EmPac Texas

Part II: Shielded from Justice: Who Polices the Houston Police?

by Gregory Montelaro on 12/02/11 at 1:27 pm

Shortly after Project 143 began this series, the city of Houston experienced first hand the predictable results of a police force unaccountable to the citizens with the public release of the Chad Holly tape.   The bottom line is that the Houston Police Department lacks effective public accountability and transparency (open and public sharing of information and documentation) and has repeatedly failed to appropriately respond to officers who have committed such violations.

The Report Regarding the Failure of IAD in Preventing Officer Retribution offers frighting insight into police retaliation against citizens of Houston for filing complaints with HPD’s Internal Affairs.  It is also further evidence that this behavior is part of a pattern or practice instituted in the chain of command of the Houston Police Department.

Project 143 has obtained a series of recorded telephone conversations where both HPD’s command staff and Internal Affairs staff are clearly heard refusing to take any action to stop off-duty officers retaliating against citizens who had filed complaints.  The frightened citizens are told that there is nothing that can be done to help them.  These recordings will be featured in part 3 of this series.

Houston officials greet each new public exposure of police misconduct by attempting to explain that the conduct is not representative of the entire department while at the same time, the administrative and criminal systems that should deter these abuses by holding officers accountable instead virtually guarantee them impunity.

Houston, like dozens of other Texas cities, operates under Chapter 143 of the Texas Local Government Code.  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 most of their internal affairs records from public view.  In effect, citizen complaints against officers can and do get buried behind a veil of secrecy.

The only citizen oversight in this process is limited to a handful of administrative investigations.  The Citizens’ Review Committee is comprised of citizens selected by the Mayor to review only those internal police investigations that meet specific criteria:

• Excessive Force
• Discharge of Firearms
• Incidents resulting in serious bodily injury or death
• Any other investigations requested and approved for review by the Chief of Police

The Committee’s purpose is to review these specific internal investigations to determine if the investigation was sufficient, the conclusions correct and that proper discipline is issued.  However, the Chief of Police has the final authority in all cases thus relegating the Committee to reviewing only those cases that HPD decides to let them review and who’s recommendations, in the end, mean nothing.

In fact, when the Houston Police Department reported their internal investigations procedure to the United States Justice Department, they did not even bother to include the Citizen’s Review Committee in any part of the process.

Citizen oversight without authority is nothing more than observation.

Not only is there an official unwillingness to deal seriously with officers who commit abuses, but there also appears to be interference and at times, actual manipulation of internal investigations by command officers.

In May of 2005, the Houston Chronicle reported an assistant chief interfering in an investigation that eventually resulted in a federal jury award of $600,000 against the city.    A former IAD officer agreed that command officials have interfered in internal investigations.  The Houston Chronicle reported another former internal affairs investigator saying, “I saw investigations get manipulated.”

What has evolved is a police department answerable only to itself and unaccountable to the citizens.  It is inherently dangerous to consolidate unchecked police power over citizens because of its tendency or certainty of corruption by full authority.

The result for Houston was probably best summed up by a Houston City Council member on February 9th when she said that it appears that filing a complaint gets you nowhere unless you have a video tape as evidence.

The Futility of a Citizen Complaint

To better understand the futility of a citizen’s complaint against a Houston police officer you’ll need a copy of Texas Local Government Code Chapter 143.123.   This is the section of state law that deals with the internal investigation of police officers in Houston.  For right now we’re only interested in the two underlined sections.

If you look on page 3 you’ll find a paragraph (k) which states:

If the department head or any investigator violates any of the provisions of this section while conducting an investigation, the municipality shall reverse any punitive action taken pursuant to the investigation including a reprimand, and any information obtained during the investigation shall be specifically excluded from introduction into evidence in any proceeding against the fire fighter or police officer.

Now, before we move any further, let’s take a look at the “Complaint Sworn Affidavit” provided by HPD’s web site and Internal Affairs as the citizen’s complaint form.

This is the same form we discussed in part 1 of this series.  If you look about a third the way down the first page you’ll see a section typed in bold capital text.  That section actually quotes the underlined section on page 2 of the local government code we looked at above.

In effect, as part of your sworn affidavit you acknowledge that you are not filing the correct type of statement state law requires prior to interrogating an officer based on your complaint.  State law requires a verified statement, not an affidavit. As we discussed in part 1, the differences between these two documents is not trivial.

The absence of a verified statement (or an improperly drafted sworn affidavit containing statements insufficient to support the complaint) during the interrogation of the officer equates to a violation of the procedures by the investigator according to paragraph (k) we looked at above.

That violation effectively concludes the complaint in the officer’s favor and “any information obtained during the investigation shall be specifically excluded from introduction into evidence in any proceeding against the … police officer.” 

The complaint form used by HPD is self defeating.

The Texas Court of Appeals in Tyler gives the cleanest summary of the application of paragraph (k) in their opinion in a Houston case (Nuchia v. Tippy):

The record discloses the City [Houston] failed to comply with Local Government Code Chapter 143.123 Subsection (E) and such failure, in accordance with Subsection (K) thereof, requires the exclusion of any information obtained during the investigation.   Therefore the City’s evidence against Officer Tippy has been rejected and in the absence of such evidence the charges against Officer Tippy must be held not to be true.

This case and a number of others demonstrate that officers fired for serious misconduct can often use the provisions of Chapter 143 to win their jobs back using the appeals and arbitration process.

Part 3 of Project 143 explores the discriminatory practices of IAD and how Internal Affairs data recently made available to the public can offer insight into how citizen’s complaints have been managed historically as well as provide the first step to much needed transparency.   Additionally, EmPac Texas will be publishing a number of opinion columns, editorials and interviews covering a few of the other topics from our upcoming final installment of Project 143.