(a) Agencies should ensure that individuals both outside and inside the agencies are treated in a fair and impartial manner, and are given voice in the decisions that affect them.
(b) Agencies and officers should be truthful in their interactions with the public, with other government officials, and with the courts.
a. Promoting legitimacy, generally. As discussed throughout this Chapter, agencies and officers can promote police legitimacy in various ways: by upholding the law and bringing violators to justice (§ 1.02), by respecting constitutional rights (§ 1.03), by reducing the harm that policing can impose (§ 1.04), by being transparent and accountable to their communities (§ 1.05), by strengthening community partnerships (§ 1.08), and by involving community members in decisions around policing policies and practices (§ 1.06). The principles in this Section outline additional steps that agencies and individual officers can take in their interactions with members of the public, as well as internally with one another, to ensure that individuals perceive the law, as well as those who enforce it, to be fair and just.
b. Promoting legitimacy through interactions with the public. Studies of procedural justice have shown that individuals are more likely to comply with the law and cooperate with legal authorities such as police when they perceive the law and authorities to be fair and just. This research demonstrates that the public generally cares more about whether they are treated in a way they perceive to be fair than whether the ultimate outcome of a decision or interaction favors them. Thus, treating individuals in ways that are consistent with procedural justice––that people consider to be fair and impartial––can build trust and legitimacy, encourage community members to cooperate with policing officials, and increase public compliance with the law.
Policing officials should treat members of the public with courtesy and respect and carry out their duties in an unbiased manner. When conducting a traffic or a pedestrian stop, officers generally should explain the reason for the stop, and give individuals an opportunity to explain their conduct before taking further enforcement action. Even small adjustments to officer behavior can have a large impact on the way members of the public perceive the police.
c. Promoting internal legitimacy. Agencies should apply these same principles to the officers who work inside the agencies. Agencies should ensure that internal procedures around performance evaluation, promotion, and discipline are transparent and fair. Agency officials also should take the time to explain the reasons behind various agency policies, and ensure that officers and their representatives are given an opportunity to participate in decisions that affect them. Internal procedural justice can increase compliance with agency rules, policies, and procedures, and encourages officials to practice procedural justice in their interactions with the public.
d. Truthfulness. Policing agencies should be truthful in all of their interactions with the public and with other government agencies, and should develop policies and procedures to ensure that officers do the same. Agencies should take special care to ensure that officers are truthful in their testimony in court or in the course of disciplinary proceedings, and hold officers accountable whenever it becomes apparent that they have not been. There unfortunately have been countless examples of officers giving misleading or false testimony in court—so common that officers themselves coined the term “testilying” to describe the phenomenon. A lack of truthfulness, particularly in the course of legal proceedings, poses a threat not only to agency legitimacy but also to the rule of law, and must be actively discouraged.
1. Internal and external legitimacy. Agencies should incorporate principles of procedural justice both internally within the department and externally with the communities they serve. Procedural justice is based on the notion that individuals are more likely to comply with the law when they perceive it to be just. See Tracey L. Meares & Peter Neyroud, Rightful Policing 5, Nat’l Inst. of Justice (2015); see also Stephen J. Schulhofer et al., American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative, 101 J. Crim. L. & Criminology 335, 344-345 (2011); Lorraine Mazerolle et al., Legitimacy in Policing: A Systematic Review (2013). Obtaining this legitimacy requires more than simply adhering to the law. Meares & Neyroud, Rightful Policing, supra, at 6. Extensive research demonstrates that when members of the public evaluate their interactions with police officers—for example in the context of a traffic stop or other enforcement action—their perceptions depend at least as much on whether they believe they were treated fairly as on the outcome of the interaction. See Tom R. Tyler & Yuen J. Huo, Trust in the Law: Encouraging Cooperation with the Police and the Law53 (2002); Schulhofer et al., supra, at 346 & n.51 (citing studies); Meares & Neyroud, Rightful Policing, supra, at 5-6; Tracey Meares et al., Lawful or Fair? How Cops and Laypeople Perceive Good Policing, 105 J. Crim. Law & Criminology 297 (2015).
There are four key principles behind procedural justice: fairness, voice, transparency, and trustworthiness. President’s Task Force on 21st Century Policing: Final Report 10 (2015). In applying these principles to their dealings with community members, policing officials should strive to treat individuals courteously and respectfully, to give individuals an opportunity to explain their situations before taking action, and to carry out their duties in an unbiased and consistent fashion. Schulhofer et al., supra, at 346. Procedural justice requires not only that officials abide by these principles during their encounters with individuals, but that they strive to act fairly when making the initial decision of whether or not to engage with a particular person. Meares & Neyroud, Rightful Policing, supra, at 5. Officials should recognize the existence of human biases—both explicit and implicit—and work to mitigate their influence. President’s Task Force, supra, at 10. An increasing number of policing agencies have incorporated principles of external procedural justice into officer training and evaluation. For example, the Washington State Criminal Justice Training Commission has developed a new training curriculum around the “L.E.E.D. Model” (which stands for “Listen and Explain with Equity and Dignity”), which teaches officers to integrate the four pillars of procedural justice into all citizen encounters.
Internal procedural justice requires that agencies involve employees, officers, and civilians alike in formulating organizational values and disciplinary procedures, promotional decisions, and performance management. See Community Oriented Policing Services, U.S. Dep’t of Justice, Comprehensive Law Enforcement Review: Procedural Justice and Legitimacy Summary 2 (2014). It also requires that agency rules, policies, and procedures be clear, transparent, grounded in organizational values, and developed in partnership with officers. President’s Task Force, supra, at 14. By practicing the principles of procedural justice within the department, supervisors can increase officer compliance with agency rules, policies, and procedures and encourage officers to adopt the values of procedural justice in their interactions with the public. Research suggests that officers who feel like their supervisors treat them fairly are more likely to abide by policy and voluntarily comply. See Nicole Haas et al., Explaining Officer Compliance: The Importance of Procedural Justice and Trust Inside a Police Organization, Community Oriented Policing Services, U.S. Dep’t of Justice (2015). Research also has demonstrated that employees who themselves feel respected by their supervisors are more likely to support external procedural-justice programs. See Wesley G. Skogan & Susan M. Hartnett, Community Policing, Chicago Style (1999); Ben Bradford & Paul Quinton, Self-Legitimacy, Police Culture and Support for Democratic Policing in an English Constabulary, 54 Brit. J. of Criminology 1023 (2014).
Many police departments already demonstrate commitment to internal procedural-justice principles. For example, the Kansas City Police Department has an established process for conducting internal audits, and shares those audits publicly. See Kansas City Police Dep’t, Internal Audit Unit, http://kcmo.gov/police/audit/. Further, the Minneapolis Police Department’s “goals and metrics” program requires formal monthly conversations between supervisors and officers to review both the officers’ and the supervisors’ performance. See Shannon Branly et al., Implementing a Comprehensive Performance Management Approach in Community Policing Organizations: An Executive Guidebook 39-40 (2015).
2. Truthfulness. Agencies also should ensure that they and their officers are truthful in all of their interactions, both internally within the agency, and externally with the public and the courts. Doing so is important for preserving not only the agency’s legitimacy, but also the legitimacy of the criminal-justice system as a whole. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835, 870-871 (2008).
Over the years, studies and reports have pointed to a variety of practices that threaten agency credibility and undermine public trust. Many, for example, have expressed concern about the prevalence of “testilying”—giving false or misleading testimony in court in order to avoid the suppression of evidence or civil liability. Capers, supra at 868-869; Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75, 107 (1992) (surveying judges and prosecutors in Chicago criminal court and estimating that officers gave false testimony about 20 percent of the time). Others have pointed to the “code of silence” that encourages officers to cover up for colleagues who engage in misconduct. See, e.g., Aziz Z. Huq & Richard H. McAdams, Litigating the Blue Wall of Silence, 2016 U. Chicago Legal Forum 213 (describing the phenomenon); U.S. Department of Justice, Investigation of the Chicago Police Department 75 (2017) (citing numerous instances of officers lying in official reports, and concluding that “a code of silence exists, and . . . is apparently strong enough to incite officers to lie even when they have little to lose by telling the truth.”). Still others have noted lack of candor on the part of agencies themselves—particularly around the use of surveillance technologies. See, e.g., U.S. House Committee on Oversight and Reform, Law Enforcement Use of Cell-Site Simulation Technologies (2016) (criticizing the Federal Bureau of Investigation’s use of nondisclosure agreements to prohibit local law-enforcement agencies from disclosing to courts or defense attorneys when a cell-site simulator—or “Stingray”—was used to locate a suspect in the course of a criminal investigation); Kim Zetter, “Emails Show Feds Asking Florida Cops to Deceive Judges,” Wired (June 19, 2014) (quoting emails between two Florida law-enforcement agencies discussing instructions from the U.S. Marshals Service to describe location information acquired using a Stingray as having been obtained from “a confidential source”). Agencies can promote truthfulness in various ways. For example, as discussed in greater detail in Chapter 13, agencies should make clear that officers have a duty of candor and should hold officers accountable for any false or misleading statements provided in official reports or in the course of internal investigations. See § 13.07 (Responding to Allegations of Misconduct). Most department policy manuals already make clear that officers and employees “shall be truthful in all matters relating to their duties.” San Diego Police Department Policy Manual § 9.29. Agencies also should keep track of instances in which an officer’s testimony has been deemed non-credible by prosecutors or courts. See also Chapter 14 on external agency accountability.