Tag Archives: Citizens police review board

AFR Guest Blog: Jonathan Whitworth’s Dismissed Civil Suit

Keep Columbia Free is happy to have a guest blogger in the house. Scott Alexander Meiner, a policy analyst at Americans For Forfeiture Reform, has penned a blog breaking down U.S. District Judge Nanette Laughrey’s recent ruling in the case stemming from Columbia’s infamous SWAT raid at the home of Jonathan and Brittany Whitworth. In his blog, Scott breaks down the problems with the ruling and the scourge that is “qualified immunity.” Enjoy…

BY SCOTT ALEXANDER MEINER, ON NOVEMBER 29TH, 2011

Last week, U.S. District Judge Nanette Laughrey granted summary judgement to dismiss the civil rights suit (raised under 42 U.S.C. § 1983of Jonathan Whitworth, Brittany Whitworth, and their son. The civil rights claim stems from a February 2010 Columbia, Missouri SWAT raid that went viral when police footage was obtained by the Columbia Tribune.

At issue in the motion for summary judgement was whether the police officers’ discretionary behavior was reasonable, in the context of the situation, and whether it violated clearly established statutory or constitutional rights of which a reasonable person would be aware (Harlow v. Fitzgerald, 457 U.S. 800 (1982)Graham v. Connor, 490 U.S. 386 (1989)).

Such motions, under Rule 56 of the Federal Rules of Civil Procedure, are to be looked at in the most favorable light to the non-movant (CPD).

In reality, law enforcement is afforded such favorable light, via judicial imaginings of what might have been reasonable, that “qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”  Malley v. Briggs, 475 U.S. 335 (1986)

It is no surprise that Judge Laughrey was able to rationalize a context in which it might have been reasonable for an officer to kick Jonathan Whitworth in the head while he lay face down, unarmed, before a fully armed SWAT tactical unit.

“Thus, even if Hendrick indeed kicked Whitworth, a single kick to force swift compliance with an order, and to deter hesitation incompliance with future orders from a dangerous suspect, would be objectively reasonable in this context. It is also uncontested that Whitworth suffered no injury from this contact except pain.”  Whitworth v.  Bolinger

In the execution of the warrant, a paramilitary SWAT team entered the Whitworth’s family home. Police fired seven shots while in the Whitworth home. Both of the Whitworth family dogs were shot. One of the dogs was killed. The couple’s seven year old child was witness to the raid. Jonathan Whitworth was kicked in the head. Brittany Whitworth and her child were directed at gun point.  As a result of the the raid, the police were able to find some drug paraphernalia and a small amount of cannabis. The police, initially, charged the Whitworths with child endangerment.

“The Court agrees that ideally officers would execute search warrants without pointing a gun at women and children not suspected of committing a crime. On the other hand, where officers are aware that a dangerous suspect and two large dogs are on the property, a reasonable officer could, in the heat of the moment, rely on such tactics to prod individuals to move swiftly through a potentially dangerous situation. This is especially true, where shouting and gun-pointing occurred as Mrs. Whitworth and P.M. stepped over Mr.Whitworth–who was lying on the floor–and the danger of resistance by any of the Whitworths was arguably at its highest. In this context, the behavior alleged by the Whitworths did not violate a clearly established constitutional right. The SWAT officers are thus entitled to qualified immunity on this claim.” Whitworth v.  Bolinger

This is entirely consistent with scores of cases wherein citizens were plainly wronged and yet can find no corrective, civil recourse.

In 2010, Radley Balko described the false arrest and failed civil suit of Brian Kelly. The ordeal is as instructive as it is scary.

“When Rogers returned from writing a ticket, he noticed Kelly’s camera. Rogers demanded Kelly turn the camera off and hand it over to him. Kelly complied.

Rogers then returned to his car and called John Birbeck, an assistant district attorney in Cumberland County. Rogers asked Birbeck if Kelly’s recording violated Pennsylvania’s wiretapping law. Birbeck incorrectly told him it did. Rogers then called in back-up officers and placed Kelly under arrest. During the arrest, Rogers “bumped” (the term Kelly used in his lawsuit) Kelly, causing a staple from a rugby injury to rupture, causing Kelly’s leg to bleed. Kelly spent the night (27 hours) in jail. He was eventually charged with a felony punishable by up to seven years in prison. Cumberland County District Attorney David Freed would later tell the Patriot-News that while he sympathized with Kelly not being aware that what he did was illegal, and that he might (graciously!) allow Kelly to plead to a misdemeanor, “Obviously, ignorance of the law is no defense.”

Here’s the problem: Freed was the one who was ignorant of the law. So was Birbeck. And so was Rogers. The Pennsylvania Supreme Court ruled in 1989 that recording on-duty public officials is not a violation of the state’s wiretapping law because public officials have no legitimate expectation of privacy while they’re on the job. The order for Kelly to stop videotaping was illegal. So was Kelly’s arrest and his incarceration. Freed eventually dropped all charges.

Kelly filed a civil rights lawsuit against Rogers and the town of Carlisle. In May of last year, Federal District Court Judge Yvette Kane dismissed Kelly’s suit. The reason? As a police officer, Rogers is protected by the doctrine of qualified immunity. In order to even get his case in front of a jury, Kelly has to show that Rogers (a) violated Kelly’s civil rights, and (b) the rights Rogers violated have been clearly established. Even if Kelly can meet those two burdens, he must also show that Roger’s actions in violating Kelly’s rights were unreasonable.

So it isn’t enough that the police are wrong about the law. They have to be very obviously wrong for you to collect any damages from a wrongful arrest.”

Kelly’s civil suit (Kelly v. Borough Of Carlisleclaimed that the arrest had violated his rights guaranteed by the First and Fourth Amendments. Upon dismissal by summary judgement, Kelly appealed to the Third Circuit Court of Appeals. Kelly’s First Amendment claim was rejected. All claims against the Borough of Carlisle were rejected. The summary judgement on Kelly’s Fourth Amendment claim was vacated and remanded for further proceedings consistent with the Third Circuit’s analysis. The remand instructed,

“that police officer who relies in good faith on a prosecutor’s legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised on a lack of probable cause. That reliance must itself be objectively reasonable, however, because “a wave of the prosecutor’s wand cannot magically transform an unreasonable probable cause determination into a reasonable one.”  Accordingly, a plaintiff may rebut this presumption by showing that, under all the factual and legal circumstances surrounding the arrest, a reasonable officer would not have relied on the prosecutor’s advice.”

In analyzing the holding, Harvard Law Review noted,

“The Third Circuit had previously allocated the burdens of production reasonably: once the plaintiff established a prima facie case of wrongful arrest, the court required the police officer defendant to show probable cause, and it required the defendant to prove his or her qualified immunity defense. This arrangement accommodated the plaintiff’s limited right to pretrial discovery and the officer’s information advantage regarding the plaintiff’s arrest. The court’s opinion in Kelly will upset this sensible allocation in cases in which the police officer has consulted with a prosecutor: the plaintiff will now have the burden of showing that the officer was objectively unreasonable in following the advice. Kelly is representative of the plaintiffs on whom this burden will fall. He was neither committing nor about to commit a crime. A police officer nonetheless arrested him, and he went to jail. Because the arrest was made without probable cause, it violated Kelly’s Fourth Amendment right. Moreover, the law was clearly established in the relevant jurisdiction that the officer’s basis for arresting Kelly did not constitute probable cause. Thus, a reasonable officer would have known that he was violating Kelly’s rights. Yet, solely because a prosecutor confirmed the police officer’s inaccurate interpretation of the law, Kelly (and similarly situated civil rights plaintiffs) will now be required to produce evidence to rebut the judicially mandated inference that the police officer’s violation of his clearly established constitutional right was objectively reasonable. This presumption is unlikely to increase legal consultation; instead, it will allow courts to relieve law enforcement officers of their responsibility to exercise independent professional judgment and will decrease the likelihood that constitutional violations will be redressed.”

Qualified immunity has become so expansive that it frequently fails to correct these constitutional violations.

Simultaneously, law enforcement is increasingly funded by separate revenue streams that are not directly answerable to local voter intent.  Big money is coming in from asset forfeitures and federal law enforcement grants. Each dollar acquired outside of the legislative appropriation model is one less piece of control that the citizenry wield. The funds are not enough to ignore the citizenry, but we do see prioritization that is substantially at odds with voter intent.

The Whitworth warrant was predicated on unnamed sources that claimed Jonathan Whitworth was a major cannabis dealer. That was more than five years after Columbia, Missouri passed a proposition to make the enforcement of cannabis the lowest priority by law enforcement. The measure passed by a 61% to 39% vote.

An estimated 130-150 SWAT raids occur everyday in the United States. That is some 40,000-50,000 paramilitary operations every year.

We are simultaneously escalating domestic paramilitary activity, increasing immunity from prosecution, and ceding budgetary control.

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Support for Chief Burton

 ANYONE CAN SIGN THE PETITION. YOU NEED NOT BE A COLUMBIA RESIDENT TO SIGN THE PETITION IN SUPPORT OF THE CHIEF.

Sign the petition in support of Chief Burton HERE

Anyone who follows the local Columbia media knows that Chief Burton has been under fire as of late. He has never been popular among the old guard, rank and file officers, but lately the local public sector police labor union, the Columbia Police Officers Association (CPOA), a national police labor union, the Fraternal Order of Police, and a group centered around a fired, former CPD Officer, Rob Sanders, and his former police dog Fano have all been on the attack.

 

Keep Columbia Free publicly endorses Chief Burton’s continued vigilance combating racial bias in his department and wholeheartedly agrees with his decision to fire Rob Sanders.

The proverbial straw that broke the camel’s back and unleashed a firestorm of police union ire was the firing of Rob Sanders. Sanders was fired for using excessive force against an inmate in a holding cell. Sanders shoved the captive man against a wall hard enough to fracture a vertebrae.

As is customary in such “dog and pony” CPD investigations, the Internal Affairs Department ruled in favor of Officer Sanders, even after he and his fellow officers were heard laughing about the incident. When Chief Burton reviewed the case, he overruled the findings of the Internal Affairs department, promptly and rightly firing Officer Sanders.

The city went on to deny Sanders the opportunity to purchase the police dog, Fano, further raising the ire of his supporters in the department.

Not surprisingly, due to its long history condoning excessive force and brutality at the hands of the Columbia Police, the CPOA has come to the aid of Sanders. The vicious attacks of the CPOA know no bounds.  CPOA Executive Director Ashley Cuttle even went so far as to make the claim to a Tribune reporter that Chief Burton has called officers and their families racists during meetings with The Bias Free Columbia Coalition. I was was in attendance at the meeting in question and sat less than 10 feet away from Chief Burton. The Chief said nothing of the sort. He simply and rightly said that nearly everyone carries some sort of racial bias and that his officers are human. Ashley Cuttle should be sued for using her status as CPOA Executive Director and union mouthpiece to float such glaring and damaging lies to the local media.

It is the CPOA that represents everything that is wrong in the Columbia Police Department. The CPOA is a rabid labor union that is more concerned with preserving officer pensions than protecting the civil rights of the very citizenry whom the officers purport to serve and protect. The CPOA cements the perverse solidarity that separates the the police from the community and turns otherwise good cops into accessories to the crimes of the few truly bad cops. Ratting on a bad CPOA member cop would carry a harsher punishment than ratting on a gang member in the streets. Chief Burton is now paying the price for daring to clean up a department that has struggled with integrity for many years.

And the attacks keep coming. Even the recently retired CPD Officer Jeff Westbrook penned an editorial in the Tribune denouncing Chief Burton. Westbrook was the detective who refused to allow detained criminal suspect Nicole Palmer to speak to her attorney despite several requests to do so. At 1:50 and 5:40 in the following video you can see Officer Jeff Westbrook in action, grinding our beloved Bill of Rights into the dirt with the heel of his jackboot, as he denies council to a prisoner. If this is the caliber of officer (or former officer) calling for Burton’s head, Burton must be doing something right.

 

 

Now these forces who are calling for the reinstatement of Rob Sanders have dredged up a 30+ year-old accusation of excessive force leveled against Chief Burton when he was a Dallas police officer. Thanks to the level-headed thinking of our freshman City Manager, Mike Matthes, this silly and ultimately dirty campaign will go nowhere.

Although we have not always agreed with Chief Burton, Keep Columbia Free publicly endorses Chief Burton’s continued vigilance combating racial bias in his department and wholeheartedly agree with his decision to fire Rob Sanders. Chief Burton is a welcome improvement when compared to the leadership the CPD has seen over the past 30 years. The so-called low morale in the department is merely a symptom of the decay left from the past years of poor management. It hurts to clean an infected wound. 

One thing has been made clear by these recent and ongoing events. Civilian oversight of our dysfunctional police department is more important than ever. Our Citizens Police Review Board needs to be given teeth and allowed to do more than merely make suggestions.  Please see a recent memorandum Keep Columbia Free submitted to the City Council and the CPRB. 

 

For another take on the subject, see  local policy analyst Eapen Thampy’s blog, Ducks and Economics.

 

Mark Flakne

 

 

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Memorandum Regarding the CPRB

 

 

 

 

 

 

 

MEMORANDUM

To:                           Mike Matthes, City Manager

                                Mayor and City Council Members

                                CPRB Board Members

From:                     Keep Columbia Free, a political action committee registered with the MO Ethics Commission

Ref:                          Proposed Changes to CPRB Ordinance

Date:                       August 28, 2011

 

The recent business addressed by the board and a number of related news items have drawn attention to concerns about potential changes to the CPRB Ordinance.  Recent matters brought before the board have made it clear that both the Columbia Police Department and the Columbia Police Officers Association seek to promulgate an adventitious interpretation of the board’s duties and purpose under the ordinance as they relate to the original interpretation held by many and as would seem most appropriate to accomplish said purpose.

Below we address the majority of the issues outlined by the Mayor before the City council regarding differences of opinion between the police chief and the CPRB.  It is our sincere hope that the council considers the input of other interested parties, specifically concerned citizens’ groups, as it turns to address these issues.  We further urge you to keep in mind the greater potential of fostering police accountability to the community as well as community trust in the police.  A great deal of this potential exists given nothing more than the ordinance as it currently exists.  Any changes that are unnecessary or counter to its purpose threaten to stifle that potential, as the influence of excessive, unbalanced input from the police, unfortunately, seems to already have done.       

Problem: The definition of misconduct.

Recommendation: No change is warranted or desirable.  Providing a definition in addition to those that already exist in law and department policies serves no practical purpose.  Rather, including a definition in the ordinance may hinder the board in performing its duties.

Chief Burton voices concern that there is no definition of misconduct given.  Notwithstanding the adoption by the board of the previously suggested definition, he provides yet another.  Either seems sufficient for the purposes proposed, but it seems clear from the ordinance section 21-44 that the board is tasked with addressing misconduct both “actual” and “perceived.”  Thus, a complaint need not be tested against any particular definition to be appropriate for review by the board, except in that the body of the ordinance only deals with those which have been through the normal complaint process.  Any complaint that alleges something that doesn’t technically fall under whatever definition has been adopted could still easily fall under the class of misconduct that is “perceived” but not “actual,” and yet be dismissed without review. 

The broader purview described in the ordinance should allow for the board to address the general perception of police among the citizenry, or the general concerns of a complainant independent of any allegations of specific actual misconduct by LEOs or the department.  As an advisory body, the freedom to address these concerns is vital to the board’s mission to make recommendations under Section 21-49(3) because if only violations of standing policies are permitted, complaints for which the best remedy might be a change in policies could be excluded from the board’s consideration.  Let us address three general classes of issues that the board might be asked to address:

The first is an allegation that an officer violated federal or state law, city ordinance or behaved in some other way illegally.  Clearly, the proper place for this to be addressed is in the courts, and the board should recommend that the specific allegation be handled by the prosecuting attorney.  The board is not a council of jurists and lacks the powers and restraints that come with the handling of such allegations in the judicial system.  Its place is instead to determine if any recommendations need to be made regarding policies, procedures and training in an attempt to prevent future problems.

The second is an allegation that an officer violated an existing department policy, guideline, directive, rule, regulation, or order.  Clearly, the proper place for this to be addressed is within the Internal Affairs department.  The board is not a surrogate chief of police, and should most properly recommend that any discipline be handled within the department.  The one exception is the directive under Section 21-49(1) to review appeals from the police chief’s decisions.  As made clear in Sections 21-52 and 21-53 the role of the board in these cases is to act as an additional intermediate step before appeals proceed to the personnel advisory board or the city manager.  In fact the ordinance seems to mandate that the normal complaint process be followed and that the board act only as an intermediate step, providing citizen input at the request of an appellant.  It may make recommendations, but its findings and recommendations are neither final nor binding, and thus cannot determine the final disposition of a particular case.

The third class of issues is a complaint regarding policies, procedures, or training that is not necessarily related to any specific incident of alleged actual misconduct.  These complaints address perceived misconduct, or potential problems that may threaten police accountability and community trust in the police.  The products of this class of reviews will be, again, recommendations on any changes that need to be made in policies, procedures, or training.  Among such recommendations might be suggestions that the definition of misconduct needs to be altered.  Currently, the board dismisses this class of complaint out of hand, and yet since the other two classes seem to require little involvement of the board beyond providing recommendations, it would seem that this class of concern should be recognized as exactly the kind of issue on which the board should devote the majority of its time and effort.  This is a serious problem that is addressed further below.

In all three cases, either the existing definition of misconduct has no bearing, or the duty of the board will include consideration of the appropriateness of the definition in use by another body.  The board might recommend that the definition being used as part of police policies, procedures, and training needs to be altered.  The board might recommend that the definition being used by the chief of police needs to be altered.  At no time is it bound by a specific definition, unless the chief’s recommendation is adopted by the City Council and a definition is included in the ordinance.  At no time should it be bound by a specific definition if it is to best accomplish its purpose.

The only consequence that should be expected from making this change is that the second class of complaints might then be taken out of the jurisdiction of the board, with the simple claim that “The complaint alleges behavior that does not fall under the specific definition of misconduct.”  Any such attempt to limit or bypass the board would counter-productive, as the purpose outlined in the current ordinance makes it clear that misconduct need not be “actual” to be addressed.  Providing a definition in addition to those already extant in law and department policies serves no practical purpose.

Problem: Open Records, Closed sessions and interviews.

Recommendations: No change is warranted or desirable.  As has been clarified, the only elements of the records that are opened are those pertaining to complaints, which have a bearing on the board’s considerations.  Again, board meetings are not trials, and the members of the board are not judges.  The information revealed by the provisions of Section 21-54 might bring to light problems and patterns that should rightly be addressed in the board’s recommendations.  Furthermore, while it might be reasonable to make accommodation for complainants who are concerned about harassment and retribution, the concerns for the officers are unfounded.

Especially given his/her privilege of qualified immunity, it seems troubling that any public servant would be concerned with the requirement that he/she honestly answer for their behavior.  What might be revealed in an interview that should not be heard by the public? Furthermore, under Missouri Revised Statues Section 610.022.3, closed meeting shall be closed only to the extent necessary to address the specific reasons for closing the meeting, and no other business should be discussed or votes taken “which does not directly relate to the specific reason announced to justify the closed meeting or vote.”  State law allows for certain specific situations under which a meeting can be closed and are more stringent than the criteria proposed by the chief of police.  Section 21-54(b) seems to allow for these exceptions already, and any potential closed sessions would by practical necessity have to be in addition to the normal monthly meetings outlined in Section 21-47(b) in order to comply with statute.  Surely these limitations and opportunities should be considered before any effort to alter the ordinance is undertaken.  In any case, it seems that the specific concerns brought forth by the CPOA and other parties could easily be addressed under the existing Section 21-52(a), under which independent investigators can be contracted to interview and investigate outside of the public meetings and then publicly report to the board and Section 21-55, under which the board is directed to develop a mediation process.  Why put the public nature of the board in jeopardy simply at the request of an officer accused of misconduct, when other remedies for specific concerns already exist, available at the discretion of the board?  Why risk violating State statute in an effort to address questionable concerns?

Problem: Training recommendations.

Recommendations: The proposed changes are both onerous and of questionable merit.  Surely there is some benefit to be derived from additional information and training, but a strictly mandated schedule of obligations when no funding is provided puts an undue burden on members of the board.  Furthermore, the appearance of bias that is inevitable if the police department provides and directs such a large portion of the training should be avoided.  Instead, it is recommended that the City Council determine an appropriate level of training funds for the board and that the specific nature and scheduling of said training be at the sole discretion of Council members and inspired by suggestions from all concerned parties.

Problem: Police policies to be posted online, regular reports on complaints.

Recommendations: These issues are not addressed by the Chief, except by a general statement of assent.  They are nothing more than reasonable requests by the board to help accomplish the purpose of providing a greater sense of police accountability and trust, and should be obeyed to the best of the department’s ability.  In principle, it seems that the board should rightly be encouraged to make whatever requests it determines are appropriate.  In fact, these two requests simply fall under the directive of Section 21-49(3) and are a perfect example of the third class of issues outlined above.  Making these requests and recommendations are exactly what the board was established to do, and it should be supported in the fulfillment of its duties and purpose.  Instead of posing these recommendations as “differences of opinion,” they and the method by which they were arrived at should be embraced by the board and the council by clarifying that the board welcomes appeals regarding concerns outside the strict standing definition of misconduct.  This brings us directly to the last question:

Problem: Who can make an appeal?

Recommendation: The proposed change is neither warranted nor desired. Instead, the definition of “complainant” should be broadened to make it clear that in order to most effectively address “police accountability to the community and community trust in the police” the board needs to have an official mechanism to address concerns independent of standing or of a specific officer or incident. 

Limiting the sources of complaints to individuals that are alleging specific acts of misconduct has the result of hampering the ability of the board to fully fulfill its purpose.  As an advisory body for the city and police department, and an advocate of the citizenry, it is vital that the board have a mechanism to address concerns beyond appeals from the police chief’s decision on specific allegations of actual misconduct.  Under the proposed changes, the agenda of the board will be limited to consideration of specific incidents, initiated by the complaining citizen or the disciplined officer, and the initiative of board members.  This is already the de facto state of the process, but that needs to change.  There needs to be a means by which other concerned parties can bring issues to the board’s attention.  Currently, that mechanism is generally understood by the citizens to be the complaint process, but the confusion of the board, police chief and CPOA and the identification of this as a problem by the mayor make it clear that the procedure should be clarified.  If the board is to fulfill its purpose, that clarification should allow for both appeals from the police chief’s decisions and appeals directly to the board to address concerns not inspired by a specific case of misconduct.  In any case, the council has only recently dealt with this question, and the decision to limit complainants to county residents both addresses the concerns raised by the board’s first appeal and allows for the kind of general citizen input that is so vital to the board’s mission.

In the minds of many members of the community, there should a role for the board in handling concerns that do not stem from specific allegations of misconduct; that it should be their voice, and act as a liaison with the police department and city council on matters of law enforcement policy and procedure.  The intentional inclusion of 21-51(a)(4) seems to indicate that the council recognizes this, and given the stated purpose of the board, it would seem that providing a more flexible way for the board to fulfill that role is vital.  The simple solution would seem to satisfy this need while also addressing many of Chief Burton’s concerns:  a type of filing independent of allegations of actual misconduct and the appeals process should be clearly written into the ordinance.  This process would provide a ready means for citizens to petition the board to make recommendations, and all but one of the essential elements already exist in the ordinance. 

By a surface reading of the ordinance, it would seem that the only impediment is the definitions of “complainant” which limits what can be brought before the board.  An additional class of filing, perhaps a “request” or “submission” should be included in the ordinance as a means to initiate review under the duties described in 21-49(3) without burdening members of the police department with having to answer specific allegations.  Members of the community could suggest recommendations to the board for review and, if deemed appropriate, the board could pass those on to the city manager, the police chief, and/or the City Council.  During these reviews, many of the clauses that are troubling for Chief Burton and the CPOA would not apply, because Sections 21-50 through 21-53 specifically refer to appeals and Internal Affairs procedures.  From the point of view of the council, department, and board, little would change, and yet the citizens would likely feel much more empowered to voice concerns, accomplishing much in the effort to address perceived misconduct and increase community trust in the police.  The proposed change would look something like this:

Sec. 21-44.  Purpose.

 

     The purpose of this article is to provide an external and independent process for review of actual or perceived police misconduct thereby increasing police accountability to the community and community trust in the police.

 

Sec. 21-45.  Definitions and rule of construction.

 

     The following definitions and rules of construction apply to this article:

 

     “Board,” when not otherwise specified, means the citizens police review board.

 

     “Complainant” means a person who files a complaint with the police department against a police officer or who files a recommendation submission for review by the board.

 

     “Complaint” means a written statement alleging misconduct of a police officer involving interaction with the public.

 

     “Notice” shall be considered given when it is hand delivered or three (3) business days after it is mailed.

 

     “Police officer” and “officer” means a commissioned law enforcement officer, other than the chief of police, who has the power of arrest and who serves in the Columbia police department.

 

Summary: The proposals made by the chief are presented as a collection of reasonable, simple changes intended to “tweak” the ordinance to address minor concerns.  In actuality, they would go a long way towards undermining the intended and stated purpose of the board and silencing concerns regarding the relationship between the police department and the community.  Officers are not under a constant threat of inquisition as pretended, but are granted an incomparable level of privilege and power by the government.  It is not only reasonable but absolutely necessary that what is in practical and legal terms little more that a review and advisory body maintain as much independence as possible to conduct business and direct its own procedures and conduct if the true intent is to foster accountability and trust.  We at Keep Columbia Free, along with many other individuals and groups in the community, have grave concerns about the potential for misconduct and abuse without meaningful and vigorous civilian oversight of law enforcement.  The board has the ability to address these concerns, but only if it is clear that it is free from hindrance or interference by the very government agency subject to its review.

The ordinance at its outset hints that both actual and perceived problems can have very real consequences.  If the chief’s recommendations are implemented, not only will the actual ability of the board to fulfill its mission be greatly hampered, but the perception that the board functions as little more than a public relations arm of the police department will be strengthened.  We strongly encourage the CPRB and the Council to do its best to avoid such an outcome.

 

 

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Thoughts on the CPRB Public Hearing and Work Session

The recent Citizens Police Review Board public hearing and subsequent work session was nothing short of entertaining. Outside of Bill Easley’s cantankerous rant and Marlon Jordan‘s “klan” theatrics, the public hearing was moving. The overwhelming majority of the nearly 80 in attendance, and the 15 or 20 folks who addressed the board in 3 minute increments, were there to ask that the board reject the changes proposed by Chief Burton and the Columbia Police Officers Association. [See our previous blog on the proposed changes] There were a handful of seats occupied by current and former police officers or police volunteers, two of whom addressed the board in support of Chief Burton and the CPOA, but there were no civilians who voiced approval for the ordinance change.

When the public hearing came to a close, after a 30 minute extension, the board’s work session began with an invitation for Chief Burton and CPOA representatives, Eric Dearmont and Ashley Cuttle to take a seat on the stage. Much to the chagrin of the citizens in the crowd, public comment was stifled as these three were given unlimited time to rebut and refute any and all input from the public.

It is important to note that while the Chief is a public employee and an argument could be made for him having a seat in the work session, neither Eric Dearmont nor Ashley Cuttle are public employees and are instead paid employees of the CPOA. The CPOA, while comprised of citizens employed as police officers and attorneys hired to represent them, is not a public entity. It is a private organization, not subject to sunshine laws or official public scrutiny. In reality, the CPOA is no different than any of the other reputable organizations that were in attendance at the hearing and limited to only 3 minutes of input each.

The message sent by allowing the CPOA unlimited and unrebutted input into the proceedings is undeniable. The review board has been labeled as sympathetic to the police since its inception, and allowing the CPOA a bully pulpit at a work session only serves to bolster the label.  The reaction from the crowd in attendance was also undeniable as eruptions of vocal discord periodically interrupted the work sessions with shouts of “bullshit” (disguised as sneezes) and loud demands for public rebuttal to the misleading and outright false claims made by both the Chief and the CPOA.

In an interesting turn, one board member, Susan Smith, who this blogger previously derided as a police stooge, heroically stood her ground against the unencumbered onslaught from Chief Burton and the CPOA, and forcefully repelled the attack with well reasoned arguments. This180 degree about face caused several jaws to drop in the audience. It was a truly pivotal moment as Ms. Smith informed the Chief that it was the City Council and not the CPRB who had already ruled on who might have standing in front of the board so asking for another change would be futile. Not only had the City Council ruled on standing, they had broadened the scope of who can file a complaint after the board suggested it be tightened. Smith made it clear that the board would not be making the same request twice. Ms. Smith went on to point out the many holes in how the Chief described the board’s rulings. Kudos to you, Ms. Smith.

There were two more vocal heroes who piped up during the work session. Betty Wilson continued her stalwart support of the citizenry as she made it clear that she was having none of what the Chief and the CPOA were offering. Even Rose Wibbenmeyer, in her role as city legal council for the board, pointed out why a charter city like Columbia does not need to adhere to State definitions of misconduct and went on to refute several other disingenuous legal arguments made by Eric Dearmont. Rose maintained her professional distance and did not offer an opinion,merely facts.

Even newcomer and former LAPD officer, Roger Dowis, challenged a few of the Chief’s points, seemingly finding his voice on the board. Strangely, many for the other board members spoke only once, or for procedural rules of order, or not at all. 

Enjoy a few videos from the hearing, most of which are courtesy of the amazing folks over at Citizens for Justice.

 

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Who Will Watch the Watchers?

Since its inception, our local Citizens Police Review Board has garnered a great deal of media attention. Whether it is fielding an appeal from California marijuana activist and global pot guru Ed Rosenthal or defending the human dignity of local Derek Billups, the CPRB continues to end up in the news. The recent decree from Mayor Bob McDavid that the CPRB and the Columbia Police Department resolve their differences is no exception.

Seemingly in response to recent CPRB rulings with which he did not agree and no doubt with the help of the Columbia Police Officers Assiation, the local police labor union, Police Chief Ken Burton submitted a written request to the city asking for changes to the ordinance which governs the board. Each of the suggested changes in his five-pronged attack, if implemented, would serve to weaken the board both in appearance and reality.

The appearance of the CPRB, as it is perceived by the public, is important. The board’s reputation has already been tarnished as Chief Burton summarily ignores every ruling or suggestion made by the board. This, along with his front and center presence at CPRB meetings, jumping to the podium frequently, without invitation, but also without protest from the board, has given the impression that the CPRB is slowly becoming a branch of the police department or is, at most, an impotent bureaucratic ruse.

For the most part, but with a few respective exceptions, the individuals on the board have done a fair job of judging each complaint. The ordinance which currently governs the CPRB is already weak. If the changes recommended by Chief Burton are added, the CPRB may as well be dissolved.

Here are Chief Burton’s proposed changes along with a few more issues as identified by the Columbia Missourian:

1. The definition of misconduct

The Chief of Police had recommended a definition based on the Missouri Revised Statute. The review board had recommended misconduct to be defined as “any violation of federal law, state law, city ordinance, city regulation or police department policy, guideline, directive, rule, regulation or order.”

Regardless of how the State of Missouri defines “misconduct,” the fact remains that this is our local police force, sanctioned by our local community to use force when necessary and funded by our tax dollars. It is right and just that these public servant police officers, whom we have hired to protect and serve the citizens of our community, should be answerable to the citizens of our community, either directly or via a representative board like the CPRB. To suggest that the citizens of Columbia do not have the right to define “misconduct” as it applies to the actions of officers in our Columbia Police Department is not only wrong, it is obscene.

2. Who can make an appeal?

The police want to limit the right to make an appeal only to people directly involved in the incident or parents or legal guardians of people directly involved.

The review board maintains it should not be limited.

This suggestion is an obvious attempt to place another bitter bit in the mouth of the CPRB by further limiting who has standing before the board. This plank in Burton’s campaign of domination reeks of the prevailing paternal police perspective as it implies that the board cannot judge standing or the legitimacy of any case on its own. The board should decide what cases are legitimate and what cases are not.

3. Open records

Due to a section in the review board’s ordinance, the filing of a complaint causes opening of records that are otherwise closed by law, including police officer personnel files and closed criminal reports. Police recommend that this section be eliminated. This would allow the board to review the personnel files, but they will be off-limits for the public.

The review board disagrees with this recommendation.

4. Closed sessions and interviews

Police have recommended giving complainants the option to make a request for a closed testimony. In an earlier Missourian report, the board’s new chair, James Martin, had said the board’s sessions should not be closed.

These two points speak to the issue of transparency. The purpose of this board is to pierce the “Blue Shield” of police secrecy that has plagued Columbia for some time. Before the CPRB, complaints would often be swept under the rug or buried in department bureaucracy and red tape. While personnel and employee privacy questions may seem valid, we must remember that, as public employees, the police are employees of the public. As employees of the public entrusted to use lethal force in the line of duty, transparency is of even greater import.

5. Training recommendations

McDavid said the police have asked for “more defined” training standards for the review board members.

The Missourian missed the meat of this issue. The police and their labor union have repeatedly asked that the board submit to an increasing amount of police-directed training. Board members already do some training directly with police and can always request to voluntarily meet with police for a ride-along or any other investigative/learning session. It is also true that several members of the board are former police officers or have had some police training. The newest member of the board, Roger Dowis, is a longtime veteran of the LAPD who served during the Rodney King era and is surely well versed in the use of force in law enforcement. Carroll Highbarger is a retired, career police officer who rose to the rank of Deputy Chief of the CPD before retiring to teach criminal justice at Columbia College. Susan Smith, who sadly seems to represent the police more often than not,  is a former prosecutor who also teaches criminal justice. Also in the law enforcement mix is Steve Sheltmire who is the graduate of civilian police academies in both Kansas City and Columbia.

The public, especially the African American community, already sees the CPRB as somewhat weak and weighted heavily by former officers and law enforcement lackeys.  This requirement for more training, while certainly providing the opportunity for the department to directly influence board members, would send the undeniable message to the civilian citizens of Columbia that the CPRB is in bed with the CPD and the CPOA and is therefor useless. How’s that for some confusing acronym usage?

6. Police policies to be posted online

One of the differences is the review board’s recommendation that police post their policies online so that the public, the board and police can easily access them. The police department didn’t address this issue in its report.

Of course the police failed to address this issue just as they fail to address any issue brought to light by the CPRB. The Chief as thumbed his nose at the board since its inception and he will continue to do so unless reigned in by both the elected and appointed representatives of the public he paid to serve.

7. Regular reports on complaints

The review board has asked the police department to provide it with monthly and annual reports containing information on complaints.

It will be interesting to see if the department provides this report and if the report is thorough and accurate. I’ve not heard much discussion on this issue and it seems like a reasonable request.

At a recent CPRB meeting a discussion took place regarding these changes. Several attorneys and members of the public asked the board to deny the chief’s requests and stand their ground. Here are Mitch Richards’s remarks on behalf of Keep Columbia Free. His exchange with the newest appointee, former LAPD narcotics officer Roger Dowis, happens during the last half of the video.




During the meeting seen in this video, the CPRB opted to have a public hearing on the proposed ordinance changes. It is of vital importance that the citizens of Columbia take the time to come to this hearing and take part in democracy at the basic and most important level. There will be plenty of opportunity for public comment if you have something to say, but you don’t have to speak. Just show up and show support. Just show up and let the City Council and the CPRB know that it is important to you that our local police become and remain accountable directly to the citizens whom they serve. Please put this public hearing on your calendar. It is August 24th at 7:00 pm at the new City Hall building. Everyone is welcome.

Mark Flakne

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