Legally Speaking: Police may need to be part of Phoenix oversight office

May 21, 2021, 4:45 AM | Updated: 1:32 pm

(Facebook File Photo/Phoenix Police Department)...

(Facebook File Photo/Phoenix Police Department)

(Facebook File Photo/Phoenix Police Department)

PHOENIX — The city of Phoenix and Arizona Gov. Doug Ducey are at odds again, with the current conflict involving civilian oversight of law enforcement officers.

Ducey earlier this month signed HB2462 and HB2567 into law, which together deal with the makeup of any civilian law enforcement oversight board and the requirements for members of any such board.

HB2462 requires that any civilian member of an oversight board complete a community college police academy or 80 hours of AZ POST (police officer standards and training) board-certified training, while HB2567 requires at least two-thirds of the voting membership be law enforcement officers from the same department or agency as the law enforcement officer who is the subject of the investigation.

The Phoenix City Council on Wednesday voted to approve what some believed to be a new civilian oversight office for police. In reality, according to city spokesman Dan Wilson, the council voted to approve the Office of Accountability and Transparency. This may eventually result in the creation of a civilian review board, though it has not yet.

The OAT will only be made up of only city employees. There will be no “community members” other than the city staff that work full-time as part of that office.

If no law enforcement is employed in the office, then it might be in violation of Arizona law.

The Phoenix City Council’s action of creating the Office is not in conflict with Arizona law. It is not even a conflict for the Office to have a say in the disciplining of law enforcement officers.

The conflict with Arizona law comes into play with Phoenix’s requirement that no law enforcement is allowed to be part of the Office. According to Arizona law, as explained above, law enforcement has to hold at least two-thirds of the voting membership.

It appears Phoenix doesn’t want law enforcement in the Office, but if it investigates, recommends and involves Itself with officer investigations, Arizona law requires it.

So what now?

A few things could happen. First, Arizona and the city of Phoenix could get together and figure out how to work together allowing the Office to exist while not being in violation of Arizona law. Or, the city could continue to do what it wants and see what happens. Or, what I believe is likely, the two could go to court.

One side could file a lawsuit asking the court for a temporary restraining order and a preliminary/permanent injunction.

The state could file the suit requesting the court order that the city put the creation of the Office on hold until the matter is resolved. Conversely, the city could ask the court to keep the Arizona law from going into effect until the court decides if the new law is valid.

State law often preempts city or county laws, but not always.

If this were to go to court, the judge would first look at whether the Office and its anticipated duties and makeup are in conflict with the Arizona law – which they are as of right now.

If there is a conflict – which there is right now– then the judge would look at the interests of each side.

The state has an interest in ensuring all police officers in the state are treated equally and with the same due process. The city has an interest in satisfying its residents and controlling its own law enforcement department.

Who would win?

#LegallySpeaking, Arizona has a stronger argument because there is nothing unique to the city of Phoenix when it comes to disciplining and investigating officers.

All departments across the state have the need to do these things.

Although Phoenix has the right, the desire and the need to discipline and investigate its own officers, so does every other city, town or municipality in Arizona. That makes it an issue of statewide concern.

Throw in due process and the need for consistency from agency to agency and you have an incredibly strong argument for the state.

There is a way for the Office to exist and be compliant with the law, but it will take Arizona and Phoenix working together.

CORRECTION: This story has been updated because an earlier version incorrectly said the Office of Accountability and Transparency will include community members.

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Monica Lindstrom

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Legally Speaking: Police may need to be part of Phoenix oversight office