Plans for a civilian review board in Henrico appear dead

Nearly a year after first proposing the creation of a civilian review board for Henrico County, Varina District Supervisor Tyrone Nelson is withdrawing the concept after sensing that a majority of the Board of Supervisors wouldn’t support the specific type of CRB he wants, he told the Citizen.

The move likely signals the end of the board’s consideration of a CRB for the foreseeable future.

Nelson proposed a review board last June at a time when many localities nationally began considering the concept in light of the murder of George Floyd by Minneapolis police officer Derek Chauvin.

It prompted a months-long process through which supervisors received written and oral input from hundreds of citizens about the idea. In August, a majority of supervisors expressed general support for a CRB but opted to delay further action until the General Assembly took its own action on the matter during its fall special session.

Once the assembly passed a measure in October permitting localities to create CRBs with investigative and subpoena power, Henrico supervisors in December opted to task Nelson (a Democrat) and current chairman Dan Schmitt (a Republican) with discussing the idea in greater detail together during a period of several months.

That process now is complete, and despite robust discussions that both Nelson and Schmitt praised as meaningful and exhaustive, they arrived at an impasse.

Issue of investigative power caused stalemate

The crux of the stalemate: Nelson believes the CRB must have investigative and subpoena powers in order to properly weigh allegations of misconduct against police officers – as well as the ability to enact binding discipline of officers – while those concepts didn’t gain enough traction among Schmitt and the board’s two other Republicans (Three Chopt’s Tommy Branin and Tuckahoe’s Pat O’Bannon). Democrat Frank Thornton previously had expressed general support for Nelson’s initial proposal.

Though it’s likely that there is enough support among the five supervisors for the creation of a CRB that lacks those powers, Nelson told the Citizen that in his estimation, such a body would serve no real purpose. For example, it would be able to examine reported incidents of possible officer misconduct or excessive use of force that already had been reviewed by the Henrico Police Internal Affairs unit but only would be able to report whether it agreed or disagreed with the decision reached by IA officials, Nelson said, and couldn’t offer a suggested outcome of its own.

“So let’s say [the IA conclusion] comes back, you don’t like the result, then you can go to CRB,” Nelson said. “They look at it, they come back and say, ‘Yeah we agree with them or don’t agree with them,’ but that’s where the process stops.”

In such a scenario, Nelson said, it would be difficult for him to view the CRB in terms of something being better than nothing.

“Because I’m not really sure that you could classify it as ‘something,’” he said. “I wanted us to create something that. . . ultimately would give the ability to have a level of transparency and accountability. Those are the words that meant something to me.”

Schmitt praised Nelson’s work on the topic, saying the two men and various county officials investigated the topic “forward, backward, upside down and sideways. We want it to be right and build it where it makes sense. We looked at it a million different ways.

“He has advocated for what he believes in, he asked some incredibly tough questions. I think he might say the same about me. I don’t think he feels as if he has enough tools to build it the way he wants it. I don’t think he’s willing to settle, and quite frankly, neither am I.”

Schmitt expressed concerns that a board vested with investigative and subpoena powers could create situations in which as many as three concurrent investigations might be taking place in cases involving alleged criminal misconduct by an officer.

“What if an officer is being investigated by Internal Affairs and the Commonwealth’s Attorney and the civilian review board?” he asked. “If an officer acts criminally negligent way to a citizen, that is the job of our commonwealth’s attorney pro investigate and possibly prosecute. If people want an advocate, they have one [already] for criminal complaints.”

Schmitt said he would support a CRB that had the power to review all available facts and evidence in non-criminal misconduct claims and then issue its own opinion or recommendation before – but not after – the chief of police determined what punishment (if any) to levy on the officer in question.

'I don’t think we need to wait until somebody gets murdered in Henrico'

Nelson reiterated to the Citizen the sentiment he has expressed throughout the process – that while he has no specific qualms with the Henrico Police, he believes a CRB with investigative power would serve as a deterrent to potential police violence.

“I never have had a personal issue with officers, but I do know I’m a Black man and I live in America,” Nelson said. “I don’t think we need to wait until somebody gets murdered in Henrico or some egregious act happens to do the right thing.

“I’m not saying that a CRB is a fix-all – it’s not. It’s not going to keep people from getting killed. But it does offer some transparency with the process. It does let police officers know that if you do do things that are wrong, you will be held accountable.”

Schmitt said he is “all for” an independent body that gives a citizen the right to lodge a complaint about alleged police misconduct, saying that similar opportunities exist for citizens who want to contest a planning department decision or challenge a real estate assessment, for example.

But he isn’t comfortable with the idea of a board of citizens that could make final decisions about an officer’s employment.

“Do you really want a group of citizens telling the police to do?” he asked.

He also has concerns about the language of the measure passed by the General Assembly, which says that a CRB “shall reflect the demographic diversity of the locality” but doesn’t provide specifics about what exactly that means. It’s a concern O’Bannon also raised last year when the board was weighing the topic.

Both Nelson and Schmitt have praised new Henrico Police Chief Eric English, who’s already taken steps to improve transparency within the division by publishing a wide range of police data, including use-of-force statistics.

Nelson plans to meet with English next week and said he’ll continue to advocate for as many meaningful reforms as he can, while also urging General Assembly members to mandate investigative boards statewide.

CRB proposal may not return for several years

Nelson and Schmitt also both are closely following the actions of several other local governments in Virginia that have CRBs and are considering giving them investigative power, including Charlottesville. Arlington County, which is structured most similarly to Henrico, also is weighing the possibility of establishing a CRB of some type.

Schmitt said he’d prefer that Henrico wait to see how some of the other localities in Virginia handle their CRBs before it acts on one of its own.

“When the ground is unsteady, then I’m not willing to step on lily pads,” he said.

To Nelson, the fact that other localities are pushing to implement investigative boards serves as evidence that a standard CRB without such powers is meaningless.

“Why would I be ok reading the weakest form of a civilian review board in the commonwealth when I ultimately already know that my colleagues don’t have the appetite for it?” Nelson said. “I’ll wait two and a half years [after the next Board of Supervisors elections] and see where we end up two and a half years from now.”

Schmitt conceded that if Nelson isn't championing the desire for a CRB, it's unlikely that any of the other four supervisors would try to do so in the meantime.

Of the exhaustive process that county officials and supervisors – and he and Nelson specifically – have undertaken since last summer, Schmitt said: “I hope people understand that this is not a lack of effort. It has to be impactful, and if it can’t be impactful for our citizens, then I’m not for it.

“It has been worked on, we just don’t really have anything yet that works for our people.”