Spike in complaints against officers prompts potential change to discipline process

The state has seen a 132% increase in investigations against law enforcement officers and 911 operators since 2016, and is on pace to field 13% more of the formal complaints that can spark such investigations this year.

Hank Prim, of the state Division of Criminal Investigation (DCI), shared the numbers with the South Dakota Law Enforcement Officers Standards Commission last week in Pierre.

Prim attributes the jump from 22 investigations in 2016 to 51 for two years in a row in part to a change in 2021 that streamlined the complaints process and made it easier to get them in the hands of the DCI.

In the past, complaints against local officers would route to a regional DCI office for initial review. Now, such complaints are funneled to DCI headquarters for an initial review. 

Not all complaints result in a full inquiry with witnesses and DCI investigative reports, Prim said, but the jump in complaints that started in 2021 bears out in the number of investigations that move to the commission level.

“I don’t believe it’s due to officers doing more wrong,” Prim told South Dakota Searchlight on Thursday, after the second of the commission’s two-day July meeting. “Instead, what it is, I think, is that we’re getting more visibility on complaints against law enforcement officers.”

Prim also noted that South Dakota’s population has increased since 2016, giving officers more people to interact with, and to a general increase in scrutiny of officer behavior.

To help manage the higher numbers, officers, deputies and 911 dispatchers facing low-level misconduct allegations may soon be able to ink plea agreements with the state for reprimands and remediation without a full public hearing on their certification.

Commissioners gave the initial sign-off on a plan last Wednesday to create such a system.

Currently, such cases are often resolved at hearings that take place during the four annual meetings of the commission. On other occasions, officers will voluntarily surrender their certifications to avoid such a hearing. In practice, officers and the communities they serve sometimes wind up waiting several months for a resolution.

That’s why Prim and other administrators of South Dakota’s officer standards and practices team began to look for ways to expedite less egregious allegations ahead of time.

Doing so would give the commission more time to focus on serious allegations, Prim said.

“I don’t think we’re at the point where we can’t handle hearings,” Prim told commissioners. “I want to make sure that when that time comes, just with the growth in turnover in law enforcement across the state, that the commission and law enforcement training are best positioned to respond to those.”

The idea for “settlement agreements” came from Minnesota, a state with a subcommittee that handles them. About 90% of allegations in that state are handled through such agreements, Prim said.

As with any complaint, allegations destined for a settlement will be explored and documented, with officers and possibly their attorneys offered a chance to respond. Before offering a settlement, commission staff would come to an agreement on remedial action with the officer, then hand the signed agreement to the commission to review and sign off on during its next public meeting.

The commission would reserve the right to force a full public hearing if its members deem such a hearing necessary. That would comport with part of the 2021 complaint process change, wherein at least one commissioner reviews any incidents DCI investigators deem unfounded or unworthy of action and can request a full commission review.

Under the new proposal on settlement agreements, officers would be eligible if the alleged misconduct warrants disciplinary action, but not decertification. The officer would also need to be likely to benefit from remediation and rehabilitation, Prim said, and be willing to accept the terms of any disciplinary action.

“If the conduct was so egregious, or the officer doesn’t wish to essentially plea bargain on the disposition, we can still bring it before for a hearing before the full commission,” Prim said.

One potential snag came from concerns about transparency. In a settlement scenario, evidence and testimony would be gathered for use in a report, just as it is now for contested case hearings before the commission. But during a contested case hearing, the investigative file is not made part of the public record. Anything that comes out in the hearing is public, but the full document remains out of public view, just as police reports in criminal investigations do under South Dakota law.

Commissioner Tom Wollman questioned on Wednesday whether handing off a full report for commissioner review and ratification during a commission hearing would place its contents in full public view.

“Whether or not that becomes a public record would certainly be of concern for the individual being investigated, and potentially for this commission, because we do want to do our business in the public light,” Wollman said.

Prim and other DCI staff returned to the commission on Thursday with an answer to that question. Because the file in the settlement agreements would contain investigative materials, DCI staff concluded, the report underlying a settlement agreement would not be open to public review after a commission sign-off.