Rochester’s big decision on police oversight 

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Sometime this spring, City Council may vote on legislation that will dramatically change the way Rochester handles accusations of police misconduct.

While activists have been pushing for reform for decades, for the past two years there's been a particularly concerted effort, and city officials have now come up with two proposals. One, from Mayor Lovely Warren, could be viewed as a compromise, leaning toward the activists in some areas and toward police in others. Warren sent her proposal to City Council in late December. But in a particularly strong break from her, Council held her legislation in committee and presented a draft of its own.

Council's legislation is much more far-reaching than Warren's. The most controversial reform: It would give an independent group of civilians the authority to discipline officers when a complaint about their conduct is found to be valid.

Council's legislation is the result of years of effort by local activists, including United Christian Leadership Ministry, Enough is Enough, the New York Civil Liberties Union, and a coalition now known as the Police Accountability Board Alliance. They have lobbied hard for the adoption of a strong Police Accountability Board, bolstered by recent controversies over Rochester officers' use of force.

Under Rochester's current police oversight system, police officers – members of the police department's Professional Standards Section – investigate charges of police misconduct. The final decision – on the validity of the charge and on discipline – is made by the police chief.

A Civilian Review Board reviews what the PSS investigation finds, and it makes its own decision about the validity of the charge. But it has no authority beyond that. It doesn't conduct its own investigation, and it can't overrule the chief.

click to enlarge Alliance leader Ted Forsyth - PHOTO BY RENÉE HEININGER
  • PHOTO BY RENÉE HEININGER
  • Alliance leader Ted Forsyth

At the end of the process, people who file complaints are told whether or not the chief upheld their complaint, but they seldom learn whether an officer has been disciplined. And information for the public doesn't go much further than a quarterly and annual compilation of statistics on how many complaints were found to be valid.

The lack of transparency and the police department's control of the investigation has bred distrust in some parts of the community, particularly among people of color. And the distrust goes both ways; police union leaders argue that they work under conditions that few people experience, including the threat of violence directed at them. And they don't want an independent group of civilians to make decisions about their performance.

The two proposals

It's not easy to change the oversight system, in large part because of the police union contract and because of state law, which protects officers' personnel records. Despite those restrictions, both Warren's and Council's proposals include big changes to the current system. And despite key differences, they have a good bit in common.

In both proposals:

A nine-member, independent Police Accountability Board, established by City Council, will have the power to conduct its own investigation.

A disciplinary matrix – created by the Accountability Board, with input from the police – will specify levels of discipline, which increase with the seriousness of the misconduct and with findings about an officer's previous excessive use of force.

click to enlarge Alliance leader Pastor Wanda Wilson - PHOTO BY RENÉE HEININGER
  • PHOTO BY RENÉE HEININGER
  • Alliance leader Pastor Wanda Wilson

The RPD's "patterns, practices, policies, and procedures" will be reviewed by the Accountability Board, which will recommend changes – something that could be as important as the review of officers' performance. How officers respond to an emotionally distraught person, when it's legitimate to clear sidewalks of people loitering in front of a store, when it's necessary to force a suspect to the ground, how officers respond to people resisting arrest, how much training officers get: the board could recommend changes in all of those areas.

(Neither legislation requires the police department to adopt the Accountability Board's recommendations. Council's proposal, however, requires the police chief to notify the board, the mayor, and Council whether he or she agrees with the recommendations and, if so, to provide a timeline for implementing the changes.)

Much more will be made public about the results of investigations. Consistent with state law, officers' names will continue to be protected, but the public will be able to learn whether a specific complaint was upheld – and what discipline, if any, was imposed.

Council's legislation, which is more extensive than Warren's, requires that reports include the tracking number of each complaint; previous complaints about the officers involved; the type of force used, the number of times pepper spray and Tasers were used, and other details.

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How they're different

The two proposals differ, though, on some of their most significant recommendations: the composition of the Police Accountability Board, what the board can investigate and when, and who determines the discipline for officers when a complaint has been found to be valid.

The Accountability Board's composition: In the mayor's legislation, the mayor, Council, and the Police Accountability Board Alliance each nominate three members. The mayor approves or disapproves the Council and the Alliance nominees, and Council confirms all nine.

In Council's legislation, the mayor nominates one member, Council four, and the Police Accountability Board Alliance four. Council approves all nominees.

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The limits on the investigation: The mayor wants a narrow, "supplemental" investigation, limited to use-of-force complaints and to "matters not addressed" by the RPD Professional Standards Section's investigation and findings. And the Police Accountability Board's investigation would not begin until after the RPD's investigation is completed.

In Council's proposal, the Police Accountability Board can investigate "any and all conduct, acts, or omissions" by anyone in the RPD. And its investigation is independent from that of the Professional Standards Section.

Warren Chief of Staff Alex Yudelson says waiting for the Professional Standards Section's findings simply makes sense. "Generally," he says, "we have found that the PSS does a very thorough investigation, and that's why we feel that it's a good first step to do that review."

"They're not limited in any way by having the PSS doing it first," Yudelson says. "Anything they don't trust or want to fact check or want to supplement, they can do."

But, counters Accountability Board Alliance leader Ted Forsyth, "people do not trust the PSS to do the investigations and make appropriate findings. People in the community, especially communities of color that are over-policed, don't believe that the police can police themselves."

And, Forsyth adds, it's important that the investigation into a complaint begin as soon as possible. Having the Accountability Board wait until the police finish their investigation is "a way to hamstring an investigation before it has even begun," Forsyth says.

Discipline: In the mayor's legislation, the Accountability Board will make recommendations about discipline, but the decision remains in the hands of the police chief. In Council's legislation, the Accountability Board's decision "is binding on the chief."

This is a key difference between the two proposals, and it's an issue of special concern to activists pushing for reform, Warren, and police.

The Warren administration is adamant on this point: The union contract specifically gives the police chief the authority to discipline officers. And state law, city attorney Tim Curtin says, prevents the city from unilaterally changing the terms of the contract.

City Council and PAB Alliance leaders disagree. They're convinced that with a change in the City Charter, the Police Accountability Board could be given discipline authority, despite the union contract. And they cite a legal opinion by attorney Todd Bullard at the Harris Beach law firm.

The change in discipline authority has broad ramifications. Oversight of officers' behavior is a key responsibility of the police chief. And oversight of the police chief is a key responsibility of the mayor. For cases involving civilian complaints, Council's legislation gives that authority to an independent, unelected group of people – people who, unlike the mayor and City Council members – have no constituency.

Alliance members note that in Council's legislation, Council nominates some of the Alliance Board members and approves all of them. In that respect, Council has oversight of the board. That's a more diffused oversight, however, than the mayor's direct oversight of the police chief.

Funding the board

Both the mayor's and Council's legislation specify that the Police Accountability Board will hire an executive director, who will hire a staff and investigators. City Council will approve the Accountability Board's budget.

But how much work the board can do will depend on how much money it has. And to be effective, that work won't be cheap. Scrimping on the budget, says Alliance leader Stanley Martin, could be a way to block reform.

The Alliance had initially suggested a budget of a little over $1 million annually, which both Warren and Council President Loretta Scott have said would be far too much.

During discussions with Council, Alliance leaders agreed to a first-year budget of $520,000, Forsyth says: enough to hire two investigators. "I think Council wants to see how this works before they go all in with the resources," Forsyth said.

Warren is considering something "well into the six figures," says Alex Yudelson, "not seven figures. We have budget issues here."

Alliance leader Matt DeLaus points to money that the city already spends to pay the Center for Dispute Settlement for operating the Civilian Review Board. And, the Alliance leaders and other critics say, the city is already spending money to settle civil suits filed by people who say they've been injured by police.

Heading to court?

So far, all nine members of City Council are lined up behind the Council proposal. Council members are currently reviewing comments and suggestions they got at three public forums, but Council President Loretta Scott says that if there are changes to the original legislation draft, they won't be major ones.

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If Council passes its own proposal in its current basic form, with discipline authority in the hands of a civilian Police Accountability Board, the Rochester Locust Club, RPD officers' union, seems certain to sue.

Scott says she's confident that Council would win that fight, as are the Accountability Board Alliance leaders, who point to several court cases they say back their argument.

"We feel there's a lot of precedent to what we're proposing," Alliance executive committee member Ted Forsyth says.

The Warren administration, on the other hand, is convinced that a court would strike down Council's legislation and that Warren's would stand up in court if the Locust Club sued.

"Any unilateral change would face union opposition and undoubtedly a legal challenge," Corporation Counsel Tim Curtin said in an advisory opinion to Warren last May, "exposing the city to both cost and risk, and likely failure."

A suit could delay the changes Council hopes to bring about, perhaps for years. And it's possible that the union wouldn't sue over the Warren reform. Would Council be taking a risk, then, by adopting its more expansive legislation rather than the mayor's proposal, which could bring about fewer reforms more quickly?

Pastor Wanda Wilson, also a member of the Alliance leadership, is optimistic. "We thought we were going to be fighting for a long time" to get Council's agreement on the principles of the Alliance's proposal, Wilson says. "So I don't know that we'd be tied up as long as we might anticipate."

Alliance leaders say that Council's legislation isn't perfect. Warren's and Council's proposals both give the Police Accountability Board's majority to people nominated by elected officials. Alliance leaders want an Accountability Board with 11 members, six nominated by the Alliance, four by Council, and one by the mayor.

In addition, the Alliance says that having the Accountability Board advised and represented by the city attorney (specified in both proposals) would be a conflict of interest. As an independent body, the board should be represented by outside counsel, they say.

But on the whole, says Forsyth, Council's is "an incredible piece of legislation."

"We feel a radical change is necessary," says Matt DeLaus.


Determining misconduct

Much of the concern about Rochester police conduct has centered on the use of force. As with all law enforcement officers, the conduct of Rochester police is governed by federal, state, and local laws, rules, and regulations.

The Rochester Police Department's policy on the use of force says that members of the police force "may use only that level of physical force necessary in the performance of their duties" within the limits of the state penal law and "consistent with the training and policies of the Rochester Police Department."

"The appropriateness of force used," the RPD policy says, "is dependent on the 'totality of the circumstances' at the moment the force is used."

Here's what the state penal code says about police use of force when an officer is making an arrest:

https://www.nysenate.gov/legislation/laws/PEN/35.30

click to enlarge Alliance leaders Matt DeLaus, left, and Stanley Martin - PHOTO BY RENÉE HEININGER
  • PHOTO BY RENÉE HEININGER
  • Alliance leaders Matt DeLaus, left, and Stanley Martin

"A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force...."

And police may use deadly force if they "reasonably believe" someone else "is using or about to use deadly physical force."

"Reasonably believes," of course, are the key words. It would be hard to prove that an officer did not reasonably believe he or she was in danger. And when officers say they used force used only when and to the extent they believed was necessary, many other officers – and many jurors – will be reluctant to second-guess them unless there is strong evidence otherwise.

An officer's action, then, could be consistent with the law and with the Rochester Police Department's policies, practices, and regulations, even when a civilian believes otherwise.

Currently, the Civilian Review Board, the RPD's Professional Standards Section, and the police chief make one of four determinations about a complaint brought against an officer:

Sustained: The complaint is valid, and the officer "acted improperly and may be disciplined";

Unfounded: The investigation didn't find a basis for the complaint;

Unprovable: There wasn't enough evidence to prove whether the complaint was valid or unfounded, and "no further action will be taken";

Exonerated: The officer "acted properly and will not be disciplined."

Of the 33 use-of-force complaints made in 2017 (the last full-year report available), the RPD's Professional Standards Section sustained five, the Civilian Review Board sustained 9. The police chief, whose decision is final, sustained only one. (The chief's decision was still pending at the end of the year on nine complaints, but historically, the chief has sustained fewer than the Civilian Review Board has.)

The union's argument

The police officers' union, the Rochester Locust Club, is opposed to both proposals, although its comments over the past months have been reserved for Council's legislation. ("We did not comment on the mayor's proposal," Mazzeo says, "because it was basically killed by Council's actions.")

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The current oversight system is working well, Mazzeo says, and he notes that civilian complaints against Rochester police officers have declined over the past 15 years. The RPD, the Locust Club said in a press release last month, "receives the lowest percentage of allegations against officers among large cities in New York State, when compared in terms of both number of residents and number of officers."

Alliance leaders say that the decline is due to community mistrust of both the RPD and the complaint-review system.

Mazzeo has had a consistent message since the Coalition for Police Reform and Enough Is Enough issued a report calling for a Police Accountability Board two years ago. Few people understand the challenges police officers face every day, he says. When critics talk about civilians shot by police, Mazzeo said during an interview on WXXI, "I talk about what's going around the country that's leading to police officers being shot, and ambushed."

"Has anyone asked over the period of time how many police officers have been assaulted?" Mazzeo said. "How many police officers have been hospitalized? How many police officers have been medically retired because of actions they took as a police officer?"

Mazzeo insists that the call for a Police Accountability Board is coming from a small group of people, and that residents of Rochester are asking for police protection. Alliance leaders note that the Alliance itself consists of more than 50 organizations, ranging from small neighborhood and faith groups to large organizations like the Urban League, Action for a Better Community, and Ibero-American Action League.  And the Alliance partners in the reform effort from the outset have been  United Christian Leadership Ministry and the New York Civil Liberties Union.

Rochester needs reform, Mazzeo says, but not what the activists, the mayor, and Council are pushing for. "We believe there are a number of things that need to be implemented to improve police-community relations," he said in an email last week. "Neither proposals address any of those needs."

In a recent Feedback letter in CITY, Mazzeo called for a Blue Ribbon Panel "to identify what the problems are, what will correct them, and how best to implement change."

"Instead of making legislation," he said last week, "determine what is needed and what will accomplish those goals. Then pass legislation if it's even needed."

Beyond an Accountability Board

Early this week, Council was continuing to review its draft legislation and the public comments. When that's completed, Council will release its final version and schedule a public hearing and a date for a vote.

Meantime, distrust between police and parts of the community they serve has continued. In a recent WHEC interview, Mazzeo said Rochester's push for a Police Accountability Board has already had a negative impact, causing police officers to second-guess their actions. And, he said, the call for an Accountability Board has contributed to a growing disrespect of police officers.

In the WHEC interview, Mazzeo related a recent event in which police responded to calls from residents of the West Avenue area and found a large group of people fighting. In the chaos that continued, two officers were injured, according to media reports, and the crowd was disrespectful and aggressive toward the police.

That kind of action, Mazzeo suggested, is attributable to the Alliance's push.

"The advocacy for police accountability doesn't lead to disrespect," counters the Alliance's Matt DeLaus. "It's the lack of respect for the community" that led to the disrespect for police.

"What we are experiencing didn't happen overnight," says Pastor Wanda Wilson. "The seeds of mistrust – these are seeds that have been planted in the community for over plenty of years. Those are just symptoms of a problem that is more deeply rooted in poor policing in black and brown neighborhoods over years."

The level of distrust that exists in Rochester right now – on both sides of the police oversight issue – won't be easy to overcome. And it won't disappear with legislation that changes the way Rochester handles complaints about police misconduct. A vote by City Council, whenever it comes, will be only a first step.

Eliminating the distrust between police and community will require transparency about the investigations and the oversight system, transparency that both the police and the community trust.

It will require changes in training and police practices. And it will require efforts that can help the police, public officials, and the community find common ground.

This article has been amended to note that United Christian Leadership Ministry and the NYCLU have been partners in the push for a Police Accountability Board – and that a report calling for a PAB was issued by the organizations Enough Is Enough and the Rochester Coalition for Police Reform.

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