Oklahoma court upholds sentence for ex-cop convicted of rape

KEN MILLEr, Associated Press
Oklahoma court upholds rape sentence for former police officer

OKLAHOMA CITY (AP) — A court on Thursday upheld the rape and sexual assault convictions and 263-year prison sentence of a former Oklahoma City police officer whose case has been watched closely by the Black Lives Matter movement and some conservatives.

The Oklahoma Court of Criminal Appeals unanimously rejected appeals by Daniel Holtzclaw that included a lack of evidence, excessive sentence, prosecutorial misconduct, a “circus atmosphere” during his trial and a failure by the defense attorney to present an expert to offer an alternative explanation to how DNA of one victim wound up on Holtzclaw’s pants.

Holtzclaw’s family said in a statement that it is devastated by the ruling, but not surprised. Holtzclaw’s father, Eric Holtzclaw, said the family plans to file a new round of appeals in federal court, a process family members said could take more than a decade.

“We will fight for Daniel until he is free,” his sister, Jenny Holtzclaw, told reporters. She said her brother was convicted because of “biased claims” by prosecutors and fabricated accusations by “unreliable accusers.”

“He deserves freedom. He is innocent of all charges that were brought against him,” Jenny Holtzclaw said.

Prosecutors alleged Holtzclaw, 32, targeted black women and girls while on duty. He was convicted in 2015 on 18 charges involving seven women and one girl that occurred in 2013 and 2014. He was acquitted on similar charges involving five other women.

The DNA of one of the accusers was found on Holtzclaw’s pants, but his appeals attorneys argued that could have gotten there through “secondary transfer” when he searched the 17-year-old’s purse. Holtzclaw argued that because his DNA was not found on his own pants, the pants were not properly tested and that the presence of his DNA mixed with that of the girl would support his claim of a secondary transfer.

But the court found that Holtzclaw failed to show how such evidence would support any theory of how the girl’s DNA got onto his pants.

Questions about DNA evidence were kept under seal by the court for 17 months because of personnel records that are confidential under Oklahoma law.

“This case involved a sexual predator who happened to be employed, most unfortunately, as an Oklahoma City police officer,” Presiding Judge David B. Lewis wrote in a specially concurring opinion to the 5-0 ruling.

“He used his position of authority to intimidate and prey on vulnerable victims,” Lewis wrote. “His arguments attacking the convictions are … unavailing.”

In a statement, Jenny Holtzclaw took particular issue with Lewis’ comments.

“We vehemently disagree with the vicious and false assertion in Judge David Lewis’s concurrence that Daniel was a ‘sexual predator’ who abused his authority. It was detectives and prosecutors who abused their authority to manufacture false allegations against Daniel,” she said.

Eric Holtzclaw became emotional while describing the impact the case has had on his son and other family members.

“We know he’s innocent, that’s the big thing. He is 100% adamant about it. Our family is…it’s tough,” he said, fighting back tears. “We’re devastated, it’s no doubt about it.”

Oklahoma County District Attorney David Prater, whose office prosecuted the case, did not immediately return phone calls seeking comment. Alex Gerszewski, spokesman for state Attorney General Mike Hunter, whose office handled the appeal, declined comment, noting that the case is ongoing because Holtzclaw could appeal Thursday’s decision.

The executive director of Black Lives Matter Oklahoma City, the Rev. T Sheri Dickerson, said Holtzclaw was convicted because he is guilty.

“I celebrated in the fact that justice continues to be served,” Dickerson said. “The wheels of justice turned correctly.”

A 2015 Associated Press investigation highlighting the case found about 1,000 officers in the U.S. lost their licenses for sexual misconduct over a six-year period — considered an undercount because some states don’t have a method for banning problem officers.

KEN MILLEr, Associated Press“Oklahoma court upholds sentence for ex-cop convicted of rape”, https://www.yahoo.com/news/court-rule-appeal-ex-oklahoma-043509250.html

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NYPD Misconduct Lawsuits Have Already Cost NYC Taxpayers $40 Million This Year

JULY 31, 2019

NYPD officers arrest a man at a <a href="http://gothamist.com/2016/07/08/nyc_police_shooting_protest.php#photo-1">protest against police brutality</a> SCOTT HEINS / GOTHAMIST
NYPD officers arrest a man at a protest against police brutality SCOTT HEINS / GOTHAMIST

New York City taxpayers are on the hook for nearly $40 million in settlements paid out to victims of alleged police misconduct in the first half of this year—a spike of more than 50 percent since last year.

The newly released data, which the city is required to publish twice a year, shows that 716 civil misconduct suits were filed against 996 members of the NYPD since the start of 2019. While those figures are broadly consistent with previous intervals, an analysis by the Legal Aid Society found that the cost of settlements has ballooned this year: $38,307,944 was paid out in the first six months of this year, compared to roughly $24 million over the same time period in 2018.

The biggest settlement of 2019 thus far was awarded to the so-called “Bronx Rapist,” who was arrested by NYPD officers and spent eight years in prison before he was exonerated in 2014. Many of the other lawsuits were the result of more recent misconduct incidents, including alleged instances of excessive force, wrongful arrest and imprisonment, assault, and malicious prosecution.

The city has settled 72 percent of the lawsuits filed against the police department this year, a slight increase from 2018.

The data excludes cases filed prior to fiscal year 2015, which could partially account for the apparent growth in settlements. Unlike NYC Comptroller Scott Stringer’s annual claims report, the Law Department does not include notices of claim that are settled by the city prior to litigation. Factoring in those claims, the city paid out a whopping $230 million for NYPD misconduct last year, according to the Comptroller’s latest report.

Tina Luongo, Attorney-In-Charge of the Criminal Defense Practice at the Legal Aid Society, said the settlement figures suggested the NYPD isn’t doing enough about its own members’ misconduct. “These numbers will remain high unless the NYPD seriously revamps its disciplinary process so that officers who engage in this conduct receive more than just a slap on the wrist,” she said.

According to a report issued earlier this year from the Department of Investigation, the NYPD has rejected many of the reforms pushed by its own Inspector General’s Office, including recommendations relevant to use-of-force incidents.

A recent review of NYPD misconduct records showed that the department continues to employ officers who’ve been sued dozens of times, resulting in hundreds of thousands of dollars in taxpayer settlements.

“New Yorkers would be better served by police if the NYPD seriously focused on curbing rampant and systemic misconduct—which continues to cost taxpayers millions of dollars each year—instead of spearheading efforts to criminalize water splashing,” Luongo added.

A spokesperson for the NYPD did not respond to Gothamist’s inquiries.

 

JULY 31, 2019. Gothamist.com, “NYPD Misconduct Lawsuits Have Already Cost NYC Taxpayers $40 Million This Year”, https://gothamist.com/2019/07/31/police_misconduct_lawsuits_taxpayers.php

Failure to resolve police misconduct claims points to systemic problems

BALTIMORE SUN |JUL 25, 2019 | 3:13 PM

  
Failure to resolve police misconduct claims points to systemic problems
Baltimore police officers stand near the perimeter of the cordoned-off 2100 block of Maryland Avenue, after a recent shooting outside Man Alive, a drug treatment clinic. (Amy Davis / Baltimore Sun)

So, the Baltimore Police Department is deficient in its investigations (“76 Baltimore Police misconduct cases have been allowed to expire since 2016,” July 25). A Sun article points to the fact that misconduct cases against officers were tossed out because the department’s internal affairs team allowed them to expire. This was attributed to “inexcusable negligence” to which I would ask: Exactly who’s inexcusable negligence was it? What is, and who sets, the “expiration date” for investigations into police misconduct? Is it set by statute, departmental procedure, consent decre, or the roll of the dice? In the interest of transparency, that needs to be explained to the public.

Another question that needs to be asked is this: Is the system for investigation, review and adjudication of such cases simply too awkward or ponderous as to facilitate an expediency in the investigation? If so, under the mandate of the consent decree, those policies and procedures are subject to scrutiny, review and changes as appropriate, if such changes are indicated. Is that happening?

It might well be expected that in a city such as Baltimore where there is significant opposition to the police, as was demonstrated in the most-recent riots, that there would be a number of accusations of police misconduct. Of course, those thugs who rioted in the street were not a majority of the citizens. However, they represented a significant constituency. When the administration and the upper echelon command staff of the department seeks to make the reporting of police misconduct readily available and an easy process, it should expect that there will be numerous cases, especially in a city with an anti-police attitude which, incidentally and sadly, also has emanated from City Hall.

So, we have a bottleneck, one that allegedly has resulted in the loss of these cases. While I was on the force, I tried (unsuccessfully) to introduce changes to the administration of discipline that would have facilitated a reduction in this bottleneck. Since I have been retired for quite a few years, I am not aware of the authority of district commanders in such matters. During my tenure, district commanders were very limited as to what they could do. In most cases, the best they could do was a verbal reprimand and possibly a negative notation in the offending officer’s file. Otherwise, they had to submit recommendations through channels that were then reviewed and decided at a higher level of command.

The agency has a procedure for handling cases against its officers which is the institution of a trial board. The board convenes and hears cases against officers and terminates the process with findings and recommendations that are submitted to the commissioner who either concurs with the findings and recommendations or changes them. It should be quite obvious that all allegations against the police are not so egregious that the agency will seek termination of employment. Minor infractions, where the agency is not seeking termination or criminal charges could be evaluated and the district commanders given authority to act in such cases. District commanders in Baltimore command operations that are larger than many whole police departments across the country and should be capable of doing this. By diverting these minor cases to command at the level of execution, the case load would be reduced so that trial boards would sit only on such cases as the agency seeks to terminate the offending officer. Officers who are disciplined at that level could appeal the findings to an area chief whose findings would be final.

Many officers suffer under the threat of a system that postpones justice quite often affecting the officer’s health and his actions on the job. Justice delayed is justice denied. If we want our officers to be fully functional, we must expedite these cases. No officer should be “under the gun” for months or even weeks waiting for the shoe of justice to drop. How effective is that officer on the street under such pressure and apprehension? There is a lot that needs fixing in Baltimore and this is but one issue.

 

BALTIMORE SUN |JUL 25, 2019, “Failure to resolve police misconduct claims points to systemic problems”, https://www.baltimoresun.com/opinion/readers-respond/bs-ed-rr-police-misconduct-letter-20190725-obbvxojen5ha3at67xug73wd7e-story.html

Court: No Immunity For SWAT Team That Hurled A Flash-Bang Grenade In The General Direction Of A Two-Year-Old Child

 

from the nice-to-see-some-stunned-officers-for-a-change dept

It usually takes very extreme behavior from law enforcement officers to punch holes in the qualified immunity shield. Fortunately/unfortunately, there’s seems to be no shortage of extremely-badly-behaving law enforcement officers.

In this case, fielded by the Eighth Circuit Court of Appeals, the Kansas City Police Department was investigating a homicide. Detectives managed to track the victim’s cellphone to an apartment. They also managed to track down the suspect by using a combination of phone records and old fashioned police work. They arrested the suspect and applied for a search warrant for his residence.

The warrant request omitted the fact they had heard the targeted phone ringing in an apartment on Winchester Street, rather than the apprehended suspect’s residence (the “Bristol residence”). The SWAT team also met prior to the search and were informed the homicide suspect was already in custody.

The SWAT team proceeded to the Bristol residence with a normal search warrant. Once the SWAT team arrived, it decided to do SWAT team things, even though it only had a normal warrant that didn’t authorize the things it chose to do.

Here’s how it began, according to the Eighth Circuit decision [PDF]:

At 7:00 p.m., the SWAT team, dressed in tactical gear with weapons drawn, approached the front door of the Bristol residence. The front entrance had both an inside wooden door and an outside metal screen door, each of which were “double-keyed,” meaning they required a key to open from both the inside and the outside. Because the warrant did not authorize a “no knock” entry, the SWAT team knocked on the door and announced: “Police, search warrant!” At the time, there were four people inside the residence: the plaintiff, Z.J., a two year old girl; Laverne Charles, age 84; Leona Smith, age 68; and Carla Brown, age 24. Carla grabbed the keys to the door and opened the inside door.

So far, so good. There was no suspect to apprehend so the SWAT team’s presence seems a bit extraneous. But the resident was offering to unlock the door to let them in to search the place. But time waits for no one, not even the Fourth Amendment.

She then held up the keys to the door in her hand and jingled them for the SWAT team to see in order to indicate that she was going to open up the door. Before she had the opportunity to open it, the SWAT team knocked out the screen and threw in a flash-bang grenade over Carla’s head into the living room of the house. Carla testified that she would have opened the screen door had she been given the opportunity to do so.

The officers involved in the raid disputed this account. And by “dispute,” I mean “basically agreed that’s what happened, but with a bunch of exonerative explanations.”

Sgt. Rusley claimed waited “five to ten seconds” before starting to pry off the screen door. He claimed the resident refused to open the door and walked away. Feeling the element of surprise had been compromised, he tried to regain it by sailing a flash-bang grenade into the residence. Another officer said roughly the same thing, only varying the narrative by claiming the team couldn’t immediately discern what the waving of keys by the resident meant, but that the introduction of a flash-bang grenade would clear up any confusion.

This is what followed the flash-bang grenade’s “appearance” on the scene:

The flash-bang grenade caught the living room drapes on fire. The SWAT team had to remove the drapes from the house and place them in the front yard before continuing through the rest of the house. The SWAT team found two-year old Z.J. in the living room. One officer acknowledged Z.J. was “very shaken from the whole situation.” The team placed Carla and Leona in zip tie restraints, but was unable to place restraints on Laverne because of her advanced age and physical condition.

Because the person at the door didn’t wave the officers in quickly enough, the officers threw a flash-bang grenade into a room containing a two-year-old. Fortunately, it was only the drapes that caught fire.

Why the flash-bang? Well, habit, apparently. The SWAT team always has them, and pretty much always finds a reason to use them.

As the district court noted, the Board did not have any policy about the use of flash-bang grenades — such as when their use is appropriate and how to use them safely. One officer estimated that in executing search warrants, flash-bang grenades were used 80-90% of the time; another officer estimated that in his experience they were used about 50% of the time; and a third officer estimated they were used about 75% of the time.

The SWAT team members asked for the lawsuit to be dismissed, claiming qualified immunity shielded their attempt to set someone’s living room on fire during normal warrant service. The court disagrees, finding that flash-bang grenades are rarely justified, especially in situations like these. As the court points out, a flash-bang isn’t some sort of supercharged noisemaker: it’s a weapon that causes very real damage.

The record evidence shows the flash-bang grenade used here is four times louder than a 12-gauge shotgun blast and emits a light 107 times brighter than the brightest high-beam vehicle headlight. It has a powerful enough concussive effect to break windows and put holes in walls. The flash-bang burns at around 5,000 degrees Fahrenheit, creating an obvious and serious risk of burning individuals, damaging property, and starting fires (as occurred here). In some cases, they can even be lethal. And as this case illustrates well, they pose a risk of traumatizing unsuspecting occupants — particularly small children like two-year old Z.J.

The court says there are cases where flash-bang use may be justified. But this case contained zero of those elements.

Whether the use of the flash-bang grenade here was reasonable is not a close question. The SWAT team knew the suspect, Charles, was already in custody. Any potential justification based on the fact Charles was (at the time) suspected of murder is eliminated by the fact the SWAT team knew they would not encounter Charles there. Nor did they have any indication that other people at the residence would pose any threat. In fact, they had no idea who was inside the house because they failed to do any investigation into that question beyond a quick drive-by to check the address. The use of a flash-bang grenade under these facts was not reasonable. “The use of a [flash-bang] grenade must be justified by the particular risk posed in the execution of the warrant.” Terebesi v. Torreso, 764 F.3d 217, 239 (2d Cir. 2014). Nor was the manner of use reasonable. They threw the flash-bang grenade into the house blindly without knowing whether children, elderly, or other innocent individuals were inside.

In defense of their blind flash-bang toss, the officers claimed there still may have been some danger present in the house. The police may have already had a suspect in custody but the sued officers theorized the homicide could have been part of a larger criminal conspiracy, which could have meant the residence housed even more dangerous criminals. The court has no time for this distended post facto rationalization.

Of course, they had no actual information to support this after-the-fact speculation. More to the point, however, this argument relies on a dangerously flawed premise. The argument that the SWAT team was justified in using a flash-bang grenade because they did not know for certain it was unnecessary is precisely backwards; it makes using that dangerous level of force the default. This type of “flash-bang first, ask questions later” approach runs headlong into the Fourth Amendment. Law enforcement officers like the SWAT team members here need an actual justification for using a flash-bang grenade; the mere hypothetical possibility that someone dangerous could be in a house they are entering — without any actual facts to indicate that is true or likely to be true — is not sufficient.

The court finds the argument that knocking and alerting the residents of the home removed the “element of surprise,” forcing the SWAT team’s grenade-lobbing hand.

The explanation that the flash-bang was used because the SWAT team believed it was “compromised,” meaning “that occupants of the residence knew [the SWAT team officers] were there and that [the officers] no longer had the element of surprise,” is unpersuasive. The search warrant did not authorize the SWAT team to conduct a “no-knock” warrant, and so they knocked on the front door and announced their presence, which obviously defeated the element of surprise. After all, the purpose of the constitutional knock-and-announce requirement is to allow a citizen the chance to come to the door and allow entrance to an officer who is legally entitled to enter.

The court says this is all clearly-established at this point, so no one involved in the SWAT team’s flash-bang use will be able to dodge this lawsuit.

Only the plainly incompetent officer announces his presence at a house with no known dangerous people and then decides to throw in a flash-bang grenade because the occupants know he is there.

Sometimes, vague, unsupported beliefs about the dangerousness of the general public aren’t enough to allow officers to dodge culpability for their dangerous decisions. This is one of those (rare) cases.

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Jul 29th 2019, Tim Cushing, “Court: No Immunity For SWAT Team That Hurled A Flash-Bang Grenade In The General Direction Of A Two-Year-Old Child”, https://www.techdirt.com/articles/20190725/14363942655/court-no-immunity-swat-team-that-hurled-flash-bang-grenade-general-direction-two-year-old-child.shtml?utm_source=fark&utm_medium=website&utm_content=link&ICID=ref_fark

76 Baltimore Police misconduct cases have been allowed to expire since 2016


A Baltimore Police Department officer stands on a street corner during a foot patrol assignment. (Patrick Semansky/AP)

July 25

 An ongoing failure by Baltimore police internal affairs detectives to investigate misconduct complaints against officers in a timely manner has resulted in 76 such cases expiring without any conclusions on the officers’ guilt or innocence since 2016, the Baltimore Sun has found.

Emails between Baltimore police commanders, obtained by the Sun through a public records request, show a pattern of detectives and their internal affairs supervisors failing to investigate administrative misconduct cases within Maryland’s one-year limit for such work.

Critics of the department have said its failure to fully investigate every complaint against officers is evidence it cannot be trusted to hold itself accountable and needs outside oversight.

The emails show some senior internal affairs officials repeatedly expressing frustration with both the system and the lack of urgency on the part of department leadership to address the problem.

Maj. Stephanie Lansey-Delgado, who was appointed head of internal affairs by then-Commissioner Darryl De Sousa in early 2018, wrote in one April 2018 email to unit supervisors that administrators “have not been aggressive on getting the cases back before expiration.” Administrators “need to have a system where they are tracking the soon to expire [cases] for the entire division to make sure nothing expires,” she wrote in another email.

A lieutenant responded that such a system was in place.

“Well we need to work on the system,” Lansey-Delgado replied, “because a case just expired.”

The partially redacted emails show the issue is far broader than was indicated during a recent court hearing in which 12 cases were tossed by a judge for having been left unresolved for a year. And they expand on the finding this week by federal consent decree monitors that the department struggles to investigate its own, particularly when complaints come from members of the public.

While criminal investigations of officers can extend beyond a year, other administrative cases expire, including citizen complaints about discourteous and dismissive behavior and internal complaints about insubordination, breaches of protocol and serious failures of duty.

The department said this week that 26 internal affairs cases were allowed to expire in 2018 out of more than 2,600 complaints. The department previously said only eight cases expired last year.

In 2017, 22 cases expired. The cases related to a variety of issues, including officers allegedly making “inappropriate comments,” failing to properly investigate a car theft and failing to write a report after using force. In 2016, three cases expired.

An additional 25 cases have expired this year, including the dozen court cases tossed in May, the department said.

In a statement, police spokesman Matt Jablow said Commissioner Michael Harrison, who took over the department in February, “recognizes the significant issues facing our internal affairs operations and the importance of correcting those issues as quickly as possible.”

Jablow said Harrison is “fully committed to establishing a more robust, efficient and effective internal affairs unit to make BPD a significantly better department and help rebuild our relationship with the community we serve.”

Jablow would not answer specific questions.

But the emails provide insight into the unit’s scramble to fix problems. In October — the same month the Sun began asking questions about expiring cases — Lansey-Delgado sent another email noting the “reoccurring issue” and again urging supervisors to better track each investigation’s progress.

“Please review all cases assigned under your supervision and double check with your detectives and sergeants that they are aware of the correct dates,” Lansey-Delgado wrote. “Please also provide an accurate listing of the cases that are due to expire . . . and a status of each case toward completion.”

In a January email after another case expired, Lansey-Delgado urged sergeants to carefully track the expiration dates on ­cases in part because “it was deemed too difficult for the detectives to do it for their own cases” — a claim the department would not explain.

The department repeatedly declined to make Lansey-Delgado available for an interview.

The emails do not identify accused officers by name or outline their alleged offenses, and the department won’t release information related to internal affairs complaints against individual officers.

Commanders hold a weekly meeting called IAstat at which they analyze and seek to improve internal affairs work. It is one of several departmental efforts to improve internal affairs operations in the face of scathing critiques in recent years from Justice Department investigators, federal consent decree monitors and members of the public — all of whom have watched repeated corruption scandals arise within the department.

The Justice Department, in its report precipitating the city’s 2017 consent decree mandating changes, identified internal affairs as a major problem area for the department.

Late last year, the city public defender’s office called for an investigation into what it alleged was a widespread police practice of wrongly expunging internal affairs files of officers accused of misconduct. Last month, a judge tossed out a dozen internal affairs charges against Baltimore police officers because the department filed them too late under the provisions of the state’s Law Enforcement Officers Bill of Rights.

“I do not grant relief gladly in these cases,” said Circuit Court Judge Lawrence Fletcher-Hill, noting some involved serious allegations against officers.

Sgt. Mike Mancuso, the president of the police union that represents rank-and-file officers, said the judge was right to throw out the cases, but the department’s failure to promptly adjudicate internal affairs cases does not benefit officers. The one-year limit on investigations was put in place to prevent cases from dragging on, but that’s happening anyway, Mancuso said — and not just in the expired cases.

Most cases in which officers are exonerated, or in which complaints are not sustained, are ruled on only in the final days before they are set to expire, leaving officers to “sit suspended or with a bogus charge hanging over their head for that long,” Mancuso said.

He said the department doesn’t vet the cases for legitimacy early on, as it should. He also said the department is being “unreasonable” with disciplinary offers when it does try to settle cases, resulting in more cases going before full administrative boards than ever.

All of that contributes to morale among officers being “the lowest I have ever seen,” Mancuso said.

Internal affairs is not the only area in which the department has struggled in recent years. Homicides and shootings have been at historic highs. And both the police department and the police union have suggested crime is out of control in part because the department — with a half-billion-dollar annual budget — is understaffed and can’t recruit fast enough to outpace attrition.

The work of the internal affairs unit has long been clouded in secrecy, both for the heightened sensitivity around the investigations it conducts and the state’s protective laws around police personnel files, which are not subject to disclosure under public information laws. Public defenders have accused the office of State’s Attorney Marilyn Mosby of further obfuscating the public record of police misconduct by withholding internal affairs files of officers they are putting on the witness stand in criminal cases, though Mosby’s office said it has increased transparency in recent years.

The department also has promised increased transparency as part of its efforts to change and regain the public’s trust under the consent decree. But it hasn’t budged on internal affairs issues.

Harrison has said in previous interviews that internal affairs detectives should be the best of the best, and that he is taking a careful look at the unit and its leadership. The department said this week that Harrison is “in the final stages of concluding a national search” to appoint a new deputy commissioner in charge of the Public Integrity Bureau, which oversees internal affairs.

The five-year Crime Reduction & Departmental Transformation Plan that he released last week said the department is moving forward with an “Internal Affairs Modernization” and building an “Early Intervention System” to better track misconduct allegations. It provided no timeline for those improvements.

The total number of internal affairs employees has increased in recent years, even as the total number of complaints against officers has declined, according to department data.

However, the department said those figures are misleading. Individual internal affairs detectives handle more cases than in the past because of a 2016 decision requiring they handle all complaints, including those originating with command staff, it said. Each police district’s staff previously handled such command complaints, which represent the bulk of all complaints, the department said.

The median number of cases being worked on by internal affairs detectives is 58, police said. Figures for past years were not available.

ACLU MOUNTS TWO-PRONGED ATTACK TO MAKE RECORDS OF POLICE MISCONDUCT PUBLIC

JULY 22, 2019

Calling it “one of the most damaging decisions affecting the public’s right to know that has been issued, and a significant obstacle to holding police departments accountable,” the ACLU of Rhode Island has launched a two-pronged attack on a 2017 Attorney General ruling that allows police to keep secret some of its reports of police misconduct. In simultaneous appeals to the Rhode Island Supreme Court and the Attorney General, ACLU of RI cooperating attorney James Cullen is asking for a reversal of that ruling.

In two major Access to Public Records Act (APRA) lawsuits filed in past years by the ACLU, the R.I. Supreme Court has ruled that the public is entitled to obtain final reports of investigations of police misconduct. Although both cases involved requests for reports involving citizen-generated complaints of misconduct, the court rulings did not propound any distinction between investigations prompted by civilians and those initiated by a police department itself. However, a 2017 APRA advisory opinion by the Attorney General’s office, Piskunov v. Town of Narragansett, approved such a distinction and held in that case that the Narragansett Police Department could withhold their final reports of misconduct investigations if they were initiated internally. Until that ruling, police departments had routinely provided those reports. That quickly changed.

Later that year, the ACLU filed an APRA lawsuit against the Pawtucket Police Department on behalf of Dimitri Lyssikatos, who was stymied from obtaining those internally-generated police misconduct final reports. Lyssikatos is a member of the Rhode Island Accountability Project, a non-partisan organization which promotes governmental accountability and maintains a publicly available database of police misconduct reports. However, Pawtucket police, relying on the Piskunov opinion, refused to turn over 57 separate internal investigatory findings, prompting the ACLU to sue. In March, however, RI Superior Court Judge Melissa Long sided with the police and held that additional hearings were necessary to determine whether those records had to be released under APRA.

In a court brief filed today, the ACLU has asked the R.I. Supreme Court to review and overturn that decision, stating that Long’s ruling “invites public bodies to use unnecessary procedural hurdles to block APRA requests [and]  imposes significant transaction costs that most applicants for the release of records cannot afford.”

Separately, Lyssikatos was denied access to similar records in April by the Woonsocket Police Department, which also relied on Piskunov in rejecting his request for misconduct reports. In response, ACLU attorney Cullen has filed with the Attorney General a formal appeal of that denial, asking that his office overturn its 2017 opinion. Calling the Woonsocket Police Department’s denial “a flagrant breach of Rhode Island’s Access to Public Records Act,” the appeal to the AG argues that it “highlights the faulty and problematic nature” of the 2017 opinion “which has become an increasingly-used tool by police departments to shield themselves from public accountability.”  The formal appeal to the Attorney General concludes:

“The Piskunov opinion has cast a pall over police department accountability and transparency and is being used to hinder the public’s right to know in significant ways. We request that your office take this opportunity to reconsider and reverse that pronouncement, and conclude that the text and intent of the APRA . . . compel the conclusion that internally-generated reports regarding alleged police misconduct, no less than citizen-generated reports, are public records.”

In seeking the records from both Pawtucket and Woonsocket, Lyssikatos agreed, to no avail, to allow personally-identifiable information from the reports to be redacted.

ACLU cooperating attorney Cullen said today: “There is no meaningful distinction between internal affairs reports generated as a result of citizen complaints and internal affairs reports generated without an underlying citizen complaint.  However initiated, these reports of investigations conducted by the internal affairs department shed light on one of the core functions of government – policing.”

Lyssikatos added: “The idea that internally generated investigations demand greater privacy than those initiated by the public only serves to foster the disconnect between the public and law enforcement. The Rhode Island Accountability Project was, and in some cases still is, receiving internally generated reports and feels strongly that their release is essential in maintaining a single standard of investigative integrity. As it stands now, all a law enforcement agency would have to do to withhold an investigation is beat the public to the initiation of the complaint.”
ACLU of RI executive director Steven Brown stated: “The 2017 Attorney General opinion is one of the most damaging decisions affecting the public’s right to know that has been issued, and a significant obstacle to holding police departments accountable. We are hopeful that the new Attorney General’s promise of greater transparency will lead to a reversal of that unfortunate opinion.”

Earlier this year, Judge Long upheld thousands of questionable redactions made by the previous Attorney General in releasing records regarding the AG’s expenditure of “Google settlement” funds. Those redactions included the complete blacking out of a two-page memo describing the Attorney General’s purchase of ceremonial lapel pins for the office. After the ACLU appealed that ruling, Attorney General Neronha reexamined the records and released almost all of them in unredacted form.

JULY 22, 2019, “ACLU MOUNTS TWO-PRONGED ATTACK TO MAKE RECORDS OF POLICE MISCONDUCT PUBLIC”, https://www.aclu.org/press-releases/aclu-mounts-two-pronged-attack-make-records-police-misconduct-public

Baltimore should move swiftly to stop police misconduct gag orders

By BALTIMORE SUN EDITORIAL BOARD

Baltimore should move swiftly to stop police misconduct gag orders
City Council President Brandon Scott, who recently assumed the position when former Council President Jack Young became mayor, conducts a council session. (Amy Davis / Baltimore Sun)

The Baltimore City Council should expeditiously work to pass legislation that would prevent the city from silencing people who settle police misconduct and brutality cases.

The longtime practice of forcing people to sign gag orders that prevent them from discussing their cases not only stomps on their free speech rights but allows police to hide from their bad behavior. (We should also point out the city is still allowed to talk freely about cases, and does insofar as it suits its interests.) The cops in essence are not held fully accountable, leaving the possibility that they will continue to brutalize other people. As a federal appeals court said, it becomes hush money. Talk and you lose half your financial settlement.

In a 2-1 ruling, the 4th U.S. Circuit Court of Appeals unequivocally declared the non-disclosure agreements to be unconstitutional. If only City Solicitor Andre Davis, who plans to appeal, would stop fighting the issue. He and the team of city lawyers say it will hurt the ability to negotiate future settlements and that these kinds of clauses are used by other cities.

That may be the case, but there are also cities without such agreements, and Baltimore should become one of those. And the city law department should continue to work as diligently for fair settlements with or without a gag order.

Kudos to Council President Brandon Scott and Councilwoman Shannon Sneed who plan to introduce legislation today that would prohibit restricting people from talking about their cases. We urge the rest of the council to support their legislation, which was spurred by the court’s decision. As Ms. Sneed said, speaking about their experiences can help victims move past the trauma of bad encounters with cops. It would also show the city is serious about cleaning up a police department plagued by a perception of corruption.

The legislation would also require the city to publicly release details about settlements, something we also support. Currently, little is known about the cases other than the dollar amount, which must be approved by the city’s Board of Estimates. That does not go nearly far enough.

In a city trying to mend relations and rebuild trust between cops and its residents, getting rid of the gag orders would help build more transparency into the system. What exactly is the city trying to hide if they are doing right by citizens with these settlements? They should want to track bad police officer behavior and show residents they are taking responsibility when officers misbehave.

Transparency is not a bad thing for police departments that want to operate openly and honestly. Police officers work for the taxpayers and act on the public’s behalf, and we have a right to know the full details of any misconduct, including how cases are investigated and if the settlements go beyond a slap on the wrist. The recent case of the Gun Trace Task Force, where rogue police officers assaulted, robbed and took advantage of citizens, showed police officers can’t monitor themselves.

The 4th Circuit’s decision should bring hope to people like Ashley Overbey, the city resident who joined with local news website, the Baltimore Brew, to sue the city in federal court. She sued three police officers claiming they beat, tased, verbally abused and arrested her in her home after she called 911 to report a burglary. She settled for $63,000, but was ordered to pay half of it back after talking to the media. The ACLU took the case, and more than two dozen other news media organizations, including The Baltimore Sun, joined the most recent appeal.

Various other groups have also pushed for an end to the gag order during the last several years, including the Center for American Progress and the Campaign for Justice, Safety and Jobs. The chorus is loud for this change. It is about time it happened.

 

Detroit cop allegedly sought phone numbers from women he stopped

A Detroit police officer accused of threatening to issue tickets to two women unless they gave him their phone numbers was formally charged Wednesday with misconduct in office.

Investigators allege that while pulling over a 21-year-old driver near Woodward and Congress on July 2, 2018, Chancellor Dmitri Searcy told  her to give him her phone number to avoid being ticketed, authorities allege.

“After doing so, it is alleged that the victim received unwanted calls and texts from Officer Searcy,” the Prosecutor’s Office said in a statement Tuesday.

Authorities accuse Searcy of acting similarly during a traffic stop near Woodward and Jefferson on Aug. 14, 2018.

The officer reportedly told  a 29-year-old driver “that she would go to jail, have her car impounded and receive a ticket unless” the woman gave Searcy her phone number, investigators said.

After doing so, the victim received unwanted calls and texts from him, according to the release.

Searcy was arraigned Wednesday in 36th District Court in Detroit on two counts of misconduct in office before Magistrate Laura Echartea. Each count carries a maximum penalty of five years in prison.

Searcy has been suspended with pay, department representatives said Wednesday. A request to suspend him without pay was expected to go to the city Board of Police Commissioners.

He is scheduled to be back in court at 8:30 a.m. July 24 for a probable cause conference and for a preliminary examination at 9 a.m. July 30, both before Judge Kenyetta Stanford Jones. A $15,000 personal bond was set.

The Detroit resident has faced other legal troubles while on the job.

In 2015, following a lengthy investigation, he and another city police officer were arrested and charged with embezzlement, larceny and filing a false felony report.

The two partners in the city’s tactical response unit were accused of taking money from three people, starting with a 33-year-old man arrested in March 2013 at a gas station.

In 2017, a jury acquitted both officers, who had been suspended. Police Chief James Craig said at the time that they could return to work.

 

Mark Hicks, The Detroit News, July 16, 2019, “Detroit cop allegedly sought phone numbers from women he stopped”, https://www.detroitnews.com/story/news/local/detroit-city/2019/07/16/detroit-police-officer-charged-misconduct/1749862001/

Philadelphia is about to fire 13 police officers for their racist, violent Facebook posts


Philadelphia Police Commissioner Richard Ross speaks during a news conference in Philadelphia on Thursday. (Matt Rourke/AP)

The Philadelphia Police Department will fire 13 officers who paired endorsements of violence with racism and homophobia in a slew of derogatory Facebook posts unearthed by an advocacy group, the city’s police commissioner said Thursday.

The officers, one of whom was a sergeant, were among the 72 removed from street duty and placed on administrative leave in June, when the department announced its sweeping investigation into social media activity published by the nonprofit Plain View Project. The group examined Facebook pages of 3,500 current and former officers at eight departments across the country, and its findings spurred internal investigations from Phoenix to Lake County, Fla.

In Philadelphia, the Plain View Project identified some 3,100 offensive or potentially offensive posts from 328 active-duty police officers. Of that number, the most offensive were placed on leave while a department-hired law firm probed the matter, Commissioner Richard Ross said at a news conference. In addition to the officers that will be dismissed, four others will be suspended for a month.

Their conduct, Ross said, “demonstrates the officers have little or no regard for their positions as police officers.”

“I continue to be very disappointed and angered by these posts, many of which violate basic human decency,” Ross said. “We need to move past this ridiculous hate that has consumed this country and has done so for centuries.”

The most egregious posts, he said, included Islamophobic cries such as “death to Islam,” references to African Americans as “thugs,” homophobic slurs, advocating violence against trans people and generally encouraging police brutality.

“The posts were deeply disturbing,” said Mayor Jim Kenney. “Our police officers are entrusted to serve and protect the people of Philadelphia — everybody, all the people of Philadelphia.”

The mayor and commissioner both pledged the city would do “better” going forward, and Ross announced a panoply of trainings that officers have already done or will undergo in the near future — including anti-bias and anti-racism workshops with input from the Anti-Defamation League. The department will also purchase or develop software that will allow officials to “data mine” officers’ social media accounts and flag hateful or harmful posts.

John McNesby, president of the Philadelphia police union, said in a statement that the Fraternal Order of Police is “disappointed that our officers will be terminated without due process” but added that they “condemn racist and hateful speech in any form.”

“We are currently meeting with each officer to prepare an appropriate response to protect our members’ rights under the contract,” he said. “The overwhelming majority of our members serve this city with integrity and professionalism.”

McNesby has previously said that, while “there may have been a few” racist posts, “a lot of this stuff, though, I think is just cops being cops and venting.”

Ross said the 13 officers, whom he did not name and who will be fired after a 30-day suspension, will probably be the last ones let go as part of this investigation, though he did say that officials were still looking into posts deemed less urgently offensive.

The commissioner conceded that, even after the department punished its worst offenders, the episode inexorably frays relations between the police and the community.

“We’ve made significant inroads, but this takes us back,” he said. “I’d be disingenuous if I didn’t acknowledge that.”

Kenney defended his commissioner’s handling of the investigation and reaffirmed that he remains confident in Ross’s leadership of the department, which he has helmed for 2½ years.

“I think people who have hate in their hearts have hate in their hearts,” Kenney said. “And I don’t think there’s anything they can do to get the hate out of their hearts other than fire them, discipline them and train them.”

 

Reis Thebault, July 18, Washington Post, https://www.washingtonpost.com/nation/2019/07/19/philadelphia-is-about-fire-police-officers-their-racist-violent-facebook-posts/?utm_term=.d00ff94923e9

Police misconduct investigator forced out after accessing cops’ investigative records

A city employee who investigated misconduct allegations against Chicago police was forced to resign for improperly accessing investigative records on cops she knew and for falsely reporting that a co-worker planned a mass shooting at work, a report by the city’s inspector general revealed Tuesday.

The report by the office of Chicago Inspector General Joseph Ferguson did not name the employee, but Alison Yohanna was later criminally charged by Cook County prosecutors in connection with the alleged false report.

Yohanna, 35, accessed the records of her brother, boyfriend and some of the boyfriend’s relatives — all Chicago cops — almost 70 times while working as an investigator for the Civilian Office of Police Accountability, Ferguson’s office said.

The report did not explain the purpose behind Yohanna’s searches but said she also failed to reveal to COPA the personal ties to the officers that posed a conflict of interest for her investigative post.

While under investigation by Ferguson’s office, Yohanna anonymously sent a complaint to the IG from work, falsely accusing a co-worker she suspected of cooperating against her of plotting the mass shooting, the report said.

Prosecutors later indicted her on felony charges of official misconduct and false reporting of a crime for the December incident.

The false report prompted police, SWAT and tactical officers to swarm COPA offices and evacuate the building, prosecutors said. The phony email came back to Yohanna’s work computer, prosecutors said, and she admitted sending the email.

Alison Yohanna
Alison Yohanna (Chicago Police Department)

During her bond hearing in January, Yohanna’s lawyer, Robert Pervan, said in court that his client sent the email out of an “abundance of caution.”

“It wasn’t done with any malicious intent,’’ Pervan told Judge Stephanie Miller.

Yohanna remains free on $10,000 bail while awaiting trial.

On the recommendation of Ferguson’s office, COPA fired Yohanna. After she appealed her dismissal, the city settled the appeal by letting Yohanna resign instead, according to the report. She was also designated as ineligible for rehire by the city.

Speaking to reporters Tuesday from a mayor’s conference in New York, Mayor Lori Lightfoot said she hadn’t yet discussed the matter with COPA Chief Administrator Sydney Roberts but called the allegations “disturbing.”

“Look, it raises questions that have to be addressed, not only about the individual but also about the policies and practices that are in place that would allow this kind of access seemingly unchecked,” she said. “So there’s work to be done, and I will be dealing with Sydney and her team to address them once I’ve had an opportunity to read in more detail the IG’s report.”

 

JEREMY GORNER, CHICAGO TRIBUNE |JUL 16, 2019, “Police misconduct investigator forced out after accessing cops’ investigative records”, https://www.chicagotribune.com/news/criminal-justice/ct-copa-investigator-forced-out-20190716-bwpqh2t4lrdetmlcochzszakxq-story.html