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Multnomah D.A. quietly imposes significant policy change concerning police use-of-force investigations

Multnomah D.A. quietly imposes significant policy change concerning police use-of-force investigations

Police accountability advocates in Portland, Oregon celebrated a rare victory last October when former mayor Charlie Hales renegotiated the city’s contract with the Portland police union. Though many details of the negotiation were criticized, Hales did succeed in getting the union to strikethe long-held, controversial 48-hour rule that allowed officers involved in fatal shootings to wait two days before making a statement to internal affairs.

DA Rod Underhill
Office of the Multnomah Co. District Attorney

But Hales’s victory was a flash in the pan. On Thursday, current Mayor Ted Wheeler announced that Multnomah County District Attorney Rod Underhill’s office won’t prosecute cases in which an officer was compelled to give their account of a shooting to internal affairs immediately after it happens, according to the Willamette Week. The policy change stems from a memodrafted by Underhill’s office in March that advises the police department not to compel any statements from officers involved in “use of force events” that result in death or serious physical injury until after the criminal investigation has closed — a process that often takes weeks. Underhill’s office concluded that under existing Oregon law, forcing officers to make a statement while the criminal investigation was ongoing would either result in them receiving immunity from prosecution or violate their “right to remain silent” under the Oregon Constitution.

The memo wasn’t made public for months, raising questions about the process used by Underhill’s office to reach this conclusion without any public input.

“As the elected D.A., he should be sensitive to the tensions that exist in Portland between the police and the community,” Alice Lundell, communications director for the Oregon Justice Resource Center told In Justice Today. “We would have liked D.A. Underhill to be more open with his constituents and to have released the memo to the public in March when it was drafted.”

Reform advocates argue that delaying an interview with an officer involved in a fatal shooting may ultimately taint the statement they give. Given a longer time to review the incident and go over it with peers, an officer may be more likely to fabricate parts of their statement or forget critical parts of what happened. Police unions, which generally support the 48-hour rule (which exists in multiple other states), tend to argue that after a traumatic event like a shooting, an officer is more likely to give an inaccurate statement because of the stressful experience if he or she is forced to immediately recount it to internal affairs. The science behind that theory is contested.

Underhill serves a community that is, like many others across the country, at a critical point in police-community relations. Portland police have repeatedly responded to peaceful protests since Trump’s election with riot gear and militarized force, fostering a growing lack of trust between the police force and the community they serve. For years prior to Trump’s election, the police department and criminal justice system more broadly has disproportionately impacted and ensnared black Portlanders. Black people make up just under 6 percent of the county’s population, but they represent 27 percent of the county jail population. The broader community’s apparent hesitance to address the state’s history of state-sanctioned racism, and how that racism reverberates today, has also increased tension.

Amidst these strains on the community, Underhill’s stance on the 48-hour rule—and the fact that his position was seemingly kept from public view for some time — is likely to further dampen the spirits of those pushing for police reform, and engender greater distrust in the local criminal justice system.

“The potential for further damage to relations between the police and the community is very real,” says Lundell. “Portlanders fought hard to end the ‘48-hour rule.”

In Minneapolis, a fatal police shooting raises important questions about body cameras

Original photo by Flickr user northcharleston. Photo was modified for this article.

In Minneapolis, a fatal police shooting raises important questions about body cameras

Justine Damond called 911 Saturday night because she was concerned about a possible assault in the alleyway behind her home. For reasons that remain unknown, she was shot and killed by police after they arrived to investigate the incident. So far police have offered no explanations for the shooting. The officers’ body cameras were off and the car’s dash camera was not in a position to capture the incident, which allegedly occurred while the officers were still in their car.

Minneapolis implemented a department-wide body camera policy late last year. It requires that officers activate their cameras in a wide range of circumstances including vehicle stops, pursuits, and all critical incidents. Responding to a 911 call regarding an alleged assault should clearly fall within those guidelines. The events leading up to the use of force can be crucial in determining the state of mind of officers and thus the “reasonableness” of their use of force — the crucial legal standard in such cases.

This is not the first time officers failed to have their cameras on in a fatal encounter. Last year police in ChicagoCharlotte, NC, and Washington, DC all failed to have their cameras on in what turned out to be deadly encounters. The ACLU found that since 2014, there have been 14 such incidents. The Minneapolis policy, like most, calls for discipline of officers who fail to properly activate their cameras, but such discipline has been slow to materialize and the consequences have been minimal. In Denver, for instance, officers get only a verbal warning for a first failure, and one officer found guilty of violating the policy a second time was only penalized one vacation day. Meanwhile, a recent audit in Denver, found that only 1 in 4 use of force incidents was captured by an officer’s camera.

Even when we have video of questionable police shootings, it often fails to produce accountability. After Philando Castile was shot and killed in a Minneapolis suburb last year, body camera footage was released. The officer was still acquitted of all charges.

Accountability is supposed to be the primary purpose of body cameras. In practice, however, body cameras are not generally serving that function, having been overtaken by police priorities such as surveillance and evidence collection.

The public has been asked to give up a great deal of their privacy in return for the alleged accountability enhancements provided by the widespread use of these cameras. In many places there are no restrictions on the use of these cameras to gather intelligence, surveil first amendment activity, or share footage with other law enforcement agencies. In addition, a recent report by NPR showed how police routinely release footage that enhances their public image, while refusing to release footage to those who appear in it and have concerns about police actions.

We need to rethink the current balance between surveillance and accountability in the use of these cameras to ensure that the enhancement of police surveillance powers is in fact offset by greater public accountability. If not, then we should call into question whether body cameras should really be a part of any serious police reform agenda.

Alex S. Vitale is Professor of Sociology and Coordinator of the Policing and Social Justice Project at Brooklyn College. He is the author of City of Disorder: How the Quality of Life Campaign Transformed New York Politics and the forthcoming The End of PolicingThe views and opinions expressed in this article are Professor Vitale’s and do not necessarily reflect the views of the Fair Punishment Project.

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Another Detective Scarcella-involved conviction thrown out in Brooklyn

Another Detective Scarcella-involved conviction thrown out in Brooklyn

In the context of the justice system, it is now becoming disturbingly common: a conviction vacated and an innocent person freed from prison because of the misdoings of former New York City Detective Louis Scarcella.

The latest is 43-year-old Jabbar Washington. Earlier this week his conviction was vacated after prosecutors determined he was denied a fair trial 20 years ago.

Washington claimed for years that Scarcella coerced him into confessing to a crime he didn’t commit: the murder of Ronald Ellis and the wounding of five other during a 1995 robbery.

As reported in The New York Times, the Brooklyn District Attorney’s Office said Scarcella “gave some misleading testimony” at Washington’s 1997 trial “but broke no laws.” The culprit in this case, they claim, is former assistant prosecutor Kyle Reeves, who did not disclose to the defense that a key witness who originally identified Washington in a police lineup later said she recognized Washington from somewhere else, and that she couldn’t positively say he was involved in the crime.

As The New York Times has recounted, “[S]ince the investigation of [Scarcella’s] decades of work started in 2013, he has watched his stellar reputation be all but destroyed. So far, the district attorney’s office’s Conviction Review Unit has considered more than 40 of Mr. Scarcella’s cases, standing behind 34 of them but asking that convictions be overturned in eight. He has never been interviewed as part of the inquiry.”

Judges have also thrown out three other convictions Scarcella was involved in where the district attorney’s office defended the convictions.

Those released include Derrick Hamilton, convicted in 1991 of killing Nathaniel Cash in Bedford-Stuyvesant. Hamilton claimed from the start that he was in Connecticut when the murder occurred, and said for over two decades that Scarcella had framed him. Hamilton was released in 2015.

Rosean Hargrove was one of the three people released over prosecutor objections. He spent two decades in prison and claimed that Scarcella framed him. A judge ordered him released in 2015 and found that the detective work in the case was so poor that it “undermines our judicial system.”

The city of New York has paid out approximately $40 million to settle lawsuits related to Scarcella’s conduct.

According to the Daily News, Washington is the 23rd person exonerated by the Brooklyn Conviction Review Unit, and his case is among 70 cases the unit has investigated since 2014.

Acting Brooklyn District Attorney Eric Gonzalez has been harshly criticized by challengers for the top-prosecutor’s job in Kings County over his office’s reluctance or unwillingness to hold Scarcella accountable in the face of some many cases where his questionable conduct result in wrongful convictions. The Democratic primary for district attorney will be held in September 2017. As the Daily News has explained: “Of 1.4 million active voters in Brooklyn, more than 990,000 are Democrats, which makes winning the primary tantamount to victory.”

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