Six California officers shot man as he woke in his car

13 February 2019

Willie McCoy pictured with another music artist and his cousinImage copyrightDAVID HARRISON/FACEBOOK
Image captionWillie McCoy (right) in an image shared by his cousin David Harrison (centre)

California police have said a 20-year-old black man who was shot and killed in his car by six officers last week had reached for a gun first.

But Willie McCoy’s family has pushed back, saying the aspiring rapper was not a threat to the officers as he was just waking up.

Vallejo police had been called for a wellness check when a driver was spotted slumped over in his vehicle.

The man was pronounced dead at the scene on 9 February.

“Any loss of life is a tragedy,” police chief Andrew Bidou said in an updated report of the incident on Tuesday.

The police report does not name Mr McCoy as the driver, citing the ongoing investigation, but local media identified him after speaking with family members.

Vallejo is a city near San Francisco that has been the site of several alleged cases of police brutality against black residents.

What do Vallejo police say?

According to the police department, officers received a call from employees at a Taco Bell fast food restaurant on Saturday night, requesting a check-up on a driver in the parking lot.

When they arrived on scene, they saw Mr McCoy unresponsive in his vehicle with a semi-automatic handgun on his lap. More officers were called while Mr McCoy slept.

Police had planned on opening the car door and retrieving the weapon before engaging Mr McCoy, but were unable to do so as the doors were locked.

Mr McCoy then woke up and looked at the officers, who commanded him to keep his hands visible. Police then say he did not comply and “quickly moved his hands downward for the firearm”.

“Fearing for their safety, six officers fired their duty weapons at the driver,” the news release stated. Multiple rounds were fired in a span of four seconds.

“Officers continued to yell commands at the driver and ultimately reached through the broken glass of the driver’s window to unlock the vehicle.”

Police attempted medical assistance but the driver died at the scene. An official post-mortem examination is still under way.

A preliminary investigation found that the gun had been reported stolen in Oregon.

The officers have not been named and have been placed on administrative leave for the duration of the investigation.

Photo of Willie McCoy and his cousin David HarrisonImage copyrightDAVID HARRISON/FACEBOOK
Image captionWillie McCoy (left) and his cousin David Harrison

What does the family say?

Mr McCoy’s family has disputed this police account.

During a vigil on Sunday, Mr McCoy’s older brother Mark said police had surprised Mr McCoy and fired too quickly.

“My little brother was just shot for no reason,” he said, according to CBS News.

“If I wake you up… if I knock on your front door and, ‘Bang bang bang!’ you’re going to jump off the bed,” he said. “Why wouldn’t you be safe while you wake him up and then [say] ‘Driver, exit the car’?”

David Harrison, Mr McCoy’s cousin, told the Los Angeles Times on Monday that Mr McCoy was raised by relatives after his parents passed away when he was a child.

He said his cousin had finished up a session in a recording studio before he drove to the Taco Bell.

In an emotional Facebook video, Mr Harrison pleaded with other young people to listen to their parents and keep away from cops.

“I want no other parents, no other kid’s parents, to go through this ever again,” Mr Harrison said. “They can’t just keep killing us in the street like this. My little cousin was asleep in the car.”

Mr McCoy’s family has hired civil rights attorney John Burris – who recently took on a case where a homeless man sleeping in Oakland was killed by police – to represent them, the San Francisco Chronicle reported.

13 February 2019, bbc, “Six California officers shot man as he woke in his car”, https://www.bbc.com/news/world-us-canada-47229247

Advertisements

4 things: The cost of Jon Burge’s police torture legacy

Elvia Malagon, Chicago Tribune, September 21, 2018

There are many ways to measure the legacy of disgraced Chicago police Cmdr. Jon Burge. There’s the alleged torture suspects suffered — a means of forcing confessions — at the hands of officers under his supervision. And the years those who were wrongly convicted spent behind bars. Taxpayers have paid a hefty price, too, as the city county and state settled lawsuit after lawsuit.

We learned in recent days that Burge died, at the age of 70, in Florida. A Vietnam veteran, Burge started working for the Chicago police in 1970 and moved up the ranks to commander. Stories of the violence committed under Burge — including beatings, electric shock, suffocation with typewriter covers and games of Russian roulette — began to surface and by 1993 he was fired. Years later, he was convicted of lying to federal authorities about his conduct and was sent to prison.

His death is a reminder of the price paid by so many in the wake of the torture revelations. Here are four examples:

26 years

Alton Logan spent 26 years in prison for murder before the lawyers of another man, Andrew Wilson, came forward to point the finger at their client. Wilson, who had just died, confessed to the killing, the legal team said. They said they couldn’t say anything before that because they were bound to attorney-client privilege while he was still alive. In the wake of that revelation, Logan was initially released on bond and eventually the Illinois attorney general’s office dismissed the charges against him.

$132 million

The Chicago-based People’s Law Office, which handled torture-related lawsuits, calculates that the torture cases involving Burge and officers he oversaw have cost the city, Cook County and state of Illinois $132 million. That figure includes settlements and legal fees that were paid to individuals who said they were tortured.

The city of Chicago has paid $83 million alone in settlements related to torture cases under Burge, according to figures compiled by the People’s Law Office. The city reached one of the largest settlements — totaling $10.2 million — with Alton Logan in 2013. Logan had been convicted and sentenced to life in the 1982 fatal shooting of Lloyd Wickliffee, who had been working security at a South Side McDonald’s. Logan had taken Burge to court, arguing that evidence that could have proved he was innocent was hidden. The state of Illinois paid Logan $200,000 after he was exonerated, according to the People’s Law Office.

The city also paid out $10.2 million to Eric Caine, who had been convicted of the 1986 murders of an elderly couple. He spent about 25 years in prison until a Cook County judge tossed the conviction in 2011. He had alleged that detectives working under Burge tortured him until he provided a false confession.

Reparations package

In 2015, the Chicago City Council approved a $5.5 million reparations package for people who were tortured during Burge’s time with the Chicago police. The package include settlements up to $100,000 for 57 victims, said Flint Taylor, an attorney with the People’s Law Office. Victims who had already gotten settlements from the city for more than $100,000 were not eligible. Victims and their families were also eligible to receive tuition for classes at City College and could receive job training services.

The reparations package also led to the opening of the Chicago Torture Justice Center in Englewood to provide a variety of services to Burge’s victims and the community impacted by police brutality. The package also called for public school students in eighth grade and 10th grade to learn about the Burge torture era, according to a news release from the city at the time.

Burge’s police pension: $4,000 monthly

Burge continued to collect a his taxpayer-funded monthly pension of more than $4,000, according to the People’s Law Office. Illinois Attorney General Lisa Madigan had previously tried to challenge the pension payments, but it was tossed out by the Illinois Supreme Court. The state’s high court ruled that the Retirement Board of the Policemen’s Annuity and Benefit Fund of Chicago has the jurisdiction to decide if the monthly pension should be terminated.

“This opinion should not be read, in any way, as diminishing the seriousness of Burge’s actions while a supervisor at Area Two, or the seriousness of police misconduct in general. As noted, the question in this appeal is limited solely to who decides whether a police officer’s pension benefits should be terminated when he commits a felony,” the court’s ruling stated.

Elvia Malagon, Chicago Tribune, September 21, 2018, 9“4 things: The cost of Jon Burge’s police torture legacy”, https://www.chicagotribune.com/news/local/breaking/ct-met-four-things-jon-burge-torture-chicago-police-20180921-story.html

Euclid officers named in police brutality lawsuits showed warning signs in use of force reports

Handful of cops involved in majority of incidents
Posted: 5:59 AM, Nov 01, 2018
Updated: 7:17 AM, Feb 07, 2019

Red Flags: Euclid’s Use of Force

You may have seen the viral video – a Euclid Police officer beating a man during a traffic stop. But our six-month investigation into the department goes even deeper, uncovering serious red flags related to police use of force. We found a small group of officers are involved in the most incidents, and despite police brutality lawsuits, almost all of them are still patrolling the streets.

Broken trust

Melissa Highsmith always wanted to be a police officer.

The 30-year-old Cleveland resident earned her bachelor’s degree in criminal justice and even applied for a job at a local police department.

“You’re supposed to trust them,” Highsmith said. “You’re taught when you’re little, police officers are there to help you.

“But now, it’s like completely opposite,” she said. “That’s the last place I want to go if I need anything.”

Melissa Highsmith

On March 6, 2017, Highsmith expected a quiet night.

Around 6 p.m., she drove to Euclid to meet her friend, Shanell Gist, at Gist’s apartment.

The long-time friends planned to celebrate Gist’s final semester of graduate school.

First, they spent a few moments in the parking lot. Gist wanted to show Highsmith her new car.

Highsmith said they didn’t see or hear anyone.

“We were outside for a couple minutes,” Highsmith said. “Went back upstairs, locked her door, getting settled in.”

They opened the bottle of champagne Highsmith brought as Gist’s 2-year-old daughter played in another room.

Then, without warning, a man kicked down the front door and burst into the apartment.

Highsmith was scared. She was also confused.

The man who had used a knife to break the lock and enter the apartment was Euclid Police Officer Daniel Ferritto.

Highsmith said Ferritto screamed at her and Gist, repeatedly claiming they ran from him when they were outside.

“He said, ‘You don’t run from the f**king police,’” she said. “That’s when I started verbalizing, ‘I don’t know what you’re talking about. I would never run from police. I want to be a police officer.’”

The next thing she knew, she said, Ferritto grabbed both sides of her shirt and dragged her to the cement patio outside the apartment.

“He picked me up and just slammed me onto the ground,” Highsmith said. “I was slammed on my head, like bleeding from the back of my head. Bleeding on my knees from being thrown on the cement.”

She said Ferritto placed her in handcuffs facedown on the ground but refused to explain why he arrested her.

“I was terrified of what was going to happen next…nothing made sense,” she said. “A person like that should not get to hold the position that he holds. It’s scary.”

Officer Daniel Ferritto

In his incident report, Ferritto said he demanded the women stop after hearing Highsmith and Gist yelling racial slurs in the parking lot. He also said they had an open container of alcohol in the car.

“The two females fled on foot from police and one of the females resisted,” according to Ferritto’s narrative. “The other female [Gist] endangered her two-year-old child by leaving her home alone.”

Highsmith was charged with open container in a motor vehicle, resisting arrest and obstructing justice.

Gist was charged with child endangerment.

The charges against both women were eventually dismissed.

“[That tells me] that I did nothing wrong,” Highsmith said. “And they [Euclid Police] did everything wrong. And they know it.”

She and Gist have since filed a federal lawsuit against Ferritto and the City of Euclid for civil rights violations.

The incident is among the hundreds of use of force reports 5 On Your Side Investigators reviewed as part of our exclusive investigation.

We uncovered a broken system that leaves innocent civilians injured and allows problem officers to continue patrolling the streets – in many cases, with little or no accountability.

Troubling trends

For example, Ferritto was never investigated related to Highsmith’s incident, even after the lawsuit was filed, and remains on the force.

When a Euclid Police officer uses force during an incident, he or she must report what happened in what’s called a resistance/response form, per department policy .

Resistance Response Form

https://www.scribd.com/embeds/392084153/content?start_page=1&view_mode=scroll&access_key=key-1eGwMqENmGgqlYEgG408&show_recommendations=true

Jim Buerrmann

We spent six months examining all of the 273 forms filed by officers between January 2016 and June 2018.

Immediately, a troubling pattern emerged: only a handful of officers were involved in the majority of incidents involving uses of force, including punches, takedowns and Tasers.

Our data analysis found less than 20 percent of Euclid Police officers were involved in more than 80 percent of the use of force incidents.

“When that happens, that is a red flag for the organization,” said Jim Buerrmann, president of the Police Foundation, a non-partisan research group dedicated to improving policing practices.

“Clearly, when a small number of people are responsible for the lion’s share of the use of force, somebody needs to be taking a very hard look at that,” he said.

Familiar faces

So, which officers used force the most?

Officer Michael Amiott. Photo credit: AP

Some are familiar faces, like Officer Michael Amiott.

We found he was involved in 17 incidents, the seventh highest number of any officer within the department.

Recently, an arbitrator awarded Amiott his job back after he was fired when a video of him beating 25-year-old Richard Hubbard III was posted on Facebook and went viral.

WARNING: The video below contains graphic content.

In the video, you can see Amiott repeatedly punching Hubbard in the face.

The police brutality incident occurred during a routine traffic stop on Aug. 12, 2017.

In their report, officers at the scene said Hubbard ignored commands to turn away from officers after he was ordered to get out of his car.

Hubbard was charged with driving under suspension and resisting arrest, but, like Highsmith and Gist, he was later cleared of all charges .

On Sept. 28, Hubbard filed a federal lawsuit against Amiott, two additional officers and the City of Euclid alleging civil rights violations.

After the City of Euclid announced Amiott was awarded his job back by an arbitrator, the Euclid NAACP issued a travel advisory for “travelers, particularly those of color to proceed with caution when driving through the municipality of Euclid, Ohio.”

Amiott is also facing allegations of police brutality in a separate federal lawsuit filed in January stemming from another incident.

Erimius Spencer, 30, alleged Amiott reached into his pocket without cause and pulled out what appeared to be a small amount of marijuana during a Dec. 5, 2016 arrest.

The lawsuit alleges Amiott then twisted Spencer’s arm, kneed him in the groin, pushed him to the ground, Tased him 10 times and kicked him in the face.

The kick fractured Spencer’s orbital bone.

Erimius Spencer’s injuries. Photo credit: Paul Cristallo

Our analysis also shows Euclid officers use or display Tasers more often than any other type of force.

Infogram

In addition, we found Amiott’s partner during the arrest, Shane Rivera, was involved in more use of force incidents than almost any other officer during the time period we reviewed.

Officer Shane Rivera’s name appears on 24 response/resistance forms. Photo credit: Facebook

Lamar’s lament

Lamar Wright

“The things they have done, the way they handle people, they just [need to] redo their whole force,” 37-year-old Lamar Wright said.

Wright has also filed a federal lawsuit alleging civil rights violations by Euclid Police officers.

On Nov. 4, 2016, he pulled into a driveway of an acquaintance on East 212th Street in Euclid to call his girlfriend.

Seconds later, two men wearing dark clothing appeared at his car doors, guns drawn.

He thought he was being carjacked by robbers.

Instead, it turned out the two men were Euclid Police officers Kyle Flagg and Vashon Williams, who were doing surveillance on a nearby home.

Officers Vashon Williams and Kyle Flagg. Photo credit: Facebook

It was surveillance that had nothing to do with Wright.

Flagg’s body camera video shows the officers demand Wright show them his hands and get on the ground.

WARNING: The video below contains graphic content.

For a brief moment, Wright struggled to raise his arms.

He had recently had stomach surgery. A colostomy bag was still attached to his right side.

“I was in bad shape,” he said. “My stomach was still open from the staples.”

Wright said Flagg then grabbed and twisted his left arm and pulled him to the ground. In the video, you can hear Wright repeatedly say Flagg is hurting him. Flagg then deployed his Taser. Williams used his pepper spray.

The officers accused Wright of “reaching,” appearing as if he was grabbing a weapon.

Wright said he was lifting up the arm rest around his colostomy bag to cooperate with officers’ orders. Police did not find a gun in his car.

“I mean, you just don’t treat people like that,” Wright said. “I just wish this doesn’t happen to anybody else.”

Wright’s lawsuit alleges Flagg and Williams filed false police reports about the incident.

They charged Wright with resisting arrest and traffic violations. Those charges were dismissed.

The officers remain on patrol.

“It’s crazy – like they’re almost getting away with it,” Wright said.

The outlier

Even more troubling, we found Flagg was involved in 35 use of force incidents alone – more than any other officer.

“You need to find out why this officer has many times more use of force cases than other officers,” Buerrmann said. “The best practices in policing today indicate that you should take a look at what’s going on with that officer’s experience.”

Like Rivera, Ferritto, who’s accused of attacking Highsmith, was involved in multiple incidents. Specifically, his name is mentioned on 24 response/resistance forms.

Between Flagg, Ferritto and Rivera, the three officers account for 30 percent of the department’s use of force response/resistance forms.

“It’s obligation of the leadership of that organization to try to find out why that’s occurring and then make a decision about helping that officer, removing them from the context or removing them from the organizations…[and] protect the people of that community.” Buerrmann said.

“Sometimes, it is the assignment the officer gets…sometimes there’s personal issues going on. Frequently, it is that latter case,” he said. “Sometimes, it’s because they lack certain training.”

Trouble with training

The department’s use of force training has come under fire in the six federal lawsuits filed against the City of Euclid over police brutality during the last two years.

In a recent lawsuit filed by Euclid resident Shajuan Gray, the complaint referred to a use of force PowerPoint presentation utilized by the department for training purposes.

The first slide, part of the department’s 2017 winter in-service “Defensive Tactics Training,” shows the image of an officer in what appears to be riot gear striking a person lying on the ground with their hands in the air. A caption next to the image reads, “serving and protecting the poop out of you.”

Slide from Euclid Police training presentation.

Gray, 46, said on March 27, 2017, Officer James Aoki knocked on her door about a noise complaint that she was playing her music too loud. She was in the shower at the time and answered her door in a bath wrap.

Gray alleged Aoki forced his way into her apartment and assaulted her in her kitchen, leaving her with bruises on her body.

“As he’s slamming me and pushing me against the freezer and refrigerator, he’s twisting my arms up in an uncomfortable position,” she said. “I’m telling him then, ‘You’re hurting me. Why are you doing this to me? Please stop.’”

Shajuan Gray

In the lawsuit, Gray said her bath wrap fell off while Aoki allegedly assaulted her, exposing her chest. She said he refused to let her to get dressed before he took her to the police department.

Aoki, who has been involved in 14 other incidents involving the use of force since 2016, did not have a body camera on during the incident.

Later, an assisting officer arrived, who was wearing a body camera. His video showed Gray walking down the stairs of her apartment in handcuffs wearing only her bath wrap. She can be heard asking to be allowed to put on clothes and telling officers they’re hurting her.

WARNING: The video below contains graphic content.

In an incident report, Aoki said Gray refused to provide her name, tried to shut the door on the officer and resisted arrest.

She was acquitted of the charges filed against her after the incident, which included resisting arrest, obstruction of official business and noise violation charges.

Gray’s lawsuit wasn’t the only one that highlighted problems with Euclid’s use of force training presentation.

Luke Stewart was shot and killed by Officer Matthew Rhodes in March of 2017.

According to his family’s complaint , Stewart was asleep in his car and unarmed when Rhodes approached him. After waking Stewart, a struggle ensued when Stewart began to drive his car.

Rhodes then shot him.

U.S. District Judge James Gwin ruled Rhodes was justified when he shot Stewart, but, in an unusual move for a judge, he sharply criticized the Euclid Police Department.

In his ruling , Gwin wrote the training presentation shows the department displays a “cavalier indifference” to use of force training.

Along with the cartoon of an officer beating an unarmed individual, the presentation also featured a skit by comedian Chris Rock, titled, “How to not get your ass kicked by the police!”

“Have you ever been face-to-face with a police officer?” asks the comedian. “If you have to give a friend a ride, get a white friend. A white friend can be the difference between getting a ticket or getting a bullet in your a**.”

Gwin described the comedy video as “grossly inappropriate” to show officers as part of formal training.

He also criticized the department for giving officers the same “barebones” test each year on its use of force policies and Chief Scott Meyer’s failure to create a training committee as mandated by the department’s policy manual.

We made multiple requests via phone and email for a sit-down interview with Meyer. He did not respond, so we went to a recent city council meeting to share our findings and ask him about his department’s use of force.

When asked whether he believes the police department’s training materials are appropriate, Meyer said yes. When specifically asked about the Chris Rock video, he did not respond.

Leadership matters

We also asked Meyer why 20 percent of his officers account for more than 80 percent of use of force response/resistance form.

“That’s something we could talk about at a later time,” Meyer said.

Investigative reporter Sarah Buduson asks Police Chief Scott Meyer questions at a recent council meeting

We asked if our findings indicate a red flag regarding the officers’ conduct. He told Investigator Sarah Buduson, “Didn’t I just tell you? It’s not that I don’t have a comment. I don’t have a comment for you.”

“Leadership in police matters,” Buerrmann said. “The police chief or the sheriff is very similar to the captain of the ship. What he or she says to the organization, or doesn’t say, sends a very clear message about what’s acceptable. Any statement, or lack thereof by any police leader, can potentially be problematic.”

“There’s a clear problem with their training,” Highsmith added. “I think they need to kind of revamp their entire police department.”

Hours after our investigation published online, Euclid Mayor Kirsten Holzheimer Gail responded to News 5’s reporting via email and said the city and police are “committed to providing a safe community and to treating all residents justly and with dignity and respect.”

She said the city has contacted the U.S. Department of Justice to implement a procedural justice training program for its officers. You can read her full statement below:

RE: Mayor Gail Response to Red Flags

The City of Euclid and the Euclid Police Department remain committed to providing a safe community and to treating all residents justly and with dignity and respect. The incidents in this report occurred in 2016 and 2017. Our goal remains to continuously upgrade and improve the Euclid Police Department. To that end, we have implemented new programs such as a multi-department use of force review committee. We reached out to the Department of Justice to implement a Procedural Justice Training Program, the very first of its kind in Ohio. We have and will continue to far exceed state training requirements and have enhanced training in areas including community relations, de-escalation techniques, and defensive tactics. EPD use of force incidents remain well below the national average*. We will continue to work with the Euclid Police Department, residents, and community partners to ensure Euclid remains a community where we all can be proud to live, work and visit.

*See: http://euclidpd.org/response-to-resistance/

Kirsten Holzheimer Gail

Mayor, City of Euclid

A day after News 5 published this report, the Euclid FOP Lodge 18 responded by calling the investigation a “witch hunt,” and providing a statement which reads, in part:

The officers mentioned are some of the most decorated in the department and are probably responsible for taking more guns, drugs and violent criminals off the streets than the rest of the department combined. Some are even assigned to a Community Response Unit, which is tasked with addressing severe crime in the community. Some have saved almost as many overdose victims with Narcan, as times they’ve used force.

You can read their complete statement on their Facebook page here.

A dream on hold

After Ferritto hurt her, Highsmith said, she feels anxious when she sees a police officer.

“[It’s] constant, automatic,” she said. “Everything tightens up. Even if I’m just driving down the highway.”

She said the incident led her to put her dream of becoming of police officer on hold.

“I don’t want to work alongside them,” she said. “I just feel like I can’t trust police officers.”

 

“Euclid officers named in police brutality lawsuits showed warning signs in use of force reports”, https://www.news5cleveland.com/longform/euclid-officers-named-in-police-brutality-lawsuits-showed-warning-signs-in-use-of-force-reports

‘A Stain on the City’: 63 People’s Convictions Tossed in Chicago Police Scandal

Mark Rotert, head of the conviction integrity unit of the Cook County State’s Attorney’s Office, spoke to reporters after a judge in Chicago threw out the convictions of 15 men in 2017.CreditCreditTeresa Crawford/Associated Press

By Christine Hauser, Feb. 13, 2019

In 2012, a Chicago police sergeant and an officer were arrested in an undercover operation for stealing $5,200 from a person carrying what they thought was cash for drug dealers. The officers eventually entered plea deals, but the arrests led to scrutiny of the tactics they and their team had used while making drug arrests at the Ida B. Wells housing complex on Chicago’s South Side for years.

This week, 14 men with drug convictions related to those cases were exonerated — four of them on Wednesday and 10 on Monday. With those exonerations, 63 men and women have had their cases vacated because of the involvement of Sgt. Ronald Watts and Officer Kallatt Mohammed, lawyers for the 14 men said.

“It is a stain on the city,” said Joshua Tepfer, a lawyer with the University of Chicago Law School’s Exoneration Project, which has represented 47 of the 63 people exonerated.

“One thing that goes without saying is the reason they were covered up is they were viewed as a disposable people who live in the housing projects,” he said. “Nobody cared. Nobody believed them.”

Robert Foley, a spokesman for the Cook County state’s attorney, said on Tuesday in an email that the State’s Attorney’s Office would continue to review the matters on a case-by-case basis.

The arrests of Sergeant Watts and Officer Mohammed came after F.B.I. and Chicago Police Department investigators recruited an informant to tell the two law enforcement officers that the informant was carrying the $5,200 for a drug trafficker, a statement from the United States attorney for the Northern District of Illinois said at the time of their arrest in 2012.

The two officers took the money, and then paid the informant $400 “for allowing them to steal the drug proceeds” in 2011, the statement said. “Who always takes care of you?” Sergeant Watts told the informant, according to the statement.

After their arrests, Sergeant Watts and Officer Mohammed were charged with theft of government funds. Officer Mohammed entered a plea agreement in 2012 and was sentenced to 18 months, and Sergeant Watts pleaded guilty in 2013 and was sentenced to 22 months, according to Joseph Fitzpatrick, an assistant United States attorney for the Northern District.

A lawyer for former Sergeant Watts and representatives for the Civilian Office of Police Accountability were not immediately available for comment on Wednesday; the Chicago Police Department and a lawyer for former Officer Mohammed declined to comment.

Ronald Watts leaving court after being sentenced to 22 months of prison in 2013.CreditPhil Velasquez/Chicago Tribune, via Associated Press
Ronald Watts leaving court after being sentenced to 22 months of prison in 2013.CreditPhil Velasquez/Chicago Tribune, via Associated Press

But people who had been arrested by Sergeant Watts and Officer Mohammed took note. They petitioned to vacate the convictions that had resulted from Sergeant Watts and his team’s arrests years before.

“A lot of those convictions then fell by the wayside,” said James A. Graham, a lawyer who represented Officer Mohammed at the time he took the plea deal.

The Exoneration Project and another Chicago-area lawyer, Joel Flaxman, worked to vet cases of convicted men and women who said they were innocent of the charges imposed on them by members of the team led by Sergeant Watts and who had filed misconduct complaints against the officers.

Once vetted, their cases are turned over to Cook County State’s Attorney’s Office. In November 2017, the State’s Attorney’s Office said it filed the first of its motions to vacate the convictions of people based on concerns regarding allegations of misconduct of the arresting officers, including Sergeant Watts. In subsequent statements on exonerations, Kimberly M. Foxx, the state’s attorney, linked additional exonerations to “the misconduct” of the officers.

“We found a pattern of misconduct by Watts and other officers in these cases, which caused our office to lose confidence in the initial arrests and validity of these convictions,” Ms. Foxx said last year.“May the defendants, who we now believe were victims, find a path forward in healing and justice.”

Leonard Gipson, whose convictions were among the first vacated in 2017, said in an interview on Wednesday that he had spent time incarcerated in 2003 and in 2007 after being charged with delivering crack and heroin.

“The biggest impact was it took a lot of time away from my kids growing up,” he said, speaking of his children, who are now 18 and 16. “I missed out on so much time in their life. And I don’t think it is really possible to make up that time.”

On Monday and Wednesday, Judge LeRoy K. Martin Jr. of Cook County, during a hearing in Chicago, granted further motions and vacated the convictions of the 10 men. Two of the four were in court on Wednesday, said Mr. Flaxman, who represented the four in court.

“The floodgates opened of people coming out of the woodwork and saying, ‘Hey, it happened to us,’” Mr. Flaxman said.

It is not clear how many more convictions will be challenged. Some people sought exonerations after their sentences had been served, while others are still in prison, Mr. Tepfer said. About 15 police officers who had worked on Sergeant Watts’s team were put on desk duty, but the Chicago Police Department declined to comment on Wednesday.

“There is a ton to unpack,” he said. “We are going to be doing this for years.”

Christine Hauser, Feb. 13, 2019, NYTimes, ‘A Stain on the City’: 63 People’s Convictions Tossed in Chicago Police Scandal”, https://www.nytimes.com/2019/02/13/us/chicago-exonerations-drug-sentences.html

Your New Jersey Traffic Stop could leave you face-to-face with a troubled cop

New Jersey stands nearly alone in the nation for refusing to ban bad cops. The state fails to track officers with known histories of bias or lies.

Eileen Cassidy, a Spring Lake Heights mother of three, spent 22 days in jail because New Jersey hid a State Police sergeant’s misconduct for nearly a year, her attorney argued.

She pleaded guilty in 2016 to a drunken driving charge without knowing that the breath-testing machine used in her case was unreliable, her attorney claimed in a brief filed in June before the state Supreme Court.

A State Police sergeant responsible for certifying breath-testing machines as accurate was indicted by a state grand jury on charges he falsified documents to show a machine had been properly tested when he had actually skipped a step Cassidy’s attorney called “extremely vital” in his brief. The sergeant pleaded not guilty and his case is pending.

The alleged fabrication throws into doubt the validity of breath samples in more than 20,000 DWI cases involving machines certified by the sergeant – including Cassidy’s. The state attorney general’s office knew about the skipped steps but failed to tell Cassidy and others about the problem for 11 months before Cassidy pleaded guilty, Cassidy’s lawyer claims. The state has argued that the step improves confidence in the tests, but doesn’t affect scientific reliability.

The breath testing machine debacle highlights the damage done to cases involving thousands of defendants when New Jersey fails to catch police misconduct or tell the public about bad officers.

In most other states, an officer who breaks a rule can be banned from wearing a badge, some even without a criminal conviction.

But New Jersey is different. It stands nearly alone in the nation for its lack of state oversight of police officers.

New Jersey is one of just four states that does not license police officers, a basic safeguard used nationwide to ensure bad cops don’t skirt the rules or move from town to town. Licensing is a practice common to dozens of other professions, from doctors to massage therapists, and even other public employees, such as municipal finance officers. Licensing helps ensure professional standards are uniform, upheld and bad actors are banned.

Protecting the Shield

Yet in New Jersey, the police oversight system is in such disarray that officials cannot track a wayward officer’s untoward conduct. Moreover, the state has no clear rules for when – or even if – a  problem cop’s past has to be disclosed to those he or she arrests.

Next time you’re in a traffic stop, a cop previously accused of dishonesty can arrest you, but there will likely be no way to know about his past, the Asbury Park Press and USA TODAY NETWORK New Jersey found.

Network reviewed thousands of pages of police records and court documents to find:

  • Dozens arrested by a cop a prosecutor’s office thought to be on desk duty – At least 43 people have been arrested by a Manchester officer after his town fired him – though he was later reinstated – and Ocean County Prosecutor’s Office told a court he would “undermine confidence” in prosecutions. A court, however, brushed off the prosecutor’s claim and found in favor of the officer in all but one issue. Top officials in the prosecutor’s office said they thought the officer was not on patrol until the Network showed them he was making arrests.
  • $1.9 million in police salaries keeps 20 questionable cops on duty – Eight cops known to have been untruthful, a cop who made bigoted social media posts and another accused of trying to fix a ticket for his cousin are among 20 officers still on duty and collecting salaries and benefits.
  • $1.6 million to settle claim after beating and cover-up – In June, Bloomfield agreed to a $1.6 million settlement of allegations related to an incident in which a man was beaten during a 2012 traffic stop and two cops falsified police reports. Former officers Sean Courter and Orlando Trinidad are still in prison serving a five-year sentence after they were convicted of crimes connected to that incident. Claims of police abuse cost New Jersey taxpayers more than $51 million since 2010, the Network found in a review of lawsuit settlements. That includes 24 deaths and 136 injuries.

NJ’s bad cop blind spots

No licensing for NJ cops

New Jersey can’t ban a bad officer in the way a rogue lawyer is disbarred. Officers in Pennsylvania and Florida, for example, can lose their licenses for less than criminal activity, like lying on an application. Lists of officers banned from serving in those two states are publicly accessible.

The Garden State is now one of four without a way to ban bad cops – Hawaii passed a police oversight overhaul in July.

“There’s a lot of professions that are licensed to a minimum standard and I think law enforcement officers should be held to a minimum standard of conduct and job performance,” Hawaii Rep. Scott Y. Nishimoto said.

One of the nation’s top police standards groups – run by cops for cops – recommends police officers be certified and tracked the same way New Jersey licenses dozens of other professions. The International Association of Directors of Law Enforcement Standards and Training based in Idaho maintains a national database of more than 25,000 officer decertifications, intended to stop bad officers from jumping state lines to find new jobs in policing. With no system to ban bad cops, New Jersey can’t contribute to that list.

“Many times when they don’t license and don’t decertify officers, a bad officer that has committed serious misconduct seems to bounce from agency to agency and continue that misconduct,” Executive Director Michael Becar said. “That’s what we’re trying to prevent.”

Protecting the Shield: Three arrests — and still on the police force.

The Network found that while state law bans convicted criminals from wearing a badge, cops who faced allegations in court as serious as official misconduct and witness tampering were able to secure deals that kept them on duty. In one case, a cop who agreed as part of a court sentence to never again work police or fire jobs then served as a volunteer firefighter and elected fire commissioner.

No standard for disclosing an officer’s checkered past

Based on a series of court decisions over decades, prosecutors have a duty to tell defense attorneys if a police officer has a tainted past – a lie here, a bad report there.  That way, the logic goes, a defense lawyer can point out to a jury if an officer has a history of being untruthful. It’s sometimes called “Brady” material, named after a 1963 U.S. Supreme Court ruling.

New Jersey has no clear rules, however, that outline what prosecutors need to give up about an officer’s checkered past. A Network review of all 21 counties found that 17 don’t have a policy addressing the issue. Nineteen have no list of troubled officers.

Failing to make the right disclosures undermines a defendant’s right to fair treatment in court and can lead to complicated appeals.

See additional information on these police officers

Bad data on police employment

The best available data on police employment histories is limited and flawed.

Seventy-one working officers were previously removed from public safety jobs due to discipline, according to a review of New Jersey’s Civil Service Commission public employee records.

But the data only cover about a quarter of the public employees in the state. And in at least 22 cases, the Network found the data conflicted with municipal employment records or information about an officer’s employment history provided by police officers or chiefs.

In at least one case, sloppy coding was the cause for conflicting employment records. In another case, an officer’s history wasn’t accurately reflected in the data and applications filed by the officer revealed he didn’t disclose a past firing to one employer.

None of the 71 officers appear in Brady materials provided to the Network, calling into question whether prosecutors knew about those past issues or disclosed them to defendants.

Two law professors said the significance of a firing in court would depend on what the officer was fired for, but detailed records of an officer’s discipline history are hidden, by law, from public view.

Protecting the Shield: Millions paid in secret settlements to keep bad cops on the street and the public in danger

Monmouth County Prosecutor’s Office couldn’t say if they’ve told defense attorneys about an Asbury Park cop with past issues. Before he was hired in 2001, he was fired as an Ocean County security guard, subject to one “force resignation” as a Lakewood police dispatcher, and once charged with criminal sexual contact, though the 1998 charge was dismissed, according to his employment application.

That officer’s background hasn’t affected the prosecution of any cases, prosecutor’s spokesman Charlie Webster wrote in an email. Webster declined to say whether the officer’s background will be disclosed to defendants in cases he is involved with, but said generally “information about police officers is routinely disclosed in court.”

Grappling with ‘dishonesty’ claims

At least 43 people have been arrested since 2015 by a cop whose testimony a top official in the Ocean County Prosecutor’s Office told the Network in May the office would never base a prosecution on.

The prosecutor’s office argued in court in 2014 that Manchester Patrolman Ryan Saul should remain fired following internal charges including “dishonesty.” Judges took Saul’s side and put him back on duty.

Ocean County Prosecutor Joseph Coronato brought up his office’s involvement in Saul’s litigation in an interview about police accountability practices with the Network in May, saying “I don’t think he’s out on patrol.”

Coronato’s second-in-command, First Assistant Prosecutor John R. Corson Jr., also said in that May interview the office “would never base a prosecution on the testimony of that particular officer.”

“…I’m inclined to believe… that he’s in a position with the department now which would not require him to interact with the public or ever become involved in a criminal matter or municipal court matter which would compel this officer’s testimony,” Corson said in the May interview.  “I believe he’s probably riding a desk somewhere.”

Saul is not on desk duty. Saul is on patrol. Saul made an arrest as recently as June, according to police records.

At least four people arrested by Saul have pleaded guilty in Superior Court to crimes like theft, hindering apprehension and prowling to obtain drugs, according to court documents.

Ocean County Prosecutor’s officials are now in the position the office once called “untenable” in a brief to appellate judges. The office is relying on a police officer who it claimed would “undermine confidence” in the integrity of prosecutions.

Saul’s past

Saul and another officer used force to make an arrest after responding to a domestic argument in September 2010, court records show.

A Manchester internal affairs report filed in court documents alleged Saul’s version of events that night didn’t match the accounts of a fellow officer and civilian witnesses.

The report stated Saul claimed he was tackled by the suspect the officers arrested. Two witnesses and Saul’s fellow officer said this didn’t happen, the report shows.

The report also raised other concerns with Saul’s past behavior, including an incident in which Saul “admitted that he lied…” about statements he made during a police response.

Saul’s department accused him of 20 internal charges, court documents show, in part connected to his account of that arrest.

Saul was examined by at least three psychologists, a court document shows. Two found him unfit for duty and one reported that he was fit to serve.

The township fired Saul, then Saul challenged the firing in Superior Court.

The judge acknowledged differing accounts of the arrest, but found Saul’s account to be consistent over time and consistent with his fellow officer.

Superior Court Judge Mark A. Troncone, who sits in Toms River, found charges that Saul was dishonest about the arrest to be “completely without merit.” He found the township didn’t meet its burden to prove 19 of the 20 claims of wrongdoing, finding only that Saul violated the department code of conduct by not immediately reporting a knee injury he suffered during the arrest. Troncone called the three psychologists’ findings about Saul’s fitness “inconclusive”  and reinstated Saul in 2014.

Appellate judges upheld Troncone’s ruling. The township filed an appeal to the state Supreme Court, but settled with Saul for $190,000 in a 2016 taxpayer-funded settlement. The town agreed to leave adverse findings out of Saul’s internal file, aside from the reprimand for not reporting the knee injury.

In 2017, Saul was paid more than $133,000 as a patrolman, township records show.

Saul’s attorney, Peter Paris, sent an email to the Network threatening legal action, underscoring that a judge “exonerated” his client of allegations relating to dishonesty. Paris said in an email the prosecutor’s office statements about not basing a prosecution on Saul’s testimony and about Saul not being on patrol are “patently false.” Paris stated that Saul has never been untruthful on the job and described the incident in which Saul admitted “I lied” as “bull—.”

Paris answered some of the Network’s questions, his correspondence with a reporter is available here.

 

“Ryan performs his job the same way he always has: with integrity, diligence, intelligence, and appropriate restraint,” Paris wrote. “The false allegations against him from years ago have no bearing on Ryan’s performance as a police officer.”

Manchester Police Chief Lisa Parker told the Network in a letter that Saul “is an officer currently in good standing” with the department.

Should defendants know about Saul? 

Courts have established that prosecutors must turn over information helpful to the defense, including material on issues with a police officer’s credibility.

But a prosecutor’s duty to help the defense remains a murky legal area.

“Different offices will make different determinations about how far that goes,” Thomas Schmid, an assistant prosecutor in Morris County, said of Brady requirements.

The Network found at least 17 county prosecutor’s offices had no policy addressing the issue, including Ocean County.

Presented with the fact that Saul was making arrests, prosecutor’s spokesman Al Della Fave wrote in a text message that “we never claimed to know exactly in what capacity he is being utilized.”

The office had no records of making “Brady” notifications related to Saul.

Della Fave said the office won’t tell defendants about Saul’s background going forward.

“The way we read it, the court has determined he is truthful,” Della Fave said.

Asked about Saul’s participation in Superior Court criminal prosecutions, Della Fave said in August “it would be taken on a case-by-case basis, depending upon what the case is, the facts of the case,” and as of that time, there hasn’t been “a single situation where we had to deal with that issue.”

Della Fave said in September that every case a police officer testifies in – not just Saul’s – is reviewed for anything that would impact the case. Della Fave said Saul may be called to testify in a criminal case.

In a statement issued by the prosecutor’s office after this story published online, Coronato stated that “Every time OCPO evaluates a potential criminal matter, the office considers whether and how to employ the testimony of law enforcement officers; no officer is the subject of a blanket determination as to the credibility of his testimony.”

Corson didn’t respond to a September request for further comment.

Saul’s past does qualify as material that should be turned over to defendants, according to four legal experts including two law professors and the director of training and communications for the state public defender’s office, which she estimated handles roughly 85 percent of the criminal cases in New Jersey superior courts.

“Well, no one can be 100% certain in the nether world of Brady but the fact that the prosecutor thought the officer would bring disrespect on the entire department is enough for me,” Rutgers law professor George Thomas wrote in an email.

While Saul’s past might not be admissible at trial, defense attorneys should know about it, according to Alex Shalom, senior staff attorney for the ACLU in New Jersey.

“The bottom line is that the (prosecutor’s office) told a court that they believed this officer was unreliable,” Shalom said in an email. “It is unfair to allow them to now tell a jury to trust that same officer without at least notifying defense counsel of that critical inconsistency.”

‘Brady’ cops on duty

Troubled cops stay on duty in New Jersey – even when a disclaimer on their credibility follows them to court.

In two cases, conflicting authorities have left police chiefs hamstrung at taxpayer expense – stuck with cops they can’t fire but they can’t use to make arrests. Both officers earn six-figure salaries.

Protecting the ShieldBad cops are built. Here’s how.

Edison Officer David Pedana remains on the job after he faced administrative charges “relating to the fact that he made numerous statements to others demonstrating racial and other bias,” according to a 2014 letter from Middlesex County Prosecutor’s Office to Edison Police Chief Thomas Bryan.

The prosecutor’s office letter states the office is “compelled to dismiss any and all cases” that would rely on Pedana, the letter shows.

But chief Bryan told the Network in September a departmental hearing officer determined Pedana shouldn’t be terminated from employment.

Bryan wasn’t able to discuss what allegations the hearing officer sustained about Pedana’s conduct, but said in September the hearing officer did have a copy of the letter the prosecutor’s office issued about Pedana. The hearing officer determined termination was “too harsh” a penalty for Pedana’s conduct, according to Bryan. But, Bryan said, he can’t put Pedana out on the road, in a position to make an arrest.

So Pedana is assigned to the records bureau and paid a $126,740 salary, pension records show.

“I’m in a precarious situation…” Bryan told the Network.

Bryan said he didn’t have to create a position for Pedana and Pedana does a good job.

Pedana declined to comment.

Protecting the ShieldMoney and silence push along bad cops

The Network used public records to identify 20 working New Jersey police officers with documented credibility issues based on requests sent to all the county prosecutor’s offices and hundreds of municipal police departments. The issues with these officers have to be disclosed when they go to court. The Network contacted the departments for each of these officers, one officer and an attorney for another said they shouldn’t be on their county prosecutor’s office Brady list.

 

Four of those officers are still making arrests, their departments said.

Twelve of the officers with issues that must be disclosed in court collect six-figure salaries, according to state pension data, including:

  • $133,370 – Clifton Gauthier, a Rockaway Township officer, was accused of official misconduct and witness tampering after he tried in 2012 to get a DWI ticket against his cousin dismissed. He struck a deal for pre-trial intervention that spared him a criminal conviction in exchange for 25 hours of community service and a year on probation.
  • $142,709 – Michael LaRosa, a Lodi officer, made “bigoted comments on social media” and “negative comments about Muslims,” according to a letter from the local prosecutor’s office. He was booted from one criminal prosecution and marked by Bergen County Prosecutor’s Office as an officer whose participation in criminal cases would be made “on a case-by-case basis.”
  • $101,000 – Police Chief Jacquelyn Ferentz of the West Wildwood Police Department was named on the Cape May County Prosecutor’s “Brady” list. Records provided to the Network don’t say why she’s on the list. Ferentz told the Network she had disciplinary charges dismissed, she was reinstated in good standing and she won a whistleblower lawsuitin 2017. She won a $1.7 million judgment in that suit, a court document shows. Ferentz said she should not be on the list, but in a follow-up call a captain in the prosecutor’s office said that the Brady list is accurate.

Brady gap statewide

There’s no state requirement to track Brady officers with records sometimes known as “Brady lists.” Nineteen of the 21 county prosecutors didn’t have a Brady list, the Network found.

The lack of record keeping on troubled officers can leave a prosecutor’s staff at a loss.

Monmouth County Assistant Prosecutor Jennifer Lipp wrote in response to a records request that the prosecutor’s office didn’t make a Brady notification during her three years in her current role.

Before that time, Lipp wrote of notifications: “there is no way for me to know – there is no way to research that.”

Existing state policy calls for police departments to tell prosecutors about credibility issues with an officer. Prosecutors aren’t obligated to actively scrutinize the background of an arresting officer.

“When a case comes in, nobody says, ‘wait a minute, this is a police officer, let me go back and take a look to see exactly what this guy’s history in the office (is),’” Ocean County Prosecutor Coronato said. “Nobody ever does that.”

APP impact: NJ combats rogue cops after The Shield

Across New Jersey’s border, however, the Philadelphia District Attorney’s Office is proactive in keeping track of Brady records.

The office is working with the city’s police department to create a database of officers whose background requires disclosure to defense attorneys, according to Patricia Cummings, supervisor for a unit in the office that examines convictions.

“It goes to the very core of the integrity of our criminal justice system,” Cummings said.

She said New Jersey prosecutors should track those troubled officers.

“Absolutely they should,” she said. “I think they’ve got an obligation to do so.”

New Jersey needs more change

Following the Network’s January investigation into gaps in New Jersey police accountability, state lawmakers moved in May to impanel a task force to review training – and the state certification process – for cops and corrections officer.

Protecting the Shield: State targets bad cops after Press investigation

In a statement Wednesday in response to the Network’s findings, Attorney General Gurbir Grewal pointed to his three directives this year, which followed Network reporting on police accountability: random drug testing for all police officers, a police early warning system, and an order to release video recordings of police using deadly force.

Grewal announced in September the creation of a unit in his office to combat public corruption that will handle internal affairs investigations and “allegations of civil rights violations involving law enforcement officers and agencies.”

Protecting the Shield: Lawmakers promise changes to dump bad cops after APP investigation

In a May interview, Grewal said his office is reviewing the state’s guidelines for police internal affairs investigations and looking at the “viability” of a statewide plan to improve Brady disclosures.

But he stopped short of a licensing program.

 “I think we have a fairly established regime here with the certification process that we have in place,” he said. Grewal said he didn’t think a central repository for officer history housed in his office was “called for.”

There is a secret database maintained by the state police – that was withheld in response to a 2015 request by the Network – that lists New Jersey cops who failed drug tests.

Could a similar list be made of officers otherwise deemed unfit to serve?

“I have not looked into that,” Grewal said in May. “That’s not on the drawing board right now. I’m not saying it wouldn’t be on the drawing board at some point.”

Grewal said law enforcement wants to root out “bad apples.”

“We want to get to the bottom of these problems,” he said. “We want to make the profession better.”

Andrew Ford, Asbury Park Press, Sept. 20, 2018, “Your New Jersey Traffic Stop could leave you face-to-face with a troubled cop”, https://www.app.com/story/news/investigations/watchdog/shield/2018/09/20/police-misconduct-nj-troubled-cops-hidden-misconduct/1339148002/

Salinas PD investigating alleged police brutality in April arrest posted to YouTube

Joe Szydlowski and Chelcey Adami, Salinas Californian,  Nov. 2, 2018

The Salinas Police Department is initiating an internal investigation of an arrest last spring, after a complaint was filed and video of the man’s arrest became public this week.

On Tuesday, someone posted a video to YouTube depicting body-camera footage from an April arrest.

In the footage, more than a half-dozen officers are seen chasing a man identified on YouTube as Jeffrey Mackay. The man tries to scale a fence but falls after officers use two stun guns on him.

Jeffrey Tyler Mackay, 27, was arrested late on the night of April 23 after two car chases, according to Monterey County Superior Court documents.

Officers spotted him running a stop sign in a 1998 silver Honda Civic at about 11:07 p.m. at San Vicente Avenue and West Acacia Street, documents show.

When he sped away, they chased him for a short time. Officers abandoned the chase as he went the wrong way on a one-way street, documents show. A short time later officers spotted him again and chased him to an apartment complex on Archer Street, where Mackay left his car, which then rolled into another vehicle.

After a foot chase, several officers eventually stopped him using the stun guns, punches and kicks, which appear to be shown in the YouTube video.

The person who posted the video, who goes by the name “Jack and Hennessy” and was identified as Mackay’s fiance in other news reports, wrote that the videos were released last week after Mackay was sentenced.

He had pleaded no contest to driving the wrong way on a street while fleeing from an officer, a felony, and misdemeanor resisting arrest, court records show. Charges of assault with a deadly weapon, evading police and hit-and-run were dismissed.

He was sentenced to four years in prison with credit for 341 days, the records show.

The video, which begins as the man is being Tasered, appears to have been spliced together from several different body cameras.

“We are investigating the actions of the officers to make sure that they followed policy based on the allegations that were brought forward,” said Salinas Police Assistant Chief Roberto B. Filice. “We hold our officers at a high standard because that’s what’s expected by our community and our officers have no issues with that. To be fair to the public and the officers, we need to investigate it.”

Filice said “the video that has been out there has been altered,” and that the same actions are played over and over “so that it appears it’s ongoing.”

The person who posted the videos wrote: “I have full original videos. They are simply cropped together to see both angles from different cameras at once.”

The department opens internal investigations when it receives a complaint, and one was received regarding this specific incident within the last few days, Filice said.

Alleging brutality, the person who posted the video writes that the footage “shows the helpless victim being tased, punched, and kicked multiple times, even after being fully incapacitated. All cries for mercy were ignored.”

The video was viewed nearly 1,800 times as of Friday morning.

In Mackay’s mugshot from that night, he has a black eye and some scrapes on his face. He is now incarcerated at North Kern State Prison, according to the California Department of Corrections and Rehabilitation.

He also suffered “a ruptured eardrum that will likely lead to permanent hearing loss,” Mackay’s attorney wrote in a Monterey County Superior Court document seeking police records on officers’ conduct.

Attorney Roland L. Soltesz, who also represented Mackay, viewed the body camera footage, he said in a court filing.

“Mackay was submitting to the arrest following being Tasered and falling to the ground,” Soltesz said. “Though the officer reports claim that Mr. Mackay was continually resisting arrest by tensing his arm, placing his hands under his stomach and refusing to listen to commands, the (body camera) footage shows Mr. Mackay immediately said, ‘I’m done… I’m not resisting’ upon falling to the ground.”

When an officer placed a handcuff on one of Mackay’s hands, his “hair became tangled in the handcuff,” Soletsz said.

“Mackay was trying to cooperate with the officers but was instead beaten until his eardrum ruptured,” Soletsz said.

Mackay’s attorney had asked for any police misconduct records involving officers Jordy Urrutia, Robert Hernandez, David Puckett, Edgar Garcia, Cameron Mitchell, Ryan Keating, Froyland Aranda, Jose Luis Fletes Jr. and Clifton Smith.

Fletes originally tried to pull Mackay over, while Garcia and Puckett used their Tasers on Mackay, court documents show.

Urrutia, Aranda and Mitchell also struggled with Mackay after he was taken to the ground. Keating had spotted Mackay after he escaped police during the first chase.

Hernandez patted down the suspect, noting in his report “it took… four officers on each side in an attempt to retrieve the suspect’s arms” that he allegedly was keeping under his stomach.

Smith’s role in the struggle, if any, isn’t clear. The defense filing included some but not all police reports related to the arrest.

Rhonda Combs, senior deputy city attorney for the city of Salinas, objected to disclosing records of the officers’ conduct in a June 15 filing.

Combs did, however, acknowledge the body camera footage showed Mackay’s “long hair was tangled into a cuff or something and that is why he was refusing to cooperate,” she said.

“He would have had to pull his own hair to tender his left hand (for) officers to cuff,” she said.

Officers used a “kick to the shoulder and closed-fist hits” to finish handcuffing him, she wrote.

Nonetheless, Combs added that the U.S. Supreme Court has ruled that excessive force accusations must be viewed from the vantage of the moment it happened.

“Officers are often forced to make split second judgments — in circumstances that are tense, uncertain and rapidly evolving — about the amount of force necessary,” she said.

She also noted that Mackay had led officers on two car chases and then ran away from them after 11 p.m.

“He is doing his time for his mistakes that night,” the person who posted the video wrote on YouTube. “This video is only to bring to light the other side of the story. I am a strong supporter of police but they need to be held accountable as well.”

In the lead-up to the struggle, Salinas police officers noted Mackay had repeatedly reached for his waistband while running in the dimly lit apartment complex, the police reports show.

After two officers used the stun guns on him, Mackay, lying face down, wouldn’t remove his hands from underneath his stomach, the reports say.

Officers said they feared he was trying to access a weapon in his waistband or front pockets, so they began striking him until he said “OK. I’m done. I’ll stop,” police said.

After they handcuffed him, Mackay was evaluated by paramedics before being taken to the jail. Officers reported injuries from the struggle, including one officer whose left middle finger “was bent backwards,” according to the reports.

The reports did not mention the handcuff snaring some of Mackay’s hair.

Mackay has had many encounters with law enforcement, some of them violent, Monterey County Superior Court records show.

In April 2016, he was accused of resisting arrest and seriously injuring Monterey County Sheriff’s deputy Brandon Smith.

The more serious charge was dismissed after he pleaded no contest to resisting or obstructing an officer. He was sentenced to 90 days in jail and three years of formal probation.

In January 2011, Mackay was charged with resisting arrest. He pleaded no contest to the charge and was sentenced to three years probation, according to court records.

A year before, he’d been charged with felony battery on a peace officer and pleaded no contest, court records show.

He also was accused of felony DUI in 2010, to which he pleaded no contest, which led to the suspension of his driver’s license.

On April 22, the day before Salinas police allegedly used excessive force, Mackay was caught by Marina police on suspicion of driving on a suspended license. Court records show that charge was later dismissed.

Filice said after a formal complaint is received, the case is assigned to the police department’s internal investigations sergeant. He or she then conducts interviews with all involved and gets as much information as possible to compile a report.

That report is given to the chief of police and executive staff to review whether policy violations took place, Filice said. If a violation is found, action is taken, he said.

Internal investigations may take months to complete.

“Obviously we try to address complaints as expeditiously as possible but we can’t say how long it will take because we do not know,” Filice said.

The chief will make the final determination on what information from the investigation will be shared with the public, he said.

“One of the things that I’d like for people to consider is that the video has been altered and what they are depicting there is not what happened,” Filice said. “Unfortunately, since we have an internal investigation going, we can’t share any videos we have at this time … I would ask people to keep an open mind.”

Filice added that the police department has seen increased trust with the community and the police chief’s goal is to be “as transparent as possible.”

“We ask the public to be patient and let us go through the process of investigating the incident and then the chief will be able to share the facts once we know all the facts,” he said. “But we do want to thank the community for all the support we have received.”

Filice said Friday the police department has not been served with any notice that a civil lawsuit has been filed in this case.

 

Joe Szydlowski and Chelcey Adami, Salinas Californian,  Nov. 2, 2018, “Salinas PD investigating alleged police brutality in April arrest posted to YouTube”,  https://www.thecalifornian.com/story/news/2018/11/02/salinas-police-brutality-alleged-case-posted-youtube/1854456002/

City Approves $130K Police Misconduct Settlement

  SEP 19, 2018

The Metro Council approved a substantial settlement Tuesday over an allegation of police misconduct. It’s one of the larger payouts in nearly a decade, mainly because the woman arrested fought every step of the way.

Early one August morning in 2011, Andrea Miller was driving home from working a night shift at a Wilson Sporting Goods warehouse. As she turned down her street in North Nashville, she noticed a police car driving the other direction. “And next thing I see, he puts on his lights and makes a U-turn,” Miller recalls.

Miller, just a few hundred feet from her home, pulled into her driveway. That’s when the Metro officer named Woodston Maddox got out of his patrol car, approached her vehicle and ordered Miller out.

“So I get out the car, he tells me turn around and he puts me in cuffs,” Miller says. “So I ask, ‘Why are you arresting me?’ And he says, ‘I am arresting you for running that stop sign.'”

Officer Maddox also claimed Miller was speeding and said he smelled marijuana in her car. No drugs were found.

Miller says Maddox never asked for her license and registration and that the entire incident, from the moment she pulled into her driveway until she was handcuffed, unfolded in less than two minutes.

Miller was charged with resisting arrest and reckless driving. And as her case made its slow crawl through the courts, she did something that defendants in these types of cases rarely do: She stood by her innocence claim, refusing to take a plea deal.

As Miller’s lawyer, Kyle Mothershead, dug into the case, he found evidence that officer Maddox had made false statements. Most notably: The stop sign Miller allegedly ran was out of view of the officer. Another was the claim that Miller was so unruly that three officers were needed to take her into custody.

“But the records show,” Mothershead said, “that one of the officers never came at all. And that the third officer came after she was in custody.”

After two years, the criminal case was eventually dismissed. That’s when Miller decided to file a federal civil rights lawsuit. And Metro Legal fought it tooth-and-nail. Citing a specific legal argument, the city claimed that, because Miller was indicted by a grand jury, she couldn’t sue — no matter how the facts shook out. They even appealed to the U.S. Supreme Court. It declined.

Seven years later, with a trial date set for this month, Mothershead and Miller had a mediation conference with Metro Legal. Surprisingly, after years of litigation, the city offered to settle for $130,000, hitting Nashville’s $50,000 cap for police misconduct cases and paying another $80,000 in legal fees.

In a council committe meeting on Monday, Metro’s law director, Jon Cooper, said the decision is a prudent one for the city because there’s a good chance Miller could come out on top in court.

“The plaintiff would make a very good witness, would be a very sympathetic witness, and so we think that certainly from a business standpoint this is the best approach for the city,” Cooper said.

All these years later, the settlement does give Miller a sense of closure. But she still struggles with what happened that night. She decided to move out of Davidson County, wanting to start fresh with a new home and a different police department.

After five years with Meteo Police, Maddox retired from the department in 2015.

Miller says her experiences with police prior to the incident were always cordial. Never before had she sparred with law enforcement. But now, she worries.

“I just worry about potentially being victimized again,” Miller said. “In the same way but maybe worse.”

  SEP 19, 2018, “City Approves $130K Police Misconduct Settlement”, https://www.nashvillepublicradio.org/post/city-approves-130k-police-misconduct-settlement#stream/0

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-….

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

8 Shotgun Wielding Cops Dispatched to Confront College Student Cleaning his Front Yard.

BRLDF: Recently released video shows an intense confrontation initiated by Boulder, Colorado police with an individual cleaning his front yard. Despite the entirely pedestrian nature of this activity, the primary officer believed this to be suspicious enough to warrant an investigation. When the resident naturally became agitated, this officer requested backup, identifying the trash picker pole held by the man as a “blunt object”.  Despite the approximately 20 foot distance between them, this officer wielded a drawn handgun, and rather than retreat (as would seem appropriate if someone believed they were in real physical danger),  repeatedly closed the distance and approached the resident ordering him to “sit down”.

Over the course of the confrontation, which was initiated, provoked and escalated by the Boulder Police, additional Officers arrived, some bearing shotguns, and surrounded the resident. This is an example of “Command and Control” policing, wherein an adversarial dynamic is established between law enforcement & the public. Describing a flimsy maintenance tool as a “blunt object”, repeatedly approaching an agitated individual doing nothing wrong with gun drawn, and ordering him to “sit down”, this cop was establishing legal use of force justification in the event this exchange resulted in violence, or death (to the “suspect”).

This is an example of a police officer abusing his power, more concerned that this totally unjustified investigation did not receive immediate and complete submission. Plainly, this cop felt that his Authority was disrespected, and was determined to show this citizen that he was the boss.

An outrageous violation of the Fourth Amendment, something no American should tolerate, and the exact reason BRLDF was founded.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The city of Boulder should be embarrassed, and unless they’re looking to repeat the Philip Brailsford / Daniel Shaver incident in Mesa, Arizona, this police officer should be removed from active duty as he clearly lacks the maturity to interact with the general public in a sensible manner.

Police in Boulder, Colo., are investigating a March 1 confrontation between officers and a black man picking up trash.

March 7

The Boulder, Colo., police department is conducting an internal investigation after video surfaced of an officer questioning a student who was picking up garbage in front of his residence. The officer has been placed on administrative leave until the investigation is complete.

On March 1, an officer approached the man as he was sitting in an area behind a private property sign and asked him if he had permission to be there, according to a department release. The Daily Camera reported that the man is a student at Naropa University in Boulder, and the building is listed as a school residence. Police have not publicly named the man or the officer.

The man gave the officer his school identification card and said he both worked and lived in the building. However, the officer continued to investigate and called for backup, “indicating that the person was uncooperative and unwilling to put down a blunt object.”

In the 16-minute video, which appears to have been taken by a friend and fellow building resident after the encounter began, the man can be seen holding a bucket and a trash picker.

“You’re on my property with a gun in your hand threatening to shoot me because I’m picking up trash?” the man with the trash picker says.

The man being questioned repeatedly says of the officer, “He’s got a gun!”

“Just relax, man,” the officer responds as sirens are heard and more officers arrive and surround him.

Though a police spokeswoman would not release the number of officers involved, citing the ongoing investigation, at one point the man can be heard saying there are eight officers “with guns drawn.” The video appears to show at least one officer, on the far left, holding a gun before putting it away.

Police chief Greg Testa rebutted these particular claims made in the video at a city council meeting on Tuesday, saying “Body-worn camera video indicates that only one officer had a handgun out and it was pointed in the ground.”

The man who was stopped by police and the person taking the video repeatedly assert to the officers that the man lived there and was only picking up garbage.

An officer can be heard assuring the man, who is agitated by the encounter, that “my plan is not to shoot you.” The encounter continues for several minutes until an officer says “we’ve decided we’re going to end things at this point.”

“Officers ultimately determined that the man had a legal right to be on the property and returned the man’s school identification card,” the Boulder police department release states. “All officers left the area and no further action was taken.”

“We began looking into the incident on Friday, shortly after it occurred, and quickly made the decision that we needed to launch an internal affairs investigation,” Boulder police spokeswoman Shannon Aulabaugh said in an emailed statement.

“Our internal affairs investigation will include a review of all body worn camera video, interviews of everyone involved which includes both officers and community members, reports and all other related information,” she said.

Testa said in a prepared statement before the city council that “this is an extremely concerning issue and one that we are taking very seriously.” Members of the public who attended the hearing carried signs and trash pickers, the Daily Camera reported.

“While it appears that the officers responding to the requests for backup followed standard procedures given the information they heard over the radio, all aspects of this incident, specifically the actions of the initial officer, are being investigated,” he said.

“I am not aware of any information that the man did anything unlawful or wrong,” Testa said.

Charles Lief, president of Naropa University, also spoke at the hearing. “I do not want to underestimate the amount of trauma that was experienced by our student, who was the victim in this situation,” he said. He noted that he spoke to the man’s mother and “she has made clear that her son is not interested in becoming a symbol for any issue that we have to deal with in this city.”

“The incident that impacted him is going to be one that’s going to take him a long time to deal with,” Lief said. “The city can’t wait that long for us to talk about the broader issues that we have to address.”