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Report and Recommendations of the Task Force on Racial Injustice and Police Reform

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Report and Recommendations of the Task Force on Racial Injustice and Police Reform Report and Recommendations of the Task Force on Racial Injustice and Police Reform June 2021 The views expressed in this report are solely those of the Task Force and do not represent those of the New York State Bar Association unless and until adopted by the House of Delegates. Contents Executive Summary ............................................................................................................................ 3 Part 1: A Brief History of Law Enforcement and Police Misconduct in the United States ................ 7 A. A Brief History of Policing .................................................................................................. 7 B. Police Misconduct – The Problem ..................................................................................... 13 C. Why is Reform Needed Now? ........................................................................................... 14 D. Re form Efforts in the Wake of George Floyd’s Killing..................................................... 18 1. George Floyd .................................................................................................................. 18 2. Ahmaud Arbery and Breonna Taylor ............................................................................. 19 3. Calls for Criminal Justice Reform and the Defund the Police Movement ..................... 20 4. New York Laws .............................................................................................................. 23 5. Federal Laws ................................................................................................................... 29 Part 2: Task Force Focus – 21st Century Policing............................................................................. 29 Part 3: Improving Policing at Key Stages ......................................................................................... 31 1. Hiring .............................................................................................................................. 31 2. Training .......................................................................................................................... 42 3. “On the Beat” .................................................................................................................. 52 4. Monitoring ...................................................................................................................... 53 5. Discipline ........................................................................................................................ 58 Part 4: Recommendations that Provide Additional Accountability in the Criminal Justice System 59 A. Additional Accountability Through Civilian Oversight..................................................... 60 1. Current Mechanism for police oversight ........................................................................ 60 2. Barriers to Civilian Review Success .............................................................................. 64 3. Give All Communities Control Over Police Discipline By Changing State Law .......... 68 4. Require Large Cities to Create Strong, Independent Civilian Oversight Agencies ....... 68 5. Require Agencies to Have Comprehensive Investigatory, Adjudicatory, and Disciplinary Powers ........................................................................................................ 69 B. Additional Accountability Measures in District Attorney’s Offices, Attorney General’s Office, Public Defenders .................................................................................................... 75 1. Provide Implicit Bias Training (IBT) to all of its employees, who hold positions in the Offices of the Attorney General (hereinafter “AG”), Inspector General (hereinafter “IG”), County District Attorney (hereinafter “DA” or “CDA”) and County Public Defender (hereinafter “PD” or “CPD”) in a consistent and uniform manner ................. 76 2. Foster diversity in recruitment, hiring, promotion and retention of personnel therein in a transparent, consistent and uniform manner ................................................................... 80 1 C. Additional Accountability Measures in the Courts ............................................................ 80 D. Additional Accountability Measures in the Criminal Justice System ................................ 83 1. Implementing Controls and Guidelines for the Gang Databases ................................... 84 2. Reforming Qualified Immunity ...................................................................................... 84 3. Proposed legislation, which prohibits certain practices in criminal proceedings that have a disparate impact on persons of color and/or constructively sanction police misconduct should be enacted as follows: ......................................................................................... 86 4. The Role of Police Unions in the Blue Wall of Silence ................................................. 89 Acknowledgements ........................................................................................................................... 91 2 Executive Summary Police officers, state troopers or members of sheriff’s offices (hereinafter collectively referred to as “police officers” or “police”) serve an integral role in protecting our communities from harm, preventing the commission of crimes and investigating and bringing to justice those that commit crimes. Communities want and need the police. Communities also want police that do not unnecessarily harm, or even kill, the people the police are charged with protecting. In many communities of color, the police are a double-edged sword. They are the legal remedy to address acts of violence, control dangerous situations and investigate crimes committed. Yet, these communities are often wary of police because the line between controlling and escalating situations during efforts to contain incidents seems to be too often crossed with tragic consequences. A Pew Center Research survey conducted a month prior to the murder of George Floyd “found that 78% of Americans overall – but a far smaller share of black Americans (56%) – said they had at least a fair amount of confidence in police officers to act in the best interests of the public.”1 These tragic consequences disproportionately impact and result in serious harm and deaths of Black and brown men. During an unprecedented pandemic, the nation in lockdown watched on May 25, 2020 as George Floyd was murdered by a Minneapolis Police Department training officer who knelt on his neck for approximately nine minutes while his trainee and other officers looked on.2 A call for police to respond to the commission of an alleged non-violent crime of fraud unexpectedly and tragically ended in Floyd’s death. This was yet another instance of the police crossing the line between controlling and escalating a situation. Derek Chauvin was recently tried and convicted for the murder of George Floyd. To many Black and brown people the conduct of Derek Chauvin came as no surprise. Within communities of color police misconduct has long been known. The existence of the video captured by onlookers displayed a gross lack of humanity toward yet another Black man so alarming that it captured the attention and outrage of people across the nation, and globe. This led to never-before- seen levels of protests by people of all races, backgrounds and economic levels. The moment has indeed been a call to action. Excessive use of force in policing has been a long-simmering issue. For communities of color, George Floyd’s death was yet another instance in a long line of tragic deaths of Black and brown men and women for alleged crimes that police unnecessarily escalated, deployed lethal force, and unjustifiably killed the suspect. On April 28, 1973, a plainclothes officer shot and killed 10-year-old 1 A month before George Floyd’s death, black and white Americans differed sharply in confidence in the police, Pew Center Research (June 5, 2020), https://www.pewresearch.org/fact-tank/2020/06/05/a-month-before-george-floyds- death-black-and-white-americans-differed-sharply-in-confidence-in-the-police/. 2 Evan Hill, Ainara Tiefenthäler, Christiaan Triebert, Drew Jordan, Haley Willis and Robin Stein, 8 Minutes and 46 Seconds: How George Floyd Was Killed in Police Custody, N.Y. Times (March 31, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html 3 Clifford Glover in Jamaica, Queens believing he fit the description of a robbery suspect.3 On September 15, 1983, Michael Stewart was arrested for spraying graffiti in a Brooklyn train stop, beaten unconscious, and brought to Bellevue Hospital “bruised and hogtied . where he died without regaining consciousness.”4 On August 9, 1997, Officer Justin Volpe sodomized Abner Louima while he was in custody; Louima was arrested after an altercation outside of a Brooklyn club. On February 4, 1999, four Bronx NYPD Detectives killed Amadou Diallo as he was entering his home, believing that he was removing a gun from his coat when in fact it was a wallet. On March 13, 2020, Breonna Taylor was shot to death by police in Louisville, Kentucky, awakened from her bed5 by police executing a no-knock warrant.6 On March 23, 2020, officers in Rochester responded to a man’s call asking for mental health services for his brother.7 They placed a hood over Daniel Prude’s face and suffocated him to death. In November 2020, Bronx District Attorney Darcel Clark
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