Statement on President Trump’s Call for Police Brutality on Long Island

In a speech about criminal gangs before police officers on Long Island, New York today, the President of the United States openly encouraged police officers to abuse people they arrest and take into custody. Daniel Dale of the Toronto Star tweeted that President Trump explained that didn’t want officers to protect suspects’ heads when putting them in police cars, saying “You can take the hand away,” which drew the officers’ loud approval. Concurrent reporting from Asawin Suebsaeng of the Daily Beast confirmed that the call for police brutality drew “wild applause.”

The president’s comments are disgraceful and anathema to responsible policing and the Rule of Law. Causing intentional injury to a handcuffed suspect is not only against police procedure, but is a federal crime for which police officers have been sent to prison. What’s worse, the reaction of the crowd of officers should strike fear into the heart of every parent on Long Island, particularly those of black and Hispanic young men who fit the stereotypical description of the gang members President Trump described.

In the name of law and order, the president made a mockery of the Rule of Law in his call for illegal violence against presumptively innocent suspects. It is a shameful day for the presidency and police agencies across the country should condemn the president’s irresponsible and indefensible comments in the strongest possible terms.

When Police Misconduct Violates First Amendment Rights

The New York Police Department’s Civilian Complaint Review Board (CCRB) reported that over a three-year period, NYPD officers threatened, blocked, and otherwise tried to prevent individuals from recording them in public in the performance of their duties. Almost 100 of the 346 allegations made between 2014 and 2016 were substantiated by the board, not counting the many cases that may not have been reported.

To be fair, there are many thousands of contacts between police and individuals that happen in New York City. Although there is no way to know how many of those interactions are recorded, it’s fair to assume that many of them have been as cell-phone recording capabilities have become ubiquitous. However, there is clearly a segment of officers—perhaps very small, but nevertheless real—who feel that they may violate the First Amendment rights of people who record them. To alleviate this, the CCRB suggested that a new entry should be included in the Patrol Manual to reassert the public’s right to record police interactions. That insertion is fine, but more could and should be done because it is extremely unlikely that every officer who disrupted lawful, public recording was ignorant of the right to do so. Any officer who already knew the law was committing misconduct.

Police officers should be held accountable for their actions. Unfortunately, New York State law prohibits the Department or the CCRB from releasing the names of officers who have complaints lodged against them, whether or not they are sustained, or what the outcomes of any disciplinary actions taken were short of termination. As I testified before the U.S. Commission on Civil Rights in 2015:

According to an investigation of New York City’s Civilian Complaint Review Board records, about 40 percent of the 35,000 NYPD officers have never received a civilian complaint, but roughly 1,000 officers have more than 10 complaints on file. One officer has over 50 complaints but retains his position.

Institutionally, the NYPD knows these 1,000 officers are repeat offenders several times over. Multiple complaints against a single officer over a period of months or years implies the officer must, at times, operate too close to the line of impropriety. Those 1,000 officers represent fewer than three percent of NYPD officers but can damage the reputation of the rest of the department. Clearly, some portion of these 1,000 officers are abusing their authority, and the NYPD is unwilling or unable to remove these officers from duty. And because the public can’t know their names and records, we cannot measure how effectively the NYPD addressed these incidents with any given officer. (internal citations omitted)

The lack of transparency is not limited to New York, by any means, but the NYPD’s institutional dedication to data collection at least gives us a glimpse of what is going on. Getting the right to record in the Patrol Manual is a good start, but the State of New York should repeal the anonymity granted to misbehaving officers. Such laws punish the best officers by making them indistinguishable from those who intentionally—and sometimes repeatedly—violate the rights of the people they are supposed to serve.

For a robust First Amendment analysis of the right to record, read this opinion by 2014 B. Kenneth Simon Lecturer Judge Diane Sykes. You can read my 2015 USCCR testimony on police transparency and the use of force here. Finally, you can check out the 2014 panel we hosted on recording the police here.

This has been cross-posted from Cato@Liberty

What Officer Punishment Says About Police Priorities

The National Police Misconduct Reporting Project keeps tabs on a wide range of misconduct. Whether the misbehavior is excessive force on duty or a DWI off duty, we catalog the event and track the officer’s case goes through the administrative, civil, or criminal justice systems. Part of the reason we do this is to show whether police departments and other responsible government agencies are holding their officers accountable.

Depending on local laws and union contracts, police leadership can be limited in how much punishment they can dole out for a given offense. However, when a crime appears to have been committed and the police simply administer minor officer discipline, it sends a message that officers can act above the law. This message is amplified when officers who exposed that potentially criminal behavior are punished more severely than the offending officer.

This seems to be the case in Fort Worth, Texas. Two senior officers, Assistant Chief Abdul Pridgen and Deputy Chief Vance Keyes, have been demoted for allegedly leaking camera footage of their fellow officer, William Martin, violently attacking a woman who had called police for help after her son was assaulted. The video went viral, and Martin was suspended for ten days.

The attorney for the woman who was attacked and arrested, Jacqueline Craig, had this to say:

“[Officer] Martin amassed a series of felonies on that day from assault, to aggravated assault, to perjury, official corruption, false arrest [and] to each of these he received no criminal investigation, no criminal prosecution. He received a 10-day vacation and he was returned to the force with a scheduled promotion,” [Lee] Merritt said. “It’s a sad day for the city of Fort Worth. The level of blatant racism and unapologetic hypocrisy should no longer be tolerated and so we take this stand together today.”

Such retribution against senior officers who appear to have acted as whistleblowers will almost certainly have a chilling effect on reporting misconduct within the department. Moreover, it tells the people of Fort Worth–especially those in minority communities–that police violence against them is a less serious offense than exposing misconduct by fellow officers.

At least one of the officers reported that he plans to sue over this discipline. We’ll keep an eye on this story as it continues.

You can read the full report of the incident here.

Worst of the Month — April

So for the month of April we’ve selected the Town of Colorado City and the City of Hildale which are located on the Arizona-Utah border.  Last month, U.S. District Judge H. Russell Holland issued an order based on findings made by a jury that the Colorado City Marshals Office “engaged in a long-standing pattern of abuses that included false arrests, unreasonable seizures of property, discriminatory policing on the basis of religion, and violating the Establishment Clause of the First Amendment.”

According to the Department of Justice, police officials engaged in a decades-long pattern or practice of police misconduct and housing discrimination.  Judge Holland concluded that officers turned a blind eye to criminal activity involving FLDS Church leaders or members, including supporting a fugitive and ignoring underage marriages, unauthorized distribution of prescription drugs, and food-stamp fraud.

The findings of this investigation reflect poorly not only on the towns, but also state attorneys general’s office, which should have take action much sooner so that federal intervention would not have been necessary.

Police Shootings Back in the News

This is cross-posted from Cato@LIberty:

Police shootings are back in the news. Michael Slager has pleaded guilty to federal charges involving the killing of Walter Scott. Federal officials have declined to bring charges against the officers involved in the shooting death of Alton Sterling. Meanwhile Texas officer Roy Oliver has been fired in the wake of the shooting death of 15 year old Jordan Edwards.

Each shooting incident has to be considered separately to take account of all the surrounding circumstances. There are a range of possibilities—from self-defense on the part of the officer, to tragic accident or mistake, to manslaughter or even first degree homicide. To ensure just outcomes, one of the most important things is to have independent, impartial investigations whenever there is a questionable shooting, especially where someone is killed or injured. Preferably, this will be done by a completely separate police department or the state attorneys general office, rather than the federal government. Another best practice for police shootings involves transparency. Police departments should identify the shooter and disclose his or her record, such as previous involvement in shootings or previous lawsuits alleging wrongdoing. Authorities should also make videos available. Mayor Rahm Emanuel tried to make the Lacquan McDonald case go away with a quiet legal settlement. It was only when a reporter went to court to seek the release of the video that the scandal was exposed and real movement for police reform could begin.

For related Cato work, go here, here, and here.

‘The First Priority is to do Justice’

From Andrew McCarthy, former federal prosecutor, writing over at National Review Online:

It is not possible to have the rule of law unless those charged with executing the laws are held accountable when they are derelict. And it is not possible to have accountability when the processes for discovering derelictions do not work.
Those processes have to be mended. It is beyond time to reinvigorate the principle that law enforcement’s first priority is to do justice. Not only must government officials follow the rules; their adherence must be monitored — not to harass the law-abiding but to root out the corrupt. Examples must be made of those who abuse their powers. It is not sufficient that the system achieves justice most of the time.
Read the whole thing.  Nice to see this from the Right.  More please.

C-SPAN Interview on the Federal Role in Handling Police Misconduct

With Jeff Sessions as Attorney General, there will be a drastic decrease in federal interventions over local police departments.  I’ve said it before and I’ll say it again, my view is that the Right is wrong if they think there are no systemic problems in American policing.  However, the Left is wrong to think the feds can come riding to the rescue to fix those departments.  That’s another example of the triumph of hope over experience.

More on my thesis here.

A “Good Start” in Wisconsin

In many states, officers will quit a department before they are fired or while they are under investigation for misconduct and take a job elsewhere, effectively wiping their own slate clean and starting over. In certain cases, this can endanger a new community because a bad officer simply moved jurisdictions. One tragic example: the officer who shot and killed Tamir Rice in Cleveland, Ohio resigned from another department that was about to terminate him for his ineptitude with firearms.

USA Today’s Jonathan Anderson has a report today about the Wisconsin Department of Justice’s laudable efforts to reduce the likelihood of hiring problem officers.

The Wisconsin Department of Justice earlier this year began requiring law enforcement agencies to report when officers resign amid an internal investigation, quit in lieu of termination or are fired for cause.

The Justice Department will warn agencies about the officers should they seek employment elsewhere, according to Christopher Domagalski, chairman of the state Law Enforcement Standards Board, which oversees training and certification of police officers in the state.

“What we’re trying to do is eliminate the opportunity for somebody to slip through the cracks,” said Domagalski, who also is chief of the Sheboygan Police Department.

The change is aimed at identifying officers who switch jobs or hop around to different agencies after committing or being accused of wrongdoing.

As a professor notes later in the piece, this is a “good start” but not sufficient to completely eliminate the practice because, like many states, Wisconsin cannot decertify an officer unless the officer has been convicted of a felony or certain misdemeanors like domestic violence.

Nevertheless, it is heartening to see state officials taking police misconduct seriously.

You can read the whole report here.

Worst of the Month–March 2017

For the worst of March, we look to the Los Angeles County Sheriffs Department scandal that has finally come to a close. Now-former Sheriff Lee Baca was found guilty of obstruction of justice for trying to hide various civil rights violations that were happening at the jail and within his department. Ten other officers, including Undersheriff Paul Tanaka, were convicted and sentenced to prison terms for beatings of inmates, general jail conditions, and hiding information from the federal government.

Before this scandal came to light several years ago, other LASD deputies were tried and convicted for sexually abusing inmates and other civil rights violations.

While some officers we cover are certainly bad apples, some departments create and maintain cultures of impunity for abusive officers. This allows misbehavior to become commonplace and even an integral part of how a department manages itself. This is a sad chapter in LASD’s history and hopefully the department can move on and regain the trust of the community it serves.