The D.C. Council insists on police reform, but what have they done about it?
By Jeffrey Anderson
More than a month has passed since the world watched in horror as a Minneapolis police officer killed George Floyd by applying lethal pressure to the 46-year-old Black man’s neck while fellow officers stood there and watched.
Even as officials leapt to fire and criminally charge the officers, the streets erupted with cries of “Black Lives Matter” and “Defund The Police.”
Few cities across the nation were spared riotous upheaval, and D.C. was no different.
Seizing the moment to call for what some describe as “sweeping” reform, the D.C. Council leapt to its own action with unanimous passage of emergency legislation that will take months to become final.
Just a couple of weeks later, the Committee on the Judiciary and Public Safety, chaired by Ward 6 Councilmember Charles Allen, produced a convoluted budget submission that shifts resources to non-police aspects of public safety, while somehow trying not to appear as if he was preserving an increase in Mayor Muriel Bowser‘s police budget. (Time will tell if Allen’s maneuvering will affect the size of the 3,800-member force.)
Underscoring his intent, Allen then passed legislation through his committee that would retroactively subject D.C. Police Chief Peter Newsham to “mandatory review” next year to determine whether he gets to keep his job—a move roundly criticized as political theater if not an affront to a police chief who many if not most on the Council think is doing a pretty good job.
In drawing from a laundry list of perennial issues that already have been flagged or implemented, the Council has managed to alienate Newsham and his officers while also failing to mollify the Black Lives Matter protesters and their Antifa cousins who want to dismantle the Metropolitan Police Department (“MPD”).
With the pepper spray dissipated, emergency legislation passed, Newsham placed on notice, and a budget moved out of committee, politicians—and the police—now ready themselves to implement a reform process that inevitably will be spiked with systemic racism and blame-shifting.
Yet how bad do police in D.C. need reforming? How much of what happened in Minneapolis—and what keeps happening in cities around the country—is a reflection of what D.C. residents experience?
That depends on the color of your skin and the neighborhood you live in. But was George Floyd’s death really a wake-up call for a police department plagued by racism and misconduct? Or was it an opportunity for local politicians to address reforms they had been sitting on?
More cynically, was it cause to take redundant measures to fend off the anger of anti-police activists?
It might just be that the D.C. political (and media) establishment always seems to look for simple answers and soundbite narratives to explain complex problems, in this case while failing to look inward, instead projecting onto the police the problems of a city plagued by inequity.
“This is like pacifying people with a knee-jerk reaction, doing something to make it look like you are doing something,” says D.C. activist and entrepreneur Ronald Moten.
A voice of reason when it comes to communities and violence, Moten is not alone in advocating for looking beyond police policies to the root causes of poverty and displacement, if D.C. is to meet the moment.
“It’s a good time to get out the magnifying glass and see what we can do to fix the system,” he says. “But no one is taking responsibility for [social and economic] policies that affect people [in our communities].”
***
In 2016, when former police chief Cathy Lanier announced the end of her 10-year career at the helm of the MPD, Bowser took the safe route and named Newsham, a 30-year veteran who had served as Lanier’s top assistant and chief internal enforcer as her replacement.
The MPD has a troubled history, and Newsham has been around for plenty of it, including a 2001 “Memorandum of Agreement” with the Department of Justice to review use of force incidents that lasted through 2008, and a 2002 mass arrest-and-detention debacle in Pershing Park during an IMF/World Bank protest in 2002.
Newsham has been with the MPD for his entire career, and his accumulated experience up through the ranks has included a heavy emphasis on internal investigations and compliance. (He also is an active member of the Maryland Bar Association since 2000.)
He is regarded as a cop’s cop who is not without his blindspots, but who is well-served by a willingness to connect with communities by showing up—and listening.
“If he tells you he’s going to look into something we tell him about, he does it,” says Moten. “He doesn’t just pass it off to someone who buries it.”
Newsham is not known to be inflexible, but when he feels someone is questioning his judgment—or cutting him off or disrespecting him or his officers—he will fight back.
When he was sworn in on May 2, 2017, calls for reform were muted. Lanier had been a spotlight-hogger and serial hugger who many officers had grown to dislike, but she left behind a professional police department—albeit one that was at war with the union over an unresolved overtime and contract dispute, and a nagging officer retention problem.
In fact, the year before Newsham took over, D.C. Auditor Kathy Patterson had released a contract audit entitled The Durability of Police Reform: The Metropolitan Police Department and Use of Force 2008-2015.
In announcing the results of the 2016 audit, Patterson and Michael R. Bromwich, the independent monitor of the D.C. police from 2002 to 2008, had written an op-ed in the Washington Post in which they wrote, “In large measure, the D.C. police department’s use-of-force policies remain consistent with best practices in policing, and the data show that there has been no surge in any type of use-of-force, including firearms.
“The number of officer-involved shootings has remained low, and there is no evidence that excessive force has reemerged as a problem within the department.”
The MPD did not pass the review with flying colors, however:
“To be sure, the review team’s examination discovered deficiencies,” they continued. “For example, the structure and operations of the department’s Force Investigation Team have changed, and the quality of use-of-force investigations has declined.
“The process for reviewing officer-involved shooting cases by both the department and the U.S. Attorney’s Office needs to be streamlined. And the police department’s internal oversight of its use-of-force practices—as well as external oversight from the offices of the D.C. Auditor and the Inspector General—should be maintained.”
According to Patterson’s 2017 update to that report, released two weeks before Newsham was sworn in, the MPD had fully implemented 15 of the audit’s 38 recommendations and partially implemented 13, and was in the process of implementing five others. (The department disagreed with the other five.)
Among the implemented reforms were: greater detail in Internal Affairs investigations of neck restraints; comprehensive review and revision (if necessary) of use-of-force policies no less than every two years; public and officer access to current MPD policies and communications in a use-of-force investigation; and a detailed plan for administrative investigation of an officer-involved shooting within 30 days of the incident—after referral to the U.S. Attorney’s Office within the first 24-72 hours, except for forensic reports and officer interviews.
“But in the time since that report was issued there have been officer-involved fatalities, and the Office of Police Complaints reported a 2-year 83% increase in uses of force,” Patterson says in an email to District Dig. “These circumstances require oversight, by [the Office of Police Complaints], by the Council’s Judiciary Committee, by my office and by the [Inspector General].”
***
The recent protests and surrounding riots have sparked a new discussion about police reform without examining what is, has been, or should already be in the process of being addressed.
For the most part, the discussion has been reactive and at times emotional, delivered with a healthy dose of political rhetoric and bureaucratic jargon.
Peaceful demonstrations were still under way on June 4, when Allen announced the slate of reforms that he said were overdue:
“The protests to the murders of George Floyd in Minneapolis, Breonna Taylor in Louisville and cruelly countless others are evidence of the immediate need to take action,” he said. “Forceful yet peaceful demonstration has created this moment, and the Council must act to move the cause forward.”
“The Comprehensive Policing and Justice Reform Emergency Amendment Act of 2020” would ban “neck restraints” by police officers, expedite access to police body-worn camera video recordings, and eliminate the police union’s ability to bargain over internal disciplinary procedures. (Allen also introduced “The Chemical Weapon Prohibition Amendment Act of 2020,” which would prohibit police use of tear gas on participants in First Amendment assemblies.)
On June 9, just prior to a Council vote on the bill, Newsham met with his officers and told them he felt that the Council had “abandoned” them.
In an oversight meeting following the bill’s passage, he told Council members that, if anything, his department needs more money to hire good officers and to combat gun violence.
Unfortunately, by then, his comments to his officers, which were made in private, had surfaced in media reports. Allen and At-Large Member Robert White, who is a lawyer and an outspoken opponent of racial profiling by the police, responded with sharp criticism.
“To so thoroughly miss the importance and the necessity of this moment that you use it to divide and get defensive is frightening and sad,” said White.
“The moment of leadership was really missed,” echoed Allen.
In a recent conversation with Newsham, The Dig found that reconciliation is still missing.
“I don’t think anything has changed,” Newsham said, just days before Allen proposed a retroactive performance review of him in 2021.
“I firmly believe having given my entire career to this city and this department that I have remained very open minded to reform. The Council took the political climate to pass what they call ‘sweeping’ reform, but it essentially just codifies rules we created ourselves.
“It strikes me to my core to hear people compare us to Minneapolis,” continued the Chief. “I’m not gonna change my mindset as to [undertaking] police reform, and I am not gonna suggest we are perfect, but I do think that is what we strive for.
“Hopefully they can lay down their swords so we can put this in a better place for a more productive discussion.”
Actually, White doesn’t believe in comparisons to other cities, either, but for a different reason: “Being better than others is not good enough,” says White, whose focus is on disparate treatment by the police of Black citizens. “That’s not the right standard. We are overdue for a reckoning. You can either get with it, or get out of the way.”
The comparisons to other jurisdictions are inevitable, however, and according to Newsham, two things came out of the Floyd killing: The Minneapolis Police Department “clearly” did not have sufficient rules prohibiting the obstruction of airways through chokeholds, whereas D.C. law already prohibits them, and restricts what are known as “carotid artery restraints.”
“And we are ahead of the curve with regard to our duty to intervene if an officer is using a prohibited tactic,” says Newsham.
He’s right. The District has banned chokeholds since 1985. The D.C. Code, Section 5-125.01, declares that “the use of restraints generally known as chokeholds by law enforcement officers constitutes the use of lethal force, and that unrestricted use-of-force presents an unnecessary danger to the public.”
In delineating the varying use-of-force techniques, the Council intended to specify permissible restraint procedures and classify a chokehold as a service weapon, the statute indicates.
Section 5-125.02 defines tactical maneuvers such as a “trachea hold,” “arm bar hold,” or “bar-arm hold,” as “any weaponless technique or any technique using the officer’s arm, a long or short police baton, or a flashlight or other firm object” to press on a person’s trachea or front of their neck to control, disable or render them unconscious by blocking air through their windpipe.
A “carotid artery hold,” “sleeper hold,” or “v hold,” on the other hand, pertains to “any weaponless technique” used to disable a person by pressing on the carotid artery, jugular vein or the sides of their neck to control their movement or render them unconscious by “constricting the flow of blood to and from the brain.”
It all sounds grisly, but the upshot is this: D.C. law already prohibits trachea holds under any circumstances, and carotid artery holds are prohibited except when lethal force is necessary to control or subdue an individual so as to protect the life of a civilian or a law enforcement officer, according to Section 5-125.03.
Even when a neck restraint is permissible, numerous training procedures and requirements for emergency medical treatment, resuscitation and hospital transports are in place, along with fines and penalties for violations.
But as with many aspects of policing, the difference between life or death, and lawful or unlawful, can come down to a matter of degree in terms of training, experience, judgment, and perhaps skill, if not luck.
Not surprisingly, use-of-force is where many police departments struggle. In its most recent report, the Office of Police Complaints found that “a significant increase in use-of-force incidents is concerning, and something the Council should be tracking.”
This is not news to Allen and the Judiciary Committee: The report is dated 2019, and is more than a year old.
***
So what happens when an officer is accused of violating or failing to comply with one of these laws or policies?
The Collective Bargaining Agreement (“CBA”) between the MPD and its union members spells out disciplinary procedures that historically have been contentious, drawn out and time consuming. In addition to promoting public safety and adherence to the law and procedures, careers and reputations are on the line.
The current CBA is due to expire in September, so the Council and the MPD have a chance to calibrate labor-management negotiations with Council reforms, once the latter become final.
But under Allen’s legislation, future contracts “should not be used to shield employees from accountability, particularly those employees who have as much power as police officers,” and must not “restrict management’s right to discipline sworn officers.”
Under the new law, discipline will no longer be negotiable, and the police union will be powerless in determining rules that could affect their livelihoods.
Newsham, in standing up for his officers, says the city should not treat police any differently than any of its other 27,000 employees: “That’s extreme, you’re talking about allowing the department to fire officers at all levels, and to do that on an emergency or quasi-emergency basis, in the District of Columbia? That’s nonsensical. To go to that extreme without input from the community and the labor union, it’s authoritarian.”
One government official called the discipline proposal “stupid, mindless.” If any changes to the way the department handles disciplinary action against its officers are not included in the CBA, “then it’s not gonna happen.”
The requirement that police body-worn cameras and the names of officers be released to the public within 72 hours of an alleged use of excessive force is equally unfair, says Newsham. “If a police officer fills out a police report after the release of body camera footage and the footage is inconsistent with the report, then the judge is going to say that officer is not credible and it is gonna ruin that officer’s career,” he says. (Fraternal Order of Police Chairman Gregg Pemberton declined to speak to The Dig for this story.)
“When someone has been in a trauma situation their recollection is going to be affected,” Newsham says. “To hold officers to a standard that most human beings can’t meet, with the possibility of destroying a career is wrong.”
Asked what is a reasonable time frame for release of camera footage, Newsham did not have anything specific in mind, but said, “I’m open to dialogue on any of these issues.”
Again, the need to reform police body-worn camera policies and implementation is no revelation for the Council. Last fall, Allen’s committee held a five-hour hearing on the matter, but did not take any action until after a man was choked to death in Minneapolis.
One Council source said the political will to take up the issue was just not there, partially in light of pressing matters such as the Jack Evans corruption scandal.
If that seems like a lame excuse, consider that it could take another seven months to work out a cogent policy that has buy-in from Newsham and his officers.
Meantime, government sources say that the MPD has taken what is supposed to be a preemptive incentive to do a good job and turned it into a way to hide what officers are doing—or into something else to fight over.
Ward 3 Councilmember Mary Cheh, a constitutional law professor at George Washington University, sees officer review and the timing of that review as worth debating, and notes that in some cases the footage never gets released.
She also sees a potential problem with compromising internal investigations. “The 72-hours may be excessive,” says Cheh, adding that police have no problem with release of camera footage from interrogation rooms that reveal inconsistent statements by crime suspects or witnesses.
Transparency is a controversial topic. The MPD has some restrictive viewing policies, and Freedom of Information Act requests can drag on for weeks or months. Typically, the department denies release of camera footage during open investigations.
Yet the mayor could make videos public in cases of public interest or outrage, and she has done so at least four times since 2014.
Patterson, a former journalist, says release of video within 72 hours of an officer-involved fatality is more consistent with the original intent of transparency than the current MPD rules.
“Remember I’m an ex-reporter,” she writes in an email. “I’d put all the film on a website the next day–so you and I can see how Officer Jones spent his or her day. Body-worn cameras were all about transparency and promoting good police work before the fact, including interactions with the public…
“Obviously there are privacy concerns, but privacy attaches to the citizens and their homes, not to the public servants and how they spend their time in public.”
A June 6 letter to Allen from Thomas Susman, president of the D.C. Open Government Coalition raises similar concerns.
“The draft bill adds a welcome new requirement that the Mayor shall release [body-worn camera] video within 72 hours in cases of officer-involved death or serious use-of-force, and MPD shall within 24 hours respond to Council requests for body-worn camera video.
“We testified at the fall [body-worn camera] oversight roundtable about the community’s need for wider access to [body-worn camera] video and the Mayor’s failure to exercise her discretionary authority to meet that need. Others in the community have been frustrated at lack of access for other reasons.”
The Coalition makes several other recommendations, some of which could receive pushback from Newsham and his officers, including:
Overturning the MPD’s policy of redacting faces and identifications of civilians and uniformed officers (and passing cars);
Reducing delays and costs of video footage via the Freedom of Information Act;
Releasing video to any subject who along with their attorney requests it, and removing the requirement that they review it at the police station;
Ending the practice of claiming investigative exemptions when responding to requests for release of investigation records where the charge is serious misconduct. (Exemptions for withholding records in a pending investigation to protect the process and ensure fair adjudication would still apply);
Adding civilians to the MPD Use of Force Review Board, expanding the number of community members on the Police Officers Standards and Training Board, and designating the boards as public bodies subject to the Open Meetings Act.
***
Newsham says he is open to discussing the reforms the Council has in mind, but he did not appreciate it when Allen cut him off during the budget oversight hearing last month—something that he has never seen happen in the middle of a budget hearing.
“That says to me that Charles had his mind made up and didn’t want to hear from the department,” Newsham says. “We all gotta listen. I gotta listen. We can’t just unilaterally change the law like that.
“If the Council wants to make a statement, that’s appropriate, if we are going to codify some changes we have agreed to. He said ‘this is my opportunity to get some things done.’ Well, there are a lot of issues where we have common ground. But to go to extremes, it’s ridiculous.”
Allen’s reform bill is in effect for 90 days from the date it was passed, and can be extended to 225 days with a second vote. In order for it to become permanent, the Council would have to hold public hearings and take another vote.
He could probably use the time and space, having declared that, the District needs “to completely and radically rethink the way in which we deliver public safety.”
That declaration, along with the cries from activists around the country to “Defund The Police,” have turned the temperature up on Newsham and the Council, as Allen and White continue to craft reform policy. (The full Council will review Allen’s police budget bill tomorrow.)
White says he is intent on not letting an opportunity for change—and for a commitment to racial equity—go to waste.
“No one was ready for this moment, when non-Black people ‘get it,’ and so we have to be ready with a plan,” he says. “We’ve seen non-policing [advancements] in places like Portland, Eugene (Oregon) and San Francisco, and we know that it can be done.
“But we haven’t yet taken significant steps in a different direction on law enforcement philosophy that this moment demands. So nationally and locally we can’t let ourselves off the hook if all we undertake is police reform.”
Why do city employees with guns need exclusive jurisdiction over drivers who run red lights? White asks, pointing to a police function he would like to see re-examined. Why do city employees with guns need to respond to public intoxication? Why do city employees with guns need to respond to kids who hopped a playground fence to play?
“As you keep asking these questions, you realize the list starts to become long. And the answer is not ‘that’s how it’s always been.’”
White worries about the impacts of a traditional police-centric approach to public safety on today’s youth, in light of what they are experiencing and witnessing in their own lives, and watching on TV and YouTube.
“What impact do these things have? Will kids in our communities grow up with a deep respect for law enforcement? Probably not. Do those policies have an impact on public safety? Probably so. But will those kids grow up believing that law enforcement protects them?
“There is a real struggle with fear of the police that folks have minimized and then used to blame those who harbor fear and apprehension for feeling that way. And the divide widens.”
Allen and White have their hands full as they navigate that divide. For the most part, their colleagues appear content to let them pull the laboring oar. Few have done much to move the needle on the systemic factors that result in challenges to law enforcement. Some are at cross purposes with Bowser.
In 2015, Ward 5 Member Kenyan McDuffie authored “landmark criminal justice reform legislation” aimed at “bringing a public health approach to crime prevention in D.C., addressing root causes and getting residents real services, not simply more law enforcement.”
Yet the Neighborhood Engagement Achieves Results Act (“NEAR Act”), enacted and funded for more than two years now, has no current ability to demonstrate comprehensive results. (A notable exception is the release of data earlier this year on racial disparities in police stops and searches, which showed that Black people make up 46.5% of the D.C. population, yet accounted for 72% of the people stopped, according to an analysis by the ACLU. In addition, the analysis showed that 88.6% of the youth under 18 who were stopped were Black.)
McDuffie is a former chair of the Judiciary Committee. Yet aside from the NEAR Act—a good step that has yet to show real results—his contribution to police reform has been marginal. And Bowser is now cutting funds from one of the core functions of his signature legislation, the “Cure the Streets” initiative, which funds “violence interrupters.” McDuffie did not respond to questions from The Dig.
Ward 7 Councilmember Vince Gray, who has advocated for years—unsuccessfully—for more police, and At-Large Member Anita Bonds proposed a commission to study police reform and make recommendations later this year, an offering that met with neither interest nor objection.
Gray also chairs the Committee on Health. Council sources say they have yet to see anything constructive come out of his committee that would advance the NEAR Act’s broader goals. Neither he nor Bonds, both of whom serve on the Judiciary Committee, responded to questions.
Ward 8 Member Trayon White, whose ward experiences a disproportionate amount of violent crime, has been all but a passive observer to the debate. He did not respond to questions.
Cheh, who serves on the Judiciary Committee, sees the legislation as a “hodgepodge of things that might make the police better,” but says some of it includes things the department is already doing, like requiring officer names on their uniforms, and prohibiting chokeholds.
“Defund The Police” doesn’t resonate with her, Cheh says, and as for reforms such as shifting responsibilities for dealing with behavioral health issues and policing the schools, “We can right-size that.”
The Committee on Education recently voted to take over management of the private security contract it had been paying the MPD to oversee, for instance. And traffic control and crime scene investigations were already moved out of the MPD to the Department of Transportation and Department of Forensic Sciences, respectively, further relieving the police of ancillary duties, says Patterson.
Given the swift and breathless response to the horrendous violence seen in other cities—and entrenched issues it has known about for years—the Council’s path forward does not get any easier from here.
“There is a need for ongoing and persistent civilian review of police practices,” says Patterson, who chaired the Judiciary Committee for four years and authored three of the statutes the Allen emergency amends. “Always, here and elsewhere. Police reform is never one-and-done.”
*This post has been updated.
**As The Dig was finalizing this story for publication, Councilmember Allen made some “tweaks” to his legislation to reflect input from Mayor Bowser and his Council colleagues. The Council will vote on those “tweaks” on Thursday. They include:
Extending the required time for release of police body-worn camera recordings under certain circumstances from 72 hours to 5 business days.
Providing that an MPD applicant is ineligible for appointment as a sworn officer if another agency has determined the officer has committed serious misconduct.
Limiting the creation of a statutory standard for the use of force to only deadly force, rather than deadly and non-deadly force.
