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Can an Officer’s Misconduct Record Possibly Be His/Her ‘Personal Business’ ?

Blog post from Jamie Kalven:

A drama is unfolding in Illinois courts that has profound implications for police accountability and governmental transparency. At the center of this drama is Kilroy Watkins, a prisoner serving a 55-year sentence for first-degree murder and armed robbery. A skilled jailhouse lawyer, Watkins has presented the state appellate court with a case that tests not only the meaning of the Freedom of Information Act but also the integrity of the judicial process.

Chicago police officers arrested Watkins in 1992 in connection with an armed robbery. The next day he confessed to committing a murder in a separate incident. He has consistently claimed his confession was coerced by Detectives Kenneth Boudreau and John Halloran, associates of disgraced Commander Jon Burge. Under Illinois FOIA, he sought access to the police misconduct complaints against Boudreau and Halloran. Known as “complaint register” files or CR’s, these documents contain the complaints filed against an officer and the substance of the City’s investigation of those allegations.

Watkins’ aim was to demonstrate a pattern of coerced confessions by the two detectives, in support of a post-conviction petition (since denied). In light of what we now know about police torture and coercion by officers under Burge’s command, this is a plausible argument. A Tribune investigation in 2001 reported that Boudreau had, as of that time, helped secure confessions from more than a dozen defendants in murder cases in which the charges were later dropped or the defendant was acquitted.

Watkins represented himself in his FOIA suit until last year when the law firm of Loevy & Loevy took him on as a client. (I too am represented by the Loevy firm in a FOIA case against the Chicago Police Department.) When the circuit court ruled against him, Watkins appealed to the Illinois Court of Appeals for the First District.

A central issue in this case — and in the long history of litigation over CR files — is whether such documents are public information or private personnel matters. In recent years, a number of judges in both state and federal courts have ruled that records related to police misconduct are quintessential public information.

In the leading Illinois case, Gekas v. Williamson, decided in 2009, the Court of Appeals for the Fourth District ruled that police misconduct files are not personal information, the disclosure of which would violate the officer’s privacy:

What [the defendant] does in his capacity as deputy sheriff is not his private business. Whether he used excessive force or otherwise committed misconduct during an investigation or arrest is not his private business.Against this background, the First District ruled in Watkins’ favor in a decision issued on December 27 of last year. Writing for the three-judge panel, Judge Mary K. Rochford (the daughter of former Chicago police superintendent James Rochford) relied squarely on Gekas and reaffirmed the principle that “a complaint against a [police officer] in the performance of his public duties ‘shall not be considered an invasion of personal privacy,’ even if contained within otherwise exempt personnel files.”

A week later, the same First District panel, with Judge Rochford again writing the opinion, withdrew its earlier order and denied Watkins’s motion on the ground that the court did not have jurisdiction because he had filed his appeal too early.

It would be generous to describe this decision as hyper-technical. It turns, in effect, on Watkins’ inability to provide from behind the thick walls of his incarceration, despite his best efforts, written documentation of the trial court’s oral announcement of its decision to dismiss his case several months before it issued a written opinion.

There is nothing on the face of the First District’s December 27 opinion that would have prompted second thoughts about jurisdiction. Moreover, the jurisdictional issue was never raised by the city. In fact, the city acknowledged throughout the appellate court proceedings that there was jurisdiction because the trial court did, in fact, announce a decision before Watkins filed his notice of appeal.

Did the First District yield to political pressure? The question must be asked, though it cannot be definitively answered, for the city has consistently sought in every possible way to resist the emerging judicial consensus that CR’s are public information.

In the legal equivalent of a Hail Mary pass, Watkins’ lawyers petitioned the Illinois Supreme Court for leave to appeal. Happily, on May 30th the Supreme Court acted. While it did not grant the request to appeal, it exercised its supervisory authority to send the case back to the Court of Appeals for a decision on the merits.

The logical outcome now is for the First District to reinstate its fine December 27 decision. In so doing, it will both strengthen Illinois FOIA and restore confidence in its judicial independence.

Witnesses Dispute Police Story About a Shooting

From the Houston Chronicle:

A man killed by a Houston police officer had his hands in the air when he was fatally shot, witnesses said, disputing the official account of the incident.

Houston Police Department officials said Rufino Lara refused officer J. McGowan’s commands in Spanish and English to stop when she spotted him walking away while she was investigating an assault Monday afternoon. He kept one of his hands tucked under his shirt, police said. When he turned around suddenly with his hand still under his shirt, McGowan shot him once, killing him, police said.

On Tuesday, two people disputed that account.

Florida Ruvio, a family friend, bumped into Lara on his way back from a liquor store near the 7000 block of Bissonnet near Fondren in southwest Houston. Lara told her that some men were chasing him with a knife and asked her to call police.

When two officers arrived to investigate the assault report, they approached Lara, asking him to stop and put his hands up.

“They were speaking to him in English only,” Ruvio said at a news conference.

Lara, who doesn’t speak English, did not stop the first time, Ruvio said. Eventually, he put both hands up against the wall of a vacant store, facing his back to the officers.

“He didn’t have his hands in his pocket or his shirt,” said Ruvio, who remained with Lara throughout the event.

A second witness, 14-year-old Rigoberto Rubio, who was buying water from a machine nearby, said he also saw Lara with both hands against the wall. The teenager said he didn’t know Lara personally.

Suddenly, Lara turned around to face the officers and was shot fatally by McGowan, Ruvio said, his hands still suspended in the air.

Stunned at the scene, Ruvio yelled to McGowan that she had killed an innocent person, and McGowan responded that “he had drawn out a gun.”

McGowan then proceeded to tear Lara’s shirt open and take off his shoes, said Ruvio. No weapon was found.

Ruvio brought out her phone to take a video of the scene, she said, but an officer seized it from her, telling her she was not to record anything.

On Tuesday, Houston police declined to comment about the allegations, citing the HPD internal affairs investigation into the shooting.

HPD chief Charles McClelland released a statement offering his condolences to the family.

“The Houston Police Department places the highest value on the preservation of human life. Police officers have the difficult task of making split-second decisions to keep themselves and others safe on a daily basis,” McClelland said.

He noted that a Harris County grand jury will also hear evidence in the shooting. HPD and the Harris County District Attorney’s Office are also investigating.

“The investigation will be open and transparent, and we ask that the public withhold judgment until all the facts and evidence has been gathered and the investigation is complete,” McClelland said.

Family members, witnesses and community activists attended the news conference arranged by the Greater Houston Coalition for Justice.

“He wasn’t a troublemaker,” said Lara’s nephew, Jose Lara. “This was cold-blooded murder.”

Lara’s criminal record consists of two misdemeanors – trespassing and giving false information to a police officer.

“These officers are never ever called to justice,” said Ovide Duncantell, director of the Black Heritage Society. “We need a police review board … because somebody we paid and trusted to defend us is killing us.”

National Police Misconduct NewsFeed Daily Recap 07-12-12

Here are the 10 reports of police misconduct tracked for Thursday, July 12, 2012:

  • Update: Fullerton, California: A police officer was charged with the murder of mentally ill homeless man. He left the department, after receiving a letter stating that he would be fired.
  • Springfield, Louisiana: A grand jury indicted Mayor Charles Martin and Police chief James Jones on charges that they conspired to hide the drunken driving citation for a woman who had connections to the Mayor.
  • Lake Placid, NY: A woman is suing the police department after an incident that occurred in a supermarket parking lot. She alleges that an officer “without justification, assaulted and battered (her) with excessive and unreasonable force.”
  • Baton Rouge, Louisiana: A police officer resigned after being accused of stealing an iPhone from a wrecked car. He is free on a $10,000 bond.
  • Philadelphia, Pennsylvania: A police inspector is being investigated over cover-up of a scuffle between cops. Internal Affairs detectives are investigating whether or not a 25-year veteran, who used to work in internal affairs, improperly quashed an arrest to appease a friend.
  • Langlade County, Wisconsin: The 32-page complaint filed against a former deputy detailed a pattern of inappropriate behavior toward young girls, including explicit photos and even physical contact. The deputy was incarcerated after being cited on 22 charges linked to his sexual misbehavior with teens. “I’m 100% guilty” said the deputy.
  • Williamston, North Carolina: After being pinned in his truck because of an accident, a deputy was charged with a DWI. He is now on administrative leave pending the investigation.
  • North Charleston, South Carolina: A police sergeant was shot, and he blamed it on a scuffle with a suspect. He was fired when the investigation found he was lying, and that the shooting was actually self-inflicted.
  • Iva, South Carolina: A police officer who allegedly assaulted a teen has several career incidents in which “use of force was questionable.”
  • Thetford, Vermont: The officer that tased a man who subsequently died has been returned to active duty. The investigation is still underway, and the autopsy has not yet confirmed the man’s cause of death.

When “Just Following Procedure” is a Crime Under the Color of Law

From the Orlando Sentinel:

Officials stood by two Casselberry officers who tased a man three times after he refused to show them his identification.

“They followed procedure. They followed the law,” spokeswoman Sara Brady said Thursday.

Zikomo Peurifoy, 25, of Casselberry was riding his bicycle Saturday at 5:14 p.m. across State Road 436 with Noelle Price, 27, of Casselberry when they were stopped by two officers who said they were jaywalking.

Saying he did nothing wrong, he accused the officers of making a false arrest, police said.

After his continued denial, one officer tased Peurifoy several times. When he was finally subdued, the arrest affidavit says, the officers searched him and found a loaded handgun on his waistband that “was easily accessible at any time during our encounter.”

Peurifoy had a permit for the weapon and never reached for it in the tussle. Police said Price had a small knife, brass knuckles and an unloaded gun, found when the two were brought to the Seminole County Jail.

Police officers must get used to people complying with their requests day in and day out–so some officers overreact when they encounter a citizen who just refuses, say, a request for ID.  This appears to be a outrageous overreaction by the police–indeed a crime

For additional background on identification demands by the police, go here and here.  Also, check out the Know Your Rights video featured on the home page above.  Btw,  it’s always a good day to blast that video out to friends, message boards, etc  — so please remember that.

National Police Misconduct NewsFeed Daily Recap 07-11-12

Here are the 10 reports of police misconduct tracked for Wednesday, July 11, 2012:

  • Springdale, Utah: Speed trap officers have been accused of collecting $11,460 from overseas travelers, and pocketing the money. The audit is currently underway to determine what happened.
  • Hartford, Connecticut: A driver was killed, and at least one police officer was injured, in a crash that followed a chase over a car that was reportedly stolen.
  • Poughkeepsie, New York: A man who failed to use a traffic signal was pursued by police after he did not pull over.  A police car and several other cars were almost hit during the chase.
  • Broomfield, Colorado: Kyle Miller, a 21-year-old with a history of mental health issues, was having a breakdown when his family called the police. His brother, while on the phone with the dispatcher, warned that he was carrying an air soft gun, and that it was not real. The dispatcher replied, “I know, the officers are trained in this kind of thing. They’re not going to go around shooting people.” The officers shot and killed Miller when he pointed the gun at them. 
  • Gulfport, Florida: A car chase was triggered by a car reportedly stolen.  The chase ended when the suspect’s car struck a bus, and the bus subsequently struck a home. Police chase policies in the town are now under review. The Mayor of St. Petersburg, where the chase ended, said the chase would not have happened had it started in his city.
  • Sault Ste. Marie, Michigan: A state police post commander was arrested on a drunken driving charge. The arrest followed a traffic accident in a personal vehicle.
  • Cincinnati, Ohio: A 12-year-old girl is in critical condition after she and two friends stole $26.29 worth of snacks and candy from a convenience store, and then crashed while being chased by police.
  • San Antonio, Texas: Several officers were caught on camera beating a 21-year-old woman who is pregnant. “She was already cuffed and they started to beat her, which I don’t think was right. It was pretty messed up. She was already down and pretty small compared to the other officers,” said the man who shot the video from across the street.
  • Colchester, Vermont: A state police officer resigned after padding his time sheets by claiming to be on duty when he was not. In the last fiscal year he claimed $56,000 in overtime. The average for an officer is $30,000. “He betrayed his badge, his core values,” said State Police Colonel L’Esperance.
  • Lincoln, Rhode Island: Lincoln Police Officers have been accused in three separate incidents involving Casino patrons who claim that they were injured. Two of the three incidents were caught on video. “The failure here is systematic,” said one of the patron’s attorneys.


Shakedown in Utah

From the Wall Street Journal:

Small-town speed traps are legendary among travelers, who often suspect police of targeting tourists from other parts of the country to help fill local coffers. But officers in tiny Springdale, Utah, may have used their radar guns to pocket cash from foreign drivers they stopped, according to the state auditor.

Three police officers in Springdale, a popular gateway to Zion National Park, collected $11,640 from overseas visitors they stopped from January through October of 2011, a report from Utah State Auditor Auston Johnson found. The auditor maintains the collections during the stops were a violation of state law.

In addition, Mr. Johnson’s report said his office found 138 citation documents—one-third of the total it examined—missing from local files with no record of what happened to any fines collected. The citations are easily tracked since they are numbered, officials from his office said. The report didn’t name the officers.

“The possibility exists that officers could have written citations, collected the citation fines from defendants on the spot, destroyed the citations, and kept the money without anyone ever noticing,” Mr. Johnson said in his report, released in June.

Via Jonathan Turley blog.

Junk Food Theft Triggers Chase, Crash


PLEASANT RIDGE – Potato chips, cookies, beef jerky, a couple fruit-flavored drinks, energy bars and candy – stolen goods valued at $26.29.

That alleged theft from a convenience store during the wee hours Tuesday morning touched off a police chase that ended with a carload of young girls crashing, leaving a 12-year-old girl in critical condition and hurting two others. Now criminal charges are pending against the girls, including the 16-year-old driver.

Cincinnati police internal investigators are also scrutinizing whether the officer followed proper procedures in the pursuit and in the officer’s attempt to use a Taser on the teen driver who allegedly tried to flee after the crash, police said. “They’re looking into all aspects of this incident,” said Sgt. Dennis Swingley, Cincinnati police spokesman.

Kyle Miller Shooting

From the Denver Post:

A 911 call recorded just before Kyle Miller was shot to death by Broomfield police officers last week shows that his family warned dispatchers the 21-year-old was armed with an Airsoft pellet gun — not a real handgun.

In response, a dispatcher assured the victim’s brother, “Officers are trained in this kind of thing. They’re not going to go around shooting people.”

Broomfield police received a 911 call around 7:20 a.m. June 28 about a “mentally distraught” man in the Aspen Creek subdivision. While officers were en route, they encountered Miller near the intersection of Aspen Street and Durango Avenue. Miller pointed the pellet gun at police and was shot by officers.

H/T:  Mike Riggs


Thousands of Criminal Cases Now Under Review

From the Washington Post:

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled….

The review comes as the National Academy of Sciences is urging the White House and Congress to remove crime labs from police and prosecutors’ control, or at least to strengthen the science and standards underpinning the nation’s forensic science system….

The last time the FBI abandoned a forensic practice was in 2005, when it ended efforts to trace bullets to a specific manufacturer’s batch through analyzing their chemical composition after its methodology was scientifically debunked. The bureau released files in an estimated 2,500 bullet-lead cases only after “60 Minutes” and The Post reported the problem in 2007….

In past reviews, the department kept results secret and gave findings only to prosecutors, who then determined whether to turn them over to the defense.

Two reviews since 2005 — and only after journalists expose the problems!  Congratulations to the Washington Post staff, the Innocence Project, and the National Association of Criminal Defense Lawyers on this.

Footnote:  The FBI had problems well before 2005.  Please remember that.

National Police Misconduct NewsFeed Daily Recap 07-10-12

Here are the 8 reports of police misconduct tracked for Tuesday July 10, 2012:

  • Princess Anne, Maryland: A high-speed chase that began over a seat belt infraction ended with a state trooper seriously injured, a burned up police car, and a man dead.
  • Philadelphia, Pennsylvania: A police officer has been arrested and charged with theft. She was accused of stealing from a woman who was in custody of the police department. The officer has been placed on suspension for 30 days before plans of her dismissal.
  • Anderson County, South Carolina: Shane Thompson, a deputy, was arrested and charged after an investigation. While on duty he “did engage in numerous drug transactions,” according to the warrant. It also said he “provided law enforcement sensitive information to individual(s) not authorized to receive the information.”
  • Springfield, Ohio: Police said they arrested a sheriff’s deputy; he was charged with using weapons while intoxicated. The deputy was armed with a gun and had ammunition and a magazine. He also had pepper spray.  
  • Marion, Iowa: A motorcyclist died after a high-speed chase. It was at least the third chase in four days involving a motorcycle in the area. All of the chases have ended in crashes.
  • Asheville, North Carolina: A sheriff’s deputy was charged with driving while impaired. He also ran a red light during the incident. He subsequently resigned.
  • Carter County, Missouri: Former sheriff, Tommy Adams, and his former chief deputy admitted they stole firearms seized as evidence and sold them. Adams was also accused of distributing meth and cocaine, and snorting meth in front of a confidential informant.
  • Clermont, Florida: Three off-duty police officers deliberately pranked an on-duty officer, by driving past her at 90+ miles per hour, causing her to pursue them. The driver said “he was just having fun.” Two of the officers have since been fired.

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