EXCLUSIVE: Fairfax County police chief says no bias found in Herndon driver case

The Fairfax County Police Department has concluded for a second time that allegations of racial profiling by one of its officers during a 2019 incident in Herndon were unfounded.

The Fairfax County Board of Supervisors directed police to revisit the case in question in January after the county’s Police Civilian Review Panel recommended an additional review in its first-ever challenge of police findings.

According to a June 1 FCPD memo obtained by Reston Now, the second review — this time under a new police chief — found no evidence that a police officer who followed and questioned a Black driver was motivated by racial bias.

“I have reviewed the supplemental investigative findings and concur that no new evidence was revealed to support the allegation of bias-based policing,” Fairfax County Police Chief Kevin Davis said in the memo.

Davis took over as police chief on May 3 amid criticism of his past work in Baltimore and Prince George’s County. In the initial months of his tenure, he has emphasized his willingness to introduce reforms, including revisions to the department’s vehicle pursuit policy and the addition of a data director.

For its follow-up investigation of the Herndon incident, Fairfax County police asked eight employees in the Reston District Station’s Criminal Investigations Section the following question:

“Do you have any direct or indirect knowledge which would indicate [employee name] has engaged or is engaging in behavior that was or is motivated by bias toward a victim’s race, religious conviction, ethnic/national origin, disability, and/or sexual orientation?”

Police said no one indicated there was any evidence of bias exhibited by the detective.

Davis also suggested options for reviewing the case were limited, noting that FCPD started collecting data on officers’ interactions with civilians last October that it wasn’t measuring at the time of this particular incident.

The change aligns with new state requirements for police data collection that took effect on July 1.

“Due to recent updates in Virginia legislation, the Virginia Community Policing Act, the Department has updated our current record management system to capture additional details pertaining to the circumstances of community contacts,” the FCPD said in a statement. “The further details will allow our Department to better understand the contacts we have within our community.”

In his memo, Davis wrote that the department has “further enhanced our transparency by creating a Police Data Sharing Dashboard” that allows people to search information related to warnings, citations, and arrests.

The civilian review panel began reviewing the Herndon incident on May 23, 2019, when it got a citizen’s complaint about an officer who followed him into the parking lot of his apartment complex and repeatedly questioned whether he lived there.

According to the panel’s report, which was published on Oct. 23, 2020, the officer said he followed the individual after becoming suspicious and discovering that his vehicle was registered under two names.

A recording of the encounter shows the officer questioning the man about his residency, while the man sometimes asks whether he is required to respond. At one point, the man asks for the officer’s badge number.

According to the panel’s report, the officer asked the man about his residency 11 times, and the man answered at least nine times that he lived there. After telling the man he was free to go, the officer stayed in the lot “for several more minutes” before verifying his identity and residency.

Fairfax County police said in a statement that they have measures in place to address issues of bias:

FCPD has reaffirmed our well-established commitment to fair and impartial policing by recently adopting General Order 2. This policy focuses on human relations and procedural justice. Procedural justice requires Department members to ensure they are being fair in process, transparent in actions, providing opportunity for communication and being impartial in decision making. All well-established pillars of FCPD, but this policy reaffirms our commitment to these principles with the hopes of [increasing] police legitimacy.

The department says it conducts implicit bias training for all employees and supports the county’s One Fairfax policy in support of the chief’s vision of police being “the leading agency dedicated to fairness, trust, and respect.”

The FCPD also says supervisors are required to perform monthly reviews of officers’ body-worn cameras and in-car videos.

“When there is an allegation of misconduct, [Internal Affairs Bureau] investigations review the officer’s arrests and citations based on race and compare them to other officers at the assigned district station, which covers an 18-month time period,” police said.

In a December 2019 letter to the complainant, then-Police Chief Edwin Roessler wrote that the officer’s actions were improper and in violation of departmental regulations.

He also told the civilian review panel that the officer had no reason to initiate the stop, calling his actions unacceptable and the result of “poor, cascading assumptions and judgments that were wrongly based on his training,” according to the panel’s report.

However, when the panel voted 6-3 in March 2020 to request further investigation, Roessler responded that police would not interview the officer’s coworkers for evidence of racial bias, a stance that evidently changed after the panel voted 7-2 in September 2020 to advise the Board of Supervisors that it considered the investigation incomplete.

“It’s not clear to me under our bylaws that we have any additional move,” Civilian Review Panel Chair Jimmy Bierman told Reston Now yesterday (Tuesday). “We did what we were allowed under the bylaws, and we passed it to the Board of Supervisors.”

The panel released a four-year review on Feb. 26 that included recommendations for an expansion of its authority in light of recent changes in state law, including:

• Limited investigatory powers, including the opportunity to interview a complainant and up to three key witnesses
• Electronic access to redacted police investigation reports
• The ability to monitor police investigations for racial bias or profiling without needing a complaint submitted first
• More flexibility in how it presents its findings

The county board fulfilled one of the recommendations in agreeing earlier this month to give the panel a full-time executive director position.