Recently Asked Questions on the OPCR Process, Part 1 – “No Basis” Dismissals

– Michael K. Browne, Director-Office of Police Conduct Review

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At the June 2015 Police Conduct Oversight Commission meeting, a question was asked: can the Office of Police Conduct Review (OPCR) dismiss cases for “no basis”? If so, what is the OPCR’s authority to do so?

This is an excellent question as it allows the OPCR to provide more in-depth insight into the process in order to contribute to this dialog. First, the executive answer to the question is: Yes. The OPCR can dismiss cases for “no basis,” which is within the purview and the discretionary authority of the Office, and the deference it is afforded as an administrative agency. Nevertheless, context is needed to enrich this conversation and explain how we arrive at that answer.

The premise for which the OPCR can dismiss cases for no basis is straightforward: the Office has the discretion and authority to assess the validity of its complaints. To begin, the ordinance establishes the function of the OPCR as a receiver of complaints under Minneapolis Code §172.30 (a)(the city ordinance or sometimes called municipal law). In practice, the Office accepts all complaints, and as a result there is a range of validity for those complaints. Accordingly, the complaints themselves cannot be taken at face-value to determine their direction before reaching resolution. Some are clear, detailed and understandable; whereas, others are illogical, fantastical, or incoherent. Thus, the Office has developed the practice of conducting an intake investigation on all complaints in order to prepare the cases for preliminary review by the Joint Supervisors as outlined in Minneapolis Code § 172.30 (b). It is in this section, combined with §172.30(d) that the Ordinance allows the Joint Supervisors to determine how best to utilize the resources of the Office.

The Example

In order to appreciate the need to exercise this discretion and authority, and understand the origin of this necessary function, it is helpful to review a typical scenario. Every month, the OPCR receives complaints, a few of which incoherently allege police misconduct. In an often repeated case, a complainant alleges misuse of unidentified police “equipment” that affects the “medical conditions” of an unidentified person around her. When discussing the complaint with the individual, the complainant cannot explain or substantiate any of the allegations, making them impractical, if not impossible, to investigate.

In addition to incoherency, complaints are received alleging misconduct that is directly contradicted by readily available evidence gathered in the intake investigation such as squad video or body camera recordings [an additive to the new Minneapolis model of civilian oversight, the OPCR now has direct and immediate access to police reports, videos and squad car logs]. These recordings can demonstrate when a complainant relays an incident in a manner that greatly contradicts or strongly exaggerates the incident, which does not require additional resources to resolve its underlying validity. In other instances, complainant statements of what occurred do not contradict readily available evidence such as video, or an officer’s written report. When this is the case, the Joint Supervisors of the Office will apply a preponderance of the evidence standard and determine whether investigation is warranted, or if another pathway for the case is more appropriate.

Applying a legal parallel to further illustrate the Office’s process and discretion, contradictory cases can be dismissed for no basis, not because a complainant necessarily failed to state a claim, but because there is sufficient evidence available for the Joint Supervisors to determine that the incident does not warrant investigation. In the alternative, it is the “contradictory cases” that lack sufficient evidence, or contain disputed facts, those in the range of the so-called “50-50 situations,” that the Joint Supervisors will send to investigation.

In short, the cases the OPCR dismisses for no basis are ones that are incoherent or inconsistent with readily available evidence. Moreover, in the past almost 3 years of operation, these cases amount to no more than 16% of the total cases processed by the Office.

The Authority

Beyond the common sense reasoning for the OPCR’s ability to dismiss cases for no basis, the Office has the legal authority to do so. As stated above, the OPCR’s case processing is governed by Minneapolis Code §172.30. Subsection (b) of the Ordinance lists each potential outcome for a filed complaint that can be determined at the discretion of the Joint Supervisors. They include the ability to decline a complaint, refer it to another governmental agency, send it to mediation, send it to coaching, or open a formal investigation. Following the general outline of these outcomes, the ordinance goes into greater specific detail as to the perimeters of investigations in §172.30 (c), mediation in §172.30 (e), and procedural discretion and decision making in §172.30 (d). Procedural discretion and decision making is assigned to the supervisory staff of the civilian unit and the internal affairs unit, which we refer to as the Joint Supervisors. Even when a decision cannot be reached between the Joint Supervisors, it is the chief of police and director of the department of civil rights that are called upon to decide, with the mayor’s office to mediate disputes; meaning, the discretionary power to determine which of the proscribed outcomes is chosen never leaves the administrative nature of the Office.

While the Ordinance devotes entire subsections to further detail investigations and mediation, it does not do so for the process of declining cases. Nevertheless, it is clear that discretionary power rests with the Joint Supervisors for three reasons. First, there is no “joint and severable” language in the Police Conduct Oversight Ordinance, thus it must be read as a whole. When doing so, and referring back to the procedural discretion vested in the Joint Supervisors, it is clear that the decision to decline or dismiss a case is fully within the discretion authorized in §172.30 (d).

Second, the only relevant language in the ordinance related to dismissals states that a complaint may be declined if, on its face, it is not within the “purview” [or jurisdiction] of the office. Purview, according to the Oxford Dictionary means “the scope of the influence or concerns of something.” The scope and concern of the OPCR is to be a fair, objective, and neutral investigator of complaints of misconduct by Minneapolis Police officers. In order to meet this concern, the Office must be able to manage the dedication of its resources to conduct effective and efficient investigations into complaints that potentially have merit.

Lastly, the OPCR is the only mechanism in the Police Conduct Oversight System that is given the power to investigate. This places an appropriate workload burden on the Office and away from the Police Conduct Oversight Commission and the Police Conduct Review Panel, two entities staffed by volunteers from the community that provide meaningful participation in the process. As the sole mechanism that manages case investigations [or training for all entities involved in the Police Conduct Oversight System], the language in the section of the ordinance detailing the actions of the Office is essential to understanding the origin of the authority to decline or dismiss cases: in §172.30(d), general decision-making is granted to the Joint Supervisors with discretionary authority for handling a complaint.

In addition to the language of the Ordinance, Minnesota case law supports the OPCR’s use of discretion in this practice. The Minnesota Supreme Court in Geo A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn. 1988) (whose precedent was applied more recently in Frieler v. Carlson Mktg. Group, 751 N.W.2d 558 (Minn. 2008)) held that an administrative agency’s interpretation of the law it administers is entitled to deference and should be upheld, unless it is in conflict with the express purpose of the law and the intention of the legislative body. The OPCR’s current case dismissal practice is not in conflict with the purpose of the Ordinance, or with the intention of the authorizing body who enacted it, since declining a case is an explicit case outcome option articulated in §172.30(b). Once more, overall discretion in procedural issues was granted to the Joint Supervisors. As such, the Office is entitled to deference in its dismissal process for no basis.

Assuming – arguendo – a complainant, whose case was dismissed for no basis, wished to challenge the dismissal in court, she potentially could do so [an academic might reason] under a review of the procedural due process extended to her. When Minnesota courts analyze this type of claim, they apply a three-part balancing test taking into consideration: “(1) the private interest affected by the government’s action; (2) the risk that the process provided will result in an erroneous deprivation of the private interest and the probable value of additional or substitute procedural safeguards; and (3) the state’s interest in the procedures provided, including the administrative burden and expense the additional procedures sought would require.” Mathews v. Eldridge, 424 U.S. 319 (1976) (finding the respondent was not denied procedural due process when he was denied an evidentiary hearing prior to termination of his Social Security benefits); Heddan v. Dirkswager, 336 N.W.2d 54, 59 (Minn. 1983) (adopting the Mathews analysis in Minnesota).

The private interest affected in this situation is an individual’s ability file a complaint of police misconduct and place her allegations in the Police Conduct Oversight System for consideration. It is not, in contrast, to have her complaint investigated, since the Police Conduct Oversight Ordinance clearly provides for other outcomes, including referring it to another agency, declining the case, sending it to coaching or referring it to mediation. Since the Office receives all complaints (this does not account for Office initiated complaints), there is minimal risk that the current dismissal process will result in the erroneous deprivation of the private interest of filing a complaint. Moreover, because the OPCR only dismisses cases for no basis in situations when there is sufficient evidence available for the Joint Supervisors to determine that the incident does not warrant investigation, there is no probative value of additional safeguards. Lastly, the OPCR operates within a budget and aims to resolve important cases in a timely manner, an issue that was a challenge for its predecessor; thus, the OPCR prioritizes investigations of allegations which are coherent and potentially supported by (as opposed to resolved by) evidence. Based on these points, the OPCR’s use of dismissal for no basis meets the requirements of the Mathews test and will be afforded deference by a court.

Lastly, the ability of an administrative agency to dismiss cases for no basis is not a function unique to the OPCR. In the Minnesota Administrative Rules for the Department of Human Rights, Rule 5000.0520(b) allows for the termination of proceedings when the commissioner determines a charge “does not warrant further use of department resources.” Rule 5000.0530(a) allows for the dismissal of a charge the commissioner determines is “illogical, fantastical, or incoherent” and per Rule 5000.0530(b) is “negated by common knowledge.” These Rules further demonstrate the inherent need of an administrative agency to have discretionary authority to dismiss cases that do not warrant investigation.

Conclusion

Due to these practical and legal issues discussed, the OPCR can use its discretion to dismiss a case for no basis because this practice is within the purview of the office and its inherent discretion and deference afforded as an administrative agency. The Office hopes this post has made the process more understandable and transparent to all interested parties.

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7 Responses to Recently Asked Questions on the OPCR Process, Part 1 – “No Basis” Dismissals

  1. Excellent! Actually, this question was first asked of the PCOC in an April 12, 2015, email, on which Mr. Browne was copied, and then in an email addressed directly to Mr. Browne (and Commander Granger, the other OPCR joint supervisor) on April 19. To say this question came up at the June PCOC meeting is to ignore the two-month period during which time not a single word in response was given to the citizen who first raised the question. But now we finally have a dialogue going,

    The question was first raised regarding a case that the joint supervisors dismissed and which the PCOC reviewed at their April meeting. But their “review” included absolutely no questions at all. The case involved a juvenile who was maced by an MPD officer, but it seemed there was no basis for such an action included in the written case summary — even in the police report portion of that summary — provided the PCOC (http://www.minneapolismn.gov/www/groups/public/@civilrights/documents/webcontent/wcms1p-139810.pdf),

    There are other inaccurate or misleading statements in Mr. Browne’s post, which I’ll put in a reply next week.

  2. I left a previous comment that hasn’t appeared. I indicated I would comment in more detail on Director Browne’s post, but if comments aren’t allowed, I guess I won’t be doing that.

  3. Chuck Turchick says:

    Here are few more comments in response to Mr. Browne’s post:

    1. The discretion of the joint supervisors is not unlimited. Sure, the joint supervisors probably should have the power to dismiss “illogical, fantastical, or incoherent” complaints. But, according to the 2014 Annual Report of the Office for Police Conduct Review, joint supervisors have also dismissed cases “because they lacked any actual evidence or direct evidence contradicted the complainant’s allegations” (see page 2 of that report: http://www.minneapolismn.gov/www/groups/public/@civilrights/documents/webcontent/wcms1p-138360.pdf/).

    Well, usually the complainant was at the scene of the alleged misconduct, so his or her allegations are also “actual” or even “direct” evidence. We then may have a he said/she said situation, for which a fact-finding panel could determine which “direct” evidence had greater credibility. (Only rarely is a video absolutely conclusive.)

    And when the ordinance describes the nature of that discretion, followed by a provision saying “All other qualifying cases shall be formally investigated…” (see section 172.30(b) and 172.30(c) of the ordinance: https://www.municode.com/library/mn/minneapolis/codes/code_of_ordinances?nodeId=COOR_TIT9FIPOPR_CH172POCOOV), we ought to look to the words of the ordinance itself.

    2. Section 172.30(d) of the ordinance grants no discretionary authority at all. Mr. Browne writes: “in §172.30(d), general decision-making is granting [sic] to the Joint Supervisors with discretionary authority for handling a complaint.” In fact, though, 172.30(d) grants no decision-making authority at all. It merely provides for a procedure for handling disagreements between the joint supervisors in how to exercise discretion granted by other sections of the ordinance. Here is the entire 172.30(d) provision:

    “(d) Procedural discretion and decision making. Any procedural issue related to the duties and authority of the office for which supervisor staff from the civilian unit and the internal affairs unit is unable to reach agreement upon shall be referred to the director of civil rights and the chief of police, who shall jointly determine the matter. In the event the director and the chief are unable to resolve the issue, a designee of the mayor may mediate, and if necessary resolve, the issue.”

    Certainly this section implies some previously granted discretionary authority, but by itself, it does not grant any such power. That discretionary power is found in §172.30(b) and allows for a case to be declined if “it fails to allege a violation within the purview and jurisdiction of the office.”

    3. A more plausible referent for “purview” is the ordinance’s definition of “scope of authority.” Mr. Browne writes that “purview” refers to the “concern of the OPCR…to be a fair, objective, and neutral investigator of complaints of misconduct by Minneapolis Police Officers. More plausibly, “purview” refers to the “scope of authority” of the OPCR, which is defined in §172.20 of the ordinance, which lists allegations involving any of nine types of misconduct, ranging from “inappropriate language or conduct” to “use of excessive force” to “criminal misconduct.” That is where the “scope of the influence or concerns” (Mr. Browne’s quoted dictionary definition of “purview”) of the OPCR is found. But such “outside-the-purview” cases are already included in another category of dismissed cases, viz., cases dismissed for “failing to state a claim (even if true, the officer’s actions do not amount to misconduct)” (see OPCR 2014 Annual Report, p. 2: http://www.ci.minneapolis.mn.us/www/groups/public/@civilrights/documents/webcontent/wcms1p-136148.pdf), so the “dismissals for no basis” must mean something else.

    Now, Mr. Browne might respond that no, the nine types of misconduct language defines not the purview, but the jurisdiction of the OPCR, and since the ordinance dismissal authority mentions both purview and jurisdiction, “purview” must be something else. But common sense tells us that “purview” refers to subject matter, while “jurisdiction” here refers to such factors as “misidentified officers, officers out-of-[the]-jurisdiction, and officers no longer with the Minneapolis Police Department,” which was the language included in the Civilian Review Authority (CRA) ordinance.

    Also worth noting is that the previous CRA ordinance allowed the CRA Director to dismiss cases for those jurisdictional reasons, but to dismiss a case for reasons that went beyond those factors, the CRA Director had to get the approval of the CRA board.

    4. How the joint supervisors are using this “discretion” is instructive. This issue of what authority allows joint supervisors to dismiss cases arose in the context of a case summary that the Police Conduct Oversight Commission was reviewing at its April 2015 meeting. Here are the relevant portions of that case summary:

    “OVERVIEW

    “Complainant states Officers used excessive force against her 14 year old son. Complainant states officers maced the juvenile, tackled him to the ground, put their knees on the juveniles back and neck, and pulled his hair. Complainant states at the time of the incident the juvenile had a cast on his arm. Complainant states she was not contacted by the officers, but officers told the paramedics they did, resulting in the child being released to the hospital. Complainant alleges that her child was arrested, and she only was informed once she said she would file a complaint.

    “SUMMARY OF EVIDENCE

    “Complaint

    “The Complainant alleges her son was maced and tackled by officers. The Complainant alleges officers pinned him to the ground with their knees. The Complainant stated at the time of the incident her son had a cast on his left arm. The Complainant alleges she was not contacted by the officers, but officers told the paramedics they did, resulting in the child being released to the hospital.

    “CAPRS Report

    “The CAPRS report indicates that officers were working at a high school event. Extra officers were working the event due to an earlier SHOTS call related to a high school rivalry. A School Resource Officer (SRO) was clearing the school after the event, he encountered a juvenile. The juvenile was asked to leave, but did not do so. The juvenile became belligerent towards the SRO, and other officers came to assist. The Complainant’s juvenile son was present during the incident. The Complainant’s son was asked to leave by three different officers. He refused and kept questioning what was happening to the other juvenile. An officer approached the Complainant’s son and threatened to mace him if he did not leave. The Complainant’s son did not leave, and covered his face with his shirt to prepare for the chemical irritant. The mace did not appear to have an immediate effect, so another officer maced the juvenile. The CAPRS report notes the size of the juvenile, at over 6’ tall and 250 pounds. Noting that the juvenile appeared to be trying to get up, an officer pinned him to the ground. Officers handcuffed the juvenile. It was discovered that the juvenile had a cast on his left arm. Officers used a hobble strap looped through the handcuff to secure the left arm. The juvenile was released to EMS for mandatory treatment and transport.

    “DISMISSAL

    “The case was dismissed for no basis. The review of the complaint indicated that there were no issues with the use of force. The use of force was well documented by officers. Additionally, since EMS transported the juvenile to the hospital the officers were not required to notify the parent under MPD policy.”

    Note that, according to the police report, the complainant’s juvenile son refused to leave the area, kept asking questions about what was happening to his friend, and was “over 6’ tall and 250 pounds.” The Minneapolis Police Department’s Policy and Procedure Manual defines specific situations for when chemical agents may be used: “[o]n subjects who are exhibiting Active Aggression, or [f]or life saving purposes, or [o]n subjects who are exhibiting active resistance in order to gain control of a subject and if lesser attempts at control have been or would likely be ineffective, or [d]uring crowd control situations if authorized by a supervisor” (see MPD Policy and Procedure Manual, §5-313).

    None of these factors were present here. If the mere size of the juvenile was the reason it was believed “lesser attempts at control…would likely be ineffective,” wouldn’t informing him he would be arrested if he didn’t leave be more proper that threatening to mace him if he didn’t leave?
    Maybe there were additional facts that would explain the officer’s actions here, but they do not appear in the officer’s report (CAPRS report), and for the joint supervisors to dismiss this case for “no basis” merely on the facts given in the case summary clearly exceeded any discretionary authority under the ordinance.

    You may be wondering what questions the PCOC commissioners asked when they reviewed this case. Not a single question. Not one.

    That’s the state of civilian oversight in the City of Minneapolis.

    • Mr. Turchick,

      Thank you for your comments. I would like to respond on four points. First, as a point of clarification, complaints are not considered evidence. A complainant’s view of a situation only becomes evidentiary when that complainant is interviewed.

      Second, this post explains no basis dismissals being beyond that of “failure to state a claim”. Please see paragraph 3 following the “The Example” heading. That same paragraph also states that “it is the ‘contradictory cases’ that lack sufficient evidence, or contain disputed facts, those in the range of the so-called ‘50-50 situations’” (what you call the “he said/she said” situations), that the Joint Supervisors will send to investigation. These are not the cases that are dismissed for no basis.

      Third, you reference the former CPA ordinance in your response. This reference is not informative in this process, since it is no longer law. That ordinance was specifically and intentionally changed; therefore the old law does not inform the new system.

      Lastly, in response to the case summary you discussed, while it is clear that you disagree with the decision made by the Joint Supervisors, it is the Joint Supervisors who are charged with making such decisions. Once more, Minnesota law establishes that it is the Joint Supervisors and the OPCR who are granted deference in their decisions. It is also the OPCR’s overall interpretation of the Ordinance that receives deference; therefore, it is the OPCR who gets to decide what cases are “qualifying”, and what “purview” means. It is this granted discretion and deference that allows the OPCR and Joint Supervisors to do their jobs.

      • Chuck Turchick says:

        Mr. Browne writes: “complaints are not considered evidence.” I have two responses. First, of course they aren’t evidence, but unless when interviewed (either during intake or during the preliminary investigation) the complainant says something entirely different than was included in the complaint, there never is a situation that “lacked any actual evidence or direct evidence.”

        And second, the OPCR might not consider the complaint evidence, but the Internal Affairs Unit does consider it evidence. I refer specifically to the IAU’s Complaint Process Manual section on “Processing Category B, C, or D Violations,” where on page 21 under “Step Two: Reaching a Preliminary Finding,” it reads: “All other items which are contained in the investigative file, including the complaint and the subject officer’s disciplinary history, are also evidence in a disciplinary case.” So it seems that at least for IAU investigators, the complaint is considered evidence. If it isn’t considered evidence by the civilian investigators in the OPCR, we have an inconsistency between the two kinds of investigators.

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