and the disposition.
VI. PERSONNEL PERFORMANCE MANAGEMENT SYSTEM
106. MPD has invested a significant amount of time and energy in developing
a Request for Proposal to create a Personnel Performance Management System ("PPMS").
In connection therewith, the City has committed to develop and fully implement
a computerized relational database for maintaining, integrating, and retrieving
data necessary for supervision and management of MPD and its personnel. The
computerized data shall be used regularly and affirmatively by MPD to promote
civil rights integrity and best professional police practices; to manage the
risk of police misconduct, and potential liability thereof; and to evaluate
and audit the performance of MPD officers of all ranks, and MPD units, sub-units,
and shifts. It shall be used to promote accountability and proactive management
and to identify, manage, and control at-risk officers, conduct, and situations.
This system shall be a successor to, and not simply a modification of, MPD's
existing automated systems.
107. PPMS shall contain information at minimum on the following matters:
a. all uses of force that are required to be reported in MPD "Use of
Force Incident Report" forms or otherwise are the subject of a criminal or
administrative investigation by the Department;
b. all instances in which a police canine is deployed to search for or
find a member of the public;
c. all officer-involved shootings and firearms discharges, both on-duty
and off-duty;
d. all other lethal uses of force;
e. all studies, reviews, or determinations with respect to the criminal,
administrative, tactical, strategic, or training implications of any use of
force, including all preliminary and final decisions regarding whether a given
use of force was or was not within MPD policy;
f. all vehicle pursuits and traffic collisions;
g. all complaints (whether made to MPD or OCCR);
h. with respect to the foregoing clauses (a) through (g), the results
of adjudication of all investigations (whether criminal or administrative)
and a chronology or other complete historical record of all tentative and
final decisions or recommendations regarding discipline, including actual
discipline imposed or non-disciplinary action taken;
i. all commendations received by MPD about officer performance;
j. all criminal arrests and investigations known to MPD of, and all charges
against, MPD employees;
k. all criminal proceedings initiated, as well as all civil or administrative
claims filed with, and all civil lawsuits served upon, the City, or its officers,
or agents, resulting from MPD operations or the actions of MPD personnel.
l. assignment, and rank history for each officer;
m. training history;
n. all management and supervisory actions taken pursuant to a review
of PPMS information, including non-disciplinary actions;
o. educational history;
p. military service and discharge status;
q. all instances in which MPD is informed by a prosecuting authority
that a declination to prosecute any crime was based in whole or in part upon
concerns about the credibility of an MPD officer or that a motion to suppress
was granted on the grounds of a constitutional violation by an MPD officer;
and
r. PPMS further shall include, for the incidents included in the database,
appropriate additional information about involved officers (e.g., name and
badge number), and appropriate information about the involved members of the
public (including demographic information such as race, ethnicity, or national
origin). Additional information on officers involved in incidents (e.g., work
assignment, officer partner, field supervisor, and shift at the time of the
incident) shall be determinable from PPMS.
108. MPD shall prepare for the review and approval of DOJ, and thereafter
implement, a plan for inputting historical data into PPMS (the "Data Input Plan").
The Data Input Plan shall identify the data to be included and the means for
inputting such data (direct entry or otherwise), the specific fields of information
to be included, the past time periods for which information is to be included,
the deadlines for inputting the data, and the responsibility for the input of
the data. The Data Input Plan shall include historical data that are up-to-date
and complete in PPMS.
109. PPMS shall include relevant numerical and descriptive information about
each incorporated item and incident, and scanned or electronic attachments of
copies of relevant documents. PPMS shall have the capability to search and retrieve
(through reports and queries) numerical counts, percentages and other statistical
analyses derived from numerical information in the database, listings, descriptive
information, and electronic document copies for (a) individual employees, MPD
units, and groups of officers, and (b) incidents or items, and groups of incidents
or items. PPMS shall have the capability to search and retrieve this information
for specified time periods, based on combinations of data fields contained in
PPMS (as designated by the authorized user).
110. Where information about a single incident is entered in PPMS from
more than one document (e.g., from a complaint form and a use of force report),
PPMS shall use a common control number or other equally effective means to link
the information from different sources so that the user can cross-reference
the information and perform analyses. Similarly, all personally identifiable
information relating to MPD officers shall contain the badge or other employee
identification number of the officer to allow for linking and cross-referencing
information.
111. MPD shall, within 90 days, prepare for the review and approval of
DOJ, and thereafter implement, a protocol for using PPMS, including, but not
limited to, supervision and auditing of the performance of specific officers,
supervisors, managers, and MPD units, as well as MPD as a whole. The City shall
submit for the review and approval of DOJ all proposed modifications to the
protocol prior to implementing such modifications.
112. The protocol for using PPMS shall include the following provisions
and elements:
a. The protocol shall require that, on a regular basis, but no less than
quarterly, managers, and supervisors review and analyze all relevant information
in PPMS about officers under their supervision to detect any pattern or series
of incidents that indicate that an officer, group of officers, or an MPD unit
under his or her supervision may be engaging in at-risk behavior.
b. The protocol shall provide that when at-risk behavior may be occurring
based on a review and analysis described in the preceding subparagraph, appropriate
managers, and supervisors shall undertake a more intensive review of the officer's
performance.
c. The protocol shall require that MPD and managers on a regular basis,
but no less than quarterly, review and analyze relevant information in PPMS
about subordinate managers and supervisors in their command regarding the
subordinate's ability to manage adherence to policy and to address at-risk
behavior.
d. The protocol shall state guidelines for numbers and types of incidents
requiring a PPMS review by supervisors and managers (in addition to the regular
reviews required by the preceding subparagraphs), and the frequency of these
reviews.
e. The protocol shall state guidelines for the follow-up executive, managerial
or supervisory actions (including nondisciplinary actions) to be taken based
on reviews of the information in PPMS required pursuant to this protocol.
f. The protocol shall require that managers and supervisors use PPMS
information, among other relevant information, in determining when to undertake
an audit of an MPD unit or group of officers.
g. The protocol shall require that all relevant and appropriate information
in PPMS be taken into account for pay grade advancement, promotion, transfer,
and special assignment, and in connection with annual personnel performance
evaluations. Supervisors and managers shall be required to document in writing
their consideration of any sustained criminal or administrative investigation,
adverse judicial finding or significant monetary settlement, in determining
when such officer is selected for special assignment, or assignment with increased
pay, transfer, promotion, and in connection with annual personnel performance
evaluations. For purposes of this paragraph, a special assignment shall include,
but not be limited to, assignment as a training officer, assignment to any
specialized unit orto OPR.
h. The protocol shall specify that actions taken as a result of information
from PPMS shall be based on all relevant and appropriate information, and
not solely on the number or percentages of incidents in any category recorded
in PPMS.
i. The protocol shall provide that managers' and supervisors' performance
in implementing the provisions of the PPMS protocol shall be taken into account
in their annual personnel performance evaluations.
j. The protocol shall provide specific procedures that provide for each
MPD officer to be able to review on a regular basis all personally-identifiable
data about him or herself in PPMS in order to ensure the accuracy of that
data. The protocol also shall provide for procedures for correcting data errors
discovered by officers in their review of the PPMS data.
k. The protocol shall require regular review at no less than quarterly
intervals by appropriate managers of all relevant PPMS information to evaluate
officer performance citywide, and to evaluate and make appropriate comparisons
regarding the performance of all MPD units in order to identify any patterns
or series of incidents that may indicate potential liability or other at-risk
behavior. These evaluations shall include evaluating the performance over
time of individual units, and comparing the performance of units with similar
responsibilities.
l. The protocol shall provide for the routine and timely documentation
in PPMS of actions taken as a result of such reviews of PPMS information.
m. The protocol shall require that whenever an officer transfers into
a new assignment, the commanding officer shall promptly cause the transferred
officer's PPMS record to be reviewed by the transferred officer's watch commander
or supervisor.
n. The protocol shall require that all relevant and appropriate information
in PPMS shall be considered in connection with the adjudication of misconduct
allegations and determinations of appropriate discipline for sustained misconduct
allegations.
o. MPD shall train and thereafter hold managers, and supervisors accountable,
consistent with their authority, for risk management and for use of PPMS and
any other relevant data to address at-risk behavior, to deal with potential
or actual police misconduct, and to implement the protocol described above.
113. The City shall maintain all personally identifiable information about
an officer included in PPMS during the officer's employment with MPD and for
at least five years thereafter (unless otherwise required by law to be maintained
for a longer period). Information necessary for aggregate statistical analysis
shall be maintained indefinitely in PPMS. On an ongoing basis, MPD shall enter
information in PPMS in a timely, accurate, and complete manner, and maintain
the data in a secure and confidential manner.
114. PPMS shall be developed and implemented according to the following
schedule:
a. Within 60 days of the effective date of this Agreement, subject to
approval of DOJ, MPD shall issue the Request for Proposal (RFP).
b. Within 210 days of the issuance of the RFP, MPD shall select the contractor
to create the PPMS.
c. Within three months of the effective date of this Agreement, MPD shall
submit the protocol for using PPMS required by paragraphs 111 and 112 hereof
to DOJ for approval. MPD shall share drafts of this document with the DOJ
and the Monitor to allow the DOJ and the Monitor to become familiar with the
document as it develops and to provide informal comments on it. MPD and DOJ
shall together seek to ensure that the protocol receives final approval within
30 days after it is presented for approval.
d. Within 12 months of selecting the contractor pursuant to paragraph
114(b), the City shall have ready for testing a beta version of PPMS consisting
of: (i) server hardware and operating systems installed, configured and integrated
with MPD's existing automated systems; (ii) necessary data base software installed
and configured; (iii) data structures created, including interfaces to source
data; and (iv) the use of force information system completed, including historic
data. The DOJ and the Monitor shall have the opportunity to participate in
testing the beta version using use of force data and test data created specifically
for purposes of checking the PPMS system.
e. The PPMS computer program and computer hardware shall be operational
and fully implemented within 18 months of the selection of the PPMS contractor.
115. MPD shall, until such time as PPMS is implemented, and to the full
extent reasonable and feasible, utilize existing databases, information and
documents for all the purposes set forth herein for use of the PPMS.
116. Following the initial implementation of PPMS, and as experience and
the availability of new technology may warrant, MPD may propose to add, subtract,
or modify data tables and fields, modify the list of documents scanned or electronically
attached, and add, subtract, or modify standardized reports and queries. MPD
shall submit all such proposals for review and approval by DOJ before implementation.
117. OPR shall continue to be responsible for developing, implementing,
and coordinating MPD-wide risk assessments. OPR shall be responsible for the
operation of PPMS, and for ensuring that information is entered into and maintained
in PPMS in accordance with this Agreement. OPR further shall provide assistance
to managers and supervisors who are using PPMS to perform the tasks required
hereunder and in the protocol adopted pursuant hereto, and shall be responsible
for ensuring that appropriate standardized reports and queries are programmed
to provide the information necessary to perform these tasks.
A. Performance Evaluation System
118. Within 6 months of the effective date of this Agreement, MPD shall
prepare for the review and approval of DOJ, and thereafter implement, a plan
to enhance its new Performance Evaluation System to ensure that annual personnel
performance evaluations are prepared for all MPD sworn employees that accurately
reflect the quality of each sworn employee's performance, including, but not
limited to:
a. civil rights integrity and the employee's community policing efforts;
b. adherence to law, including but not limited to performing duties in
a manner consistent with the requirements of the Fourth and Fifth Amendments
to the Constitution and the Civil Rights laws of the United States;
c. with respect to managers, and supervisors, their performance in identifying
and addressing at-risk behavior in subordinates, including their supervision
and review of use of force; arrests, booking, and performance bearing upon
honesty and integrity.
VII. TRAINING
A. Management Oversight
119. Within 30 days of the effective date of this Agreement, MPD shall centrally
coordinate and review all use of force training among training components to
ensure quality assurance, consistency and compliance with applicable law and
MPD policy. MPD shall conduct regular subsequent reviews at least semi-annually
and produce a report of such reviews to the Monitor and DOJ. Any substantive
changes to use of force training must have prior approval of theDirectorof Training.
120. MPD shall continue to have all training materials reviewed by General
Counsel or other legal advisor.
121. With respect to MPD- sponsored training, MPD Directorof Training shall
continue, in coordination with the Curriculum Development Specialist (CDS),
and MPD Training Task Force to:
a. oversee and ensure the quality of all use of force training by all
trainers, wherever it occurs: academy, in-service, field, roll call and the
firearms range;
b. develop and implement use of force training curricula;
c. select and train MPD officer trainers;
d. develop, implement, approve and supervise all in-service training
and roll call curricula;
e. establish procedures for evaluating all training (which shall include
an evaluation of instructional content and the quality of instruction;
f. MPD shall continue its Field Training program. Within 120 days of
the effective date of this Agreement, MPD shall develop a protocol, subject
to approval by DOJ, to enhance the Field Training program. The protocol shall
address the criteria and method for selecting Field Trainers, the training
provided to Field Trainers to perform their duties, the length of time that
probationary officers spend in the program, the assignment of probationary
officers to Field Trainers, the substance of the training provided by the
Field Trainers, and the evaluation of probationary officer performance by
Field Trainers.
g. conduct regular needs assessments to ensure that use of force training
is responsive to the knowledge, skills, and abilities of the officers being
trained.
122. The CDS shall prioritize his/her efforts to focus on use of force curriculum
and instructor development. The CDS shall within 180 days of the effective date
of this Agreement, review, revise, provide written approval, and implement,
subject to DOJ's approval, all current force-related training material (including
curricula and lesson plans), as well as subsequent changes, to ensure:
a. internally consistent content and format;
b. incorporation of current law and policy requirements;
c. the presence of clear, behaviorally-anchored learning objectives and
suggestions for trainers of how to present material effectively; and
d. the appropriateness of proposed training aids.
123. The CDS shall regularly review, at a minimum every quarter, all force
related training for quality assurance and consistency and shall regularly audit
training classes.
124. MPD shall continue to enhance its procedures to provide adequate record
keeping of lesson plans and other training material such that the most current,
supervisory approved training documents are maintained in a central, commonly
accessible file, and are clearly dated.
125. MPD shall continue to maintain training records regarding every MPD
officer which reliably indicate the training received by each officer. The training
records shall, at a minimum include the course, curriculum, instructor, and
day and tour delivered for each officer.
B. Curriculum
126. The parties agree that sound critical thinking and decision making
skills are critical to reducing use of excessive force and to ensuring officer
safety. Accordingly, MPD shall ensure that all force-related training incorporates,
in a coherent manner, critical thinking and decision making instruction, applicable
law, and MPD policy.
127. MPD shall continue to provide all MPD recruits, officers, supervisors
and managers with annual training on use of force, subject to approval by DOJ.
Such training shall include and address, inter alia:
a. MPD's use of force continuum;
b. MPD's use of force reporting requirements;
c. the Fourth Amendment and other constitutional requirements;
d. examples of use of force and ethical dilemmas faced by MPD officers
and, where practicable given the location, type, and duration of the training,
interactive exercises for resolving use of force dilemmas shall be utilized.
128. MPD shall continue to provide recruits, officers, supervisors, and
managers with training in cultural diversity and community policing, which shall
include training on interactions with persons from different racial, ethnic,
and religious groups, persons of the opposite sex, persons of different sexual
orientations, and persons with disabilities.
129. MPD shall provide all supervisors, (officers with the rank of sergeant
and above) with mandatory supervisory and leadership training which, in addition
to the subjects addressed in paragraphs 127 and 128, shall teach command accountability
and responsibility, interpersonal relationship skills, theories of motivation
and leadership, and techniques designed to promote proper police practices and
integrity, including the prevention and detection of use of excessive force,
throughout the supervisor's command responsibility and which include proper
supervisor/employee communication skills. MPD shall prioritize the topics covered
in the initial training to focus on MPD's new use of force policies and procedures,
new Canine policies and procedures, the new Use of Force Review Board, and revised
administrative and misconduct investigation policies and procedures; MPD shall
provide initial training on these topics within 180 days from execution of this
Agreement and thereafter shall provide supervisory training on an annual basis.
130. MPD shall ensure that training instructors engage students in meaningful
dialogue regarding "real-life" experiences involving use of force and applicable
law and MPD policy when conducting force-related training. Training instructors
shall encourage opportunities to explain MPD's use of force policy, reporting
requirements and force-related law throughout all use of force training.
131. MPD shall ensure that training time is used in an efficient and productive
manner and shall take effort to eliminate "down time" of student officers during
recruit and in-service training by providing a variety of use of force training
activities for students awaiting required one-to-one student-teacher training.
132. Role Play and Range 2000 Courses
a. Within 60 days of the effective date of this Agreement, MPD shall
review the Role Play (formerly known as "Simmunitions") and the Range 2000
training courses to ensure consistency with the law and MPD policy. MPD shall
immediately develop a standardized curriculum, lesson plan and instructional
guidelines with a list of each scenario including the title, content, lesson
objectives and, for the Range 2000, the possible variations available, and
shall include a checklist of items to address when critiquing students to
ensure consistent application and efficient training. The curriculum, lesson
plan and instructional guidelines shall be reviewed by the CDS and MPD General
Counsel to ensure consistency with the law and MPD policy, and submitted to
DOJ for approval.
b. MPD shall allow sufficient time to ensure that every student officer
participates in one or more Role Plays. Within 180 days of the effective date
of this Agreement, MPD shall begin videotaping students in order to replay
their decisions and actions during the critique portion of the courses. MPD
shall have instructors challenge students to comply with applicable legal
standards and MPD policy. Videotapes shall not be subject to the retention
policy described in paragraph 176.
c. MPD shall add additional simulations to comport with the training
needs assessment and deficiencies identified in use of force investigations,
which can either be created by MPD or obtained from other local and federal
law enforcement agencies.
133. MPD shall, within 120 days, provide copies and explain the terms of
this Agreement to all MPD officers and employees in order to ensure that they
understand the requirements of this Agreement and the necessity for strict compliance.
After MPD has adopted new policies and procedures in compliance with this Agreement,
MPD shall provide timely in-service training to MPD officers regarding the new
policies and procedures and the relevant provisions of this Agreement. MPD shall
incorporate training on these policies and procedures into recruit training
at the Academy.
C. Instructors
134. Within 60 days, MPD shall assess (a) whether there is sufficient staff
at the Training Academy; (b) what instructor training is needed in light of
the courses currently being taught and those to be taught in the future; and
(c) the appropriate standards for the evaluation of instructor performance by
supervisors. Based on this assessment, MPD shall develop a plan for addressing
training instructor needs. MPD shall submit this assessment and development
plan to DOJ for approval.
135. MPD shall, within 90 days, develop and implement subject to DOJ's approval,
formal eligibility and selection criteria for all Academy, Field Training, and
formal training (other than roll call) positions. These criteria shall apply
to all incumbent officers in these training positions and to all candidates
for these training positions, and also shall be used to monitor the performance
of persons serving in these positions. The criteria shall address, inter alia,
knowledge of MPD policies and procedures, interpersonal and communication skills,
cultural and community sensitivity, teaching aptitude, performance as a law
enforcement officer, with particular attention paid to allegations of excessive
force and other misconduct; history, experience as a trainer, post-Academy training
received, specialized knowledge, and commitment to police integrity.
136. MPD shall develop an instructor certification program by which the
competency of the instructors is certified.
137. Within 180 days of the effective date of this Agreement, MPD shall
create and implement a formal instructor training course, subject to the approval
of DOJ, to ensure that all instructors receive adequate training to enable them
to carry out their duties, including training in adult learning skills, leadership,
teaching and evaluation, as well as training in fostering group discussions
regarding use of force in "real-life" applications and the presentation of training
material in a cohesive and engaging manner. MPD shall provide regular and periodic
re-training on these topics. All training instructors and Field Trainers shall
be required to maintain, and demonstrate on a regular bases, a high level of
competence. MPD shall document all training instructors' and Field Trainers'
proficiency and provide additional training to maintain proficiency.
138. MPD shall ensure adequate management supervision of use of force training
instructors to ensure that their training is consistent with MPD policy, the
law and proper police practices.
139. MPD shall ensure consistent and thorough instruction of approved lesson
plans. All instructors must have and use a copy of current lesson plans during
classroom instruction.
D. Firearms Training
140. MPD shall continue to ensure that all officers, supervisors as well
as line staff, complete the mandatory semi-annual re-qualification firearms
training. Re-qualification shall consist of more than shooting a passing score,
but shall consist of satisfactorily completing all re-qualification courses,
as discussed in paragraphs 127 and 128, to include, Range 2000 and Role Play
courses. MPD shall continue to revoke the police powers of those officers who
fail to satisfactorily complete re-certification. MPD shall centralize administrative
consequences of failure to attend re-qualification firearms training to ensure
consistent application of such consequences.
141. MPD shall ensure that firearm instructors critically observe students
and provide corrective instruction regarding deficient firearm techniques and
the failure to utilize safe gun handling procedures at all times.
142. Within 60 days, MPD shall create and implement, subject to DOJ's approval,
a checklist identifying evaluation criteria to determine satisfactory completion
of firearms recruit and in-service training. Such checklists shall be completed
for each student officer by a firearms instructor, who shall sign the checklist
indicating that these criteria have been satisfactorily reviewed during training.
The checklist shall include, but not be limited to, an evaluation of a student
officer successful training of the following:
a. maintains finger off trigger unless justified and ready to fire;
b. exercises sound judgment and engages in decision making skills in
Range 200 and Role Plays;
c. maintains proper hold of firearm and proper stance.
143. MPD shall immediately review and integrate all firearms training into
a training curriculum that ensures material is presented in a logical manner
that promotes optimal fire safety and user responsibility.
144. MPD shall regularly, at a minimum every 3 months, consult the manufacturer
for accurate, consistent and current information regarding all Glock specific
instructions and guidelines, particularly regarding cleaning, maintenance and
marksmanship. MPD must establish procedures to ensure that such information
is continually updated as necessary and such practices are duly documented.
E. Canine Training
145. MPD shall complete development and implementation of a comprehensive
canine training curriculum and lesson plans which specifically identify goals,
objectives and the mission of the Canine Unit, consistent with the Canine policy
described in paragraphs 44-46 of this Agreement.
146. MPD shall continue to purchase only professionally-bred canines. MPD
shall ensure that, within 180 days, all of its canines are certified in handler-controlled
alert methodology. MPD shall ensure that the canines receive annual re-certification
and periodic refresher training. Deviations from certification or training requirements
shall result in the removal of the canine from service until such requirements
are fulfilled.
147. MPD shall continue to ensure that canine handlers are physically capable
of implementing and maintaining the canine policy described in paragraphs 44-46
of this Agreement. Handlers should be able to maintain control of, and contact
with the canine to ensure that the canine is not allowed to bite a suspect without
a legal justification.
148. Within 180 days, MPD shall require that all of its in-house canine
trainers are certified canine instructors.
VIII. SPECIALIZED MISSION UNITS
149. DOJ recognizes that MPD, in its discretion, utilizes temporary and
permanent specialized mission units to achieve various law enforcement missions.
The following provisions apply to any current or future specialized mission
unit created during the existence of this Agreement in which officers engage
in significant patrol-related activities on a routine basis including contacts,
stops, frisks, and searches (the Mobile Force Unit (is an example of one such
specialized mission unit.).
150. MPD shall continue to institute adequate pre-screening mechanisms of
officers working a specialized mission unit to select and screen out officers
who may be unprepared to participate in the specialized unit. The pre-screening
mechanisms shall continue to include, at a minimum, the following: (a) whether
the officer is current on his/her firearms certification and other service weapons
training; (b) whether the officer has received adequate training and demonstrated
that he or she has a history of judicious and proficient use of force; and (c)
whether the officer is generally fit for patrol duty and capable of achieving
the relevant objectives of the specialized unit.
151. MPD shall continue to screen officers who are interested in participating
in specialized mission units to develop and maintain a pool of seasoned and
competent officers with exemplary records and up-to-date training.
152. MPD shall continue to require sufficient advance notice of participating
officers to all specialized mission unit leadership to identify the need for
enhanced supervision or tailor patrol activities in light of the capacities
of the volunteer officers.
153. MPD shall continue to disqualify for service on a specialized mission
unit any officer that has frequently used questionable force or generated numerous
credible complaints alleging excessive force.
154. MPD shall continue to provide sufficient number of skilled supervisors
to ensure adequate supervision of officers assigned to a specialized mission
unit. Additionally, MPD shall continue to readily identify in the appropriate
organizational chart and all specialized mission unit material, the Command-level
official responsible for overseeing specialized mission unit activities.
155. MPD shall continue to give clear instructions to sergeants and other
supervisory officers who volunteer, or are assigned to a specialized mission
unit that they maintain their supervisory responsibilities while volunteering.
MPD shall continue to provide clear instructions to these supervisors regarding
appropriate supervision and coordination when more than one sergeant or supervisor
is present.
156. MPD shall continue to provide specialized pre-service training to specialized
mission unit participants to ensure compliance with current Fourth Amendment,
Equal Protection law, and address the desired knowledge, skills, and abilities
of the officers participating in the program.
157. MPD shall continue to monitor all activities of specialized mission
unit participants to include, at a minimum, enforcement actions, uses of force,
and complaints.
158. MPD shall continue its system of informing specialized mission unit
supervisors within 24 hours of any complaint about the conduct of an officer
on specialized mission unit duty. Additionally, MPD shall continue to track
specifically all activities relating to officers participating in the specialized
mission unit, including enforcement actions, complaints, and all misconduct
investigations, to enable supervisors to determine whether particular officers
should be allowed to continue to participate in the specialized mission unit
duty. Investigations of specialized mission unit uses of force should be consistent
with the provisions outlined in Section __ of this Agreement.
159. Within 120 days, MPD shall develop a plan, subject
to the approval of DOJ, to limit the total number of hours an officer may work
in any twenty-four hour period and in any seven- day period to prevent officer
fatigue. The parties acknowledge that implementation of the plan may take into
account limitations of current labor agreements, if any.
IX. PUBLIC INFORMATION
160. MPD shall prepare quarterly public reports that include aggregate statistics
of MPD use of force incidents broken down by MPD districts covering each of
the geographic areas of the City, indicating the race/ethnicity of the subject
of force. These aggregate numbers shall include the number of use of force incidents
broken down by weapon used and enforcement actions taken in connection with
the use of force. The report shall include statistical information regarding
use of force investigations conducted, including the outcome. The report shall
also include the total number of complaints of excessive force received, broken
down by MPD Districts, and the number of complaints held exonerated, sustained,
insufficient facts, and unfounded.
X. MONITORING, REPORTING, AND IMPLEMENTATION
A. Independent Monitoring
161. Within 90 days after entry of this Agreement, the City, MPD and DOJ
shall together select a Monitor who shall review and report on MPD's implementation
of, and assist with MPD's compliance with, this Agreement. If the parties are
unable to agree on a Monitor, each party shall submit two names of persons who
have experience as a law enforcement officer, as a law enforcement practices
expert or monitor, or as a Federal, state, or county prosecutor or judge along
with resumes or curricula vitae and cost proposals to a third party neutral,
selected with the assistance of the Federal Mediation and Conciliation Service,
and the third party neutral shall appoint the Monitor from among the names of
qualified persons submitted.
162. The Monitor shall not be retained by any current or future litigant
or claimant in a claim or suit against the City, MPD, or its officers. The Monitor
shall not issue statements or make findings with regard to any act or omission
of the City, MPD, or their agents or representatives, except as required by
the terms of this Agreement. The Monitor may testify in any case brought by
any party to this Agreement regarding any matter relating to the implementation,
enforcement, or dissolution of this Agreement.
163. The Monitor, at any time, may associate such additional persons or
entities as are reasonably necessary to perform the monitoring tasks specified
by this Agreement. The Monitor shall notify in writing DOJ and the City if and
when such additional persons or entities are selected for association by the
Monitor. The notice shall identify and describe the qualifications of the person
or entity to be associated and the monitoring task to be performed.
164. The City and MPD shall bear all reasonable fees and costs of the Monitor.
In selecting the Monitor, DOJ, the City and MPD recognize the importance of
ensuring that the fees and costs borne by the City and MPD are reasonable, and
accordingly fees and costs shall be one factor considered in selecting the Monitor.
In the event that any dispute arises regarding the payment of the Monitor's
fees and costs, the City, MPD and DOJ and the Monitor shall attempt to resolve
such dispute cooperatively.
165. The Monitor shall only have the duties, responsibilities and authority
conferred by this Agreement. The Monitor shall not, and is not intended to,
replace or take over the role and duties of the Mayor, City Council, or Chief
of Police.
166. The Monitor shall offer the City and MPD technical assistance regarding
compliance with this Agreement. The Monitor may not modify, amend, diminish,
or expand this Agreement.
167. The City and MPD shall provide the Monitor with full and unrestricted
access to all MPD and City staff, facilities, and documents (including databases)
necessary to carry out the duties assigned to MPD by this Agreement. The Monitor's
right of access includes, but is not limited to, all documents regarding use
of force data, protocols, analyses, and actions taken pursuant to the analyses.
The Monitor shall retain any non-public information in a confidential manner
and shall not disclose any non-public information to any person or entity, other
than a Court or DOJ, absent written notice to the City and either written consent
by the City or a court order authorizing disclosure.
168. In monitoring the implementation of this Agreement, the Monitor shall
maintain regular contact with the City, MPD and DOJ.
169. In order to monitor and report on MPD's implementation of each substantive
provision of this Agreement, the Monitor shall conduct the reviews specified
in paragraphs 171 and 172 and such additional reviews as the Monitor deems appropriate.
The Monitor may make recommendations to the parties regarding measures necessary
to ensure full and timely implementation of this Agreement.
170. In order to monitor and report on MPD's implementation of this Agreement,
the Monitor, among other things, shall regularly review and evaluate the quality
and timeliness of:
a. MPD employee use of force investigations, including investigations
conducted by the Districts, UFRB , OPR, and FIT, pursuant to Section III(B).
b. disciplinary and non-disciplinary actions related to officer use of
force.
c. use of force reports.
d. analyses of data concerning use of force, pursuant to paragraphs 61
and 67; and any actions taken pursuant to paragraph 105.
e. complaints and resulting investigations of excessive use of force.
In performing its obligations under this Agreement, the Monitor shall, where
appropriate, employ appropriate sampling techniques.
171. The Monitor, inter alia, shall review and evaluate the quality and
timeliness of appropriate samples of use of force and misconduct investigations,
disciplinary and non-disciplinary actions, ordered as a result of a misconduct
investigation; data contained in the PPMS; and appropriate samples of Use of
Force Incident reports, canine search and injury reports.
172. Subject to the limitations set forth in this paragraph, MPD shall reopen
for further investigation any misconduct investigation the Monitor determines
to be incomplete. The Monitor shall provide written instructions for completing
the investigation. The Monitor shall exercise this authority so that any directive
to reopen an investigation is given within a reasonable period following the
investigation's conclusion. The Monitor may not exercise this authority concerning
any misconduct investigation which has been adjudicated or otherwise disposed,
and the disposition has been officially communicated to the officer who is the
subject of the investigation.
B. MPD Compliance Coordinator
173. The parties agree that MPD shall hire and retain, or reassign a current
MPD employee, for the duration of this Agreement, as an MPD Compliance Coordinator.
The Compliance Coordinator shall serve as a liaison between MPD, the Monitor
and DOJ, and shall assist with MPD's compliance with this Agreement. At a minimum,
the Compliance Coordinator shall: (a) coordinate MPD compliance and implementation
activities of this Agreement; (b) facilitate the provision of data, documents
and other access to MPD employees and material to the Monitor and DOJ as needed;
(c) ensure that all documents and records are maintained as provided in this
Agreement; and (d) assist in assigning compliance tasks to MPD personnel, as
directed by MPD Chief of Police or his designee.
174. The MPD Compliance Coordinator shall take primary responsibility for
collecting information to provide MPD's status reports specified in paragraph
175.
C. Reports and Records
175. Between 90 and 120 days following the effective date of this Agreement,
and every three months thereafter until this Agreement is terminated, MPD and
the City shall file with DOJ and the Monitor a status report delineating all
steps taken during the reporting period to comply with each provision of this
Agreement.
176. During the term of this Agreement, the City and MPD shall maintain
all records documenting compliance with the terms of this Agreement and all
documents required by or developed pursuant to this Agreement. The City and
MPD shall maintain all use of force investigation files for at least ten years
from the date of the incident. The City and MPD shall maintain an officer's
training records during the officer's employment with MPD and for three years
thereafter (unless required to be maintained for a longer period of applicable
law).
177. DOJ shall continue to have full and unrestricted access to any City
and MPD documents (including databases), staff, and facilities that are relevant
to evaluate compliance with this Agreement, except any documents protected by
the attorney-client privilege. Should the City or MPD decline to provide the
Monitor with access to a document based on attorney-client privilege, the City
shall provide the Monitor and DOJ with a log describing the document. DOJ's
right of access includes, but is not limited to, all documents regarding use
of force data, protocols, analyses, and actions taken pursuant to the analyses.
This Agreement does not authorize, nor shall it be construed to authorize, access
to any MPD documents, except as expressly provided by this Agreement, by persons
or entities other than DOJ, the City, MPD, and the Monitor. DOJ shall retain
any non-public information in a confidential manner and shall not disclose any
non-public information to any person or entity, other than a Court or the Monitor,
absent written notice to the City and either written consent by the City or
a court order authorizing disclosure.
178. DOJ shall review documents and information provided by MPD and the
Monitor and shall provide its analysis and comments to the City, MPD and the
Monitor at appropriate times and in an appropriate manner, consistent with the
purpose of this Agreement to promote cooperative efforts.
179. The Monitor shall issue quarterly public reports detailing the City's
and MPD's compliance with and implementation of this Agreement. The Monitor
may issue reports more frequently if the Monitor determines it appropriate to
do so. These reports shall not include information specifically identifying
any individual officer. Before issuing a report, the Monitor shall provide a
draft to the parties for review to determine if any factual errors have been
made, and shall consider the Parties' responses and then promptly issue the
report.
180. The Monitor may testify in any action brought to enforce this Agreement
regarding any matter relating to the implementation or enforcement of the Agreement.
The Monitor shall not testify in any other litigation or proceeding with regard
to any act or omission of the City, MPD, or any of their agents, representatives,
or employees related to this Agreement or regarding any matter or subject that
the Monitor may have received knowledge of as a result of his or her performance
under this Agreement. Unless such conflict is waived by the parties, the Monitor
shall not accept employment or provide consulting services that would present
a conflict of interest with the Monitor's responsibilities under this Agreement,
including being retained (on a paid or unpaid basis) by any current or future
litigant or claimant, or such litigant's or claimant's attorney, in connection
with a claim or suit against the City or its departments, officers, agents or
employees. The Monitor is not a state or local agency, or an agent thereof,
and accordingly the records maintained by the Monitor shall not be deemed public
records. The Monitor shall not be liable for any claim, lawsuit, or demand arising
out of the Monitor's performance pursuant to this Agreement. Provided, however,
that this paragraph does not apply to any proceeding before a court related
to performance of contracts or subcontracts for monitoring this Agreement.
D. Implementation, Termination, and Enforcement
181. This Agreement shall become effective upon signature by all Parties.
The City and MPD shall implement immediately all provisions of this Agreement
which involve the continuation of current Department policies, procedures, and
practices. Within 180 days of the effective date of this Agreement, unless otherwise
specified, the City and MPD shall implement the provisions of this Agreement.
182. The Agreement shall terminate five years after the effective date of
the Agreement if the parties agree that MPD and the City have substantially
complied with each of the provisions of this Agreement and maintained substantial
compliance for at least two years. The burden shall be on the City and MPD to
demonstrate that it has substantially complied with each of the provisions of
the Agreement and maintained substantial compliance for at least two years.
For the purposes of this paragraph, "substantial compliance" means there has
been performance of the material terms of this Agreement. Materiality shall
be determined by reference to the overall objectives of this Agreement. Noncompliance
with mere technicalities, or temporary failure to comply during a period of
otherwise sustained compliance, shall not constitute failure to maintain substantial
compliance. At the same time, temporary compliance during a period of otherwise
sustained noncompliance shall not constitute substantial compliance.
183. The Parties agree to defend the provisions of this Agreement. The Parties
shall notify each other of any court or administrative challenge to this Agreement.
184. This Agreement is enforceable through specific performance in Federal
Court. Failure by any party to enforce this entire Agreement or any provision
thereof with respect to any deadline or any other provision herein shall not
be construed as a waiver of its right to enforce other deadlines and provisions
of this Agreement.
185. In the event MPD or the City fail to fulfill any obligation under this
Agreement, DOJ shall, prior to initiating any court proceeding to remedy such
failure, give written notice of the failure to MPD and the City. MPD and the
City shall have 30 days from receipt of such notice to cure the failure. At
the end of the 30-day period, in the event DOJ determines that the failure has
not been cured, DOJ may, without further notice to MPD or the City, file an
action in the United States District Court for the District of Columbia (the
"Federal Court Action") against MPD and the City for breach of contract and
any other appropriate causes of action and may seek specific performance and
any other appropriate form of relief.
186. In any matter requiring its approval under this Agreement, DOJ shall
not unreasonably withhold any such approval. DOJ shall respond in a complete
and timely manner to any submission submitted by the City or MPD for approval,
and shall fully outline any bases for disapproval, together with an indication
of the changes required in order for approval to be given. DOJ shall provide
its approval or disapproval of all matters in writing. All communications regarding
approvals required by this Agreement shall take place in such a manner so as
not to interfere with or delay compliance with any obligation contained in the
Agreement.
187. In addition to any other notice it may provide, DOJ shall send copies
of any correspondence containing a notice of a failure to approve any submission
by the City or the MPD, or a notice of a failure to fulfill obligations under
this Agreement to MPD's General Counsel.
188. In connection with the Federal Court Action, MPD and the City agree
as follows:
a. The City and MPD shall stipulate to subject matter and in personam
jurisdiction and to venue.
b. The City and MPD agree that service by hand delivery of the summons,
complaint, and any other documents required to be filed in connection with
the initiation of the Federal Court Action upon the Corporation Counsel of
the City shall be deemed good and sufficient service upon the City and MPD.
c. The City and MPD hereby waive the right to file, and agree not to
file or otherwise assert, any motion to dismiss (except for failure to state
a claim), to stay or otherwise defer, a Federal Court Action alleging a failure
to fulfill any obligation under this Agreement.
d. The City and MPD agree to a trial of the Federal Court Action alleging
a failure to fulfill any obligation under this Agreement commencing (a) 120
days after service of the summons and complaint as set forth above, or (b)
the Court's earliest availability, whichever is later. The parties agree that
discovery in the Federal Court Action alleging a failure to fulfill any obligation
under this Agreement may begin within 15 days after service of the summons
and complaint. The parties agree to submit all discovery requests and to schedule
all depositions within 75 days after the service of the summons and complaint.
189. In the event, the Court finds that the City or MPD has engaged in a
material breach of the Agreement, the parties hereby stipulate that they shall
move jointly for the Court to enter the Agreement and any modifications pursuant
to paragraph 194, as an order of the court and to retain jurisdiction over the
Agreement to resolve any and all disputes arising out of the Agreement.
190. Nothing in this Agreement shall preclude DOJ, after complying with
paragraph 185 (provision of notice and an opportunity to cure), from filing
an action under the Violent Crime Control and Law Enforcement Act of 1994 (42
U.S.C. Section 14141) alleging a pattern or practice of excessive force in addition
to or in lieu of the Federal Court Action described above. In the event that
any such action is filed, the City and MPD hereby waive, agree not to assert,
any defense to that action based on statute of limitations, laches, estoppel
or any objection relating to the timeliness of the filing of such action. Nothing
in this Agreement shall preclude DOJ from filing an action under the Violent
Crime Control and Law Enforcement Act of 1994 (42 U.S.C. Section 14141) alleging
a pattern or practice of unlawful conduct other than excessive force. Nothing
in this Agreement shall preclude DOJ from filing an action under any other provision
of law.
191. Nothing in this Agreement shall be construed to require an expenditure,
obligation, or contract in violation of the Anti-Deficiency Act, 31 U.S.C. §1341
et seq. The District's obligations shall be subject to the availability of appropriated
funds (including funds obtained from grants and contracts) as follows:
a. To the extent made necessary by lack of funds, beginning for fiscal
year 2002, the district may obtain deferral of compliance with an obligation
of this Agreement until its next annual budget cycle if, as soon as the District
knows or should know of the possibility of the event, it provides in writing
to DOJ a statement which shows the following:
i. that it included in its annual budget act as adopted by the Council
of the District of Columbia and submitted to the President for transmission
to the Congress pursuant to section 446 of the D.C. Self-Government and
Governmental Reorganization Act, D.C. Code §47-304 (1997), sufficient money
to carry out such objective;
ii. that it made diligent efforts to obtain Congressional enactment
of that part of the budget act;
iii. that it made diligent efforts to identify and utilize grant and
contract funds available to the City from federal and private funding sources
to meet obligations under this Agreement (DOJ will assist the City to identify
potential Department of Justice grants, or other funding sources, for which
MPD may be eligible to apply and will provide MPD with appropriate technical
assistance regarding any related application process);
iv. that it expressly identified in the annual fiscal year adopted
budget prepared for Congressional use such obligation (not necessarily to
include reference to this Agreement as such) together with the amount of
money tied to performing such obligation; and
v. that Congress acted expressly to eliminate such amount of money
or to reduce it below the level necessary to perform the obligation, or
that Congress made an across the board reduction in the appropriation of
MPD, OCCR, or any other agency with specific obligations under this Agreement
as shown in the Council's budget act without expressly saving such obligation
and the across the board reduction, as applied proportionately to the amount
of money shown in the adopted budget for such obligation left an insufficient
amount to carry out that obligation.
b. The Mayor and MPD shall make diligent efforts to safeguard all appropriated
funds available to meet obligations under this Agreement from re-programming.
E. Compliance
192. This Agreement is a public document and shall be posted on the websites
of the City or MPD and of the Special Litigation Section of the Civil Rights
Division of DOJ.
193. The City and MPD agree that they shall not retaliate against any person
because that person has filed or may file a complaint, provided information
or assistance, or participated in any other manner in an investigation or proceeding
relating to this Agreement.
F. Modifications
194. The Parties may jointly agree, in writing, to modify this Agreement.
For the United States Department of Justice:
/s/ William R. Yeomans
____________________________
WILLIAM R. YEOMANS
Acting Assistant Attorney General
Civil Rights Division
/s/ Steven H. Rosenbaum
____________________________
STEVEN H. ROSENBAUM
Chief
Special Litigation Section
Civil Rights Division
/s/ Shanetta Y. Brown Cutlar
____________________________
SHANETTA Y. BROWN CUTLAR
Special Counsel
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66400
Washington, D.C. 20035-6400
202-514-0195
DATED: June 13, 2001
For the District of Columbia and the Metropolitan Police Department:
/s/ Anthony Williams
____________________________
ANTHONY WILLIAMS
Mayor of the District of Columbia
/s/ Charles H. Ramsey
____________________________
CHARLES H. RAMSEY
Chief of Police
District of Columbia Metropolitan Police Department
/s/ Terrance W. Gainer
____________________________
TERRANCE W. GAINER
Executive Assistant Chief of Police
District of Columbia Metropolitan Police Department
/s/ Robert Rigsby
____________________________
ROBERT RIGSBY
Corporation Counsel
Office of the Corporation Counsel
441 4th Street, NW, Suite 1060N
Washington, D.C. 20001
Approved as to form and legal sufficiency
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Updated 2008-07-25