New York DAs List Cops Who May Be Problematic Witnesses

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Prosecutors in four New York boroughs are already using still-secret databases they have compiled of police force members who may have problems being believed if they testify as witnesses. Radio station WNYC recently reported the Manhattan, Brooklyn, Queens and Bronx district attorneys’ offices have assembled such lists, drawing on criminal records, proven misconduct charges, and judges’ past rulings on police witness credibility, as well as filings or testimony in civil lawsuits or civilian complaint review proceedings. A Staten Island counterpart is in the works. 

District attorneys use the lists to warn their prosecutors of police officers who could pose problems if called as trial witnesses. In some cases, that information ought to be shared with defense counsel, although at least one New York City district attorney argues such information is protected against release by a confidentiality provision of a civil rights law which shields from release personnel records used to evaluate police officers. 

Courts have as a rule not required prosecutors to disclose police witness credibility-related information before plea negotiations, the way most felony cases are resolved. But some observers say disclosure may become more common under a new law taking effect in New York next year to speed up discovery. 

Publicity about the New York City lists has prompted calls by politicians, criminal reform advocates and others for the lists to be made public. A similar reaction came last year in Philadelphia, after the Inquirer, the city’s leading newspaper, reported on such a list there, known locally as the “Do Not Call” list. As civil libertarians and defense lawyers agitated for its release, public defenders went to court and won a court order for its release. 

After the Inquirer published the 66 police officers named on the list, the local public defenders group sought to reopen the well over six thousand cases in which police on the list figured. Rapper Meek Mill was one beneficiary; one of the listees had been the arresting officer in a case for which the rapper had been sent to prison while awaiting trial and was now facing being sent back for allegedly violating parole (by recklessly riding a bicycle). 

As reported earlier this year by the non-profit Marshall Project, New York City and Philadelphia are not alone in local prosecutors compiling data about the credibility of potential police witnesses. It noted Kim Gardner, the chief prosecutor in St. Louis, has dropped over 100 cases drawing on statements from police officers on such a list, and she’s also refusing to take cases or requests for search warrants from them. 

Other cities which now have lists of police officers of questionable credibility include Seattle and Houston. Baltimore, which had a list but later discarded it, is considering bringing theirs back. Public defenders sometimes have access to other versions of such lists, usually compiled by non-profits, although these are more limited, since they are generally drawn only from public records. But if the DA lists are made public, at least some defendants in cases where those police officers are key witnesses could be expected to petition courts for a fresh look. 

 

Body Searches of High Schoolers Bring Indictments for Sheriff, Deputies

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A warrantless drug search of all 900 students at a southern Georgia high school has brought a multi-million-dollar court settlement to be paid to the students, and a grand jury indictment for the county sheriff and two deputies.

Early one mid-April morning, the students and staff of Worth County High School were suddenly told that their school had been put on lockdown, and all 40 members of the county sheriff’s office, aided by police from several nearby towns, spent the next four hours going through the school. They demanded students hand over their cellphones and submit to being searched.

Sheriff Jeff Hobby did not have a search warrant, but he did have a target list of 13 students suspected of using drugs (only three of them were actually in school that day, though, and they were separated from the other students).

For the rest of the student body, however, deputies led them from class into hallways, lining up the boys and girls on opposite sides. The students were then directed to place their hands high on the wall, and spread their feet wide apart, for “pat-down” searches.

Deputies, only some of them wearing gloves, ran their hands over the students, both over and under their outer clothing. In some cases, they went under the students’ clothes or even removed some parts of their underclothing. By the time all students had been searched, the school-wide sweep had found absolutely no drugs or drug paraphernalia.

But that was far from the end of the matter. By the start of June, nine students ranging in age between 15 and 18 (and the parents or guardians for those who were minors) had filed a federal class-action lawsuit charging the sheriff, four named deputies and 25 more unnamed ones with having violated the students’ civil rights.

The body searches, the lawsuit claimed, violated the Fourth and Fourteenth Amendments, since there were no individualized grounds for suspecting these students of drug possession or any other crime. It also alleged that in the searches, some deputies left some students partly naked, or touched breasts or genitals of those being searched. As a result, the plaintiffs suffered “anxiety, embarrassment, and humiliation,” as well as fear, shame and emotional distress.

That case has now apparently been resolved, with a proposed settlement is awaiting approval by the presiding judge (at $3 million, the amount of the settlement — to be distributed to the students — is more than double the sheriff department’s annual budget and almost a third of the small county’s total annual budget). Even before that, however, Sheriff Hobby was suspended from his post by Gov. Nathan Deal’s executive order. Shortly thereafter, a grand jury which had been looking into the school search handed up indictments of Sheriff Hobby and two deputies.

Hobby was charged with one misdemeanor, sexual battery, and two felonies, false imprisonment and violating his oath of office; the deputies face fewer but similar charges. The governor also appointed a review committee to examine how the sheriff’s office has been managed since the indictments; the committee has recommended Hobby’s dismissal.

 

 

 

Cop Fired for Arresting Nurse Who Blocked Unconsented, Warrantless Blood Draw from Patient

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Videos, taken on July 26 in the emergency room of the University of Utah hospital’s burn unit, show Jeff Payne, a veteran Salt Lake City policeman, growing increasingly frustrated as he argues with Alex Wubbels, the unit’s head nurse, a blonde female in blue scrubs, over the cop’s intent to draw a blood sample from a severely burned, unconscious patient. Wubbels tells him the hospital’s policy only allows police to take blood from a patient who either consents, is under arrest, or is covered by a search warrant.

Here, the patient is a truck driver gravely injured in a fiery crash when the tractor-trailer he was driving was hit head-on by a swerving pickup truck being chased by state police, who had gotten reports of the pickup’s erratic driving. The comatose patient cannot consent, isn’t under arrest, and there’s no warrant, the nurse notes.

Then Payne grabs the nurse, drags her outside the emergency room, handcuffs and arrests her, and shoves her into an unmarked police cruiser. Thanks to plentiful cameras – hospital security cameras, plus body cameras worn by police on the scene – there’s ample detail of Payne’s manhandling Wubbels, of her screaming she’s done nothing wrong, and of Lt. James Tracy, the supervisor who ordered Payne to arrest Wubbels for obstruction of justice, then came to the hospital, telling the handcuffed nurse she should have yielded to police demands, even if unlawful and contrary to hospital policy.

The videos, as many of us have seen, obtained by local news outlets, quickly went viral, and news coverage of the incident was also widespread, if not always accurate. Here are some lessons that can be learned from this unfortunate but instructive incident.

First, many press accounts prominently mentioned last year’s Supreme Court decision (Birchfield v. North Dakota) requiring police to have a warrant for blood tests, but not for breath-alcohol tests, in DUI investigations. That’s true, but irrelevant. The patient was not suspected of any offense, but the victim of the crash caused by the pickup driver, who died in the crash (the tractor-trailer driver would linger a while before dying).

Second, as captured in a recorded conversation between Payne and another cop, Payne knew he couldn’t get a search warrant to authorize drawing a sample of the truck driver’s blood, since there was no probable cause. Later claims the patient’s commercial driver’s license gave implied consent for blood tests are unpersuasive retroactive rationalization attempts.

Third, it was the availability of body camera footage that produced an outcry that helped produce investigations by the city police and a citizens’ review panel (both finding multiple police violations of their own policies), and apologies by the police chief and mayor. Payne eventually was dismissed from the force, and his supervisor demoted (both plan to appeal). If Wubbels, who was never formally charged, decides to sue for assault, wrongful arrest or other torts, the videotapes will also be prime plaintiff exhibits.

The last, but not least, lesson: however tempting, the police need to stop throwing their weight around just because they think they can. Especially in cases, like this. If an officers action is legally permissible, then obtain permission through legal process, not strongarm tactics.

Man Hit with DUI Charge, Even When Tests Show Only Caffeine

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Driving home from work on an interstate north of San Francisco in August 2015, glassworker Joseph Schwab, 36, was waved over to the side of the road by an agent of the California Department of Alcoholic Beverage Control, who accused Schwab of cutting off her unmarked vehicle, weaving in and out of traffic, and driving so erratically as to nearly cause several collisions.

During the traffic stop, Schwab took several field sobriety tests and a breathalyzer test, which showed no trace of alcohol. But viewing him as agitated and noting his pupils were dilated, the agent suspected Schwab of being under the influence of both a stimulant and a depressant and arrested him on two misdemeanor charges, drug-impaired driving and reckless driving.

Taken to the county jail, Schwab was given a blood test. But its results, confirmed by a re-test done by an outside lab, proved negative for cocaine, THC, opiates, oxycodone, methamphetamines, and various other commonly abused sedatives, hallucinogens, and muscle relaxants. In fact, the sole drug detected in Schwab’s bloodstream turned out to be, wait for it… caffeine.

The state’s vehicle code includes in its definition of “drug” any substance other than alcohol capable of acting to “impair, to an appreciable degree” the ability to drive normally. Caffeine has never been shown to meet that definition; if anything, caffeine may improve driving performance, at least for longer-distance travel.

Even so, the Solano County district attorney charged Schwab with the misdemeanor of driving under the influence of a drug, although it took until June 2016, nearly 10 months after the arrest and about six months after the lab results came back, to file the case. Citing that delay, Schwab’s lawyer moved for dismissal.

Even though unable to identify any substance linked to a DUI charge — the chief deputy prosecutor told the press the charge wasn’t based on the caffeine in Schwab’s blood – the district attorney’s office said it would press ahead with the case and was investigating further, and voiced the opinion Schwab had been under the influence of some drug not detected by the lab tests.

But, two weeks before Schwab’s trial was scheduled to start, the district attorney dropped the DUI charge. To explain the about-face, the D.A. said conversations with county investigators and forensic toxicologists made it unlikely the DUI charge could be proven beyond a reasonable doubt.

The district attorney specifically denied the decision to drop the DUI charge owed anything to incorrect, but widely circulated, news reports that Schwab’s drug-impaired driving charge was based on the presence of caffeine. The lab tests showing only the presence of caffeine amounted to a serious weakness in the case, not the basis for it. While the DUI charge was dismissed, Schwab still faces the other misdemeanor charge of reckless driving.

If caffeine were such a public menace, however, the county sheriff’s office may want to rethink its countywide community outreach program, Coffee with a Cop, which periodically invites residents to local restaurants to meet representatives of the sheriff’s office, the state highway patrol, and community police forces, and to discuss local issues and build relationships, over cups of not necessarily decaffeinated coffee.

Relative Handful of Cops Involved in Chicago’s Misconduct Outlays

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Maybe the sums paid for police misconduct awards should be paid out of that law enforcement agency’s budget?

If you ran a business which regularly had to pay out significant sums to settle lawsuits over alleged misconduct by your employees, what might you want to do to address that? Wouldn’t you want to know which of your workers were accused most often, or cost you the most to resolve claims against them? You very well might, but according to a new study of practices by leaders of Chicago’s police department, that type of analysis has never been attempted, much less completed, there.

It’s not as though police misconduct has been a minor issue in the Windy City; over the past decade, the city has shelled out over $500 million in judgments and settlements over that issue (New York City’s experience is roughly comparable). A recent study done by Craig Futterman, a University of Chicago law professor, finds a fairly small number of police officers were involved in nearly half the cases that resulted in Chicago’s payouts, but they were rarely disciplined by their superiors.

Chicago police authorities had also never calculated which members of the force were most often named in citizen complaints or lawsuits over mistreatment or other abuses. The data showing which officers were implicated in cases where the city paid to settle misconduct allegations came about due to discovery questions the Chicago police were required to answer during misconduct cases brought by Futterman and others.

One list showed that in a workforce of many thousands during a six-year period, 662 officers had 11 or more complaints filed against them, headed by four each with more than 50 complaints. All of those four had been assigned to the Special Operations Section, a supposedly elite special unit later disbanded in a major scandal after it was revealed some of its members had robbed drug dealers, mistreated citizens and engaged in other crimes. Several of those with high complaint totals were convicted of on-the-job crimes. After extended litigation, the list was eventually made public last year.

Nor was Chicago unusual in not analyzing which employees were involved in misconduct cases that brought judgments or settlements against them. A study published last year in the NYU Law Review by Joanna Schwartz, a UCLA law professor, recounted her attempts to survey 140 state and local law enforcement agencies – half from major states, cities and counties and half from smaller jurisdictions – for publically available data on awards in cases involving police misconduct. When police authorities were unable to supply the data, Schwartz checked with the jurisdiction’s lawyers.

Even so, over a quarter of the large locations — including cities like New Orleans and San Diego, and such major counties as Baltimore County and the Houston area’s Harris County — said no government records had compiled, much less analyzed, outlays in police misconduct cases. Others jurisdictions could only supply partial data on the issues.

Schwartz argues governments should analyze these outlays, both to control these costs and to find ways to improve the quality of law enforcement. She adds one suggestion: if misconduct awards were paid out of the law enforcement agency’s budget, rather than out of general government funds, they would likely get closer attention at police headquarters.