Let's say you're a leader in an association for NYPD sergeants. Now let's say you're, like, super aware of some of the changes and backlash against the NYPD that has occurred recently, chiefly concerning policies for policing the public, charges of racist and violent practices, and the insistance that the city government find ways to keep officers accountable for their actions. You know the city is looking into NYPD officials deleting information on illegal summons quotas. You know of the concern over the fact that the NYPD has pissed off so many black men that black men kind of don't want to join their ranks. And you're especially aware of the trend of greater protections for the public filming police doing their jobs and the crackdown on the crackdown of the photographers. What do you do?
The Sergeants Benevolent Association is spearheading the effort, emailing a letter to members Monday urging them and their families and friends to take pictures to document the decline of the city.
“As you travel about the city of New York, please utilize your smartphones to photograph the homeless lying in our streets, aggressive panhandlers, people urinating in public or engaging in open-air drug activity, and quality-of-life offenses of every type,” says the letter from SBA President Ed Mullins, a major critic of Mayor Bill de Blasio.
Yes, Mullins (and the ironically named Sergeants Benevolent Association) then takes those photographs and uploads them to its Flickr account, because apparently the best way to make a political point to a political opponent is to publicly shame the least able to defend themselves. Should you not wish to view this material, something for which I wouldn't blame you, the pictures almost uniformly show homeless and vagrant folk in their own misery, often captioned with such wonderfully sympathetic thoughts as "Quality Of Life For The Mayor" and "Peek A Boo" and "Homeless Takeover NYC." The idea of shaming the homeless, who might be homeless for any number of reasons, is deplorable. As are Mullins' excuses for doing so.
Noting that more cops are being recorded on the job, Mullins wrote, “Shouldn’t accountability go both ways? We, the ‘Good Guys,’ are sworn to protect our citizens. Shouldn’t our public officials be held to the same standard?” he said.
Except the two things aren't remotely equivalent. The public photographing the police performing their duties while serving that very same public isn't the same as snapshotting a 3rd party whose lives are already miserable to take political shots against the Mayor. Frankly, these are the kinds of things said by those with head injuries, not those leading a police association. More specifically, Mullins claims this is being done in response to pending city legislation that would require police to obtain permission to search a suspect if they don't have probable cause for an arrest. You know, that thing that's already in the goddamn Constitution? Yeah, that's why he's encouraging police to publicly shame the homeless.
from the we-speak-for-all-of-our-officers,-but-mostly-for-our-worst-ones dept
The NYPD's long-resisted body camera program has been instituted on a limited basis. The NYPD's Office of the Inspector General has released a report detailing the first several months of a voluntary pilot program by the NYPD, which went into effect ahead of the camera program ordered by Judge Scheindlin after declaring portions of the NYPD's stop-and-frisk program unconstitutional.
In an effort to limit possible privacy violations, the NYPD instructed officers to use cameras in every encounter involving reasonable suspicion and their personal discretion in other cases. Unfortunately, this reliance on officer discretion led to many officers interpreting the somewhat-vague instructions as "reasonable suspicion only." Because of this, many situations warranting recorded footage went without.
Ultimately, OIG-NYPD has found that NYPD’s reliance on a “reasonable suspicion” standard for when activation of BWC’s [body-worn camera] is mandatory is too restrictive to fully capture the wide range of police-community encounters. Reasonable suspicion may also be an impractical threshold given the dynamic nature of law enforcement-related situations. Critical events often transpire before an encounter rises to the level of reasonable suspicion, and an officer may find it difficult to initiate a recording while an event is unfolding.
To that end, the OIG recommends a two-pronged approach to recording encounters, broadening on one end and narrowing it on the other.
Because the “reasonable suspicion” standard for BWC activation presents multiple challenges, NYPD should broaden the situations where BWCs should be activated, including all street encounters or all investigative contacts.
Prior to any expansion of the BWC program, NYPD should work with New York City’s five District Attorney’s Offices to consider general prohibitions and restrictions on recording when officers become aware they are interacting with certain classes of individuals. These may include victims of sex crimes, abused children, undercover officers, confidential or citizen informants, and witnesses.
The OIG suggests notifying citizens an interaction is being recorded, but also warns this directive cannot be the final word on the subject as many encounters will make this notification either unnecessary or impractical.
The report also dives into the issues presented by the footage itself -- who controls it, when it can be released, and who gets to view it and when. First, it advocates for open access to the footage by supervisors, but not solely for misconduct-trolling operations.
Supervisors should have general access to footage for emergent investigative and quality assurance purposes. However, NYPD should make it a clear violation of policy for any supervisor to arbitrarily review footage solely to uncover violations or to use BWC videos to selectively discipline officers for minor infractions.
The report also recommends something that's highly unlikely to be adopted by the police union, which has fought body cameras since day one.
NYPD should prohibit pre-statement review of BWC recordings for internal or external investigations regarding officer misconduct. Officers should be restricted from viewing footage of an incident when they are a subject or a witness in an internal or external investigation until after the officer has provided an official statement.
This directly clashes with most police union contracts/officers' "bill of rights" which generally give officers involved in certain incidents (mainly shootings) access to all evidence (which would include their own recordings) and a "cooling off" period of two or three days before answering questions about the incident. This recommendation would disrupt any "rights" currently in place for NYPD officers. If this manages to survive a challenge from the union, it would be a large step towards preventing narratives from morphing to fit captured footage.
The report points out that the objections raised by the New York police union (Policemen's Benevolent Association) prior to the institution of the program haven't been echoed by the police officers themselves.
In response to OIG-NYPD’s inquiry, the PBA has argued that any requirement for officers to activate their BWC’s will place them in danger by forcing them to manage more tasks than they are accustomed to undertaking during dynamic enforcement encounters, and causing them to hesitate while activating their BWCs. They also contend that the BWCs themselves may be the targets of theft or increased violence by perpetrators. NYPD officers surveyed by OIG-NYPD, however, denied the claims raised by the PBA, noting the ease with which the cameras can be activated either by tapping a large button or sliding a panel on the front of the camera. While they expressed some concerns about newer officers’ ability to police effectively while making decisions regarding when BWCs should be activated, they stated that their experience allows them to focus on citizen encounters without hesitation, while integrating the task of activating their BWCs whenever possible.
The baselessness of the "increased violence by perpetrators" claim is further illuminated later in the report while discussing officers' announcements to suspects and citizens that a recording is in progress.
Several of the officers participating in the Volunteer BWC Pilot Program who were surveyed by OIG-NYPD stated not only that they regularly, if not always, issue notifications to members of the public that a BWC is in use, but that such notifications were successful in quickly calming tense encounters, in particular traffic stops, and deterring verbal abuse against officers. Indeed, no officer surveyed recalled an instance in which a citizen’s knowledge that a BWC was in use further angered the person or escalated the encounter.
Also, unlike the PBA, which has regularly pushed for officers to have access to all information (recorded or otherwise) on hand before answering questions about alleged misconduct, the NYPD officers involved in this voluntary pilot program felt no need to have access to body camera recordings.
NYPD officers interviewed by OIG-NYPD did not themselves appear particularly concerned about having the ability to review their recordings in any context. Only one officer reported reviewing footage after capturing it, with the majority stating that their experience with policing and their personal knowledge of incidents they handled obviated the need to review their BWC video.
For what it's worth, the suggestions resulting from this trial period point towards greater transparency and accountability. The results also show police officers are far less concerned about the issues raised by the PBA than the union would have city officials believe. This indicates the police union doesn't really represent a majority of NYPD officers. It really only represents the worst of them -- the officers who benefit the most from decreased transparency and accountability.
The NYPD doesn't care for transparency. Its relationship with open records requesters ranges from "frosty" to "antagonistic." It even employs its own in-house, completely arbitrary classification system in order to prevent even more of its documents from making their way into the hands of the public.
Attorneys for the city have failed to turn over even one email from the files of former Police Commissioner Raymond Kelly or former Chief of Department Joseph Esposito regarding summons activity over the last eight years, attorney Elinor Sutton writes in new filings in Manhattan Federal Court seeking sanctions against the city.
“It is simply not tenable that Commissioner Kelly and Chief Esposito did not — in the entire period of 2007 through the present — write or receive emails using terms” related to the word “summons,” Sutton writes.
Seven years of discussing police business and not once did Kelly or Esposito use the word "summons," one of the most common terms used when discussing police business. How can this possibly be? Well, when you're looking for evidence that NYPD bosses and supervisors instituted illegal quotas, the word "summons" would figure prominently in responsive documents... if said documents hadn't been memory-holed for the preservation of the greater good their positions.
And it's not just the top two men in the NYPD that have a "summons" hole in their communications. Searches for responsive emails/texts from three other high-ranking NYPD officials came up empty as well.
What Sutton has obtained that points to an unofficial quota system has come from whistleblowers and "other means." Sutton has copies of emails and texts -- sent using NYPD phones/email accounts -- that discuss quota-like "expectations" for officers and reprisals for failing to hit these numbers. But the NYPD's own search for these same documents has found nothing. This either means the NYPD isn't performing thorough searches or it has been destroying incriminating documents. Either way, the NYPD's lack of responsive documents looks very suspicious.
And the city itself is complicit in the "vanishing" of possibly culpatory evidence.
[C]ity lawyers didn’t advise the NYPD to preserve communications related to summonses until 2013 — three years after the suit was filed, Sutton says.
The city won't say much about the lawsuit or its police department's actions, but this contradictory set of sentences says a lot more than the city rep probably intended it to.
In a response filed last week, city attorney Qiana Smith-Williams said the alleged evidence destruction was “short on meritorious claims” and that the sides had not yet “exhausted the possibility of a settlement.”
If you believe the opposition's case is lacking in merit -- and you have an inexhaustible amount of (public) funds to fight it -- why would you be entertaining a settlement? The obvious answer is this: a settlement would allow the city to end the discovery process, maintain its secrecy, allow those involved in the quota scheme to avoid further examination/punishment. Handing out (public) money to the plaintiffs in settlement form also allows the city/NYPD to move on without having to admit wrongdoing. A payout means nothing changes. Quotas will still remain, but steps will be taken to ensure it's better hidden.
[T]he law limits sharing of collected information about American citizens, resident aliens and other “US persons.” As one question on the quiz highlights, the CIA cannot share such information outside the intelligence community. It’s important, then, to know which agencies are within the fold.
The National Security Agency, Coast Guard and Department of Energy qualify as “IC elements”, the latter two via their intelligence arms. As a local police force, the NYPD does not make the cut.
This comes from a CIA quiz obtained by the ACLU as part of an FOIA lawsuit. That the CIA would single out the NYPD on its test is significant. The NYPD likes to believe it's an intelligence agency on par with the FBI and CIA. Despite having zero reason to do so, the NYPD sends its officers all over the world to gather intelligence after terrorist attacks. No one has ever asked the NYPD to do this, but it continues to invite itself to various ground zeroes, where it is usually greeted with a mixture of befuddlement and anger.
The CIA, however, remains inextricably (and perhaps, willfully) entangled with the Little Intelligence Agency That Isn't. Two former CIA employees were instrumental in setting up its "Demographics Group," which engaged in pervasive surveillance of New York City Muslims. The privacy and civil liberties violations this group engaged in made the "intelligence" gleaned so toxic not even the FBI would touch it.
The CIA also expressed concerns about the gathered data -- not so much out of concern for violated rights, but because the data gathering seemed to be its own end. A senior CIA official discussed partaking in the NPYD's gathered info, but stated that the only thing "impressive" about the collection was its size, not its usefulness.
A 2011 CIA Inspector General report found that the uselessness of the data didn't stop at least one CIA employee from exploiting gaps in CIA policy to view "unfiltered" Demographics Group intelligence even though the collection contained "no clear foreign intelligence relevance."
Most likely due to relationships with the two former CIA employees heading the NYPD's Demographics Group, the CIA has made the most of its lax policies in order to work directly with this particular local law enforcement entity.
Since 2002, the CIA has assigned four officers to provide “direct assistance” to the NYPD. Their titles and duties ranged from “Special Representative to the NYPD” to training analyst on counterterrorism. An NYPD detective also received operational training at the CIA.
The undated test is likely part of CIA rule changes as a result of the IG report. What little is left unredacted deals with legal authorities related to domestic surveillance, in addition to pointing out which domestic entities the CIA can lawfully share its intelligence with. The NYPD isn't one of them, no matter how much it believes its proximity to ground zero gives it the right to rub elbows with the intelligence community's big boys.
You can't build a better police force if you can't get anybody to apply for the job. Perhaps this partially explains the hesitance of law enforcement agencies to rid themselves of badly-behaving officers. Without a healthy pool of potential hires to pull from, attrition can become a real problem.
Many people are dissuaded from pursuing law enforcement careers after negative interactions with officers. This is where agencies are hurting themselves. Racism in law enforcement is a problem that can't be ignored. Some of it is overt. And some of it is the only conclusion you can draw when incidents like the following occur.
Twelve McKinney, TX, police officers responded to a complaint about teens at a local, private pool. Like too many interactions, it escalated far too quickly, beginning with Officer Eric "Barrel Roll" Casebolt (who has since resigned) tumbling into the frame of the cell phone video before yelling at/cuffing anything black, culminating in him throwing a 14-year-old black girl to the ground and sitting on her, only momentarily interrupted by him chasing off two black teens who tried to come to her aid by pointing his pistol at them.
The teen who recorded this incident was white. No orders were ever yelled at him, despite him being close to the action and openly recording Casebolt's one-man raid. (If anyone can explain Big & Khaki's purpose/position in this incident, I'd love to hear it.) What was actually in the heart and mind of Officer Casebolt we'll never know. But we can certainly see what it looks like. And what it looks like is black=bad and everyone else of other races not worth giving a second look.
If this mindset -- or this appearance -- is ever going to change, there needs to be some more diversity in the police workforce. I'm not suggesting another mutation of affirmative action, but it would probably help community relations if responding officers had a bit more in common with those they're policing. As was noted in the aftermath of the Michael Brown shooting in Ferguson, minorities were routinely being charged with the pettiest of violations (and arrested when fines weren't paid) by a police force that was predominantly white. In many other cases, it's been pointed out that many police forces not only do not mesh with the racial makeup of their communities, but often live miles away from the places they patrol -- distancing themselves both literally and figuratively from the people they serve.
Commissioner William Bratton is blunt about probable causes. “We have a significant population gap among African American males because so many of them have spent time in jail and, as such, we can’t hire them,” he said in a 20 May interview. Because many black men have been convicted of a felony, they are automatically disqualified.
This is a problem -- not just for the NYPD -- but for policing as a whole. Bratton (who has since clarified this remark -- more on that in a bit) is going to have trouble finding minority officers because his force spent most of the last 25 years either busting them for petty crimes (the "broken windows") or shoving them up against the nearest wall for suspicionless questionings and patdowns. Those who could make a positive impact due to their rapport with the communities they serve (because they grew up/live there) are already disqualified from serving.
Bratton said that when he had raised the “unfortunate consequences” of an explosion in stop-and-frisk tactics as one of the factors behind a difficulty in recruiting African American officers, he had meant that being the subject of such stops could discourage black people from applying.
“Stop, question and frisk is not preventing people from coming on the job,” Bratton said on Wednesday. “It’s not something that prohibits them. What it might do, however, because of a negative interaction with a New York City police officer – why would they want to become a New York City cop when they feel that they’ve been inappropriately dealt with in stop, question and frisk?”
While this points out that summons and misdemeanor charges won't keep black men from joining the NYPD, it doesn't make things much better. In fact, given the pervasiveness of stop-and-frisk, it possibly makes things worse. Rather than just disqualifying felons, it has alienated thousands more who were never arrested or charged. Their only interactions with the NYPD have been of the "hassled" variety -- stopped, patted down and questioned simply for being black, young and living in their own neighborhoods.
Now that stop-and-frisk has been dialed back significantly (only 48,000 last year -- compared to 4 million stops from 2002-2013), there's a chance this may, at some point in the future, pose less of a problem. This unconstitutional program -- in addition to alienating black applicants -- decimated the NYPD applicant pool for several years before someone finally realized what was happening.
Bratton said on Wednesday that at one time, police department applications had included a question about whether the applicant had ever been the subject of stop-and-frisk. But answering “yes” would not have disqualified the applicant, he said.
“We changed that question,” Bratton said at the press conference. “They were asked starting in 2009 and 10, ‘Have you been, basically the subject of a stop?’ We took a look at that as part of the changes we were making as part of the overall stop, question and frisk program. We changed that question. Because really it was not a qualifier ... It’s really information that’s of no use or value to us in the application process.”
Nearly 400,000 stops a year means tossing out tons of applications, presuming even a small percentage of those stopped weren't already deterred from entering the police force thanks to these largely-negative interactions.
But this isn't just an NYPD problem. It's a problem for all police forces who spend most of their time coming down hard on minorities by enforcing petty ordinances to the nth degree or doing what Officer Casebolt did in the above situation -- "busting" black kids while whites and other minorities roamed free. If this sort of thing remains unchecked, hiring policies alone will prevent police forces from being more representative of the communities they serve. Left untouched, this will result in more and more agencies becoming predominantly composed of white officers, even as the population being policed remains a blend of minorities.
On top of any present racism (something unavoidable when hiring humans), the increasingly homogeneous police force will only exacerbate "us vs. them" thinking, as hired officers will be pulled from a pool of people who've never experienced the negative aspects of law enforcement.
The fix isn't Affirmative-Action-on-steroids. The solution is the elimination of tactics that lend themselves to racist behavior and further drive a wedge between the policed and the police. The only way to ensure you can get the best -- and most useful -- police officers is to stop preemptively culling your potential workforce with abusive behavior and policies. Internal housecleaning is also in order, but what the NYPD's experience shows is that bad policies lead to the continued deterioration of the police force… which leads to the continued deterioration of policework… and so on, until your police force bears almost no resemblance to the communities it polices.
On the morning of April 2, 2013, New York City Police Officers Christopher Vaccaro and Damon Valentino were ordered to locate and arrest Chauncey Butler, a third-degree robbery suspect. The officers were provided with a photograph of Butler from a previous arrest and an investigation card, or “I-Card,” that contained “pedigree information.” Based on these records, the officers had at their disposal Butler’s race, black; height, 5’10” to 6’0” tall; hair color, black; weight, 155 to 180 pounds; age, 19; and home address, on Valentine Avenue in the Bronx.
In addition, one of officers had direct knowledge of Butler's physical features, having arrested him previously on drug charges. Despite this info, the officers looking for Butler decided -- after a fruitless ninety-minute search -- that another black male could be made to fit the description.
[A]t about 5:00 in the afternoon, when it was still light out -- [the officers[ came across Watson and stopped to observe him. Watson is black, 6’2” tall, and was 180 pounds and 25 years old at the time.
Watson was in the vicinity of the description, but didn't necessarily fit it. But when Watson's later actions proved he wasn't the sought suspect, the officers tried to pin their illegal search on something else.
The officers testified that when they first caught sight of Watson, they “believed” he was Butler. At that time, moreover, he was with two other individuals and appeared to be engaged in a drug sale. After seeing a hand signal that they recognized as indicative of a drug transaction, the officers exited the car. Officer Vaccaro then immediately drew his gun and, approaching the three men from behind, “announced himself as a police officer.”
Watson was then searched for weapons and contraband by the officers, who found 27 baggies of crack in his pockets. That was the officers' take on the events leading up to the search. Watson, however, argued that he was not engaged in a drug deal (although he was carrying a weapon). He was instead walking with a friend when he was ordered to turn around by the NYPD officers. One of the officers asked Watson if he was Butler, which he (obviously) denied. He then handed his ID card to the officers. The officers then asked if he was carrying any contraband, which he (obviously, but for different reasons) denied. The officers performed the search anyway, despite lacking the reasonable suspicion to do so and being well-aware they weren't dealing with the robbery suspect they were looking for.
This search was the officers' undoing.
In an oral ruling delivered from the bench, the district court found that the search was unconstitutional for two reasons. The first -- which we conclude we need not address on this appeal -- is that the officers would have lacked authority to frisk Butler had they actually encountered him because he was only charged with third-degree robbery, which, unlike first- or second-degree robbery, does not involve use of a firearm or deadly weapon. This, combined with the fact that “[t]he government offered no evidence that Butler had ever committed a crime using a weapon,” led the district court to conclude that Officer Vaccaro had no reasonable basis to believe that Butler, had he actually been present, might have been armed and dangerous.
Second, and of relevance here, the district court determined that, even assuming arguendo that the officers would have had authority to search Butler if they had encountered him, the search of Watson was objectively unreasonable because the officers had no reasonable basis to believe he was Butler and did not in fact believe he was Butler. Furthermore, the officers had no alternative ground to search Watson, for, as the district court found, the officers did not observe any hand signals indicative of a drug transaction; no third person existed or escaped from the scene; and Watson’s coat was closed and the butt of his gun was concealed.
Judge Scheindlin -- who has never been one to oblige the NYPD's excesses -- made it clear in her ruling that the officers had no reason to search Watson, no matter which line of logic it pursued.
Vaccaro testified that he saw Watson clearly and still believed that Watson was Butler. Although Vaccaro previously arrested Butler and spent time with him, he admitted that he was not sure whether or not Watson was Butler until after he ran Watson's fingerprints because “on a yearly basis [he] arrests or comes into contact with over a hundred individuals.” I do not find this testimony credible. Butler and Watson do not look [a]like. This is evident from a comparison of the photographs of Butler and Watson, as well as my observation of Watson at the hearing.
In addition to their different facial features, skin tone, height, and weight, Watson is over five years older than Butler. Vaccaro’s generic description of the similarities between Watson and Butler undermines the contention that he reasonably believed them to be the same person.
The government argues that it would have been illogical for the officers to ask for identification prior to searching Watson, but I reach the opposite conclusion: It would have been illogical and imprudent not to ask for identification. While Vaccaro’s belief that Watson was Butler might have been the basis for the stop, it was not the basis for the search.
The NYPD appealed this decision, using some truly regrettable arguments -- ones that not only suggest racial profiling might be OK because people sometimes have certain features in common, but that its officers are sometimes so visually impaired they can't tell the difference between the person depicted on a NYPD "ID card" and the person standing right in front of them, presenting identification that proves otherwise.
The Government argues, inter alia, that, to the extent that the district court’s finding that the two men do not look alike was based on its in-person observation of Watson, we should discredit it because the district court had an extended opportunity to view Watson in a well-lit courtroom, whereas Officer Vaccaro viewed him for only a minute. But the testimony in the record shows that it was light out at the time of the stop, and that, once he exited his car, Officer Vaccaro’s view was not impaired. A material difference in skin tone, facial features, and height is not something that takes a long time to process. Thus, we see no reason to conclude that the factual findings of the district court are clearly erroneous.
Quite obviously, this isn't the outcome the NYPD's lawyers were hoping for when it laid down its suspect arguments. But even if this wasn't exactly what it meant, this was the only conclusion the court could reach. And it's a severely ugly conclusion.
The rule that the government would have us adopt has the practical effect of permitting police officers to search any black male who is of roughly similar height, age, and skin tone to another black male charged with a crime. Such a rule is unreasonable on its face.
The officers had no reason to search Watson because he didn't physically match the description and had provided ID stating the contrary. Ah, but some will say, what about the drug deal the officers observed? Well, that description of the events was considered so contradictory to other testimony that the lower court discredited it completely. And, while the officers first attempted to justify their search with the "we saw a drug deal" story (rather than basing it on the momentary "belief" that Watson was Butler), the government's lawyers did not rely on this disputed narrative during the case's trip to the Second Circuit Court.
So, for all intents and purposes, the only narrative that survives is Watson's, and in his, he's not dealing drugs nor displaying a weapon. Instead, he's walking down the street being just black enough to "fit the description." And, according to the government's ownarguments, that's all it needs to justify a search.
from the no-immunity-for-deliberate-obtuseness dept
Some NYPD officers have continued to cling to the belief that citizens aren't allowed to film them, despite plenty of documentation otherwise. A letter issued to the Baltimore PD, but that CC'd law enforcement in general noted that "the justification for [filming police] is firmly rooted in longstanding First Amendment principles." (The footnote appended to this added: "There is no binding precedence to the contrary.") The NYPD's own Patrol Guide states this:
“[T]aking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.
The NYPD's chief of federal litigation likewise reminded officers that bystanders could film police officers provided they didn't interfere with duties or operations.
It would seem to be clearly established (including decisions to this effect from all but one circuit court in the US) and yet certain officers are still shutting down citizens with cameras and arresting them on clearly bogus charges. The NYPD is currently facing a lawsuit from the ACLU that hopes to obtain a ruling declaring this activity to be covered by the First Amendment. That lawsuit may ultimately prove to be extraneous as the Southern District of New York (which oversees New York City) has now confirmed that citizen recordings are protected First Amendment activity.
The facts behind the suit are this:
Douglas Higginbotham was covering the Occupy Wall Street protests for a New Zealand TV station. While shooting footage from atop a phone booth, he was ordered to get down by NYPD officers. He attempted to climb down but there were too many people crowded around the booth. So, the cops dragged him down by his feet, damaging his camera in the process. He was then cuffed with zip ties for three hours (and sprung from them with a butter knife because the NYPD is apparently more interested in the cuffing process than the releasing process) and charged with disorderly conduct.
Higginbotham claimed the arrest was performed in retaliation for his filming police officers, and as such, was a false arrest. The NYPD countered by claiming Higginbotham's supposed "failure to disperse" justified the charge. The court found otherwise:
The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been “congregating” with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham’s conduct: the defendants’ order for Higginbotham to climb down from the telephone booth was not an order to “disperse.” That word, as used in the statute, means “[t]o separate, go different ways.” Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.” Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse.
The NYPD also raised a variety of other justifications for this arrest (including potential damage to the phone booth and creating a "hazard" by his being on top of the phone booth) but these were also dismissed as inapplicable by the judge. The department also claimed that, even if there were no legitimate reason to arrest Higginbotham, the officers were entitled to qualified immunity.
In support of qualified immunity, the defendants merely summarize their version of the facts and assert that “the officers were objectively reasonable and patently not incompetent.” (Defs.’ Br. 12.) At the summary judgment stage, they will have the opportunity to try to demonstrate this by submitting evidence showing that reasonably competent officers in their situation could have at least disagreed on whether probable cause existed. Based solely on the complaint, however, the Court cannot conclude that this must have been the case.
Finally, the court addresses the First Amendment issue, and here the NYPD officers again attempt to claim immunity.
The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.”
The "no one directly -- at that moment -- told us not to" defense is one that should be undermined considerably by statements and policies issued by the NYPD itself. The court doesn't need a copy of the Patrol Guide to arrive at the same endpoint.
The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”
The court then goes on to point out that the First Amendment rights the officers claimed were "insufficiently defined" had been clearly established by years of precedent rulings.
Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.
Now, this is still far from the final ruling, so there's no precedent specific to the NYPD's territory set at this point. But the court's denial of qualified immunity in respect to Higginbotham's First Amendment claims serves notice that future assertions of well-meaning, not-patently-incompetent ignorance won't be entertained by this court. The plaintiff's suit will move forward and the officers accused of taking retaliatory action against a photographer will have to move right along with it. I would expect a settlement in the near future if the NYPD wishes to prevent the Second Circuit from joining the rest of the circuit courts in establishing a First Amendment right to record.
Undercover cop (and former member of the FBI-NYPD Joint Terrorism Task Force) Patrick Cherry couldn't handle a civilian being uppity. So, he ranted and raved at an Uber driver, who had the temerity to suggest Detective Cherry signal his intention to park his vehicle (via a nonoffensive hand gesture), peppering his unrehearsed speech with obscenities and racial slurs.
Patrick Cherry may have been an elite detective (Commissioner Bill Bratton stripped him of his badge, gun and task force position after the incident), but he failed to arrive at one very obvious conclusion before he started slinging slurs and swear words: almost everyone carries a cellphone and almost every cellphone contains a camera. The entire incident was recorded by a passenger.
With this undeniable evidence that Detective Cherry is willing to abuse his position to threaten other drivers for questioning his driving skills/actions, the NYPD (and Cherry himself) had no option but to address it. As mentioned above, Commissioner Bratton kicked Cherry of the joint task force.
"I apologize. I sincerely apologize," he said. "People shouldn't be treated that way. I let my emotions get the better of me and I was angry. My intention was to be courteous and then we got into an argument. There was no intention to berate or hurt deeply the driver."
It may not have been Cherry's "intention" to "berate or hurt deeply" the person on the other end of his rant, but that's what actually happened. Cherry may not always be angry and unhinged, but the video shows how little it takes to set him off. And if the video hadn't existed, Cherry would still be a badge-carrying member of an elite task force -- free to berate and hurt other citizens until outed on YouTube.
But then Cherry went on to blame his victim -- and for the lousiest reason: contempt of special FBI joint terrorism task force detective.
Cherry told the network he pulled over the Uber driver to "clarify the problem” and that the driver “got smart” when Cherry asked for his license and registration.
"When I walked up, I was uptight. I wanted to know what the problem was. What did I do that was so wrong that I had to get chastised?" Cherry said. "I felt his driving actions were discourteous and impolite and when he stopped he said, 'I'm not going to give you anything."'
All the driver asked was what he was being pulled over for. And Cherry refused to answer, choosing instead to berate the driver for not being a purebred American, among other things. If someone refuses to provide identification to an officer, it's well within their rights, unless the officer can give them a better reason than "because I said so." And if they are required to turn over identification, there are remedies for that, none of which involve banging on a vehicle and yelling at its driver.
Not only that, but being "discourteous and impolite" isn't a crime. If it was, New York City's jails would be even more well-stocked than they already are. It's just that some law enforcement officers believe it is, and will throw out a barrage of BS charges in hopes that one sticks.
This "apology" shows Cherry either isn't used to people questioning his authority or isn't capable of handling these situations with any amount of professionalism. His non-apology "apology" simply provides more evidence that Bratton's "unprecedented" decision to strip him of his badge and power was the correct thing to do.
The right way to apologize for an incident like this is to stop after you've admitted your actions were wrong and reflect badly on yourself and your position. Adding "but you have to understand, the guy was being a jerk" just makes you look like one of those people who routinely blame others for their own failings.
In December 2013, the NYPD ordered its 77 precinct commanders to route reporters’ requests for crime reports through the agency’s press office, rather than release these documents directly. So where’s the order itself?
More than fifteen months after MuckRock requested it, the NYPD has a rather familiar answer: we couldn’t find it.
It's not as though the document never existed. The NYPD's decision to deny journalists access to its crime blotters -- something it had allowed for decades previously -- was heavilycriticized by a variety of outlets (including this one). The document's existence was even acknowledged by the NYPD's Deputy Commissioner of Public Information, who claimed it was nothing more than a reiteration of previously-existing policy. (If so, then it had never been enforced until the distribution of this suddenly-nonexistent memo.)
But now, more than a year after it was first requested, the NYPD's FOIL response team claims the document everyone was talking about several months ago just isn't there.
In regards to the document(s) you requested, this unit is unable to locate documents responsive to your request based on the information provided.
In addition to the documents MuckRock didn't receive, the NYPD is expected to not answer MuckRock's follow-up question sometime within the next 12-18 months.
MuckRock has emailed the NYPD’s DCPI [Deputy Commissioner of Public Information] to request clarification as to how this order was so widely disseminated throughout the department without being put in writing.
Perhaps the last words of the memo were, "BURN AFTER READING?"
And so, the NYPD continues on in its quest to leave no FOIL request unthwarted. I'd say it has its work cut out for it, but it's already been touted as "worse than the CIA, NSA and FBI" in the Information Doesn't Want to Be Free category. Between its generally frosty exterior and its no-oversight-needed in-house document classification, the NYPD continues to put other reluctant participants in open records laws to shame.
Documents the American Civil Liberties Union have been able to obtain show [PDF] that “FBI analysts make judgments based on crude stereotypes about the types of crimes different racial and ethnic groups commit, which they then use to justify collecting demographic data to map where people with that racial or ethnic makeup live.” The FBI uses “domain analysis” to target American Muslims and Islamic institutions.
The similarities between this suggested course of action and the NYPD's infamous "Demographics Unit" (led by a former CIA official) are notable. Both involve questionable tactics like declaring entire mosques "terrorist organizations" simply because attendees followed the same religion as the 9/11 attackers. Notably, the FBI found the NYPD's tactics so thoroughly violated the rights of those being surveilled that it refused to access any of the intelligence gathered by the Demographics Unit. That decision ultimately cost the FBI nothing in terms of usable intel. Despite years of rights violations and round-the-clock surveillance, the NYPD's special unit was never instrumental in preventing attacks or producing significant arrests.
According to one anecdote, 20% of analysts (not even Field Agents!) understand the point of this. And even in offices where they do understand, the Field Agents won’t do their part by going and filling in the blanks analysts identify.
The "blanks" are contained in CSCCs (Central Strategic Coordinating Components), linked to field offices' "domain awareness" programs. But one-fifth of agents refused to comply with this directive -- not because 20% of FBI agents are necessarily against racial profiling (documents obtained by the ACLU show otherwise) -- but because the tactic just doesn't work.
Call me crazy. But maybe the people responding to actual crimes believe they learn enough in that process — and are plenty busy enough trying to catch criminals — that they don’t see the point of racially profiling people like NYPD does? Maybe they believe the ongoing threats are where the past ones have been, and there’s no need to spend their time investigating where there aren’t crimes in case there ever are in the future?
Doing investigative work like investigators, rather than like surveillance dragnets? That's probably crazy enough to work. Not that the FBI has any desire to dial back its requests for encryption backdoors and unfettered access to electronic communications, but those actually out in the field seem to know what works and what doesn't. And a constant APB for anyone fitting the "Muslim/Male" description isn't exactly helpful.
Of course, those at the top -- the ones finding this to be a credible way to fight terrorism -- see this 20% as outliers who have failed to "get on the bus." And in a mixture of the worst parts of bureaucracy and corporate culture, they've responded with "do more of what isn't productive, only faster and harder."
Yet rather than analyzing whether this concept serves any purpose whatsoever, it instead says, “it’s corporate policy, no one is doing it well, so it needs to improve.”
There's a lesson here, but those writing the review aren't comprehending it. (Wheeler notes that many of those interviewed for the report aren't actually FBI agents, but rather representatives of other intelligence agencies, like the CIA.) To catch terrorists, you need smarter investigative work, not work that involves blanket surveillance and the rote filling in of blanks. The NYPD should know this, considering its failure to catch plots later uncovered by the FBI, but it doesn't. Despite the disbandment of the "Demographics Unit," it still clings to the belief that mass surveillance beats real police work any day of the week. The FBI has figured this out -- or at least a percentage of its agents have -- but that's not going to be enough to persuade those calling for more of everything to dial back their efforts a bit.
The FBI can be smart, but it's apparently hampered by upper management with an obvious fondness for bad ideas that simultaneously expand the agency's power. If it is how it looks, the real aim of the agency heads is more power, not fewer terrorist attacks.