Five Borough Defense

by Cynthia H. Conti-Cook
Associate, Stoll, Glickman & Bellina, LLP

So recently there has been some potentially exciting developments in how the City of New York will hold the NYPD accountable for its civil rights violations. In early December, the City Council Committee on Government Operations will be holding a hearing about proposed legislation that will require the City Corporation Counsel to report quarterly to the City Council on the profiles of filed civil rights cases. Perhaps in anticipation of this hearing, on November 5 the NYPD announced in a Daily News article that it was forming a “review panel” for the purposes of recognizing lawsuits that have implications on practices and policies of the NYPD. The article also says that the panel’s review will include lawsuits for which the City settled for $250,000 or more. Interestingly, according to records FOIL’ed from the Comptroller last summer, in the past 4 years (2006-July 2009), there were only 6 claims against the NYPD that settled for $250,000 or more. If the NYPD limits itself to reviewing these 6 cases of shootings and sodomy(s) instead of the routine repeat police misconduct that makes up the majority of civil rights lawsuits, obviously not much will change.

This brings me to the hearing. The City Council, if it limits itself in the legislation to requiring data on the lawsuits filed and amount of dollars settled, will also not find out any real information about patterns of misconduct and, most importantly, of the precincts with the leadership and training problems that are responsible for a majority of the civil rights lawsuits. Moreover, the Comptroller already reports annually on the basic numbers of lawsuits filed and dollars settled. It’s not clear what more the Committee expects to learn with this legislation. Instead, the City Council must insist that the NYPD take responsibility for tracking precinct tort and civil rights liability.
Here’s the link to the proposed legislation and the witness list.

I certainly hope that all the effort the civil rights bar has put into getting significant lawsuit settlements and verdicts in order to shed light on routine repeat police misconduct (while less than $250,000) gets awarded and not pushed to the side. This is an issue of fiscal responsibility and the City of New York is paying millions for NYPD civil rights violations ($80 million in 2008, half a billion since 2002) and yet the taxpayers are getting nothing in return when the NYPD refuses to document patterns of misconduct at precincts and among a handful of individual cops (and when the City government refuses to force them to document and report).

Text of the proposed legislation:
Int. No. 1025
By Council Members Vallone Jr., Brewer, Fidler, Foster, Jackson, James, Liu, Mealy, Sanders Jr., Stewart, Weprin, White Jr. and Nelson

A Local Law to amend the administrative code of the City of New York, in relation to requiring the Corporation Counsel to submit quarterly reports to the City Council detailing the number and disposition of civil actions filed against the New York City Police Department.

Be it enacted by the Council as follows:
Section 1. Section 109 of Title 7 of the Administrative Code of the City of New York is amended and new paragraphs b and c are added to read as follows:
§ 7-109 Corporation counsel; when the corporation counsel may appear for officer, subordinate, or employee of an agency; reports of the corporation counsel to the city council on civil actions filed against the police department.
a. The corporation counsel, in his or her discretion may appear, or direct any of his or her assistants to appear, in any action or proceeding, whether criminal or civil, which may be brought against any officer, subordinate or employee in the service of the city, or of any of the counties contained therein, by reason of any acts done or omitted by such officer, subordinate or employee, while in the performance of his or her duty, whenever such appearance is requested by the head of the agency in which such officer, subordinate or employee is employed or whenever the interests of the city require the appearance of the corporation counsel. The head of the agency in which such officer, subordinate or employee is employed shall submit all pertinent papers and other documents to the corporation counsel.
b. Beginning on the thirty first day of January in the year following the enactment of the local law that added this subdivision, the corporation counsel shall commence the submission of a quarterly report to the council of all civil actions filed against the police department and officers, subordinates, or employees of the department during the preceding quarter in which the corporation counsel or any of his or her assistants appeared or agreed to represent one or more parties. Such report shall include, but not be limited to, the number of actions pending, the number of claims in each action, the amount of time each action has been pending, the nature of each claim, the resolution of each claim, whether the resolution was achieved through settlement or trial, and the amount of any settlement. Actions pending resolution shall be noted in each report and their final resolutions noted in a subsequent report.
c. The report required by this section shall be submitted in accordance with the following schedule, except that if the due date specified below falls on a saturday, sunday or federal or city holiday, the report shall be submitted on or before the next day that is a business day: For the first calendar quarter (January 1 through March 31), on or before April 30; For the second calendar quarter (April 1 through June 30), on or before July 30; For the third calendar quarter (July 1 through September 30), on or before October 30; and for the fourth calendar quarter (October 1 through December 31), on or before January 30.

§ 2. This local law shall take effect upon enactment.

LS 6851
MG

Upon viewing the video footage taken of police arresting New School University students on Friday, April 10^th, the Commissioner of the NYPD sent the following email to all the NYPD patrol officers and detectives. An anonymous source provided The Five Borough Defense Blog with a copy of this stirring email, and we post an excerpt below. Commissioner Kelly is referring to this article and this video.

 I am deeply disappointed in the actions of the officers seen in the video. However, the words of our former spokesman Paul Browne trouble me even more. In an interview with the New York Times, Mr. Browne made several statements that were blatantly contradicted by videotape. Despite Mr. Brownes denial that pepper spray or mace were used in effectuating the arrests, the video shows officers spraying the students. Mr. Browne went on totell the New York Times that the students locked themselves in the building and therefore it was their own fault if they couldnt leave. Again, the video contradicts him, by showing students opening a door and sticking their heads outside, while police officers push the door shut, preventing the students from leaving.

The NYPD will not tolerate lying to the public. For that reason Mr. Browne has been fired. How can we expect juries and judges to find our testimony credible, when high-ranking members of our department are contradicted by videos? Did we learn nothing from the Critical Mass video? From now on any officer caught lying either in a sworn statement, on the stand, or even to a civilian on the street will be suspended immediately. We will no longer ignore judges who find police officer testimony incredible, rather those officers will no longer have a place on our force.

The problems of this department do not end at perjury. The behavior of several of the officers on the video was unprofessional, and they have since been sent to the mandatory courtesy trainings that will soon be required of all of you. On the video, some scrawny, white, college kid shouts “shame on you” to a uniformed officer. The kid has no weapon, and doesn’t even use profanity. The officer, in uniform and apparently standing around with nothing better to do, saunters over to the kid, pushes him down, and walks away. Three officers swarm in and cuff the kid.

I dont know how to say this any more clearly: sticks and stones may break your bones, but words will not hurt you. You shouldve learned this on the playground, folks. It may not be the most fun part of our job, but unfortunately, we have to deal with people shouting at us, asking us why were arresting their friends, and calling us names. There is such a thing as freedom of speech and were sworn to uphold that. There will be no more inflation of arrest totals by charging obnoxious kids with resisting arrest just for exercising their freedom of speech.

To those of you who have read this far, let me quote from the banner the New School students hung out the window of the building they occupied, April Fools, Motherfucker! Yall can go ahead and keep lying and arrest whoever the hell you want. Just make sure you keep it deep in the outer boroughs and dont let the college kids see you acting like that. After all, theyre the ones who sit on the juries.

http://www.nytimes.com/2009/03/27/us/27juvenile.html?pagewanted=2&_r=1&emc=eta1

From: New York TImes

March 26, 2009

ST. LOUIS, Mo. — VonErrick celebrated his 14th birthday last year by committing a daylight carjacking, beating the driver to the ground. With a long record of truancy, assault, and breaking and entering, he was sent to a state group home — the same home that his two older brothers passed through after their own scrapes with the law.

Both of those brothers are out now. Tory, 16, has A grades and plans to attend college. Terry, 20, has a job and has had a clean record for four years. VonErrick was recently released and immediately started high school.

The brothers say they benefited from confinement in the Missouri juvenile system, which emphasizes rehabilitation in small groups, constant therapeutic interventions and minimal force.

Juvenile justice experts across the nation say that the approach, known as the Missouri Model, is one of several promising reform movements that strapped states are trying to reduce the costly confinement of youths. California, which spends more than $200,000 a year on each incarcerated juvenile, reallocated $93 million in prison expenses by reducing state confinement.

There is no barbed wire around facilities like Missouri Hills, on the outskirts of St. Louis. No more than 10 youths and 2 adults called facilitators live in cottage-style dormitories in a wooded setting, a far cry from the quasi penitentiaries in other states. When someone becomes unruly, the other youths are trained to talk him down. Perhaps most impressive, Missouri has one of the lowest recidivism rates in the country.

Other states, including Florida, Illinois and Louisiana, have moved in a similar direction, focusing on improving conditions at state facilities to keep young offenders from returning.

Some states have worked at the county level to avoid confinement altogether, keeping youths in their communities while they receive rehabilitative services, which advocates say is a cheaper alternative to residential care.

The two largest state systems, Texas and California, cut long-term youth confinement by requiring counties to house low-level offenders in detention halls. Texas cut its 5,000-youth population by half within two years, while California reduced its population to 2,500, from more than 10,000 in 1997. But critics say that city and county detention programs are uneven and point out that states often do a poor job of monitoring them.

Missouri and other states are using new approaches in the juvenile justice system to try to stem the flow of adults behind bars. Missouri managed to cut its adult population from 2005 through the first half of 2007 by applying techniques from the Missouri Model.

The reforms have begun to have a national impact, with a 12 percent decrease in juvenile offenders from 1997 to 2006, from 105,000 youths to 93,000.

Most of the decline during that period was in state confinements, although some of the decrease is attributed to a 28 percent decline in youth arrests, which reform advocates say proves that there is no detriment associated with fewer incarcerated juveniles.

The Anne E. Casey Foundation of Baltimore has been a leading advocate for ending the confinement of low-risk offenders and placing them in community programs. Since trying the foundation’s approach in 2003, five counties in New Jersey have reduced juvenile detention by 42 percent, to 288 youths from 499.

Three years ago in California, Scott MacDonald, who is in charge of probation in Santa Cruz County, began asking courts to use Casey Foundation methods. Instead of confining every gang member accused of a crime, or every juvenile who failed a drug test, judges now look at a youth’s record and risk to determine whether he should remain free. A youth who fails a drug test, for example, might be ordered to attend substance abuse classes.

“Even if a kid doesn’t follow all of the rules — particularly rules that have nothing to do with crime — we won’t necessarily detain him,” Mr. MacDonald said.

In the 1990s, the Santa Cruz juvenile hall averaged 50 to 60 youths. Now it averages about 20 detainees, most of them under community supervision. More than 90 percent of those in the community programs have not committed new crimes within three years, Mr. McDonald said.

“The question we’re always starting with is, How do we keep them home?” he said.

Isela Gutierrez, a juvenile justice expert with the Texas Criminal Justice Coalition, a nonprofit group, said one drawback to the Missouri state system was that too many low-level offenders there were being confined, while serious juvenile felons were being sent to adult prisons, where conditions are harsher.

Tim Decker, director of the Missouri Division of Youth Services, said judges preferred to send youths to state facilities — Missouri Hills or the Hogan Street Regional Youth Center, with dorms that have wooden beds, male health and wellness classes, group counseling and game rooms — rather than dismal county lockups or to backlogged community programs.

“Judges have more faith in us,” Mr. Decker said. “So far we’re O.K., but you can’t do what we do with 25 kids in a group.”

Missouri Hills is clean and homey, with plush couches, stuffed animals on the bunks, and a dog rescued from the pound. The violence that plagues many juvenile prisons is also absent.

In a typical juvenile corrections environment, Mr. Decker said, if a youth becomes aggressive “you would have guards drag him into isolation” for three days.

“But,” he added, “the problem is that a young person doesn’t learn how to avoid that aggressive behavior and it will get worse.”

In Missouri Hills, isolation rooms were used only about a dozen times last year, Mr. Decker said, and never for more than a few hours. Pepper spray is banned, and youths are taught to de-escalate fights or apply grappling holds, a form of restraint.

Victoria, 16, who stole her grandmother’s car, her second offense, explained how her housing unit does a “circle-up,” or ad hoc counseling session, several times a day, whenever there is a conflict, like cursing.

“There’s drama all the time,” she said. “It’s like having a bunch of sisters.”

The Missouri system provided triage for an imploding system in Washington, where the juvenile corrections agency was plagued by vermin-infested buildings, overcrowding and chronic violence.

“The kids were stuffing their shirts with paper before they went to sleep to keep the roaches and rats from biting them,” said Vincent Schiraldi, head of the city’s Division of Rehabilitative Services.

With advice from experts in Missouri, Mr. Schiraldi divided platoons of youths into small groups. By October, the number of juveniles reconvicted within a year of release dropped to 25 percent, from 31 percent four years earlier. However, as conditions improved, confinements have risen, even as juvenile crime has declined.

Mr. Decker said that upgrading facilities and training new staff cost more initially, but that the reforms would reduce recidivism, which would result in long-term savings.

VonErrick has been home for a few weeks, and his 18-year-old sister said he seemed calmer and less interested in running with the wrong crowd. Their mother, Rosie Williams, said all three of her sons seemed more focused, and she attributed the changes to the counselors at the state group home.

Ms. Williams, whose husband is in prison, occasionally attended family counseling sessions where she said she learned important lessons as a parent. “Instead of just hollering at them and trying to keep them out of trouble,” she said, “I try to do things with them one on one, to get to know what’s on their mind and what’s going on in their lives.”

dear-abby-article-re-violent-rookie-cop1

[Click on the link to view the article]

LA Times

January 27, 2009

Since its arrival as a crime-fighting tool, Los Angeles police officers have aggressively used the power of DNA technology to solve countless cases.

When it comes to handing over their own genetic code, however, they’ve been told to be a lot more reticent.

For nearly a year, the union representing officers has sparred with the Los Angeles Police Department over the department’s refusal to set limits on its practice of collecting DNA samples from officers involved in shootings and other incidents involving serious force. Although rarely done, officers can be required to submit a saliva swab as part of the investigations the department conducts into such incidents.

The Los Angeles Police Protective League, which represents the department’s roughly 9,500 rank-and-file officers, warned its members about the issue in an open letter this month, telling them it could lead to invasions of privacy and misuse of the information.

“The privacy issues here are very real,” said union President Paul M. Weber in an interview. “Who is to say where the samples will be stored and who will be able to access them? There is nothing more private than DNA.”

LAPD officials staunchly defend the practice as a seldom-used but important tool. After an officer uses serious force on a suspect, investigators must sometimes test blood, saliva and other genetic material found at the scene in order to determine whose it is and what occurred during the incident, they say.

Attorneys for the league raised concerns about this facet of the internal probes last spring when investigators from the department’s Force Investigation Division attempted to gather a saliva sample from an officer who had fired at a suspect. The union did not want to ban the DNA collections, but demanded that the department sign a binding agreement that would have established rules limiting when and how samples can be taken and stored.

LAPD officials refused to sign the document out of concern that doing so could hinder an investigation into an officer’s actions. “A good investigation needs to be able to go where it has to go,” said Capt. Kris Pitcher, head of the LAPD’s Force Investigation Division. “If the investigators look at a scenario and feel they need to gather DNA evidence, then they must be able to do that.”

Deputy Chief Mark Perez added that the department does not want to be limited in the way it can use DNA technology. With frequent advances in how genetic analysis can be applied to law enforcement investigations, Perez said the department did not want “to have to go back to the table and renegotiate when something new comes about.”

An officer who refuses to give a DNA sample could face discipline for insubordination, Perez said.

Gary Ingemunson, a league attorney, said the union planned to file a protest with the city’s Employee Relations Board the next time the department seeks to collect an officer’s genetic material. A previous appeal to the board by the union was dismissed on a technicality, union officials said. In the letter to members printed in the union’s magazine, police officers were told not to consent to the investigators without first consulting with a union lawyer. “No one can take your DNA without due process,” wrote Hank Hernandez, the league’s general counsel.

The debate underscores the unusual aggressiveness with which the LAPD investigates incidents in which officers fire their weapons, strike a suspect in the head or resort to other serious force, police experts said. The Force Investigation Division, staffed by about 70 detectives, responds to scores of incidents each year. Teams of investigators typically spend about eight months on an investigation, compiling evidence into 1,500-page reports that are used by the district attorney’s office and police officials to determine whether an officer’s actions violated any criminal laws or department policies. Law enforcement analysts widely consider the process to be the most thorough in the country.

Pitcher emphasized that it was rare for investigators to take DNA samples from officers, saying he recalled only two cases in the last two years. In one of them, investigators were confronted with a confusing scene in which blood was spattered on a wall and carpet. Both the responding officer and the suspect were bleeding. Blood spatter patterns can reveal much about how a struggle occurred, but investigators first needed to determine whose blood was on the wall by comparing the genetic code contained in the blood.

He added that while the department did not agree to the formal guidelines demanded by the union, the LAPD follows many of them anyway. Namely, the decision to take a DNA sample from an officer must be approved by Pitcher, and an officer is permitted to have an attorney present when the swabbing is done. Officers’ DNA samples are destroyed after the investigation, Perez said.

Regardless, union officials expressed concern that the department’s restraint today could give way to more widespread testing in the future. Weber, the league president, and Hernandez also said that despite assurances from the department, they do not trust the LAPD to safeguard officers’ DNA from mistakenly being uploaded to state and national databases kept for criminal investigation purposes.

“In such cases, there will be a greater chance of officers being erroneously accused of a crime,” Hernandez wrote.

“Your league is not a big advocate of allowing officers to give up anything to anyone without . . . a legal requirement.”

Indeed, this is not the first time union and department officials have clashed over officers’ personal information. The union has waged a bitter battle over an anti-corruption policy passed last year that requires officers in specialized assignments who frequently handle cash and other contraband to disclose personal financial information. After losing several court decisions on the matter, the union is awaiting the outcome of an appeal to the U.S. 9th Circuit Court of Appeals.

League officials and law enforcement analysts said they know of no other police department in the country that collects DNA from officers as part of their internal investigations into shootings and other uses of force. Police in Britain are more aggressive, storing the genetic profiles of nearly 100,000 officers and support staff who work at crime scenes in a database to prevent them from falling under suspicion during investigations, according to Britain’s Home Office, the country’s equivalent of the U.S. Justice Department.

joel.rubin@latimes.com

richard.winton@latimes.com

Excerpt from the State of The City Address:

“Now, will this broad nine-point jobs plan be enough to cure all of our economic ills? Of course not. That will only come as the national economy eventually recovers.

“In fact, the best thing that we can do for Wall Street – and for every corner store in the city – is the second leg of our economic recovery strategy: Continue to improve the quality of life in our neighborhoods. And make no mistake – we will.

“With innovative programs and tools like Operation Impact and the Real Time Crime Center, they have achieved what – seven years ago – no one believed possible. This year, we’re off to another great start: Crime is down 20 percent in the first two weeks of January compared to a year ago. To retain as many jobs as possible, we must continue building on these gains – and continue having zero tolerance for quality-of-life crimes.

“So let me make you this promise now: We won’t cede an inch to the squeegee men, turnstile jumpers, and graffiti vandals who breed a sense of disorder and lawlessness. Not on our watch. Beginning this month, we’ll step up our enforcement efforts against quality-of-life criminals, and we’ll start by identifying the 12 worst repeat quality-of life-offenders in each borough – ‘the Dirty Dozen.’

“Our Criminal Justice Coordinator, John Feinblatt, will work with the five district attorneys to make sure prosecutors and judges know about these ‘worst of the worst’ – and seek the maximum possible penalties. We’ll also propose a new State law increasing the penalties for these repeat offenders. Very simply: commit six or more quality-of-life crimes within a year, and your next one would be a felony – and the revolving door would slam shut.

“We’ll also target the three precincts with the highest murder rates by seeking a public/private partnership that can fund cameras on street corners and problem places. Cameras, as you know, are proven to deter crime and help catch criminals. And for those who say this is a civil liberties issue, you’re absolutely right: it’s about the liberty of innocent civilians to live in peace.

And we won’t rest until that’s true for every single New Yorker.”

For more bombast and foolish, hollywood-style political hyperbole against the poor, click these words you are reading right now.

Johannes Mehserle, the former police officer seen on tape shooting a face-down, unarmed Oscar Grant in the back, has officially been charged with murder. Mehserle was arrested Tuesday night (January 13) in Zephyr Cove, Nevada. The New Year’s Day shooting has sparked outrage and protests in the city of Oakland, with many accusing BART (Bay Area Rapid Transit) of having a history of racially motivated violence against young black men. According to Merrick Bobb, executive director of the Police Assessment Resource Center, police officers are rarely charged with murder for killings made in the line of duty. Last week, an Oakland protest resulted in more than 100 arrests. Yesterday (January 14), another protest was completed peacefully with no reports of arrests or property damage. At press time, Mehserle’s attorney Christopher Miller is expected to use a defense centering on the fatal gunshot being an accidental discharge.

Click Here For the full story

On New Year’s Eve, Oscar Grant was shot execution-style by a transit

police officer in Oakland, California. He was shot in the back while
face-down on a subway platform–unarmed and posing no threat.

Twelve days later–despite several videos showing exactly what
happened–the officer who killed Grant hasn’t been arrested, charged,
or even questioned. He quit the force and has refused to speak. The
District Attorney has done nothing.

It’s time to demand that California Attorney General Jerry Brown take
over the case and arrest Grant’s killer, and to ask that the US
Department of Justice launch an independent investigation into the
conduct of local authorities. Please join me:

http://www.colorofchange.org/oscar/?id=2088-644228

Oscar Grant is the third man murdered by BART (Bay Area Rapid Transit)
police in the past 17 years. All three victims were Black and none
posed a serious threat. In each case, BART and county authorities have
failed to hold the officers accountable.

In the previous cases, BART’s internal investigations concluded that
the officers felt threatened by the victims and were justified in
pulling the trigger. It’s unbelievable given the circumstances of the
killings:

- In 1992, 19-year-old Jerrold Hall was shot in the back by a BART
officer as he tried to leave the parking lot of a station. The officer
was responding to reports of an armed robbery and said he suspected
that Hall and a friend were involved. The officer tried to detain the
two, Hall ran and then the officer shot him in the back and killed
him. Hall was unarmed, but the officer said he thought Hall was on his
way to get a gun and return for a showdown.

- In 2001, a mentally ill man named Bruce Seward was the next victim
of the rogue force. Seward, 42, was naked and had been sleeping on a
bench outside the BART station when an officer approached him. Seward
did grab the officer’s nightstick at one point, but there were several
options for subduing him. Instead, the officer shot and killed him.

In addition to BART’s internal investigation, Alameda County’s
District Attorney is also investigating Oscar Grant’s murder–but the
office’s record on investigating police killings is horrible too. In
both cases just described, the District Attorney bought BART’s
argument that the officers felt threatened. As a result, the cops were
cleared of any wrongdoing.

In the case of Grant’s murder, the DA has already let 12 days pass
while doing essentially nothing–the officer who killed Grant is able
to travel and leave the state, and he’s free to talk with other
officers and attempt to construct a story to justify his killing of
Oscar Grant.

The problem with Alameda County’s DA goes beyond BART police murders.
In the past two years alone, there have been 11 fatal police shootings
in Oakland (not including that of Oscar Grant). When asked, the
officials at the District Attorney’s office could not remember a
single case in the last 20 years where an on-duty cop had been charged
in a fatal shooting in Alameda County. It gives the clear appearance
that the District Attorney’s office just doesn’t have the will to
prosecute police crimes.

California’s Attorney General needs to step in now and arrest Oscar
Grant’s murderer. And the US Department of Justice should investigate
the failure of the authorities in Alameda County to act. It’s the
first step towards justice. After that, we will push for systemic
changes to create public accountability for BART and other police
departments. Creating those structural changes will be a much longer
fight, but Oscar Grant’s tragic death is a wake-up call that should
give us a real chance to help prevent this from happening again.

Please join me in demanding justice, and then ask your family and
friends to do the same:

http://www.colorofchange.org/oscar/?id=2088-644228

Thanks.

36,000 men and women march through the streets of our city heavily armed and deeply confused. Innocent people in jail. Unwarranted friskings. Lying on the stand. These are things that we, as New Yorkers, tolerate because Ray Kelly thinks “Things happen different here.” And because he refuses to bend to political correctness. Kelly, barely discernable as he pokes his head above the crowd of his uniformed army, looks tough - an incorruptible brio, say some. That’s the face of New York. If you don’t like it, well, maybe the federal courts will help you out 10 years down the road. Good luck. The cops who beat you up and threw you in jail will be retired and sipping whatever-in-the-hell-retired-cops-sip in the sun. You will wither. They will grow fat, and oily, and rich. Maybe you should listen to City Councilman Peter Vallone, who will guide you through your penury and depression by offering, “You can’t listen to the people who attack the department. Over all, this is the best police force in the world.”

The NYT Article Is Here.