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FCPD says expanded oversight not needed, still working on foot pursuit policy

Fairfax County Police Chief Kevin Davis presents the police department’s responses to reform recommendations (via Fairfax County)

(Updated at 3:30 p.m. on 10/6/2023) The Fairfax County Police Department has come out in opposition to the prospect of enhanced powers for the two entities charged with overseeing its handling of community complaints and conflicts.

The department has adopted or is in the process of adopting all but nine reforms proposed by the nonprofit Police Executive Research Forum (PERF) and community members in a Police Reform Matrix Working Group (MWG), Fairfax County Police Chief Kevin Davis told the Board of Supervisors at a safety and security committee meeting yesterday (Tuesday).

However, Davis said the police “do not concur” with the MWG’s recommendations that the county expand the authority of its Police Civilian Review Panel (PCRP) and Independent Police Auditor (IPA), which were both created in 2016 to provide independent oversight of the FCPD.

“The FCPD has engaged in mutually respected dialogue and cooperation with both the civilian review panel and the independent police auditor since the creation of these two entities,” Davis said. “We do not concur that any of these changes are necessary, merited by inefficiency on the part of the FCPD or required for any objective review of the circumstances.”

Convened in June 2020 by Franconia District Supervisor Rodney Lusk, who chairs the board’s safety and security committee, the working group recommended in a May 12, 2023 report that the panel and auditor be granted the authority to conduct independent investigations and suggest or impose discipline against officers.

The group also called for an expansion of the PCRP’s scope to include automatic reviews of FCPD administrative investigations involving allegations of bias or profiling, and an option for the IPA to recommend that the commonwealth’s attorney turn over criminal investigations of shootings by police and in-custody deaths to independent investigators.

Currently, the panel is only authorized to review completed police investigations into abuse of authority and serious misconduct allegations, while the auditor reviews use-of-force investigations.

When the Board of Supervisors established the two entities, Virginia had no set model or regulations for civilian oversight of law enforcement, but a state law adopted in 2020 granted broad powers, including the ability to independently investigate complaints and make or recommend disciplinary decisions.

The PCRP pushed for that expanded authority in a review of its first four years released in February 2021, and its stance hasn’t changed, according to current panel chair Todd Cranford.

“The PCRP continues to advocate for increased authority to review certain FCPD activities on behalf of community members in Fairfax County,” Cranford said in a statement. “[In] furtherance of this objective, we have had, and continue to have, constructive discussions with Chief Davis and the Board of Supervisors on this and other issues. Chief Davis has expressed his disagreement previously, but we remain committed to seeking reasonable expansion of the Panel’s authority.”

Cranford noted that the decision on whether to expand the panel’s authority “will ultimately lie with the Board of Supervisors,” as dictated by state law.

Independent Police Auditor Richard Schott, who has served in the position since 2017, says, if the county hires and funds independent investigators, as suggested by the MWG, decisions about when to utilize them should be left to the commonwealth’s attorney.

“I do not think the Auditor should be called upon to decide when to mobilize investigators who are employed by the Commonwealth Attorney’s Office,” Schott told FFXnow.

Lusk says he would be open to looking at adding independent investigators to the commonwealth’s attorney’s office, but the county would have to delve more deeply into the potential costs and how exactly that arrangement would work.

He expressed support for expanding the PCRP’s authority. However, the panel has added “a number of new members” in the past year, and the county is also now searching for a new executive director after Steven Richardson, the first person to ever hold the position, stepped down.

While Lusk doesn’t know all the circumstances around Richardson’s departure, he says it could take a few months for the county to hire a replacement. The Board of Supervisors and human resources department hope to start interviewing candidates “in the next month or so,” he told FFXnow.

“But once we have completed the training for the panel members and hire the new executive director, I think the first step would be for us to go with monitoring authority for the panel and then we could move from there into the investigatory authority,” Lusk said.

In his presentation, Davis noted that the IPA has never disagreed with the police department’s findings on an investigation, and the PCRP has only diverged once, though both groups have made policy and training recommendations in their incident and annual reports.

“This speaks to our commitment to work in alignment with our community groups and demonstrates the effectiveness of our partnership,” the FCPD said in a statement, which can be read in full below.

In a statement released prior to the committee meeting, the Fairfax County NAACP, ACLU People Power Fairfax and faith leaders on the MWG argued that the “lack of disagreement is indeed concerning, but reflects the limited scope of [the PCRP’s] authority rather than the good conduct of the police force.”

Foot pursuit regulations still in development

Yesterday’s committee meeting was the first time that the FCPD publicly commented on the MWG’s recommendations since they were released in May.

Solicited by the FCPD after an officer fatally shot Timothy Johnson in Tysons on Feb. 22, the PERF recommendations came out in April as part of a review of all police shootings since 2021. There have been nine such shootings in that time frame, including the one that killed Johnson and Brandon Lemagne’s death in Penn Daw on May 11 — exceeding the total of eight over the preceding six years.

Several PERF and MWG recommendations overlapped, including a call for a policy dictating when officers can engage in foot pursuits, a priority for the Fairfax County NAACP and other civil rights groups in the wake of Johnson’s death.

The FCPD sees about six foot pursuits per week, according to Davis.

It has adopted a policy requiring that all foot pursuits be documented and reviewed by a supervisor, but the police chief admitted it’s not exactly what civil rights advocates have been seeking.

“Officers who engage in a foot pursuit of a fleeing suspect are expected to exercise sound judgment throughout the length of the chase, and balance their obligation to promote the safety of the general public with the need to apprehend offenders and/or persons in need of immediate mental health or medical treatment,” says the policy, which is in a general order on prisoner care that was last updated on Aug. 30.

The department is still working on a policy with criteria for foot pursuits that could be in place in early 2024.

“We’ve poured over all the other agencies that seem to have a policy, but their policy in essence says ‘refer to your training,'” Davis said. “When we put a policy forward, we want it to be a policy, not just a regurgitation of ‘refer to your training.'”

When Braddock District Supervisor James Walkinshaw observed that there are departments with more detailed policies regulating foot pursuits, including neighboring Arlington County, Davis responded that he’ll have to “take another look.”

County has failed to address policing problems, advocates say

At the meeting, Davis shared how FCPD is addressing recommendations related to data collection and reporting, records management, community engagement, officer recruitment and training and more. Other points of contention include proposed limits on school resource officers, whether pointing a gun is a use of force and a shift in its use-of-force standard from “objective and reasonable” to “necessary and proportional.”

“The necessary and proportional standard is ambiguous and nebulous in scope, thus it’s wholly unclear how this could be trained to our officers, applied in the field or ultimately adjudicated in either criminal or civil court,” Davis said, adding that the FCPD’s existing policy goes beyond the legal standard by requiring officers to intervene, banning chokeholds and other provisions.

The department’s community engagement efforts evidently didn’t extend to the MWG, the NAACP, ACLU People Power and faith leaders said in their statement.

Members of the [working group], including Faith Leaders, Fairfax NAACP and ACLU People Power Fairfax, sought to discuss the group’s concerns with the Chief, but he has refused to meet. His presentation ignores most recommendations and indicates no concern with the conduct of the Fairfax police under his watch.

When the Supervisors hired the Chief, he was touted as a “reform” leader. The organizations have yet to see any evidence that this is the case. His unwillingness to address the concerns of and work with the impacted community is compounded by his refusal to share publicly his “detailed responses on all recommendations … provided to the Board of Supervisors.”

The blame is not Chief Davis’s alone. The increase in police shooting incidents and continued disparities have occurred on the Board’s watch. It has failed to address these problems. It has the authority and duty to set public safety policy, and must act now. Awaiting newly-elected members to take charge is unacceptable.

FCPD staff said a report with their full response to the recommendations is currently in draft form and should be finalized and sent to the Board of Supervisors by the end of October.

To some applause from community members watching the meeting, Dranesville District Supervisor John Foust questioned why Davis hasn’t met with the MWG since its report was released in May.

Davis said he’s “certainly willing to remain collaborative” but was focused on getting a report back to the board. A deputy county executive confirmed that he had directed the FCPD to share their responses with the board before anyone else.

“I hope you don’t think I asked for you to turn the report over to someone else before us,” Foust responded. “I asked for you to meet so you can resolve issues and we’re not asked to decide who’s right and wrong.”

While plenty of work remains, Lusk says he doesn’t want that to overshadow the changes that FCPD has made, including mandating ICAT training that emphasizes de-escalation for all officers, diversifying its leadership and introducing the still-growing co-responder initiative for behavioral health and substance use-related calls.

“So I’m just excited to see the changes, but I’m also committed to making sure we continue to work on the other reform issues that are a part of these different working groups and to get answers to all of them,” Lusk said.

A full statement from the FCPD is below:

The Fairfax County Police Department (FCPD) regularly evaluates and enhances all trainings, policies, and practices of the department. We partner with organizations like PERF and other leading industry research institutes to assist us in maintaining the FCPD as a premiere law enforcement agency in this country. Our policies set the standards and expectations for all our officers’ actions and help guide the department’s training curriculum. Since receiving the recommendations from PERF in early May, we have already adopted numerous innovative and forward-thinking practices that align with their suggestions.

Chief Davis has overseen the creation and implementation of our Co-responder program. Our co-responder program pairs with our Crisis Intervention Team (CIT), a team of highly trained police officers who have the knowledge and skills to appropriately manage interactions with individuals experiencing a mental health crisis. FCPD prioritizes this training, which has resulted in the department having more CIT trained officers than the majority of law enforcement agencies. Additionally, all FCPD officers have completed Integrating Communications Assessment and Tactics (ICAT) training.

FCPD implemented a foot pursuit policy prior to the 2023 PERF report within General Order 203: Prisoner Care and Custody. We take pride in being one of the few police departments in the nation to have a foot pursuit policy. This policy effectively captures data, which plays a crucial role in enhancing our training methods and improving the way we take criminals into custody.

The FCPD has engaged in ongoing mutually respective dialogue and cooperation with both the Civilian Review Panel (CRP) and Independent Police Auditor since the creation of these two entities. There has only been one published disagreement with the FCPD and CRP in its approximately 6-year existence which was worked through and resolved in accordance with the CRP’s bylaws and FCPD’s obligations to work collaboratively with the CRP. This speaks to our commitment to work in alignment with our community groups and demonstrates the effectiveness of our partnership.

Fairfax County Police Department is also proud to be a part of nationally renowned law enforcement accreditation agencies, such as CALEA, which helps ensure we are supporting continuous improvement and fostering the pursuit of professional excellence as a law enforcement agency. CALEA accreditation ensures the FCPD can be benchmarked favorably relative to the largest law enforcement agencies in the United States located in comparable urban settings. The department also achieved reaccreditation through the Virginia Law Enforcement Professional Standards Commission (VLEPSC) in September of 2018.