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