Officer suspended after video shows arrest of woman who called police

An officer was relieved of duty after a social media video showed three officers arresting a woman who called police to report a man who pointed a gun at her

Mar 15, 2019, Charles Rabin, Miami Herald

MIAMI — A Miami-Dade police officer was relieved of duty last week after video circulated on social media of three officers taking a woman to the ground, then handcuffing and arresting her — after the woman had called police to report a man had pointed a shotgun at her, police said.

The incident took place early last week in South Miami-Dade. The video shows three officers questioning the woman, then pushing her toward a fence on a sidewalk, before wrestling her to the ground and cuffing her.

Miami-Dade Police Director Juan Perez reacted publicly to the incident late Wednesday night, saying on Twitter that the department has begun an investigation after learning of the video. He also said that one of the officers — who hasn’t been named — has been relieved of duty pending an investigation.

“I find the actions depicted on the video very troubling and in no way reflective of our core values of integrity, respect and fairness,” Perez said.

Perez said while the woman was being taken into custody, police were questioning the man who allegedly pointed a weapon at her.

Police were notified of the incident with a call just after 7 p.m. March 5 about an aggravated assault with a shotgun at a home in the 11300 block of Southwest 201st Street.

According to her arrest report, 26-year-old Dyma Loving was walking past Frank Tumm, who began calling her a “whore.”

After sparring with Tumm, Loving told police he verbally threatened her and pointed a shotgun at her. Tumm denied he owned a weapon, police said. And a witness backed up his claim.

But a few minutes later, according to the report, the witness recanted and said Tumm did point a weapon at Loving. Police said while speaking with him, Tumm refused to leave his property.

At some point, police said, Loving “began acting belligerent” and “irate” and refused to obey commands. Officers said she began screaming and caused a scene. The two officers listed on the arrest form are A.I. Giraldo and J.F. Calderon. It wasn’t clear Thursday whether either one of them had been suspended.

As of Thursday, Tumm, the man questioned by police and accused of pointing the shotgun, hadn’t been arrested or charged with a crime. Perez said the officer relieved of duty was a tenured cop who was working with two rookies.

“I don’t know what got into his mind,” Perez said.

The cellphone video apparently taken by a friend of the woman pans in and out as she is taken to the ground roughly by police and handcuffed. It begins with the woman saying, “Don’t touch me,” as three police officers push her toward a chain-link fence. A friend asks, “Why you doing that?”

Then the woman, wearing a dark T-shirt and black shorts, says “I need to call my kids. I don’t understand.”

When a friend asks for the officer’s name, one of the cops replies, “We’re busy right now.”

<blockquote class=”twitter-tweet” data-lang=”en”><p lang=”en” dir=”ltr”>A black woman Called Miami-Dade Police For Help After A Man Brandished A Weapon and threaten her life. Yet, She Was Arrested for being distraught <a href=”https://t.co/xQ2vvDZZsW”>pic.twitter.com/xQ2vvDZZsW</a></p>&mdash; Brother Tyrone X (@tyrone345345) <a href=”https://twitter.com/tyrone345345/status/1105946141340852224?ref_src=twsrc%5Etfw”>March 13, 2019</a></blockquote>
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Mar 15, 2019, Charles Rabin, Miami Herald, “Officer suspended after video shows arrest of woman who called police”, https://www.policeone.com/officer-misconduct-internal-affairs/articles/483235006-Officer-suspended-after-video-shows-arrest-of-woman-who-called-police/

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Chicago spent more than $113 million on police misconduct lawsuits in 2018

Among the high-profile police misconduct lawsuits settled last year, the city of Chicago paid $16 million to the family of Bettie Jones, shot and killed by Officer Robert Rialmo (above) in December 2015.

Among the high-profile police misconduct lawsuits settled last year, the city of Chicago paid $16 million to the family of Bettie Jones, shot and killed by Officer Robert Rialmo (above) in December 2015. | Max Herman / Sun-Times

The city of Chicago paid more than $85 million last year to settle police misconduct lawsuits and another $28 million to private attorneys to defend City Hall in those cases, records show.

The $113 million-plus total is more than in any year since at least 2011, according to an analysis by The Chicago Reporter of data from the city’s law department.

The payout last year is more than what the city paid in the previous two years combined and brings Chicago taxpayers’ tab for police misconduct to well over half a billion dollars in the past eight years.

There were several high-profile cases settled last year, including $16 million paid to the family of Bettie Jones, shot and killed by Officer Robert Rialmo in December 2015.

Among the other payouts last year: $15 million to the families of two men killed by off-duty detective Joseph Frugoli in a 2009 drunk-driving accident; $9.5 million to the family of Jose Lopez, gravely injured when Chicago police officers used a Taser on him in 2011; and $3.5 million to the mother of Niko Price, fatally shot by former Officer Marco Proano in 2011.

There were also multimillion-dollar payments last year in several wrongful-conviction lawsuits, including $9.3 million to James Kluppelberg, who was released after nearly 25 years in prison for an arson he says he confessed to after being tortured by police Cmdr. Jon Burge’s notorious “Midnight Crew,” $4 million to two men wrongfully convicted of a 1992 double murder and $3.5 million in the case of Patrick Hampton, who was released after 20 years in prison for sexual assault after his conviction was thrown out as a result of claims that detectives fabricated and withheld evidence.

The number of police cases for which the city paid settlements was down slightly from the previous years.

Still, the number of lawsuit payouts by City Hall for police misconduct came to nearly one every two days, on average. Most of them were in the tens of thousands of dollars, with a median payout of $50,000 and the smallest for $500.

The $113 million doesn’t include cases of property damage, minor car accidents, vehicle pursuits or employment-discrimination lawsuits.

The cost is more than five times what the city budgeted for police lawsuits last year.

The sum also does not include the cost of private attorneys City Hall hired to represent the city in negotiations over a federal consent decree that will govern police reform efforts for years. In 2017 and 2018, the city paid more than $4.2 million to outside lawyers involved in the consent decree and related lawsuits.

Last month, a federal judge formally approved the consent decree and appointed a monitor to oversee its implementation. The monitor is expected to cost the city $2.85 million a year.

 

03/15/2019, “Chicago spent more than $113 million on police misconduct lawsuits in 2018”, https://chicago.suntimes.com/news/chicago-police-misconduct-lawsuit-payouts-totaled-113-million-2018/

Md. demands public access to police misconduct investigations

Brandon Scott, Will Jawando, March 13, 2019

Our constituents want effective constitutional policing that reduces violence in their communities. But they also want — and deserve — transparency and accountability. The communities officers are sworn to protect, and whose taxpayer dollars support law enforcement, deserve to know that their local police departments are investigating misconduct complaints diligently and equitably.

In Montgomery County, we are fighting for the Law Enforcement Trust and Transparency Act, which would require independent investigations of police-involved deaths. This is needed because there is a serious lack of confidence that law enforcement can police itself — especially when the stakes are the highest and a resident has lost his or her life.

In 2016, the ACLU of Maryland released a report showing that between 2010 and 2015, at least 130 people across our state — the vast majority of them black, and too many unarmed — died in police encounters. Eleven of those deaths were in Montgomery County, and 30 were in Baltimore City.

In the city, residents are fighting for a truly independent and effective Civilian Review Board that can thoroughly investigate the hundreds of police misconduct complaints lodged each year. Every day, residents are denied information about how the Baltimore Police Department investigates such complaints. In fact, the Department of Justice noted that “community members are unable to obtain information about BPD’s complaint and discipline systems at almost every step in the process.”

Other limits reach throughout the state. Currently, under the Maryland Public Information Act, police misconduct complaint files are considered protected “personnel records” that may never be disclosed under any circumstances. This means that if the police department fails to discipline an officer for misconduct, and the community calls for the department to explain its decision, the department is categorically barred from revealing anything in the complaint file.

We can fix this problem. We must fix this problem. The General Assembly is currently considering several bills to allow greater transparency in the way law enforcement handles allegations of misconduct. Regardless of what bill makes it through to final passage, we urge state lawmakers to honor the resounding and unambiguous demand we have heard from our communities: We must have access to investigations into all police misconduct.

This basic level of transparency is necessary for both individuals who file police misconduct complaints and the public, which needs to know what actions police take in their name. This transparency would help our communities know that their complaints of police brutality and misconduct are taken seriously by the officers sworn to protect them.

The basis for any healthy relationship is trust. Research consistently shows that communities of color have higher levels of distrust in law enforcement — often for good reason. A Pew Research poll, for example, found that only 14 percent of blacks had high confidence in police and 31 percent of Latinx people did.

Transparency would go a long way toward bridging this divide. It has been proven time and time again that crime reduction is tied to police departments’ ability to be transparent and open with residents, who are more willing to work with officers they trust.

Marylanders cannot continue to be denied the basic transparency that would allow them to hold their local departments accountable. It is time for Maryland to do better.

 

Brandon Scott, Will Jawando, March 13, 2019, baltimoresun.com, “Md. demands public access to police misconduct investigations”, https://www.baltimoresun.com/news/opinion/oped/bs-ed-op-0314-police-transparency-20190313-story.html

CORRUPTION IN UNIFORM: THE DOWD CASE; Officer Flaunted Corruption, And His Superiors Ignored It

The article as it originally appeared.

VIEW PAGE IN TIMESMACHINE
July 7, 1994, Page 00001The New York Times Archives

Over a span of six years, the New York City Police Department received 16 complaints alleging that Police Officer Michael Dowd had been robbing drug dealers and dealing cocaine as part of a gang of corrupt officers in the 75th Precinct in the crime-ridden East New York section of Brooklyn.

That wasn’t all. The officer drove to work in a bright red Corvette and sometimes had a limousine pick him up at the station house for gambling trips to Atlantic City.

Yet in a clear example of what went wrong with the department’s handling of corruption cases, an investigative panel, the Mollen Commission, has concluded that senior officers repeatedly ignored allegations against Officer Dowd or blocked efforts to check them out in a deliberate policy to shield the department from scandal. Officer Dowd was eventually arrested by another department and is now facing sentencing on drug charges.

The senior officers’ behavior, the panel concluded, was influenced by the tone set at the top. The panel’s report, which will be released formally today, found that Benjamin Ward, who was the Police Commissioner when the first allegations were made against Officer Dowd in 1986, had been deeply shaken by a corruption scandal in another Brooklyn precinct at about the same time.

And it quoted Charles J. Hynes, who was then the state’s special prosecutor for police corruption, as saying that Mr. Ward was convinced that further revelations of police misconduct would cripple the department.

But whatever the motivation, the commission said, Mr. Ward and Daniel F. Sullivan, the chief of the Inspectional Services Bureau from 1986 to 1992, “by their action — or inaction — created an unmistakable policy to avoid corruption scandals.”

Mr. Ward said he could not comment on the report because he had not seen it. Chief Sullivan told the commission that his subordinates never informed him about Officer Dowd until 1992.

Because of the perceived policy, Mr. Dowd and his “crew” of crooked officers flaunted the illegal wheeling and dealing that brought some of them as much as $8,000 a week for not interfering with drug sales along with whatever cocaine they could steal as they broke down doors at drug dens and ripped off dealers.

And even though complaints about Officer Dowd had been submitted as early as 1986, his 1987 performance evaluation described him as an officer with “excellent street knowledge” who is “empathetic to the community.”

It concludes, “Good career potential.”

Officer Dowd, who is 32, was finally arrested in 1992, not by New York City Police investigators, but by officers from Suffolk County. They had intercepted telephone conversations between the officer and a small-time drug dealer. He is now in the Manhattan Correctional Center awaiting sentencing on drug charges. The revelations that grew out of Officer Dowd’s arrest led Mayor David N. Dinkins to announce the creation of the Mollen Commission on June 25, 1992.

The panel’s report concluded that for nearly a decade the Police Department had abandoned its responsibility to insure the honesty of its members.

Fearing that reports of corruption in their commands would damage their careers, senior officers looked the other way, the commission said. Information in internal investigations was deliberately fragmented, rather than woven together to form a pattern, and cases were closed well before all leads had been exhausted.

In the fall of 1992, a report issued by Police Commissioner Lee P. Brown blamed the department’s failure to intervene in the crimes of Mr. Dowd and his fellow rogue cops on a breakdown in procedures.

But the Mollen Commission said it concluded that the problem was “a willful effort” by commanders of the Internal Affairs Division, the principal anti-corruption unit, to impede the investigation. Internal Affairs, it said, treated allegations against Mr. Dowd as separate incidents and withheld critical information from another investigator.

“By doing so,” the commission said, “Internal Affairs commanders doomed any hope of a successful investigation of Dowd and other corrupt officers of the 75th Precinct.” Holdup Provides Example

One example of how police investigators failed to make the most of leads was the holdup on July 1, 1988, by three officers in the 75th Precinct of a grocery store that was serving as a front for drug dealing. Officer Walter Yurkiw and two others were charged with the crime after robbery investigators found the car they had used, with money and drugs visible inside, parked near the station house.

Three weeks after the robbery, the precinct commander, Deputy Inspector John Harkins, told Captain Thomas Callahan of the Internal Affairs Division that he had heard rumors that Mr. Dowd was also involved in the robbery, the commission said. A few days later, a precinct lieutenant told Internal Affairs that Mr. Dowd had reportedly been seen at a bar with Officer Yurkiw and the others shortly before the robbery.

About two weeks later, two drug dealers told an Internal Affairs officer that their drug organization was paying Mr. Dowd $3,000 to $4,000 a week, plus an ounce of cocaine, for protection.

All this came to nothing. Instead, the robbery investigation remained focused on the three officers.

A few months later, Officer Yurkiw’s girlfriend, who told the police she used cocaine, got in touch with Internal Affairs, saying that Officer Yurkiw had threatened to kill her unless she provided an alibi for him in the grocery store robbery. She also told Internal Affairs about Mr. Dowd and others at the precinct.

An Internal Affairs officer reported that the woman’s “credibility and allegiances were suspect.” Yet, the Commission said, her testimony was nevertheless used.

Despite “incontrovertible indications of serious corruption,” the commission said, Internal Affairs never initiated a single investigation of Officer Dowd and, until the Long Island police intervened, the allegations against him “inevitably died a natural death.”

July 7, 1994, NYTimes, “CORRUPTION IN UNIFORM: THE DOWD CASE; Officer Flaunted Corruption, And His Superiors Ignored It”, https://www.nytimes.com/1994/07/07/nyregion/corruption-uniform-dowd-case-officer-flaunted-corruption-his-superiors-ignored.html

SWAT Team Takes Children after Parents Disagree with Doctor.

DIANNA M. NÁÑEZ | ARIZONA REPUBLIC

Updated 1:12 p.m. EDT Mar. 25, 2019
Police breaking down door to check on child
A Chandler father provided home-security video of Chandler police breaking down the door of a family’s home for a DCS-requested welfare check of a child with a spiking fever, after parents refused to give police permission to enter their home, saying their toddler son was fine.
COURTESY OF CHANDLER FATHER

After police officers busted down the door of a Chandler home to take a toddler with a spiking fever from his parents, advocates and a state legislator are questioning if a new law intended to protect families’ rights is failing.

Officers pointing guns forced their way into the family’s home in the middle of the night last month after the Arizona Department of Child Safety called police for a welfare check on a child with a 100 degree-plus fever and no vaccinations.

The parents had ignored a doctor’s recommendation to take their 2-year-old to the hospital, saying their son’s fever had decreased.

Rep. Kelly Townsend, R-Mesa, who helped craft legislation requiring DCS to obtain a warrant before removing a child from their parents or guardians in non-emergency circumstances, said she was outraged by the response of police and DCS officials in the case.

“It was not the intent (of the law) that the level of force after obtaining a warrant was to bring in a SWAT team,” Townsend said. “The imagery is horrifying. What has our country become that we can tear down the doorway of a family who has a child with a high fever that disagrees with their doctor?”

DCS officials did not respond to The Arizona Republic’s questions about their policies for child-welfare checks and warrants, or whether their handling of this family’s case was in line with those policies.

Townsend said she wants lawmakers to review warrant procedures that led to police using force, left a family traumatized and placed three children in state custody. The fact that DCS obtained a court-approved warrant shows this wasn’t an emergency that threatened the child’s life or safety so there wasn’t time to file with the court, she said.

Child-welfare workers used to be able to remove children without warrants. But under a law that took effect in July Arizona lawmakers designated limited circumstances for removing a child from their parent without a warrant: DCS must have probable cause to believe a child is at imminent risk of harm and there’s no less-intrusive alternative to removal, or DCS must have probable cause to believe a child is a victim of sexual or physical abuse that can only be evaluated by trained medical personnel.

“What about parents’ rights to decide what’s best for their child?” Townsend said. “Parents felt the child was fine. Next thing we know, the Gestapo is at their door.”

The case has made its way to a juvenile court room and sparked conversation over the balance between parental rights to care for their children versus the power of DCS and doctors.

It could take months of hearings and DCS-mandated instructions before the parents regain custody of their children. Or maybe they never will.

Rep. Kelly Townsend, R-Mesa, attended a juvenile hearing to see if the Department of Child Safety violated the rights of a Mesa mother and father when taking custody of their child.

Rep. Kelly Townsend, R-Mesa, attended a juvenile hearing to see if the Department of Child Safety violated the rights of a Mesa mother and father … Show more 

DIANNA M. NÁÑEZ

Child-welfare warrants were supposed to protect parental rights

Lawmakers and family-rights’ advocates hoped the new law would reduce the number of children being removed by DCS. Child-welfare lawsuits in Arizona and across the nation, citing the First and Fourteenth amendment, argued for due process and protections against illegal search and seizure.

In 2016, the 9th U.S. Circuit Court of Appeals ruled that removing a child without court approval violates parents’ constitutional rights.

You get your day in court for most crimes, advocates said, why wouldn’t the same apply when removing a child because of accusations of neglect or abuse?

By the time Arizona lawmakers approved a child-welfare warrant law in 2017, critics said it had too many loopholes and wouldn’t reduce unjust removals.

In fact, the total number of child removals has declined since the law took effect, but only slightly, and it’s unclear what role the new law played in the decline.

Despite lawmakers approving the warrant law to require greater transparency and address constitutional rights, DCS says it doesn’t track data for when children have been removed due to emergency situations without a warrant. And total removals include a variety of situations, including when parents voluntarily surrender their child, where the court — not DCS — orders the removal request and when a child is in the juvenile-justice system.

DCS placed 4,649 children into the foster-care system in the six-month period that ended December 2018, according to DCS data. In the six-month period prior to the July law, DCS removed 4,887 children.

That’s down from a high mark of 6,815 in fall 2015, when nearly 19,000 children were in the foster-care system and families and child-welfare advocates began pushing for a warrant law.

Concern over DCS abusing loopholes in the system prompted a second round of legislation in 2018. The restrictions designated “exigent circumstances” when DCS may remove children without a warrant. Removing the child must be so dire that there’s no time to use the electronic system to gain authorization from a judge who’s on call 24/7.

Family advocates calling themselves the Arizona DCS Oversight Group argue what happened to a Chandler family on the night of Feb. 25 is evidence the state is abusing its power and the rights of parents.

“If they can do this to one family they can do it to anyone,” said Lori Ford, a member of the self-appointed public watchdog group. “DCS took their kids and treated these parents like they were criminals.”

A fever, a doctor’s order, a parent’s right to choose medical care for their child

It started with a visit to the doctor for a fever.

On February 25, the mother took her 2-year-old boy to the Southwest College of Naturopathic Medicine clinic in Tempe, according to Chandler police records.

It was dinner time. But the toddler’s fever had spiked to over 100 degrees.

The doctor asked if the child had his vaccinations.

The mother said no.

Concerned that a lethargic child with a fever and lacking vaccinations could have meningitis, the doctor instructed the mother to take the child to the emergency department at Banner Cardon Children’s Medical Center in Mesa, according to attorneys at a March 7 court hearing following the removal of the children.

The Republic knows the names of the parents and child but it does not typically identify children in the child-welfare system.

The doctor contacted Banner physicians who recommended the child be “taken to the emergency room as soon as possible,” according to police records. The doctor told the mother that meningitis can be life-threatening and said the hospital would contact her when the mother arrived.

After they left the doctor’s office, the child was laughing and playing with his siblings. The mother took the child’s temperature again. It was near normal.

Shortly after 6:30 p.m., the mother called the doctor and told her that her toddler no longer had a fever so she wasn’t taking him to the emergency room.

The mother also said she was worried about getting in trouble with DCS because her child did not have vaccinations.

The doctor said the mother would not get in trouble. The mother again agreed to take her child to the hospital, according to police records.

In Arizona, a parent may decline vaccinations for their child based on personal, religious or medical exemptions.

About three hours later, the hospital contacted the doctor to advise her that the child had not shown up and the mother wasn’t answering her phone, according to police records. The doctor contacted DCS.

A DCS caseworker called Chandler Police and “requested officers to check the welfare of a two year old infant,” according to police records. A caseworker said he was on his way to the house.

Officers with ‘lethal coverage’ kick down door, enter home with DCS worker

Chandler police forced their way into a family's home for a DCS welfare check on a child with a spiking fever

Chandler police forced their way into a family’s home for a DCS welfare check on a child with a spiking fever
COURTESY OF FAMILY

It was about 10:30 p.m. when two police officers knocked on the family’s door. The officers heard someone coughing.

Officer Tyler Cascio wrote in a police report that he knocked on the door several times but no one answered.

A neighbor approached the officers and police explained the situation. The woman said she knew her neighbor and that “she was a good mother.” At the request of officers, the neighbor called the mother and said police wanted to speak with her.

The DCS caseworker arrived and updated police on the toddler’s fever and the mother choosing not to take her child to the hospital. The officer called the family’s doctor, who repeated her recommendation that the mother take the child to the hospital.

Police dispatch told the officers that a man at the home had called requesting that they call him. They called, and the man identified himself as the sick boy’s father.

The officer said they told the father they needed to enter the home for DCS to check on the child. The father refused, explaining that his son’s “fever broke and he was fine,” according to police records.

Officers tried to call the parents again, but no one answered. They told the caseworker the parents refused to open their door.

At about 11:30 p.m., the caseworker informed officers that DCS planned to obtain a “temporary custody notice” from a judge to remove the child for emergency medical aid.

The caseworker “advised they obtained a court order for temporary custody in order to take (redacted) to the hospital.” The order was signed at 12:04 a.m. by Judge Tracy Nadzieja, according to police records.

Cascio wrote that officers consulted with the police criminal investigations bureau and SWAT.

“Based upon the court order, the intent of DCS to serve the order, and exigency to ensure the health and welfare of the child, the decision was made to force entry to the home if the parents refused to respond to verbal requests,” according to police records. Police knocked, saying they had a court order and would force entry if needed, according to police records.

The Republic has requested the police-worn body-camera footage.

It was after 1 a.m. when officers kicked down the family’s door. One officer carried a shield, while another was described as having “lethal coverage.” Officers pointing guns yelled, “Chandler Police Department,” and entered the house.

The father came to the door. Officers placed him in handcuffs and took him and the mother outside. Inside, they found a juvenile who said she was sick and had thrown up in her bed.

Officers said the home was “messy” with clothing piles and concrete floors. In the parent’s room, a shotgun lay next to the bed, according to police records.

The caseworker spoke with two of the children without their parents present. He told officers it was “necessary to obtain a temporary custody order” for the parents’ two other children, according to police records.

Since there was no “criminal incident” and because the mother refused, no photos were taken inside the home, according to the police records.

Neither of the parents was arrested.

Officials took the parents’ three children to Banner Cardon Medical Center.

Inside a Mesa courtroom, the parents fight for their children to be returned

Families attend child-welfare hearings at Maricopa County Juvenile Court in Mesa.

Families attend child-welfare hearings at Maricopa County Juvenile Court in Mesa.
DIANNA M. NÁÑEZ/THE REPUBLIC

At a Mesa juvenile court hearing 10 days later, the parents got their first chance before a judge to fight for their children to be returned.

Each parent had an attorney. The parents had raised a family together but weren’t legally married.

The father’s parents sat on a bench next to a friend of the mother. Ford and Christina Lawler, with Arizona DCS Oversight Group, sat quietly listening and taking notes. Townsend, the state lawmaker, sat near the grandparents. She wanted to see whether the family’s rights had been violated.

A lawyer for the state Attorney General’s Office, representing DCS, asked the judge to close the hearing to the public.

In Arizona, we like our courts to be open, Judge Jennifer Green said. After listening to the lawyer’s reasoning — the attorney said members of the news media were in the courtroom and the family had spoken with the news media about the case, which he said wasn’t in the best interest of the children.

Attorneys for the parents said they hadn’t known of any restrictions on them speaking with media.

Green denied the request to close the hearing, but warned everyone that they could be held in contempt of court if they revealed personally-identifiable information about the children or any others mentioned in the hearing.

Attorneys for the parents said the children hadn’t seen each other since being taken from their parents’ home. The parents had only had one visit with their older children. DCS officials told the parents the toddler couldn’t make that visit because he was at a medical appointment.

The state’s attorney argued that the children shouldn’t be returned to their parents yet because they’d been hostile to DCS workers and weren’t cooperating. He said the parents had attended a DCS visit with members of Arizona DCS Oversight Group who were combative toward DCS workers. He said the grandfather had tried to videotape a meeting with DCS, and recording is not allowed to protect the privacy of the children.

DCS wanted the parents to undergo psychological evaluations.

Attorneys for the parents argued such evaluations were for people who had a history of mental-health issues, which neither parent had. They said the parents weren’t hostile, but they were living a nightmare that started with a child’s fever. They were woken up in the middle of the night, police busted down their door, brandishing guns and their three children were taken from them, attorneys said. The grandfather did what most people would think they had the right to do — record government officials.

The father had agreed to drug testing and the grandparents had agreed to background checks in hopes of becoming temporary caretakers for their grandchildren. Everyone was cooperating, the father’s attorney said.

A court-appointed guardian ad litem, who’s assigned to look after the best interests of the children, said he had one primary concern: Each child was still in a separate foster-care placement. Not only were the children separated from their parents, but this was also the first time they’d been separated from each other.

The judge asked the parties to attend an expedited hearing that afternoon.

After the hearing, in the courthouse hallway, the father held the mother in his arms. She cried and rested her hand on her pregnant belly.

Townsend spoke with the father about the road to getting his kids back.

“Why do they make it so hard?” he said with tears in his eyes. She tried to comfort him.

A lawmaker discusses parental rights

Outside the courthouse, Townsend said she didn’t know the parents personally but was disturbed by the case.

“It was brought to my attention that these parents may have been targeted by the medical community because they hadn’t vaccinated their children,” she said.

Townsend said parents who don’t vaccinate their children because of medical concerns aren’t criminals and shouldn’t be treated as such. She worried physicians were using it as a reason to refer parents to DCS.

“I think if DCS decides to use this as a factor they would be violating a parent’s right to have a personal exemption, a religious exemption and perhaps a medical exemption,” she said.

Townsend said the hearing opened her eyes to issues she will raise with fellow lawmakers. She questioned why the state’s attorney and DCS used the parent’s frustration with DCS to label the family as hostile and argue they weren’t cooperating with DCS.

“It doesn’t say anywhere that after your kids are taken, after police bust down your door, that you have to be nice to DCS to get your kids back,” she said.

A judge decides a family’s future

It was just before 2 p.m. when the parents walked back into the courtroom.

A DCS investigator, a former police officer, took the stand. She said upon visiting the hospital, doctors found the toddler had RSV, a respiratory virus that can cause serious illness in young children. She said the parents weren’t complying with DCS’ request to provide medical records for the children. She said they also weren’t following steps to regain custody of their children.

One of the parent’s attorneys asked the DCS investigator to outline specific steps the parents must follow to get their children back. The caseworker said she couldn’t remember any of them.

Attorneys for the parents claimed DCS was angry at the parents for speaking with the media and as retribution DCS officials were making it more difficult for the family to regain custody of their children. They said the child’s fever had gone down, as evidenced in medical reports.

The judge asked what was delaying placing three children with their grandparents. The state’s attorney said the grandparents still needed a home-safety check.

Green asked if that check could be expedited. The state’s attorney said DCS contracts with a company to conduct safety reviews and has no control over timelines but that it could take up to 30 days.

The guardian ad litem, representing the best interest of the children, told the judge he didn’t see why the children couldn’t be cared for by their grandparents while their parents worked with DCS to regain custody.

The judge said the removal was warranted, citing the mother’s refusal to follow the doctor’s orders. She said records showed the family had a history of domestic violence, noting an incident in which the father punched a wall.

She approved psychological evaluations for both parents, saying it would help identify the best services for the parents. She ordered DCS to complete a safety check of the grandparents’ home within four days. And she ordered the father to continue drug and alcohol testing.

She reminded the grandparents and parents that they were no longer in control of the children’s medical and health decisions. If a doctor orders treatment, the family must follow those directions, she said.

Then, she told the parents to remember that the state had them on a family-reunification plan and wants them to regain custody of their children.

After they left the courtroom, father and mother, both in tears, embraced.

The parents declined an interview with The Republic. They said they were afraid saying anything might upset DCS officials and hurt their efforts to regain custody of their children.

From left to right: Steven Isham, Karla Johnson, Lori Ford, Malinda Sherwyn, and David Watson are members of a group called Arizona DCS Oversight.

From left to right: Steven Isham, Karla Johnson, Lori Ford, Malinda Sherwyn, and David Watson are members of a group called Arizona DCS Oversight.
NICK OZA/THE REPUBLIC

Ford, with the DCS watchdog group, said this is how it goes.

“They (DCS) had no right to bust into this family’s home and take their kids,” she said in the courthouse parking lot. “But now, they (DCS) have control of this family. These children are traumatized, and all over a fever that wasn’t even a fever anymore when they went the hospital—just like the parents had said.”

She was upset with Townsend and other Arizona lawmakers who talk about holding DCS accountable but never do. Meanwhile, children and their families suffer, she said.

“They hold the purse strings, if they wanted to force DCS to make changes that would protect family’s rights they’d stop funding them,” she said.

Townsend hopes this case is an outlier, but the only way to know for sure is to review DCS child-welfare check policies, medical providers’ power over families and the DCS warrant process for removing children.

This case is more than enough reason to be concerned, she said.

“The fact that they got the warrant shows it wasn’t a matter of exigency by definition — it wasn’t something that they were rescuing this child from imminent death,” she said. “The expectation of child welfare is we’re thinking about the children in the family. We’re not talking cartels holding someone who’s been kidnapped, we’re not talking about a drug bust, we’re not talking about a flight risk. We’re not talking about any of that. This was a family with a child who has a fever. … We used a SWAT team on a family with a child with a high fever.”

The parents say they wonder if they’ll be a family again: ‘We love our children’

On March 15, the father told The Republic that DCS had placed their three children with his parents.

“We get to see them again,” he said. “Thank God.”

He still can’t shake the night police kicked down their door and entered his home with guns drawn. He still can’t believe they took all three of their children.

He said he has asked DCS why the caseworker never presented himself and showed a warrant for removal, but he hasn’t received a clear answer.

“I know people have the right not to let the police into their home,” he said. “But if the caseworker had called me or knocked, and shown me their warrant, I would’ve let them in.”

He said home security video showed police had stated they had a DCS warrant for removal, but the family didn’t hear them because they were sleeping in the back bedrooms with their sick children.

The judge’s approval of DCS’ request for psychological evaluations has created another barrier to regaining custody of their children, he said. The wait for an evaluation is months, he said.

The father sent The Republic a statement. His family is scared, he said, but they feel compelled to warn other families:

We have been through a very traumatic experience with our encounter with DCS. We would like other parents out there to know and realize the amount of power DCS has over the welfare of your children. Even though we remain confident in our innocence through our case, it is immediately an uphill struggle of what to do or not to do. Even if you do not agree with them or the process in which they follow. We thought they did not have the right to check on our children because they were getting better, from what they last heard about from us. We were in our home tending to our sick kids and did not want to be bothered in this tough time of illness.  With multiple children it is difficult to keep up their needs while they are ill, and to be bothered in the middle of the night by DCS was not something we were ready to tackle. No matter what we though was right, it turned tragic with the removal of all of our children. The process of removal in our opinion was uncalled for and we would like to see the laws/process change when dealing with expedited removal of children. Our children have sure been through a traumatizing experience and hope they have not been harmed psychologically or emotionally as we are a very happy family who love each other and would do anything for each other. We hope to see a positive outcome for our trial, but worry about what the kids have been though. We would like to see some sort of public service announcement by DCS to inform other parents out there that this could happen to them, because nobody, especially children should have to go through what we are going through. We love our children and are doing everything possible to get them back to us.

Reporter Mary Jo Pitzl contributed to this story.

 

DIANNA M. NÁÑEZ | ARIZONA REPUBLIC, Updated 1:12 p.m. EDT Mar. 25, 2019, “A couple decided not to take their feverish child to the hospital. Hours later police kicked down their door”, https://www.azcentral.com/story/news/local/arizona-child-welfare/2019/03/25/questions-due-process-rise-after-police-break-down-door-check-feverish-toddler/3223829002/

Testimony of Michael Sisitzky on Behalf of the New York Civil Liberties Union

Testimony of Michael Sisitzky on Behalf of the New York Civil Liberties Union

Before City Council Committee on Public Safety and Committee on Justice System

Regarding New York City Police Discipline

The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony today regarding the New York Police Department (“NYPD”) disciplinary system. The NYCLU, the New York affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices throughout the state and more than 200,000 members and supporters. The NYCLU’s mission is to promote and protect the fundamental rights, principles, and values embodied in the Bill of Rights of the U.S. Constitution and the New York Constitution.

Defending New Yorkers’ right to be free from discriminatory and abusive policing is a core component of the NYCLU’s mission. Protecting this right requires robust systems for investigating abusive officers and holding them accountable. We also work to ensure that all individuals accused of a crime receive due process and equal protection under the law.  Fundamental to this effort is holding district attorneys and their offices accountable to the public. Our testimony will speak to the need to increase transparency in both the NYPD and prosecutorial systems, including commentary on the specific bills now before the committees.

In brief, the NYCLU expresses our full support for the resolution calling for repeal of New York Civil Rights Law Section 50-a and our qualified support for the remaining seven introductions.  Each introduction has the potential to fill key voids in the public’s understanding of NYPD disciplinary practices and prosecutorial decision-making. We include specific suggestions below to further strengthen these proposals and enhance the public’s access to this critical information.

The NYPD’s Disciplinary System Urgently Needs Reform and Oversight

In June 2018, NYPD Commissioner James O’Neill convened a panel of two former U.S. attorneys and a former federal judge to review and make recommendations for improving the Department’s internal disciplinary processes, practices, and policies. The report issued by that panel last week[1] confirms issues within the NYPD that the NYCLU has raised for years, including the lack of transparency in the disciplinary process, the Commissioner’s complete authority to decide outcomes in all disciplinary cases, the vulnerability of key decision makers to inappropriate internal and external influences, and long delays in case processing that deny victims of police misconduct a sense of resolution or closure.

The Panel noted that it “was struck from the outset, and throughout its work by the lack of transparency and plain-English explanations of the NYPD’s disciplinary system and process.”[2] This observation sets the tone for why the measures before the committees today are so essential – and in many cases, need to go further. The public’s trust in police is diminished every time an officer is not brought to justice for misconduct. It is further diminished when departments actively resist sharing even the most basic information about what rules and procedures they have in place to respond to complaints of misconduct and data on what happens once those complaints start winding their way through these opaque systems.

Despite the existence of an independent Civilian Complaint Review Board (“CCRB”) with the power to investigate and prosecute a defined subset of misconduct complaints, New Yorkers are ultimately asked to trust the NYPD to police itself. Decisions about how—and indeed, whether—to discipline officers who violate the public trust are left entirely to the discretion of the NYPD Commissioner. The CCRB and even the NYPD’s own Deputy Commissioner for Trials only have the power to make recommendations to the Commissioner about discipline. State and local laws combine to vest the Commissioner with absolute discretion over the final outcome and to allow the NYPD full control over where disciplinary proceedings take place and who has access to information on how these proceedings are resolved.

To its credit, the CCRB produces detailed reports on the outcomes of cases it investigates and prosecutes. The story told by this data, however, is serious cause for alarm. In 2017, the most recent year for which we have full data, the Police Commissioner imposed penalties weaker than those recommended by the CCRB in the majority of cases.[3] In the most serious cases that went to full administrative trials, the Commissioner imposed discipline consistent with CCRB recommendations in just 27 percent of cases.[4]

The NYPD’s handling of officer disciplinary proceedings demands close scrutiny and comprehensive reform. The bills before the committee today are not enough to eliminate flaws in the NYPD disciplinary system, but they represent a critical first step by adding in long overdue and badly needed mechanisms for oversight. As the de Blasio Administration and the NYPD have manipulated secrecy provisions like New York Civil Rights Law Section 50-a to shield abusive officers from all accountability, the City Council has a public duty to respond by mandating greater transparency. By requiring the NYPD to report on the rules it follows—or purports to follow—regarding discipline, and to release data on what happens with misconduct complaints and investigations, the City Council can help New Yorkers begin to break through the thin blue line protecting those officers who abuse the very people they are supposed to protect and serve.

  • Preconsidered Resolution 2019-3709: Support

The NYCLU strongly supports passage of Preconsidered Resolution 2019-3709, calling on the State Legislature to fully repeal New York Civil Rights Law Section 50-a. Section 50-a cloaks police disciplinary records in secrecy and has been used to shield evidence of law enforcement abuse from the public. Originally passed in 1976 as an attempt to limit defense attorneys’ ability to impeach the credibility of police officers by bringing up unproven allegations of misconduct, Section 50-a is now infamous for the harm it inflicts on victims of police abuse.

Section 50-a permits total state secrecy. It permits police departments to cover up their inaction on past allegations of officer misconduct when confronted with demands for accountability – including from police abuse victims and grieving family members who have lost loved ones to police killings. It has been twisted to justify the withholding of everything from body camera footage[5] to completely anonymized use of force data.[6]

And it has gotten worse. More than any administration in recent memory, the de Blasio administration has made use of 50-a to push vitally important public records down the memory hole. In 2016, the de Blasio administration and the NYPD reversed a 40 year-old practice of releasing “personnel orders,” basic summaries of disciplinary charges and outcomes, claiming for the first time that this practice violated Section 50-a.[7] This robbed the public and the media of one of the only sources of information on whether officers who engage in serious misconduct face any degree of accountability. Astoundingly, in a 2018 letter to the Inspector General for the NYPD, the Deputy Commissioner for Legal Matters argued that Section 50-a even bars the release of aggregate, anonymized data on how many use of force incidents were reported in a given precinct.[8] The de Blasio administration also fought the NYCLU’s request for redacted decisions from the NYPD trial room, in which we sought to better understand how disciplinary decisions were made within the NYPD but without seeking any information that would have identified an individual officer. That opposition resulted in a December 2018 decision from the New York Court of Appeals that dealt a severe blow to transparency and good governance. In its decision, the Court of Appeals expanded Section 50-a’s reach so dramatically that now, unlike the other exemptions in the state Freedom of Information Law (under which disclosure of covered records is still permissive and redactions are favored to withholding) Section 50-a stands as a categorical ban on the disclosure of police personnel records.[9]

New York has long been an outlier in elevating police personnel records to the level of state secrets. We are one of just two states to maintain a law specifically making these records secret. California, long part of an ignoble trio alongside New York and Delaware, recently took steps to open the books of certain records of police misconduct,[10] joining a group of 28 states that make police disciplinary records available to the public in at least some cases and leaving New York and Delaware to compete for last place in terms of transparency. Of the 28 states where at least some records are accessible, 13 states—a geographically and politically diverse group including, among others, Alabama, Arizona, Connecticut, Florida, Ohio, and Washington—start from the position that disciplinary records specifically are and should be open to the public.[11]  It’s time for New York to catch up.

The power to repeal Section 50-a obviously rests with the State Legislature but New York City-based actors bear no small part of the responsibility for the provision’s shameful expansion and the attendant weakening in the public’s ability to serve as a check on official misconduct. It is imperative that city lawmakers join in the statewide movement to push back on this anti-democratic provision and that their counterparts in Albany do their part to end police secrecy by heeding the call to repeal 50-a.

  • Introduction 1309: Qualified Support

As important as the underlying records and decisions concerning police discipline are, it is equally important that the public be able to understand and have confidence in the process through which disciplinary decisions are made. To that end, the NYCLU expresses qualified support for Intro. 1309, which will require the NYPD to study the feasibility of instituting and develop a plan for implementing a disciplinary matrix. A disciplinary matrix is a tool setting out presumptive penalties or a range of penalties to ascribe to defined categories of misconduct. While a matrix would not be binding on the NYPD Commissioner, the goal would be to promote more consistent application of the Department’s rules and enhance the public’s understanding of the process.

The NYCLU agrees with the bill sponsor and the Panel Report that the development and implementation of such a matrix are crucial steps for the department to take. It is unnecessary, however, for the department to be asked to first undertake an examination of the “feasibility” of such a model. As the Panel Report notes, disciplinary matrices have been developed and implemented in a number of large police departments across the country, including Los Angeles and Denver.[12]

New Yorkers, the Panel, the NYPD, and members of this Council all know that a disciplinary matrix is doable. Rather than undertake a study of whether the Department can do this, the bill should require the Department to involve the public in planning for how to do so. Instead of starting with a feasibility study, the bill should instead require the NYPD to consult with the Council and directly with communities most impacted by police practices in order to incorporate their input into the design and implementation of a disciplinary matrix. While no disciplinary matrix can, by itself, alter the exclusive authority of the NYPD Commissioner to decide these matters, the public deserves a voice in developing the standards that he should be looking to in reaching those decisions.

  • Preconsidered Introduction 2019-3705: Qualified Support

As the Panel Report made clear, the NYPD must do a better job of tracking and reporting on disciplinary outcomes if the public is to have any confidence that the department is taking officer misconduct seriously. Preconsidered Intro. 2019-3705 is an important first step toward that goal. This bill will shed light on NYPD disciplinary practices and policies in two key ways. First, it will mandate that the NYPD publish its guidelines for determining the types of discipline to be imposed on officers for violations of department rules and regulations or local, state, and federal laws. Second, it will require annual reporting on the number of officers subject to disciplinary action, disaggregated by the type of discipline received and including information on the number and percentage of cases in which the Commissioner deviates from the recommendations of the Deputy Commissioner of Trials or the Civilian Complaint Review Board. It also requires the NYPD to prepare a report that compiles this information on disciplinary actions and outcomes for cases commenced within the preceding three years.

There appears to be some overlap between this bill and Intros. 1309 and 1105, in particular relating to how disciplinary guidelines and violations are defined. The Panel Report stressed how difficult these processes already are even for experts to comprehend and noted a lack of consistent guidelines and definitions within the NYPD itself. To avoid adding to this confusion, the Council should use shared and consistent definitions of disciplinary guidelines, matrices, investigatory and disciplinary findings, and categories of misconduct to better enable the public to make use of information that will be generated.

That said, this bill represents an important step toward providing the public with greater access to information about how the department hands down disciplinary penalties, and it will serve as a useful complement to similar reports from the CCRB regarding cases within that agency’s jurisdiction. The NYCLU looks forward to the role this information will play in better informing the public debate about discipline within the NYPD.

  • Introduction 1105: Qualified Support

The NYCLU supports the concept behind Intro. 1105, but we have concerns about the usefulness of the reporting that it will generate if passed without amendment. This bill will require the NYPD to issue monthly reports on the number of complaints it receives, disaggregated by precinct, and to report on actions taken by the department in response to each complaint. The bill states that these complaints shall include, but not be limited to “misuse of force, harassment, and use of offensive language,” an apparent nod to the types of misconduct over which the CCRB exercises jurisdiction.

This framework serves little real purpose without more rigorous disaggregation requirements. As written, the bill only requires simple numerical reporting: the aggregate number of complaints received by a precinct each month. Despite the explicit inclusion of the above categories of misconduct, there is no requirement to yield data on how many complaints allege misconduct related to use of force, harassment, offensive language, or any other type of misconduct for that matter. To better capture and allow for analysis of patterns in types of misconduct complaints, the bill should require the NYPD to disaggregate the number of complaints by precinct and to further disaggregate that information by the type of misconduct alleged to have occurred. The current language states a non-exclusive list of misconduct categories to be included; the NYCLU suggests striking these examples. These categories are so closely linked to the types of misconduct within the CCRB’s jurisdiction that it may inadvertently suggest that the department is to only report on these specific categories, as opposed to reporting on any and all complaints of misconduct, whether within the CCRB’s or IAB’s jurisdiction.

It is also not clear that requiring monthly reporting on outcomes will have the desired effect unless the bill incorporates a specific requirement for the NYPD to continually monitor and update the status of individual complaints. As written, the bill could be read as only requiring the NYPD to report once on the status of complaints filed within the preceding month, during which time, those complaints will almost uniformly be pending. An ongoing duty to monitor and to update these complaint reports is essential if these reports are to enhance the public’s and the Council’s ability to engage in real oversight of the NYPD.

Lastly, it is not clear the extent to which this bill will require reporting on complaints originally filed with and received by the Civilian Complaint Review Board or another agency like the Inspector General that are subsequently transferred to the NYPD. The bill should be amended to ensure such complaints are included in the Department’s reporting requirements and to also include disaggregation by the origin of the complaint.

  • Preconsidered Introductions 2019-3707 and 2019-3708: Qualified Support

These bills would require the NYPD to report on the numbers of individuals arrested for resisting arrest, assault in the second degree on an officer, or obstructing governmental administration, including demographic information on the arrestee. If intended to cover reporting on whether police are using these provisions inappropriately to target particular groups or communities for offenses sometimes dubbed “contempt of cop,” it should also include reporting on disorderly conduct.

More data on these offenses, including when more than one of these offenses are charged together, can shed light on whether and how officers are misusing these charges. However, data that comes solely from the NYPD will necessarily be devoid of essential context—namely, how prosecutors and courts respond to these charges.  The bill requires reporting on whether a district attorney declines to prosecute, but this requirement is more properly directed toward the district attorney offices themselves, as it may not be information readily available to the NYPD. Nevertheless, data on charging decisions and outcomes are essential for telling a more complete story about what happens with these arrests, and the bill should therefore impose reporting obligations on district attorney offices related to post-arrest charging and outcomes so that the public can better understand these arrest numbers in context.

Lastly, while well-intentioned, the bills’ requirement that the NYPD report on whether the person arrested “is known to identify as transgender” or “is known to identify as non-binary or gender non-conforming” may result in invasive and potentially harassing questioning of transgender and gender nonconforming (“TGNC”) New Yorkers. A 2017 report from the Office of the Inspector General for the NYPD found substantial gaps in the Department’s implementation of 2012 Patrol Guide revisions intended to improve interactions between NYPD officers and TGNC New Yorkers, including the fact that not all officers had been trained on LGBTQ and TGNC issues and that the Department had not fully updated all forms and databases to properly account for interactions with TGNC individuals.[13] The long and continuing[14] history of harassment of TGNC communities by police warrants caution before adding such reporting requirements as routine components of police interactions. At minimum, if these provisions are retained, officers should only be recording and reporting this information if self-reported by the arrestee and that officers should not be proactively seeking this information.

  • Preconsidered Introduction 2019-3706: Qualified Support

Preconsidered Intro. 2019-3706 will require the NYPD to provide district attorneys with information on certain types of disciplinary penalties imposed on officers within 24 hours of a district attorney’s request. Records of an officer’s past misconduct can have a profound impact on the course of a district attorney’s prosecution. Documented instances of bad arrests by an officer or lying in official statements may inform a decision not to prosecute, and the earlier that prosecutors obtain relevant evidence, the earlier such records can be shared with defense attorneys.

The bill could be further strengthened to ensure that records of ostensibly lower-level officer misconduct are not falling through the cracks. The bill appears to only cover discipline resulting from charges and specifications, the most severe—and most infrequent—instances of police misconduct. The Council should amend the bill to include a requirement to provide prosecutors with records of any discipline imposed on an officer, whether that discipline resulted from charges and specifications in a formal trial room proceeding or whether that discipline was imposed at the precinct level through command discipline, instructions, or training.

  • Preconsidered Introduction 2019-3704: Qualified Support

District attorneys wield immense power and influence over the trajectory of a defendant’s case. Yet the public generally has no idea about what goes into their decision-making or what standards they use to evaluate their own performance and assess the fairness of outcomes. This information gap is shocking given the outsized importance of these decisions – and the massive number of New Yorkers affected by them. In 2010, 99.6 % of New York City misdemeanor convictions resulted not from trials or evidentiary hearings, but from plea bargains that were crafted by prosecutors.[15] Across the state, less than 4% of felony guilty convictions went to trial in 2016.[16]

We have no way of knowing how individual plea bargains are determined; but the astonishing percentage of plea deals in New York suggest powerful structural incentives to do so. One of the key reasons a person might accept a plea deal is the bail amount that is first recommended by the prosecutor,[17] public data for which is also nonexistent. If a person receives bail at an amount that they cannot afford and is consequently subject to pretrial detention, the person is more likely to accept a plea deal. Without information on how bail recommendations are reached and plea bargains decided, the public lacks a basis for evaluating the integrity of a system in which a majority of criminal defendants waive their rights to trial.

The public also lacks any basis for evaluating whether district attorneys are using their discretion in a fair, unbiased way. In part due to our ongoing work tracking NYPD stops,[18] the NYCLU strongly suspects that the actual commission of crimes is not the most significant factor leading to stark racial disparities in the Rikers population, where nearly 90% of detainees are Black and Latino New Yorkers.[19] The Vera Institute of Justice published a study in 2014 illustrating how race plays a key factor across all prosecutorial decision points in the Manhattan District Attorney Office, shaping case outcomes.[20] The study looked at discretion points—from case acceptance for prosecution, to dismissals, pretrial detention, plea bargaining, and sentencing recommendations—for analyses of case outcomes disaggregated by race. Overall, race was a statistically significant independent factor in most of the discretion points. Blacks and Latinos charged with drug offenses were, for example, more likely to receive more punitive plea offers and custodial sentences than similarly situated whites.[21] Without data from district attorneys to show otherwise, the Council cannot ignore the correlation between the prosecutorial discretion and the disparities in case outcomes.

The nonexistence of prosecutorial data is particularly concerning in light of the city’s recent efforts to drive down the population of Rikers as part of its overall commitment to close the jail. The City Council approved $375.6 million in funding for the five district attorney offices for the 2019 fiscal year, representing a $107,511 increase from than the previous year.[22] Meanwhile district attorneys pursued practices that either assisted or impeded efforts to address the incarceration problems without having to report any data on those practices to the city. Such data would serve a vital purpose in helping the public and policymakers better identify where resources are needed to further the goal of decarceration.

Given the current black box in which district attorneys operate, the NYCLU offers our support for Preconsidered Intro. 2019-3704, which will require our city’s district attorneys to disclose information on criminal case dispositions. The bill will require reporting disaggregated by race, gender, and charge, on the number of cases prosecuted; cases resulting in a conviction; cases referred but declined for prosecution; number of bail, remand, and supervised release requests; cases dismissed for various reasons; cases dismissed at each phase; the average time for a case to be disposed; and the sentences imposed. Such information would no doubt inform the public about how district attorneys use their discretion to affect the liberty interests of thousands of New Yorkers.

Missing from this list, however, is information on plea bargains. We urge the Council to amend the bill to require district attorneys to also report on their plea bargains. Given the sizable percentage of convictions that result from plea bargains, information disclosed on the number and percentage of convictions that result in plea deals that are custodial and noncustodial, disaggregated by race, gender, and charge is necessary. Plea bargaining accounts for an overwhelming number of prosecutorial decision points in cases and must be taken into public account. The addition of plea bargains will further support the meaning and purpose behind this transparency bill and will bolster efforts to hold district attorneys more accountable for how they choose to exercise prosecutorial discretion.

Conclusion

We thank the committees for the opportunity to provide testimony today and for taking the first steps in a long overdue process to bring increased transparency and accountability to the NYPD disciplinary system. The NYCLU looks forward to working with the Council on these and other measures to enhance the public’s understanding of some of the most secretive government actors.


[1] The Report of the Independent Panel on the Disciplinary System of the New York City Police Department, (Jan. 2019), https://www.independentpanelreportnypd.net/assets/report.pdf (hereinafter Panel Report).

[2] Id. at 7.

[4] Id. at 35.

[5] Ashley Southall, “New York Police Union Sues to Stop Release of Body Camera Videos,” N.Y. Times, Jan. 9, 2018, https://www.nytimes.com/2018/01/09/nyregion/new-york-police-union-body-camera-lawsuit.html.

[6] Graham Rayman, “NYPD Refuses to Reveal Precinct Use-of-Force Data, Citing State Law,” N.Y. Daily News, May 10, 2018, https://www.nydailynews.com/new-york/nypd-refuses-reveal-use-of-force-data-citing-state-law-article-1.3981630.

[7] Rocco Parascandola and Graham Rayman, “Exclusive: NYPD Suddenly Stops Sharing Records on Cop Discipline in Move Watchdogs Slam as Anti-Transparency,” N.Y. Daily News, Aug. 24, 2016, https://www.nydailynews.com/new-york/exclusive-nypd-stops-releasing-cops-disciplinary-records-article-1.2764145.

[8] NYPD Response to the Report of the Office of the Inspector General for the NYPP entitled “An Investigation of NYPD’s New Force Reporting System (May 4, 2018), https://www1.nyc.gov/assets/doi/oignypd/response/NYPD_Reponse_DOIForceReportingSystemReport_50418.pdf .

[9] Matter of New York Civil Liberties Union v. New York City Police Department, No. 133, 2018 WL 6492733, *5 (N.Y. Dec. 11, 2018)

[10] Liam Dillon and Maya Lau, “Gov. Jerry Brown Signs Landmark Laws that Unwind Decades of Secrecy Surrounding Police Misconduct, Use of Force,” L.A. Times, Sep. 30, 2018, https://www.latimes.com/politics/la-pol-ca-police-misconduct-rules-changed-20180930-story.html.

[11] Robert Lewis, Noah Veltman, and Xander Landen, “Is Police Misconduct a Secret in Your State?” WNYC, Oct. 15, 2015, https://www.wnyc.org/story/police-misconduct-records/.

[12] Panel Report at 51.

[13] Office of the Inspector General for the NYPD, Review of NYPD’s Implementation of Patrol Guide Procedures Concerning Transgender and Gender Nonconforming People, 5 (Nov. 2017), https://www1.nyc.gov/assets/doi/press-releases/2017/nov/31_LGBTQ_ReportRelease_112117.pdf.

[14] New York Civil Liberties Union, “Trans Advocate Sues NYPD for Charging Her with ‘False Personation,’” Jan. 22, 2019, https://www.nyclu.org/en/press-releases/trans-advocate-sues-nypd-charging-her-false-personation.

[16] New York State Violent Felony Offense Processing 2016 Annual Report, https://www.nycourts.gov/IP/sentencing/Determinate%20Sentencing%20Report….

[17] U.S. Dep’t of Justice Bureau of Justice Assistance, Research Summary:  Plea and Charge Bargaining 3 (Jan. 24, 2011), https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf. (“Those who are taken into custody are more likely to accept a plea.”)

[18] See generally New York Civil Liberties Union, Stop-and-Frisk Data, undated, http://www.nyclu.org/content/stop-and-frisk-data. (Last checked Feb. 4, 2019).

[19] A More Just New York City 34 (Apr. 2017), https://www.ncsc.org/~/media/C056A0513F0C4D34B779E875CBD2472B.ashx.;

[20] Vera Institute of Justice, Race and Prosecution in Manhattan, (July 2014), http://www.atlanticphilanthropies.org/wp-content/uploads/2015/10/dany_fi…

[21] Id.

[22] New York City Council Report of the Finance Division on the Fiscal 2019 Preliminary Budget for the District Attorneys and Office of Special Narcotics Prosecutor (Mar. 12, 2018), https://council.nyc.gov/budget/wp-content/uploads/sites/54/2018/03/FY19-….

East NY Precinct Paid $9M In Police Misconduct Suits, Data Shows

East New York’s 75th precinct is the city’s most sued and has paid more money in settlements than any other, new data shows.

By Kathleen Culliton, Patch Staff | 
One Brooklyn precinct faced more misconduct lawsuits than any other in the city, data shows.
One Brooklyn precinct faced more misconduct lawsuits than any other in the city, data shows. (Shutterstock)
EAST NEW YORK, BROOKLYN — An East New York father, framed for a kidnapping he did not commit and forced to spend 16 years in prison, is just one of almost 100 people who have sued the 75th Precinct since 2015, a new database shows.The 75th precinct at 1000 Sutter Ave. is the most sued precinct in New York City with 91 federal lawsuits filed since 2015 and, at $9.1 million, has paid out the most money in settlements, according to the Legal Aid Society’s new database, CAPstat.

CAPstat, launched Wednesday, provides users access to data culled from federal civil rights lawsuits and disciplinary summaries provided by BuzzFeed with the hope of improving transparency within the NYPD, Legal Aid Society officials said.

“We join a national movement including fellow defenders, advocates, and community members to shed much needed daylight on police departments,” said Cynthia Conti-Cook, Legal Aid staff attorney.

“CAPstat will help New Yorkers gain a more thorough understanding of lawsuits filed against the NYPD for misconduct and will help the public hold the NYPD accountable.”

The data shows that East New York’s precinct surpasses every other in the city for the number of police misconduct lawsuits in federal civil court and the cost of payouts, CAPstat data shows.

The second-most sued precinct, the 71st precinct in Crown Heights, faced just 29 lawsuits, less than a third of the 75’s, in the same period. Bushwick’s 83rd precinct came second for settlement costs of $530,000, or just 6 percent of what the East New York precinct paid.

Reginald Connor, the East New York father framed by police for the kidnapping and murder of 16-year-old girl Jennifer Negron in 1992, claimed most of that money when he sued the 75th precinct in 2014.

Connor was granted nearly $8 million after spending 16 years in jail and being forced to register as a sex offender, court records show.

In their complaint, Connor’s attorneys noted the 75th precinct became “one of the most notorious examples of unchecked police corruption and misconduct in the City’s history” in 1992, when 75th precinct Officer Michael Dowd was busted for running a massive drug dealing operation out of the precinct.

Dowd’s arrest led the city to establish the Mollen Commission, which spent almost two years investigating NYPD corruption in precincts across New York.

The commission found “a system that had virtually collapsed years ago,” attorneys wrote.

According to Connor’s complaint, an NYPD sergeant admitted that of 750 murder investigations he supervised at the 75th Precinct between 1992 and 1994, only one was done correctly.

 

Kathleen Culliton, Patch Staff | “East NY Precinct Paid $9M In Police Misconduct Suits, Data Shows”, https://patch.com/new-york/brownsville/east-ny-precinct-paid-9m-police-misconduct-suits-data-shows

Police Officer Used Official Database to Find Women for Dates and Sex

The officer, who has since resigned, is now the subject of an FBI investigation.

By Claire Hansen, Staff WriterMarch 11, 2019, at 3:27 p.m.

Authorities say Leonel Marines used a police database to contact women for dates and sex.ISTOCKPHOTO

A FLORIDA POLICE officer used a police database to find and contact women he solicited for dates and sex, authorities say.

Sgt. Leonel Marines, a 12-year veteran in the Bradenton Police Department resigned in October amid a department probe into the accusations and is now under FBI investigation for his conduct.

Authorities with the police department have discovered and interviewed some 150 women who Marines found and contacted using the police database containing driver’s licenses and vehicle registrations.

Marines acted inappropriately with a subset of that group of women, using his title as a police officer. He contacted the women by social media, phone and in visits to their homes to “try to get dates” with the women, who were largely Hispanic, Melanie Bevan, the department’s chief, said at a news conference last week. Bevan said Marines was sometimes successful.

“To get right to the root of the matter, Leonel Marines was not utilizing this data for law enforcement purposes whatsoever,” Bevan said. She said his behavior “cast a dark shadow on our law enforcement profession.”

Marines was first caught using police data to contact women inappropriately in 2012 and was handed a three-day suspension, The Bradenton Herald reported. The behavior, however, continued.

The police department’s most recent investigation into Marines’ behavior began after he followed a woman to her parents’ house last summer, Bevan said. Marines knocked on the door of the home, and, when the woman’s parents answered, asked to speak with the woman, citing a domestic incident. The parents refused to allow Marines to speak with their daughter and filed a complaint with the police department, sparking the internal investigation.

An audit of Marines’ use of the police database containing licenses and registrations found a “very, very clear” trend that he disproportionately searched for female names and also conducted searches unrelated to cases he was working on with the department.

Marines resigned last fall after being placed on administrative leave as a result of the investigation, though the investigation continued.

Authorities found that Marines’ behavior may have been going on since 2012, Bevan said. The internal investigation, which at one point involved five investigators, concluded after finding several determinations of gross misconduct, including sex on duty. Marines would have been fired if he had not resigned, Bevan said.

A criminal case conducted by the FBI is ongoing, Bevan said.

 

 Claire Hansen, USNews, March 11, 2019, “Police Officer Used Official Database to Find Women for Dates and Sex”, https://www.usnews.com/news/national-news/articles/2019-03-11/police-officer-used-official-database-to-find-women-for-dates-and-sex

Benny Warr, awarded $1 in police brutality case, seeks new federal trial

Gary Craig, Rochester Democrat and Chronicle, Published 8:07 a.m. ET March 9, 2019

Benny Warr, who received an award of $1 after a trial in which he claimed he was brutalized and seriously injured by police, is seeking a new trial.

In court papers filed this week, Warr’s attorney, Charles Burkwit, maintains that the jury’s verdict in the civil trial ran counter to the evidence. The jury largely exonerated three officers accused of misconduct and abuse, though did conclude that one of the officers, Anthony Liberatore, used excessive force in a May 2013 arrest of Warr.

The jury then awarded Warr $1.

Also, Burkwit noted in his court papers, the jury decided that Liberatore should be subjected to “punitive damages” — typically an award designed to punish an individual who committed a wrongdoing — but then set the award amount at no dollars.

That “award was inconsistent and against the weight of the evidence,” Burkwit wrote.

City attorney Spencer Ash has responded in court papers that the jury’s verdict aligned with the evidence and that jurors “did not buy (Warr’s) conspicuously false narrative.”

The court salvos largely echo the conflicting testimony from the recent civil trial in federal court, with Warr, who was in a wheelchair which was pushed over when he was arrested, contending that he suffered serious injuries from a beating inflicted upon him by police.

Meanwhile, city officials maintain that Warr initiated the conflict that led to his arrest, tussled with police, and had suffered earlier injuries in life that he now wants to claim happened during the physical confrontation.

Warr, who lost part of his leg when he was a child and has worn a prosthesis since, testified that he was simply waiting for a bus when he was knocked from his wheelchair by police the evening of May 1, 2013. He maintained that he was severely beaten and now suffers from post-traumatic stress.

Evidence showed that he was kneed in the abdomen and hit in the head with an “elbow strike” by police, but police and city officials said the response was proper given Warr’s aggressive response to an attempt to arrest him on a disorderly conduct charge.

Police alleged that Warr was combative and possibly trying to inflame an angry crowd when they arrested him. They said he that he punched them, and continued to fight after he fell to the ground from his wheelchair.

He was arrested on disorderly conduct and resisting arrest charges; a judge later agreed to what is known as an “adjournment in contemplation of dismissal,” leading to the eventual dismissal of the charges after Warr was accused of no more crimes over a six-month period.

In his request for a new trial, Burkwit argues that:

• Medical evidence showed that Warr suffered fractured ribs from his arrest.

• His injuries complicated his ability to now walk with a prosthesis, which he could do beforehand.

• Warr will need years of medical treatment, and a jury decision to award no compensatory damages is not consistent with a determination that Liberatore did use excessive force.

• Attorney Ash committed misconduct during the trial that impacted the jury’s decision, including showing the jury medical records that were not supposed to be admitted at trial; briefly showing a video clip that also had been precluded; and maligning an expert who testified for Warr as being “down the line of doctors.”

In his response, Ash answered that:

• Warr, who previously struggled with drug addiction, had a lifetime of “chronic degenerative medical conditions” and the rib fractures may have been old injuries.

• Warr claimed his head was “punted like a football” in the arrest yet showed no outward signs of head injury afterward and clearly talked lucidly with a witness who was there.

• Warr “tried to instigate” the altercation to have a friend then record it on a cellphone.

• Any errors made by Ash during the trial were resolved quickly by instructions to the jury from the judge and were irrelevant when weighed against the bounty of other evidence.

 

Gary Craig, Rochester Democrat and Chronicle, March 9, 2019, “Benny Warr, awarded $1 in police brutality case, seeks new federal trial”, https://www.democratandchronicle.com/story/news/2019/03/09/benny-warr-police-brutality-case-seeks-new-trial/3103338002/

Hospital calls Police to Raid Stage 4 Cancer Patient’s Hospital Room For Medical Marijuana

A shocking viral video showing a team of police entering and then searching the hospital room of man with stage 4 pancreatic cancer is fueling outrage in Bolivar, Missouri, where the incident took place and is renewing nation-wide debate over medical marijuana.

Multiple police officers initiated an unconsented surprise search on terminally ill patient Nolan Sousley’s hospital room on March 6 after hospital staff claimed he was using unauthorized medical marijuana. “If we find marijuana we’ll give you a citation, we’re not taking you down to the county jail,” said one officer, caught on Sousley’s cell phone video searching through his belongings. Sousley said, referencing hospital staff, “they already told me I’m gonna get arrested.”

 

Screen grab of the March 6 footage, via Nolan Sousley  

According to a local Fox affiliate Sousley had actually been “in the middle of a chemotherapy treatment at Citizens Memorial Hospital in Bolivar” before local officers raided the room, apparently with the cooperation of unnamed hospital staff.

Though it’s unclear exactly what the hospital thought was happening in the room, according to Newsweek, “The officer said that the department had received a call from someone who said they smelled weed coming from Sousley’s room.” Officers ultimately found no marijuana or any illegal substance during the search, but did reportedly find CBD Oil (Cannabidiol oil), which is legal.

“If we find marijuana we’ll give you a citation,” an officer threatened as another family member tried to plead with police, saying Sousley’s extreme pain means that doctors allow him a variety of medications. Sousley denied smoking marijuana or ingesting ground-up plants, but acknowledged he uses THC containing capsules for pain management.

The family was visibly upset at the spectacle of multiple police rifling through the sick man’s things. “It’s the only choice I got to live, man,” Sousley told the officers in the video. “We’re Americans. I was born here, it’s my right to live.”

Watch the shocking police search of a cancer patient’s hospital room below:

<blockquote class=”twitter-tweet” data-lang=”en”><p lang=”en” dir=”ltr”>A stage 4 cancer patient’s hospital room is searched by police for marijuana. Nolan, the patient, told the hospital and doctors about using THC capsules in place of prescribed opioids. This is why we need to legalize cannabis now. <a href=”https://t.co/h1OZVtqqFx”>pic.twitter.com/h1OZVtqqFx</a></p>&mdash; MassRoots (@MassRoots) <a href=”https://twitter.com/MassRoots/status/1104095633407787008?ref_src=twsrc%5Etfw”>March 8, 2019</a></blockquote>
https://platform.twitter.com/widgets.js

Things got tense when officers demanded to search a bag that Sousley said was filled with his medications and end of life related personal items. He said didn’t want police to “dig through that,” according to the video. “It has my final-day things in there, and nobody’s gonna dig in it,” Sousley said. “It’s my stuff.”

“My final hour stuff is in that bag” — he pleaded, but officers still insisted, and then proceeded to search through it.

Ironically Missouri voters late last year voted to legalize medical marijuana, a law which has yet to take effect (until July 4, 2019). USA Today presents one of the more outrageous moments of the video where police actually acknowledge this, but shrug it off and say “then it’s still illegal”, below:

At one point in the video, Sousley references the legal status of medical cannabis in the state. Last November, Missouri voters overwhelmingly chose to create a medical cannabis system, but the state will not be taking any applications for cannabis patient ID cards until July 4.

Referencing marijuana, Sousley says in the video “medically in Missouri, it’s really legal now. They just they haven’t finished the paperwork.”

“Okay, then it’s still illegal,” one of the officers replies.

“But I don’t have time to wait for that,” Sousley says “What would you do?”

The officer says he refuses to engage in “what if” games.

Halfway through the video a doctor enters the room — apparently unaware that other hospital staff had called 911 on suspicions of marijuana use  to try to assess the situation, and asks if the police have probable cause to search the patient’s things. “Do you have the right to search his stuff?” the doctor questions.

The police admit, “we haven’t found any marijuana yet so we’re not citing him.”

Following the incident, according to local reports, “Bolivar City Attorney Donald Brown said the city and the police chief are investigating the incident.” The police department involved is now receiving various threats over the now viral video“But Bolivar police said the department is getting threats since the video has been shared nearly 7,000 times on Facebook.”

 

Nolan Sousley, photo via Facebook

As for the hospital, a representative issued the following statement: “It is also our policy to call appropriate law enforcement any time hospital personnel see or reasonably suspect illegal drug use in patient rooms or otherwise on campus,” however, it’s as yet unclear exactly what hospital staff was alleging.

According to information provided by the family on Facebook, Sousley was informed he had pancreatic cancer starting in May of 2018, after he had been admitted to the hospital for jaundice and a blockage. Just before the March 6th incident, Sousley had been admitted after experiencing fevers, chills and sweats “to the point of drenching his bed,” according to family members.

But also ironic, and outrageous, is that it was the hospital itself that called 911 on Sousley on mere suspicion that he could have been using pain-controlling marijuana related substances.

One might also reasonably assume that the police had real criminals they could have been pursuing instead of launching a multiple officer invasive search of a cancer patient’s belongings.

 

At one point the doctor even tried to diffuse the situation by asking the police to vacate the room and perhaps conduct any search of bags in the hallway with the patient’s permission, to which they refused.

Near the end of the video the doctor can be heard telling Sousley after consulting with police to stop the “live” recording, or else “nobody’s going to help you out if you do this”.

Welcome to America in 2019, apparently.

Video Shows Police Raid On Stage 4 Cancer Patient’s Hospital Room For Medical Marijuana”, https://www.zerohedge.com/news/2019-03-09/viral-video-shows-police-raid-cancer-patients-hospital-room-over-medical-marijuana