Virginia Commonwealth University Police Department SUBJECT SECTION NUMBER CHIEF OF POLICE EFFECTIVE REVIEW DATE GENERAL 4 8 11/10/2013 12/1/2016 CITIZEN COMPLAINTS AND INTERNAL INVESTIGATIONS In order to fulfill our mission of providing high quality law enforcement services, it is critical that the public views the department as an agency that holds its employees accountable and takes appropriate administrative action when policies and/or procedures are violated. The purpose of this directive is to establish uniform procedures for receiving and investigating complaints of misconduct and other administrative matters of concern. ACCOUNTABILITY STATEMENT All employees are expected to fully comply with the guidelines and timelines set forth in this written directive. Failure to comply will result in appropriate corrective action. Responsibility rests with the division commander to ensure that any violations of policy are investigated and appropriate training, counseling and/or disciplinary action is initiated. COMPLAINT POLICY A. All complaints, including anonymous complaints, of misconduct or illegal behavior against the VCUPD or its employees, shall be documented and investigated. B. Any complaint alleging improper action or conduct by a VCUPD employee shall be the subject of an administrative investigation to determine the true facts relating to the allegations and to make a record of the incident for purposes of defending against any civil suit or administrative litigation related to the complaint. C. Persons making or involved in a complaint regarding a department member's conduct shall not be hindered or harassed in any manner for their action. D. Complaint procedures are made available to the public as well as employees. A citizen complaint/commendation form is available on the VCUPD website. E. All department members are strictly charged with the responsibility of courteously and willingly receiving any complaint that may be lodged against the department or any employee thereof. F. All employees will cooperate fully with personnel of the Investigations Division or any other member of the department conducting internal/administrative investigations. VCUPD Written Directives Manual 4-8 Administrative Investigations 1
G. Employees do not have a right to remain silent in an administrative investigation and are required to fully and truthfully answer all questions relating to the performance of their official duties or their fitness for office, provided they are advised that information contained in their answers cannot be used against them in a subsequent criminal proceeding (refusal to cooperate in an internal administrative investigation is grounds for disciplinary action, up to and including termination). GENERAL PROCEDURES A. Responsibilities of All Employees: 1. All employees, when made aware that an individual wants to make a complaint about a police employee, will immediately notify a supervisor. 2. All police supervisors will accept any complaint of misconduct against any VCUPD officer/employee, regardless of the circumstances under which the complaint is made or whether it is made anonymously or how the information is relayed. Supervisors are not to direct citizens to another location to file a complaint. 3. It is the responsibility of all supervisors to ensure that complaints are received by the Administrative Coordinator. B. The Administrative Coordinator shall review the complaint and assign the complaint to the proper division commander for investigation. 1. Field supervisors shall generally process employee complaints and similar circumstances of a less serious nature not requiring a formal investigation. 2. The Investigations Division shall investigate formal complaints alleging misconduct and allegations or suspicion of criminal conduct by a member of the department or any matter referred by the Chief of Police. 3. All complaints alleging bias of any nature shall be referred to the Chief of Police for initial review and assignment. C. Responsibilities of Supervisors: 1. The supervisor must first determine if the citizen is making an allegation of misconduct on the part of a police employee. There are instances in which citizens wish to complain about actions which are not improper, or in which their complaint deals with department policy rather than the actions of an individual officer. In these cases, preparing a complaint packet naming an individual officer only confuses the issue, and is a disservice to the citizen, the officer and the department. The obligation of the supervisor in this case is to explain the appropriate policies and procedures to the complainant, and why the information is not a valid complaint. NOTE: If the complainant insists that he/she wants to make a formal complaint, the supervisor must inform the citizen that there is no basis for the complaint, but that the citizen may fill out and sign a VCUPD-7 Complainant/Officer Statement and forward it to the Investigations Division for further review. The VCUPD Written Directives Manual 4-8 Administrative Investigations 2
supervisor will facilitate providing the VCUPD-7 to the citizen by referring the citizen to the website or by offering to mail or deliver the VCUPD-7 to the citizen. 2. When the supervisor determines that a complaint is a specific allegation of misconduct and should be investigated, the supervisor shall attempt to resolve the complaint immediately. The supervisor will give the complainant(s) an opportunity to complete the VCUPD-7 and will have any involved employees fill out VCUPD-7s relating to the incident or allegation, and attempt to complete the investigation at that time. 3. Serious, credible complaints against police employees require thorough investigations. However, there are also spurious complaints against police officers which are made for the purpose of harassing the officer, attempting to gain some advantage in a court case or to intimidate officers from performing their duties. The need to use VCUPD resources to investigate serious and credible complaints of wrongdoing also imposes an obligation to avoid wasting time and resources on spurious complaints. In conducting the initial investigation, the supervisor will be aware of the following indicators of spurious complaints: a. The complainant s story changes multiple times, b. The complainant states or implies that the complaint will go away if his/her charges are dropped, c. The complainant s allegations do not match the available physical evidence or independent witness statements, and/or d. The complainant is known to have a history of making an excessive number of complaints against police officers NOTE: The presence of any of these factors does not necessarily mean that a complaint is invalid. The supervisor shall look at the totality of the circumstances and make a decision based upon all factors. The standard of proof in administrative investigations is the preponderance of the evidence, whatever is most likely to be the fact. 4. The supervisor shall ensure that the on-call captain is notified of any serious allegations. The supervisor may also contact the on-call captain for any advice or assistance needed. 5. Following the initial investigation, the supervisor will fill out the complaint forms, including all investigatory information and VCUPD-7s, and recommend a disposition for the complaint (dispositions are listed below). 6. The complaint documents shall be submitted to the Administrative Coordinator for tracking. The Chief of Police will review the complaint packet and, if acceptable, sign the letter. VCUPD Written Directives Manual 4-8 Administrative Investigations 3
7. The Administrative Coordinator will send the complainant the letter and file the complaint packet accordingly. D. Responsibilities of the Investigations Division: 1. The Investigations Division shall coordinate and exercise staff supervision on behalf of the Chief of Police over the investigation of complaints or allegations of police misconduct against members of the department. Due to the nature of the internal investigations, the Investigations Division has the authority to report directly to the Chief of Police regarding these matters. 2. Supervisors shall generally process officer complaints, tardiness, insubordination, and similar circumstances of a less serious nature not requiring a formal investigation. 3. The Investigations Division will conduct criminal investigations of incidents or complaints of excessive force, or of assaults committed by police officers during the course of their official duties. The criminal investigation will be conducted in accordance with standard procedures for criminal investigations. 4. The Investigations Division will conduct administrative investigations of excessive force complaints/incidents at the conclusion of the criminal investigation. 5. The Investigations Division will refer complaints of rudeness, harassment, improper or unlawful arrest, failure to take necessary action and minor code of conduct violations to the affected Service to be investigated, unless the following or other factors indicate that IAD should conduct the investigation: the seriousness of the alleged violations, a previous history of similar complaints against the accused employee and/or the ability of the affected Service to conduct the investigation. 6. The Investigations Division will notify the Chief of Police immediately of matters involving the integrity of the department or when police personnel are accused or suspected of violations of the law. 7. The Investigations Division may conduct an investigation at the request of any member or employee of the Department who feels threatened, in any substantive manner. Such persons are authorized to report their situation directly to the Support Services Commander without reporting to his/her supervisor. 8. The Investigations Division will conduct fact-finding investigations as directed by the Chief of Police. 9. The Investigations Division will conduct prompt and diligent discrimination investigations that cannot be appropriately addressed at the immediate supervisor level. VCUPD Written Directives Manual 4-8 Administrative Investigations 4
10. The internal affairs function of the Investigations Division shall include the following types of investigations: a. Formal complaints alleging misconduct against a member of the department, b. Allegations or suspicion of criminal conduct by a member of the department, c. Allegations or suspicion of excessive force by a member of the department, d. Any situation in which a citizen has been injured or killed by a member of the department whether on or off duty, e. Serious injury or death of a prisoner during arrest/custody procedure, f. Discharge of a firearm, other than those occurring in a training environment, g. Incidents which may result in litigation against the department, h. Other matters of a serious nature when investigation is requested by the Assistant Chief or the Chief of Police. 11. The Investigations Division shall complete internal investigations as soon as practical from the date of assignment, not exceeding 30 business days, except when the affected commander grants an extension due to extenuating circumstances. Should the investigator require an extension, he/she shall make a request, through channels, to the affected commander who will determine the provisions of the extension. 12. Prepare an annual statistical summary of internal affairs investigations for dissemination to all employees and the public. 13. Review all completed investigations and periodically conduct analyses to determine problem areas and patterns of misconduct and to recommend to the Training Division sergeant, through the Support Services Commander, necessary training to correct any problems noted during such reviews and analyses. SPECIFIC PROCEDURES AND RESPONSIBILITIES A. Investigation and Interviewing of Employees Responsibilities of the Investigator: 1. Notify the affected employee(s) of the investigation as soon it can be reasonably accomplished without compromising the investigation, by completing the Internal Affairs Investigation Notification Form. 2. Complete the Complainant Confirmation letter providing the name and phone number of the investigating supervisor and mail it to the complainant. The employee shall receive a copy of the Report of Alleged Misconduct Form, a copy of the rights available and his/her responsibilities relative to the investigation from the assigned internal affairs investigator. Retain a copy of the letter with the complaint package. VCUPD Written Directives Manual 4-8 Administrative Investigations 5
3. Designate a reasonable time and place to conduct the investigative interview. When practical, it shall be done when the employee under investigation is working his/her normal shift 4. Ensure that interviewing sessions are for reasonable periods that allow for personal necessities and rest periods. 5. Inform the employee of his/her name and rank, the identities of any other individuals present during the interview, and the nature of the investigation. 6. Use Administrative Proceeding Rights Form to notify the employee of the administrative nature of the interview. 7. If the employee asks about legal counsel, advise that employees do not have the right to be represented by legal counsel during interviews designed to gather information for administrative purposes only, but that the employee s attorney may be present to observe only, and that any interference by the attorney will be the responsibility of the employee and will not be allowed. 8. Do not require or request the employee to disclose any item of his/her property, income assets, source(s) of income, debts or personal or domestic expenditures, including those of any member of his/her family or household, unless such information is necessary in investigating a possible conflict of interest, with respect to the performance of his/her official duties, or unless such disclosure is required by law, or unless such information is specifically, directly, and narrowly related to the performance of duty and/or fitness for duty. 9. Require the employee to submit to a medical or laboratory examination, participate in a photo array or be photographed when such activity is specifically, directly, and narrowly related to the performance of duty and/or fitness for duty. 10. Provide periodic, written status reports to the complainant if the investigation exceeds 30 days. These status reports shall be completed every 30 days to keep the complainant informed of the progress of the investigation. 11. Prepare an investigative report using the established format. 12. For complaints assigned to line supervisors, the investigating supervisor shall forward the completed report, through channels, to the affected commander within 30 business days of the receipt of the complaint. If the investigation cannot be completed within thirty days, the assigned investigating supervisor shall send a written request for extension, including the justification for such request, to the commander of the affected division. A. Before beginning work in the Investigations Division, all sworn employees shall be given appropriate training in internal affairs' functions. Such training shall be coordinated through the Training Division. VCUPD Written Directives Manual 4-8 Administrative Investigations 6
B. Any and all records of internal investigations shall be securely maintained to safeguard the confidentiality of all parties to a complaint. To this end: 1. Only the original report and the accompanying documents or materials will be retained and will be secured in a confidential file maintained by the Internal Affairs investigator. 2. No one shall be allowed access to these files without authority from the Chief of Police or the Support Services Captain. 3. Only supervisors of the subject employee will be permitted to review or have knowledge of the investigation. 4. The subject employee is not permitted to review any portion of the report other than his or her own interview while the investigation is still active (Employees requesting a copy of their statement will be directed to the Chief of Police who will cause a copy to be provided). 5. Requests to gain access to materials contained in the Internal Affairs files will be made in writing to the Chief of Police. ADJUDICATION OF COMPLAINTS A. The Chief of Police or designee will adjudicate all investigations, with a final disposition for each allegation classified as one of the following. 1. Founded The allegation is true. 2. Unfounded The allegation is false. 3. Exonerated The act occurred but it was justified, lawful and proper. 4. Unsubstantiated The evidence is not sufficient to prove or disprove the allegation. B. The Investigations Division will send a letter to each employee who has been investigated, advising the disposition of the investigation, within seven (7) days of receipt of the final disposition from the Chief of Police or designee. C. The employee s supervisor will deliver the notification letter to the employee and have the employee sign a duplicate copy. The supervisor will return the copy to the Investigations Division for filing. EMPLOYEE COOPERATION WITH INVESTIGATIONS A. Officers who are the subject of an Internal Affairs investigation shall be afforded all rights granted by Virginia Code 9.1-501- 9.1-507. B. Laboratory Testing, Polygraphs, Medical Examinations, Financial Disclosure Statements and Photographs Employees shall submit to any medical, ballistics, chemical or other tests, photographs, or photo arrays. All procedures carried out under this subsection shall be specifically directed and narrowly related to a VCUPD Written Directives Manual 4-8 Administrative Investigations 7
particular internal investigation being conducted by the department, under the direction of the Chief of Police. 1. An employee may be compelled to submit to a polygraph examination for purposes of an internal investigation concerning allegations of misconduct or criminal activity. a. An employee shall not be ordered to submit to a polygraph exam if he/she is the subject of a criminal investigation. Only if the employee is given Miranda warnings and then consents, should a polygraph be given in a criminal case. b. The complainant and employee will be offered the polygraph equally, and the examination of the complainant will be conducted first, when possible. Such examinations will be conducted by a qualified examiner in accordance with the standards and rules of the American Polygraph Association. c. When an employee is ordered to submit to a polygraph exam, the questions asked must be directly related to the matter under investigation. d. Frequently a citizen complains of abuse by an employee, but there are no witnesses or other outside evidence, and the employee denies the offense. In a situation lacking independent witnesses, there may be no more reason to suspect the employee of lying than to suspect the complainant of doing so. In such cases, it may be unfair to require the employee to submit to a polygraph, unless the complainant is also willing to submit. Just as a criminal suspect may not refuse to give non-testimonial evidence against him/herself, an employee in an internal investigation may be required to give such evidence. The only restriction is that the evidence be related to the particular investigation. 2. Any employee may be required to submit to laboratory testing to resolve an allegation against said employee when such testing is specifically directed and narrowly related to a particular internal affairs investigation being conducted by the department. Laboratory testing may include chemical/quantitative analysis of the employee's blood, breath and/or urine or other body fluids as deemed appropriate within the context of said investigation. Allegations of misconduct which would normally be considered as warranting laboratory testing may include, but are not limited to: a. Allegations of on duty intoxication through use of alcoholic beverages and/or illicit drugs and/or impairment due to ingestion of prescribed medication. b. Allegations of off duty ingestion of illicit drugs. c. Allegations of sexual misconduct relative to an exchange of body fluids. NOTE: In all cases, results of laboratory testing positive or negative will be included in the completed internal affairs investigation report. VCUPD Written Directives Manual 4-8 Administrative Investigations 8
3. Employees may be required to submit to having their photograph taken as part of an internal affairs investigation when such actions are considered material to such investigation. Such instances may include when: a. It is necessary for witness identification that a photograph comparison be conducted. b. A photo array is considered to be beneficial to substantiate or refute specific charges. c. A photograph is considered appropriate to document physical injuries (or absence of injuries) evident immediately following a material allegation. d. Similar incidents when a photograph could be considered as an appropriate means to prove or disprove a specific allegation. e. An employee may be required to submit financial disclosure statements as part of an internal affairs investigation when such disclosure may be considered material and relevant to a particular investigation. Investigations which may warrant financial disclosure include allegations of theft of significant amounts of monies or valuables properties or the use or sale of narcotics. Incidents as deemed appropriate and which would prove or disprove a specific allegation may also require financial disclosure. CRIMINAL OFFENSES A. The Administrative Coordinator and/or investigating supervisor shall immediately report complaints alleging a criminal act to the Chief of Police, Support Services Commander and the affected division commander. B. The Chief of Police will assign a member of the Investigations Division to investigate the alleged criminal offense. C. The Chief of Police shall be kept apprised of the progress of the criminal investigation. When applicable, the Chief of Police will advise the investigator to notify the Commonwealth s Attorney s Office regarding the criminal investigation of an employee. D. The investigator shall notify the Chief of Police when the criminal investigation is complete. The investigator will then conduct any additional administrative investigations. MAINTENANCE OF RECORDS A. The Investigations Division shall maintain reports and records of all internal investigations involving police employees. A consecutively numbered Internal Affairs Register shall be kept as the official record of internal investigations electronically. The register shall include: 1. Investigation number VCUPD Written Directives Manual 4-8 Administrative Investigations 9
2. Date received 3. Name of complainant or requesting authority 4. Name of employee 5. Nature of investigation 6. Name of assigned investigator 7. Date investigation was completed 8. Date returned for filing 9. Disposition B. A comprehensive report shall be prepared on all investigations conducted by the internal affairs investigator. This report shall include: 1. A description of the allegation and the pertinent details surrounding the alleged incident. 2. A description of evidence and other information pertinent to the case. 3. All statements or testimony made by persons involved in the incident. 4. Any documents which may have a bearing on the investigation. 5. An evaluation of the complaint, with a statement pointing out those allegations which can be proven as well as those which cannot be proven and 6. A conclusion of fact. C. After final disposition is reached and appropriate action is taken concerning a complaint or disciplinary investigation, the complete file will be forwarded, through the appropriate chain of command, to the Chief s Office. 1. Upon receipt of the completed file, the written notice shall be forwarded to the Personnel Manager for inclusion in the employee's personnel folder. 2. The retention of internal affairs cases is prescribed in Written Directive 3-6 Records Management and Retention which is based upon the Library of Virginia s Records Retention Schedule. The following retention is applied to internal affairs cases: a. Those not investigated cases (allegations that do not violate policy) currently in file will be retained five years and destroyed. b. Sustained cases will be retained ten years and saved electronically in accordance with Library of Virginia standards. Not sustained, unfounded, and closed exception cases will be retained five years and destroyed. c. All investigations and reports relating to complaints, discharge of firearms, and use of force are prepared, as well, for the express purpose of providing a confidential, factual record that will assist in the defense of civil and administrative litigation involving the department or its personnel, and VCUPD Written Directives Manual 4-8 Administrative Investigations 10
shall be available to the Office of the Attorney General upon the request of the Attorney General or any deputy or assistant Attorney General for this purpose. D. Virginia law permits the Chief of Police to disclose information about a former lawenforcement officer's job performance to a prospective law-enforcement employer. Therefore, information from internal affairs files may be shared with investigators from other law enforcement agencies to assist in background investigations for employment of current and former VCUPD employees. Investigators will be required to provide the Investigations Division with a copy of a signed release from the employee authorizing the release of such information. FORMS A. VCUPD-7 Complainant/Officer Statement B. Report of Alleged Misconduct Form C. Complainant Confirmation Letter D. Administrative Proceeding Rights (Garrity form) E. Internal Affairs Investigation notification memo F. Internal Affairs Log G. Internal Affairs Request memo H. Conclusion of Internal Affairs Investigation letter VCUPD Written Directives Manual 4-8 Administrative Investigations 11