Fairfax County’s First Independent Police Auditor

Use of force policy, recommendations to FCPD, executive director vacancy on the Police Civilian Review Panel

The Connection interviewed Richard Schott, Fairfax County's Independent Police Auditor, on Friday, Aug. 11. The timing coincided with the Fairfax County Police Department's response to recommendations from the University of Texas at San Antonio, the Police Executive Reform Forum (PERF), and the Police Reform Matrix Group. 

Connection: Let’s discuss the elephant in the room. Steven Richardson, the Police Civilian Review Panel's first executive director, resigned on Aug. 1. What considerations may be taken so the panel can continue along its path without him?

Schott: I won't dodge the question, but I'll deflect. The deputy county executive and county officials told me the plan is to re-advertise the position. I don't think our current structure will change. The Board of Supervisors will simply fill that position. In the interim, the review panel retains a management analyst (a paid county staff person) who, together with me and my staff, provides the necessary support to the panel.

Q: The University of Texas at San Antonio Department of Criminology and Criminal Justice released its Final Report, June 2021, “Investigation of Fairfax County Police Department Use of Force,” with 29 recommendations for the police department in three categories. PERF, the Police Executive Review Forum, presented its “April 2023 Review of Issues Surrounding Recent Police-Shooting Incidents,” with 15 recommendations, and you presented the Fairfax County Independent Police Auditor 2022 Annual Report with recommendation to the Board of Supervisors on June 13.

Many of the recommendations are language changes. Those may seem insignificant to some. Explain whether language matters in the FCPD's General Order on Use of Force and provide an example.

Schott: What appear to be subtle language changes on the surface can have a big impact on the results. There has been a legal standard since 1989, given to us by the Supreme Court, of “objective reasonableness.” Many individuals and groups nationwide would like the legal standard changed, but they can't make the Supreme Court change something. They are asking individual departments, on their initiative, to change the objective reasonableness language to “necessary and proportional.” Yes, that may seem like semantics, but that could be a big policy and training change.

For example, the use of force may have been objectively reasonable but unnecessary. Now, I'm going to contradict myself because if it is a policy, and we'll take the Fairfax County Police Department and see if they change their policy to include necessary and proportional force. My recommendation is: first, tell me when force is necessary. Changing one word isn't enough. You must now define what is necessary and in what way.


Q: Next steps?

Schott: The change requires defining the new term. What exactly does necessary mean? The Department of Justice's use of deadly force policy describes when deadly force may be necessary.

Q: Should FCPD use the DOJ force policy?

Schott: Those words are unique in DOJ’s policy only on the use of deadly force. That's also important to distinguish. When to use non-deadly force may be harder to define. That includes tasers and electronic control weapons.


Q: What are the University of Texas's most critical recommendations, the most viable changes to the use of force that could save a life in Fairfax County or prevent severe injury?

Schott: That’s a big ask. I’m not sure if I can do that, to be honest.

Q: Is it changes in training, data, or language?

Schott: I would probably lean on the language, but I may not agree with some of their suggestions. I provided the Board of Supervisors with my input on UTSA's recommendations, which is public. UTSA only disagrees with one. I disagreed with three CAC decisions. When they said, they wanted to incorporate the minimum [use of force]. I doubt there's a minimum. I don't know that there is such a thing as a minimum. Not to be cavalier, but the minimum amount of force in any situation is not to use any. That's the minimum, but that's unrealistic, in my estimation.

After their study and recommendations, UTSA presented them to the Board of Supervisors. Supervisor Lusk, who chairs the Safety and Security Committee, convened the Community Advisory Committee, the CAC, to provide input on UTSA's recommendations, a kind of check and balance to how our community felt about UTSA. I independently commented on UTSA's and the CAC's feedback and overwhelmingly agreed with both groups' recommendations. I had just a small number of items I disagreed with.

Q: PERF’s report was a quick turnaround. Chief Davis requested it in February and received it in April 2023; UTSA recommendations have been available for two years. How many have been implemented, meaning the chief says to his officers, You know, this has been changed?

Schott: I don't want to speak for the department, but shortly after UTSA presented its findings to the Board of Supervisors in June 2021, the police department made the claim that the department had implemented about 80 percent of UTSA's recommendations. …

I don't think it's in writing yet, but it is my understanding, and I would be shocked if this didn't happen. 

At the upcoming Oct. 3 Safety and Security Committee meeting, the police department is scheduled to present to the Board of Supervisors their responses to the Reform Matrix Group’s Action Plan recommendations, as well as my understanding of PERF’s 15 recommendations, a very manageable number. … 

One of the matrix’s recommendations was simply for the PD to reexamine UTSA's recommendations. Some of these are again in play through incorporation. After this October meeting, we may have a more definitive number of UTSA recommendations the PD has implemented.


Q: Officer training appears to be key. Which traits of a model chief would significantly change an officer's use of force? What must a chief get across to their officers?

Schott: Speaking generally, if a department has problems with the use of force, a new chief has to emphasize a culture change. I don't like the saying, but ‘culture eats policy for lunch.’

Integrating, emphasizing, and meaning de-escalation, ICAT, and crisis intervention training — don't just check the box. Emphasize those tactics before resorting to force or anything else. You must emphasize it in training and recurring training. And recognize good examples of using those techniques in isolation or crisis intervention. Emphasize and acknowledge department-wide those aspects of policing or working in your department. I am almost positive the Fairfax County Police Department is doing that.


Q: Given your anticipated 2023 calendar list of activities (and responsibilities), how are you doing as the police auditor?

Schott: I was doing better before the resignation of Steven Richardson. I have been devoting a lot of my time to panel issues. It does pull me away from my primary mission as the auditor, which is to get over to the Internal Affairs Bureau more regularly and review their investigations into the use of force incidents. I do that as frequently as I can, but I wish other obligations wouldn't keep me from doing it more frequently.


Q: What do you think about when you're not working, like walking your dog or waking up?
Schott: That's a tough one and a good question. I try to escape from work. It's not easy. When I proverbially clock out for the day to try to leave work aside, guess what? What concerns me is getting that notification during the night or early morning that the county has had a fatal shooting involving an officer. Nobody wants to see it—the community, the police department, and I don't want to see it. But in a 1.1 million-population county with 1,300 sworn officers, you're going to have some critical situations.

About the Fairfax County Independent Police Auditor: The Office of the Independent Police Auditor reviews police investigations involving use of force and serves as an independent intake venue for complaints against the Fairfax County Police Department. https://www.fairfaxcounty.gov/policeauditor/

Richard Schott, Fairfax County's first Independent Police Auditor, along with the Police Civilian Review Panel are intended to provide an “accessible, safe, impartial and responsive intake venue for Fairfax County Police Department and staff complaints.”

Schott came to Fairfax County after a 27-year FBI career as a special agent working with local law enforcement officers, and for the past 16 years has provided training to members of state and local law enforcement agencies, including legal issues associated with police officers’ use of force and deadly force. He has extensive experience with Color of Law violations, including reviewing police reports and citizen complaints, recommending to U.S. Department of Justice attorneys whether or not to proceed with investigations and conducting the ensuing investigations. Schott was also an instructor at the FBI Academy in Quantico, 

The Police Civilian Review panel is made up of non-paid members and an executive director, a recently created paid position appointed by the Board of Supervisors, Steve Richardson, the first executive director of the Police Civilian Review Panel, recently resigned. More on the Civilian Review Panel, https://www.fairfaxcounty.gov/policecivilianreviewpanel/