Saturday, July 18, 2015

Civilian empowerment in police-civilian encounters

Civilian empowerment in police-civilian encounters

I was pleased to hear about the New York City Council's Committee on Public Safety's June 29, 2015 hearing on the proposed legislation by Council Members Ritchie J. Torres and Antonio Reynoso known collectively as the Right To Know Act, (Int 0182-2014 and Int 0541-2014), which includes such requirements as police officers identifying themselves and providing the specific reason for the law enforcement activity and officers being required to obtain the voluntary consent of the civilian prior to conducting a search that requires consent and to tell the civilian that they have a right to refuse such a search. I was also interested in Council Member Jumaane D. Williams' police body-worn camera task force proposal (Int 0607-2014) as well as the other proposals. I watched the video of the hearing and have nine suggestions in relation to this legislation.

These suggestions come from a perspective that the power in any police-civilian interaction must be shared between these two groups with the preponderance of power with the civilian where a specific, reasonable and lawful allegation of criminal activity or impending criminal activity is not being made by the police. The preponderance of power would shift to the police when a specific, reasonable and lawful allegation of criminal activity or impending criminal activity is being made. I feel there is no reason for the police to have authority over private individuals in a non-crime situation. To give them this authority or an expectation of this authority would make New York not a free, but a police state, with the public constantly surrounded by an occupying force of 34,000 officers to whose authority they must submit for any reason at any given moment. Having strong institutional protections such as Inspectors General or the Civilian Complaint Review Board are important, but by the time it reaches that stage, the damage may have already been done. So it is also important for civilians to have the power and authority to stop these illegal police actions before they occur at the time of the encounter and to not be afraid to exercise this power and authority when they feel their rights are being violated. Overly broad interpretations of public safety or officer safety should not be allowed to erode these basic democratic rights.


1) Officers must tell a civilian at the beginning of the encounter whether they are being detained (not free to go), being arrested (not free to go), or if they are free to go. If the civilian's status changes at any point during the encounter, the officers must tell the person immediately of the change. If the civilian feels that their status may have changed during the encounter, they may ask the officer if their status has changed and the officer must answer immediately with a yes or no.

2) If a civilian declines to communicate with an officer or to be searched or to engage in any other police interaction to which they are not legally obligated to engage, the officer must immediately cease attempts to communicate with, to search or persuade the civilian to be searched, or attempt any other police interaction with the civilian, including attempts to stop, stall or follow the civilian if the civilian is free to go.

3) Officers must tell the person at the beginning of the encounter that if they dispute the officer on a point of law or policy or feel the officers are acting in an unprofessional manner, the officer will immediately put the person in contact with an independent legal expert whose expertise and authority in such matters is accepted by the NYPD and the city of New York, if the person wishes. This can be done via cell phone or other communication device. If the expert agrees that the officer is incorrect on the point of law or policy, then any action of the officer based on the officer's misinterpretation of the law must not be allowed. If the expert agrees that the officer is correct, then the civilian should submit to any accompanying legal police action and avail themselves of possible alternative remedies after the encounter is completed, if they wish.
Alternatively, the officer may put the person in contact with a legal expert at the NYPD. If a dispute still exists after the NYPD contact, then a contact must be made with the independent legal expert. If alleged unprofessional behavior is the issue and such behavior is no longer occurring after contact is made with the expert, the civilian may nonetheless request that the legal expert remain in communication for the duration of the encounter despite the lack of such behavior for the duration of the encounter. If the alleged unprofessional behavior continues after contact with the legal expert has been made and the expert agrees that the behavior is in fact unprofessional, then the civilian may exit the presence of the offending officer and resist further police actions from that officer in a legal non-violent manner without penalty. If there are non-offending officers present, they should take over the arrest or detainment proceedings or other arrangements should be made where the civilian does not have to be in the presence of or interact with the offending officer.

4) Officers must tell the person at the beginning of the encounter that the person is free to audio/video/photographically record or record in a written manner, the encounter, if they wish.

5) Create a civilians' bill of rights concerning police-civilian encounters & have it printed on the sides of all marked police vehicles and on the front of all precincts. A copy could also be given to civilians at the beginning of any encounter.

6) Create a comprehensive curriculum for students that teach them their rights in police-civilian encounters and the history and philosophy behind such rights. Make available practice sessions so that students may begin to become accustomed to thinking in terms of their rights during such encounters and begin to feel more comfortable in asserting those rights. One curriculum can be developed for grade school students and another for high school students. A similar curriculum and practice sessions should be made available for the general public as well and can be given through public or community organizations or other outlets.

7) Create a marketing campaign similar to the anti-smoking or If You See Something, Say Something campaigns that remind people of their rights in police-civilian encounters and remind them of the importance of asserting those rights. Along the same lines, perhaps a Civilian Rights Day could be declared for added promotional or educational value.

8) My feeling is that police body cams should be turned on at all times with the officers having no control for when they are turned on or off. To do otherwise runs the risk of selective recording by the officers and the non-recording of the all-important early moments of a police-civilian encounter or an impending encounter. Privacy concerns can be addressed through the issue of access. The police or anyone else (except the civilian being recorded) would not have access to these recordings unless an actual legal encounter has occurred. The prior, specific, legally-recognized crime or impending crime, that had been declared as the reason for the encounter must be included in the request.
The recording would be reviewed by an independent legal expert and actionable evidence of the alleged crime or impending crime that has occurred prior to the encounter would have to be included in the recording before access is granted. Such limitations would help guard against the use of the recordings for fishing expeditions by the police, for purposes of embarrassing or intruding on the privacy of those being recorded, including the officers, or for other questionable purposes.
It’s possible that the recorders could be turned off if the officers are entering a private residence if there is no crime being committed or suspected of being committed and the occupants of that residence request it. But the recorders could only be turned off by an independent third party and only at the request of the occupants. It’s also possible that the recorders could be turned off if similar issues of privacy occurred, but this would have to be looked into further.
Recordings could only be used as evidence for the prior stated criminal activity or impending criminal activity unless a major felony such as murder or kidnapping has been inadvertently recorded. Access could also be granted if the police or other official party are facing a legal or administrative accusation or question by the civilian recorded and the content of the recording is relevant to the accusation or question. Access could also occasionally be granted if the police or others wanted to use the recordings to study such constructive areas as general police practices or conditions, but only after receiving permission from an independent publicly-accountable organization such as the City Council. As alluded to above, the civilian recorded would be entitled to a copy of the recording upon request with no review by a legal expert required. And if any restrictions are placed on the ability of officers to record in certain situations, ensure that it is known that such restrictions do not apply to civilians' ability to record officers in similar situations.

9) Automatic financial compensation should be given to civilians whose rights have been violated by police actions. Filing a lawsuit can be an unpleasant and daunting option for the average civilian who often does not have the time, money or confidence to mount an adequate suit. Automatic compensation would go far in helping to address this often overlooked area of concern, may help to compensate the feelings of damage and injustice suffered by such civilians and may even serve as a deterrent to overzealous or discriminatory officers or others who chose to perpetrate such violations. For example, a beginning compensation of $5,000 for a brief illegal stop and question of a few minutes and where no searches or other actions have been taken seems sufficiently substantial with higher compensations awarded for increased violations.
Automatic financial compensation in situations where no violation has occurred and yet the action results in no evidence of the alleged crime could also be considered. This is a trickier, yet still important, area of concern in order to help guard against technically legal, yet still discriminatory or otherwise heavy-handed or overly intrusive police actions against civilians.  

(An earlier version of this posting has been sent to the Committee on Public Safety.)

posted: 7/18/15 - 4:25 pm, et.
update: 8/26/16 - 12:18 pm, et.


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