EmPac Texas

Shielded from Justice: Who Polices the Houston Police?

by Gregory Montelaro on 24/01/11 at 6:26 pm

This is the first in a three part investigative series exposing how the citizens of Houston, the fourth largest city in America, lost oversight of its police.   Project 143 explores a police department unresponsive to citizen complaints and unaccountable to the public it serves.   To understand how we got here requires a little background in state law, specifically Texas Local Government Code Chapter 143, originally conceived of by Texas citizens to protect police from politicians.  The idea being that a police force free from the changing winds of politics attracts qualified officers better able to protect the communities they serve.

Houston, like dozens of other Texas cities, operates under Chapter 143 of the Texas Local Government Code.  After progressives implemented civil service reforms under Chapter 143 in the 1940s and 1950s,  Houston voted to adopt Chapter 143 as a mechanism to protect public servants against machine politics.

In the early 1970s, the legislature passed the state’s open records law, which opened up internal affairs records of police departments to public scrutiny. But in 1989, police associations succeeded in convincing the state legislature to pass an exemption to the open records law for Chapter 143 cities.

That code puts a veil of secrecy on all internal police investigations that result in anything less than a one-day suspension allowing Houston to hide many of their internal affairs records from public view.

The Houston Police Department’s Internal Affairs Division (“IAD”) was created in 1977 with the mandate to investigate allegations of misconduct against employees of the Department.  IAD is a fact finding entity and operates as an administrative procedure as defined by Chapter 143.

In effect, IAD functions much like a human resource department in a typical company; passing on to department heads the every-day and often mundane procedural violations like an ‘at fault’ minor car wreck or not completing a report on time.  Those more serious allegations of criminal misconduct are investigated directly by IAD.

IAD’s mandate to investigate allegations of police misconduct places the department and its employees in a unique position.  IAD is charged with the protection of the public from those officers who violate the public trust.

HPD’s web site breaks this responsibility down a bit more. “The public has a right to receive fair, efficient and impartial law enforcement.  Any misconduct by department personnel must first be detected, then thoroughly investigated and finally, properly adjudicated to assure the maintenance of these qualities.”

Allegations – The Citizen Becomes the Adversary

Through a well defined pattern and practice, citizens are intentionally given inaccurate information regarding the IAD process.  They are given incorrect legal advice by employees in IAD’s Central Intake Office and other IAD employees,  employees in IAD conceal information from citizens regarding the methods available by which a complaint may be filed.

These employees are not attorneys and the incorrect legal advice can, and often does, effect the rights of the citizen.  The citizen is setup by IAD to be the adversary in the complaint process.

In what can only be an intentional and ongoing pattern instituted in the chain of command, HPD publishes and disseminates forms, instructions and publications specific to filing IAD complaints that are contrary to state law.  These actions not only shield the officer complained of from criminal prosecution, but also insures that bad officers will continue to act with impunity.

Demonstrating the Pattern

In order to demonstrate what is clearly a violation of the public trust and an  intentional pattern or practice by HPD, you’ll need to have a copy of Texas Local Government Code Chapter 143 Section 123.  This is the section of state law that deals with the internal investigation of fire-fighters and police officers in Houston.  For right now, we’re only interested in the two sentences underlined on page two.  Printing a quick copy might make it easier to reference as we move forward.

Minus all the legalese, the first sentence simply states that before IAD can interrogate an officer, a complaint needs to be verified in front of a notary.

The second sentence simply states that IAD can accept and act on an anonymous complaint.  The significance of these two points will soon become clear as you use this document to reference below.

We begin with the police department’s web site, specifically HPD’s internet site for the Internal Affairs Division.  Locate the section titled, “How Do I Make A Complaint”.

This section begins by stating that “State law requires that complaints involving police officers be sworn under oath and notarized.”   This section additionally offers the public a down-loadable complaint form called, “Complaint Sworn Affidavit.”

Both the statement and down-loadable affidavit form are inconsistent with state law.  HPD misstates the law and improperly instructs the public that complaints must be “sworn under oath and notarized.”

HPD deliberately deceives the public and the statement is an outright fabrication.   Chapter 143.123(f) contains specific considerations that establish a specific right and mode by which a citizen may file an anonymous complaint against an officer without having to sign a sworn or verified document.

As state law addresses the non-anonymous complainant, Chapter 143.123(f) requires a verified complaint, not a sworn affidavit.

The differences between a verified statement and a sworn affidavit are not trivial and can affect certain rights of the individual giving the statement.  To better explain the differences between the two we turn to the most commonly cited authority, The Texas Court of Appeals in El Paso in the 2006 case, Andrews v. Stanton.

A verified statement is a statement that the person signing knows to be true or has good reason to believe.

A sworn affidavit is statutorily defined by state law as a written statement of facts, each of which is within the personal knowledge of the affieant, made while under oath and verified by a notary public.

To help us answer the question of why HPD would act contrary to the very state law they are sworn to enforce, we turned to the litigation arm of the American Civil Liberties Union.  What we learned is that without careful legal scrutiny in its construction, meeting the statutory requirements of a sworn affidavit can be uniquely challenging.  Without satisfying the basic requirements of personal knowledge, straying to hearsay, stating conclusions based on beliefs or drawing conclusions unsupported by evidence, the affidavit would be insufficient and no longer able to support the complaint.

The obvious advantage of an affidavit insufficient to support a complaint goes to the officer complained of at the expense of the citizen.

What begins to emerge is HPD’s pattern of ignoring state law and the training of department employees in direct conflict with the very statutes they are charged with enforcing.

EmPac Texas placed 14 telephone calls to IAD from August 2010 to December 2010 to obtain information regarding how to file a complaint involving an officer.  In every call, without exception, our staff was told that complaints must be sworn under oath and made in writing before an officer who was authorized by law to take the complaint under oath.  Without exception our staff was told that state law prohibits anonymous complaints.

In a letter from Internal Affairs/Central Intake Office dated September 2010, it becomes clear that what we are seeing is a systematic pattern of acting contrary to state law sanctioned by the chain of command.  Oddly, this letter was written to the author of a report submitted to HPD regarding IAD’s failure in controlling retribution by officers against citizens who file IAD complaints.  IAD was apparently forwarded a copy of the report by one of the recipients.

This letter actually gives incorrect legal advice based on a conclusion drawn by misstating the law.   To understand how far HPD has drifted from the laws the Legislature instructed them to enforce, quickly re-read the two underlined sentences from Chapter 143.123(f) that you printed earlier and compare them with the second sentence in this letter which begins, “We regret to inform you…”

This letter states three separate times that without a sworn notarized written statement, the complaint will not be “effectively investigated.”  Without comment on what could be expected from an ineffective investigation, the letter mentions that a “blank affidavit packet” has been enclosed; presumably in case the reader missed every other references in the letter.

Taken together, these examples demonstrate a distinct pattern or practice designed to shield misconduct by officers at the expense of citizens.  It would be impossible for this pattern to continue had it not been intentional and purposely maintained by the chain of command.

Executive Assistant Chief Michael Dirden is the strongest and certainly the most vocal supporter of IAD.  Chief Dirden is on the record in City Council chambers and other forums confirming and supporting the fabrication that state law requires of citizens a sworn affidavit to file an IAD complaint.  Further, IAD falls under Chief Dirden in HPD’s organizational structure.  Spend a little time with his resume and you come to understand that not only is Chief Dirden an impressively qualified officer, but also that the pattern or practice under which IAD operates could not be in place without his direct knowledge and approval.

As an attorney, Chief Dirden is in the unique position to both understand the law as well as direct its proper enforcement.   Contrary to his position and that of HPD, there are two methods by which citizens may file a complaint involving a police officer defined by Chapter 143.123(f) – one of them being anonymous.  The language in Chapter 143.123(f) addressing this very question is clear and unambiguous requiring no query into the legislative intent.   When the Legislature creates a right and the mode of its execution, then that mode is mandatory and exclusive.

Chief Dirden and those police officers in the chain of command answerable for the operations of IAD, by acting to deprive the citizens of Houston of certain rights under the color of law, have usurped the power of the Legislature.   The result is a complete dereliction of duty and a pattern or practice that denies citizens the right to file an anonymous complaint involving a police officer and restricts a citizens right to a full and free expression in officer involved complaints by requiring the use of a more structured legal process and form than that defined by statute.

Acting under the color of law, the Houston Police Department fosters a pattern or practice designed to remove the public’s ability to hold its officers  accountable for their behavior.   The result benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.

After the progressive reforms of the 1940s and 1950s, the city of Houston adopted Chapter 143 of the Texas Local Government Code specifically to protect our police officers from the the arbitrary actions of machine politics.  For HPD to now use that very same Chapter as a mechanism to remove citizen’s rights is a heinous betrayal of the public trust.