“A democratic society starts to lose its moorings when police can kill in secret”

By Andy Hoover, Communications Director, ACLU of Pennsylvania

Vote “NO” on House Bill 27. Photo from flickr.

Baseball fans are familiar with the phrase, “It’s just Manny being Manny.” It was the thing to say about the often eccentric behavior of Red Sox and Indians slugger Manny Ramirez. Manny disappears into the Green Monster — Fenway Park’s famous left field wall — to drink Gatorade and talk on the phone. Manny high fives a fan while making a catch against the fence and then throws back to the infield for a double play. Manny refuses to talk with reporters all through spring training but breaks his silence to talk about the grill he sold on Ebay.

In Pennsylvania government, we have our own version of “Manny being Manny,” but it isn’t nearly as amusing. It’s the House being the House. The Pennsylvania House of Representatives is the place where ways to compound mass incarceration and police brutality go to live.

This week alone, the House passed legislation to forfeit bail money to cover fines and restitution, even if the depositor is not the defendant. Your mom or your buddy bails you out, and now they’re paying your fines, too, if this bill becomes law.

The House Judiciary Committee passed a bill to reinstate mandatory minimum sentencing, which has been on ice for two years thanks to federal and state court rulings, despite growing evidence that mandatories have no impact on public safety and are discriminatory.

And on Monday, the House passed a bill to make it a crime for public officials to identify cops who kill, a bill we’ve told you about before.

It’s the House being the House.

And lest anyone thinks in these hyper partisan times that this is a product of a Republican majority, Democrats vote for this stuff, too. Like this one and this one and this one.

We are in a fierce struggle now to stop House Bill 27, the police secrecy bill, in order to protect transparency and accountability in policing. Governor Wolf agrees with us that hiding the identity of public employees who seriously injure or kill someone is no way to run a transparent government. He vetoed this bill last year. A handful of state senators agreed with us last session, but we need more this time.

The best thing you can do right now to stop the police secrecy bill is call your state senator and tell them to vote “no” on HB 27. You can find your state senator’s contact information with our “find your legislator” tool. And you can find more information about HB 27 on our website.

The message here is simple: Police officers are public employees to whom we give a great deal of power. With that power comes the responsibility to be transparent and accountable to the public.

A democratic society starts to lose its moorings when police can kill in secret.

And frankly, local officials already have the power to hide an officer’s identity if they think it’s necessary for safety reasons. This is a decision to be made at the local level, based on circumstances in the community, not by politicians in Harrisburg.

Your state senator needs to get the message: Vote “NO” on House Bill 27.

IN OTHER NEWS

Philadelphia DA Seth Williams was indicted Tuesday on 23 counts of corruption and bribery-related charges. Photo from The Inquirer.

  • From Philadelphia Magazine: “Here’s What’s Behind the Sharp Left Turn in Philly’s District Attorney Race”

“Unlike most local elections, the Democratic primary for district attorney is a real, honest-to-goodness fight. There is no clear front-runner in the seven-person race. Some candidates have more advantages than others, though. Untermeyer is a self-funded millionaire. Krasner might have that super PAC waiting in the wings. Because so few Philadelphians typically vote in off-year elections — only 105,000 of the city’s 1.2 million voting-age citizens turned out in the last competitive Democratic primary for DA — factors like race and party endorsements could also make a difference. According to an analysis of local elections, whites and blacks usually cast ballots for candidates of their own race. El-Shabazz is the only black candidate in a city that’s 44 percent black in a year in which many African-Americans are worried about President Trump’s law-and-order agenda. Negrin is the only Latino at a time when many Hispanics have those same fears. Khan’s father is Pakistani, but the South Asian-American community here is comparatively small; the rest of the Democrats are white. Will the vote split along racial lines, or will a broad coalition usher someone into office, à la the 2007 and 2015 mayoral elections?”

“The indictment recaps multiple text-message exchanges between [Mohammad N.] Ali and Williams in the days and weeks that followed; Williams expresses appreciation for the multiple gifts Ali bestowed upon him, and ultimately offers to get personally involved with Ali’s friend’s case. The conversations begin Feb. 8, 2012: Ali: “the guy pleaded guilty, he will take any punishment but he just doesn’t wanna do jail! . . . If you can do anything for him it would be very appreciative (as long as you have no problem with it).” Williams: “I will look into it.” Shortly thereafter, the indictment shows that Williams texted one word to Ali: “April?” Authorities allege that was in reference to another trip to Punta Cana that Ali was expected to pay for.Williams: “I am merely a thankful beggar and don’t want to overstep my bounds in asking … but we will gladly go.” On Feb. 24, Williams and Ali had another text conversation — this one about a $3,212 couch that Ali planned to buy for the district attorney. Ali attached a photo of the couch to the text thread. Ali:“Is that it?” Williams: “That is the exact one … but the special order color Chocolate.”

“The Department of Homeland Security Monday issued its first ‘Declined Detainer Requests’ list of jurisdictions where local law enforcement officials allegedly have refused to adequately help with federal detention and deportation operations. The public notice was ordered by President Trump in January. The feds made 3,083 requests between January 28-February 3 and were ‘declined’ help in 216 incidents, most of which occurred in Travis County, Texas. HUFFINGTON POST Related: Here’s the official notice. DEPARTMENT OF HOMELAND SECURITY More: Hey, LA, you made the list. LOS ANGELES TIMES Still more: So did you, Hennepin County, Minnesota. MINNEAPOLIS STAR TRIBUNE

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Hiding cops who kill

In response to protests in Pennsylvania and around the country to hold police accountable, Pennsylvania’s state legislature has responded by trying to expand the role of secrecy in government. To vote NO on House Bill 27, click this link. Photo via Thomas Hawk.

By Andy Hoover, Communications Director, ACLU of Pennsylvania

A social justice movement knows that it is having an impact when it faces backlash. And so it is with the movement for black lives and the response it’s getting from the Pennsylvania General Assembly.

As people from communities around the state and around the country have called for fairer treatment from the police and more transparency in how police operate, our state legislature is maneuvering to use state law to withhold as much information as possible from the public.

Next week, the state House of Representatives is prepared to vote on legislation to hide the identities of police officers who kill or seriously injure someone. Public officials could be charged with a second-degree misdemeanor for violating the gag order.

Ostensibly, this public blackout would last 30 days. But the bill also prohibits releasing an officer’s name if doing so “can reasonably be expected to create a risk of harm to the person or property” of the officer or his family. In practice, the gag order will go on indefinitely. What public official would risk it otherwise, especially with the threat of criminal charges?

The supporters argue “safety,” as they always do when they want to undermine civil liberties. And yet they cannot point to a single documented case in which the safety of an officer who used force was under credible threat of harm.

In November, Governor Wolf vetoed a similar bill, and in his veto statement, he said, “Government works best when trust and openness exist between citizens and their government. I cannot agree to sign this bill, because it will enshrine into law a policy to withhold important information from the public.”

We agree. Police officers are public employees with extraordinary powers. They have the power to deprive people of their liberty and even to deprive people of their lives. With that power comes the expectation that they will operate with openness for the public to see.

We are not alone in that opinion. Former Philadelphia Police Commissioner Charles Ramsey has said that police officers cannot shoot someone and have an expectation to remain anonymous. Open government advocate Terry Mutchler, the former head of the Office of Open Records, told the Pittsburgh Post Gazette, “This type of legislation, while very well intended, which I understand coming from a long family of cops, collides with open government. Government must be open and transparent no matter how difficult that may seem at times.”

In urging Wolf to veto last year, state Representative Jordan Harris, the chairman of the Pennsylvania Legislative Black Caucus, wrote, “(T)his bill would cast a cloak of secrecy around police officers at a time when the public most demands information. This is not how you rebuild community-police relationships.”

Last year, the bill even received national attention, including from David Simon, creator of “The Wire.”

And now the bill is back. The ACLU of Pennsylvania has created an action for you to contact your state representative to tell them to vote NO on House Bill 27. The action is available at this link.

There is a lot of gloomy talk these days about where we are headed as a country. This bill and others like it that hide information about police practices from the public create an environment in which police are hidden and unaccountable. Be assured that the ACLU of Pennsylvania will do whatever is necessary to stop it.

IN OTHER NEWS

What happens when cops lie? Photo via Vice.

(Criminal justice news that could use a second look.)

  • From Vice: “Why Cops Don’t Get Charged with Crimes When They Lie”

“According to Professor Yaroshefsky, the DA’s implicit concession that its office fails to search out evidence favorable to defendants in police files could leave it vulnerable to a federal lawsuit down the line. But Kline, in a statement, shifted the burden to the police department, saying they all ‘must rely on the department and on other sources to identify appropriate cases for review. We note that the premise of your inquiry appears to be that all internal police discipline is automatically Brady material. The expert you quote does not say that, and we do not believe it is the law.’ Meanwhile, Philly DA Seth Williams is on his way out, and Larry Krasner, a longtime civil rights attorney, is hoping to succeed him with a campaign premised on rooting out some of the police misconduct local prosecutors have long countenanced. ‘I’ve seen first hand how dirty they can get,’ Thompson said in his Internal Affairs complaint. ‘Even if they don’t like the tone of your voice they are not God.’”

  • From PennLive: “Immigration agents flood Allison Hill in Harrisburg”

“The ICE agents do not partner with police or even notify police of their raids, Olivera said. Instead, police have found out about the series of daily raids, some starting as early as 5 a.m., from residents. ‘Several people have been taken into custody,’ Olivera said. ‘Families have been broken up.’ The organization, Movement of Immigrant Leaders in Pennsylvania, or MILPA, is planning a 6 p.m. news conference Monday about the raids, said Harrisburg City Councilwoman Shamaine Daniels. The event will be at the St. Francis Assisi Church in Harrisburg. The raids have caused such fear in certain pockets of Allison Hill that residents are afraid to go to the corner store, Olivera said. Some parents are reluctant to drop their children off at school for fear of getting stopped, said Daniels, who is an immigration attorney. Instead, the children are missing classes. ‘It’s really bad,’ Daniels said. ‘They don’t just stop the person they’re looking for. They hassle everyone who’s around.’”

“The four kitchen employees were arrested as part of a recent surge in Immigration & Customs Enforcement activity, said Stephen Converse, the attorney representing them. The men are all in their mid- to late 20s and are from Guatemala, Mexico and El Salvador. Converse declined to provide his clients’ names, but he said none has a criminal record. Their only crimes, he said, are being undocumented immigrants.”

  • From The Marshall Project: “The Seismic Change in Police Interrogations: A major player in law enforcement says it will no longer use a method linked to false confessions.”

“The technique was first introduced in the 1940s and 50s by polygraph expert John Reid, who intended it to be a modern-era reform — replacing the beatings that police frequently used to elicit information. His tactics soon became dogma in police departments and were considered so successful in garnering confessions that, in its famous 1966 Miranda decision, the U.S. Supreme Court cited it as a reason why suspects must be warned of their right against self-incrimination.But the advent of DNA evidence and advocacy by the Innocence Project in the 1990s showed that about one-third of exonerations involve confessions, once believed to be an absolute sign of guilt. Academics have theories why someone would falsely confess to a crime, including having a mental disability, being interviewed without a lawyer or parent in the room, or suffering through hours or days in jail before questioning.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Will Pennsylvania make police body camera footage impossible to obtain?

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Any new iteration like SB 976 of 2016 would limit citizens’ ability to obtain body camera footage. Photo from WESA.

Pennsylvania’s state legislature is again considering policies that govern police body cameras. In the fall, the state Senate passed Senate Bill 976 — an attempt to standardize policies for “recordings by law enforcement officers.” But the session ended before the House could consider it for a vote. There are now indications that some version of SB 976 could come up again for consideration.

At a glance, last session’s bill looks reasonable. It would let police officers record inside a private home when a body camera has been activated, and it would clear up confusion over whether officers are required to inform everyone in a public place that they’re being recorded when a body camera is turned on. But there’s a problem: The bill would also make it nearly impossible for citizens to acquire the kind of footage that has exposed disturbing police overreach, lead to dropped civilian charges, and forced criminal proceedings against police officers in other states.

Under this previous proposal — introduced by Senator Stewart Greenleaf, along with two former cops, Senator Randy Vulakovich and Representative Dom Costa — body camera footage would be withheld under the state’s Right-To-Know Law if an agency made the decision that the footage was part of an ongoing investigation. Such a rule could render most relevant footage inaccessible, since one imagines that most of the sought after footage will connect to incidents that have already begun to receive scrutiny. The old bill would also allow agencies to charge $250 for the right to appeal a decision to withhold footage.

And it would also deny any request made by anyone who can’t identify every individual in the video.

On that last part: The argument to support a requestor identifying individuals in a police video revolves around protecting the privacy of crime witnesses and onlookers. Why shouldn’t policy be written, the argument goes, to protect the rights of those who don’t want to be identified? It turns out that there’s an answer to this question that doesn’t involve making footage impossible to obtain.

Companies such as Taser International — which provides body cameras and video evidence infrastructure to several Pennsylvania police departments — offer a monthly subscription plan that includes automated redaction, and in fact uses as a selling point how remarkably easy it is to redact video for records requests. Just a reminder to the legislators who will be mulling over a new version of this legislation in the new session: The RTKL’s redaction section states that agencies “may not deny access to the record if the information which is not subject to access is able to be redacted.”

ACLU-PA’s Communications Director, Andy Hoover, told The Legal Intelligencer in October that SB 976’s public access rules amount to a “byzantine process.” As many smart people like Hoover have written before, it’s a good idea to establish consistent policy around police body camera use. But shielding body camera footage from public view won’t help to increase transparency, and it won’t force police to “document how officers conduct themselves,” as Senator Greenleaf told the Intelligencer that body camera footage might do.

On the contrary, if legislation like the old bill becomes law, it would make police transparency in Pennsylvania akin to body camera footage: all but impossible to obtain.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Wait times for prisoner mental health treatment have not improved, says Vic Walczak, ACLU-PA’s legal director. Photo from The Inquirer.
  • From The Philadelphia Inquirer: “A year after ACLU settlement, little change in delays for court-ordered mental-health treatment”

“In a bid to reduce the amount of time spent waiting in jail by mentally ill individuals declared incompetent to stand trial, the Jan. 27, 2016, settlement required the state to create 60 new treatment spots within 120 days and an additional 60 spots within 180 days. Plus, within 90 days of the agreement, the state was supposed to make $1 million available for supportive housing in Philadelphia, the settlement said. Spent on housing vouchers, that money was expected to provide 50 to 80 beds. Given the DHS’s lack of transparency, it’s unclear exactly how much of that has been done.”

“Pennsylvania has a problem. According to a recently released report initiated by the state House, ‘The Commonwealth’s rates of expulsion and out-of-school suspension are higher than the national average. Further, studies have shown that excessively punitive discipline for misbehavior can result in long-term consequences for the children involved, especially the youngest ones… Policies relating to expulsion and out-of-school suspension are those in need of the most scrutiny.” On October 28, Pennsylvania’s Joint State Government Commission, the research service for the state legislature, released Discipline Policies in Pennsylvania’s Public Schools. The study, a year in the making, was developed at the request of the PA House (House Resolution 540).”

“The system was developed to help law enforcement fight drug dealers, and Lebanon County District Attorney Dave Arnold said it’s a “critical” tool for cutting off their ability and financial motivation to sell drugs. But some people who lose property, like Elizabeth Young, may not be involved in drug selling at all. If people try to rescue their property, critics say they enter a complex and confusing legal process with the deck stacked against them. Since it isn’t a criminal case, there are few legal protections, no right to an attorney, and no presumption of innocence. And critics say police departments are making a profit in the process.”

“Much of the increase in the prison population has been driven by the war on drugs. Some legislators acknowledge that mass incarceration has not solved the problem. [ACLU-PA Communications Director Andrew Hoover] says now they need to do something about it. ‘There hasn’t been the kind of restructuring of sentencing that’s necessary to fulfill that promise, to make drugs more of a public-health issue than a criminal issue,’ he added.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Why We Used To Run

By Dennis Henderson, M.Ed., ACLU of Pennsylvania Client

Dennis Henderson, an African-American teacher who was wrongfully arrested and jailed for 12 hours. photo credit: Larry Roberts/Post-Gazette

ACLU of Pennsylvania attorney Sara Rose and Dennis Henderson, an African-American teacher who was wrongfully arrested and jailed for 12 hours. photo credit: Larry Roberts/Post-Gazette 

Growing up in a public housing complex, my friends and I were conditioned to run when we saw a patrol car coming our way.

Between the ages of 6 and 10, we weren’t breaking any laws while walking home from school or playing in our neighborhood, but we knew we’re supposed to run when we saw a police car.

Every now and then, one would sneak up on us. Shock, anxiety, and fear would grip us. During those times, we just stood still not knowing how to respond while the patrolling officers drove past us slowly staring us down with a look of suspicion.

Between the ages of 11 and13, I figured that I shouldn’t have to run from the police if I didn’t do anything wrong. I stopped running. Looking back, I stopped at a good age, because that’s when the police started chasing. Many of my friends were caught and placed in the juvenile to prison pipeline system for reasons that would be considered “typical adolescent male behavior,” if they were from white middle class families.

Because of the detainment of many of my peers and witnessing the arrest of many of the adults in my neighborhood, as a teenager I still retained the emotions of anxiety and fear when encountered by a police officer.

It was also during this time that I encountered great mentors that taught me black history. I was educated about numerous African Americans who contributed their work, ideas, talents and lives to enrich the quality of life for all Americans.

While in college and as a young adult, I learned that in 1619, Africans were brought to the shores of North America in bondage, recognized as only 3/5th of a person under the ensuing U.S. Constitution, and subsequently, the Supreme Court unanimously ruled blacks had no rights in the Dred Scott decision.

Today, as an adult, I now mentor youth. As a middle school history teacher, I share with them what I’ve learned and teach them that the very same Constitution that restricted our rights eventually outlawed slavery and granted full citizenship and equal rights! So I thought.

On June 26, 2013, while standing next to my truck exchanging contact information with another individual, a police car sped across the intersection towards us. We assumed he was responding to a call, however, as he got closer, the patrol car continued to veer closer to where we were standing. As he passed, both of us pressed ourselves against my truck to avoid being struck by the police car.

His actions were unprovoked and shocking. The officer then made an abrupt u-turn and came back to enquire if I had a problem with what he did. I had no reason to run.

Now educated about my constitutional rights, I was no longer afraid. I choose to exercise my rights by requesting his name and badge number. This request prompted him to get out his car and demand our IDs. Concerned for my safety because of his erratic behavior and questionable intentions, I informed him that I was documenting the remainder of our conversation on my smart phone. He told me I had no rights to record him.

At that moment I realized that he didn’t agree with me having the audacity to believe I had rights [Dred Scott Decision].

He used his car to endanger me and treated me with no dignity or respect during our encounter [3/5th of a person].

I was handcuffed, slammed to the ground, arrested and locked in a cell [since 1619].

According to a recent article published in the “Crime &Delinquency” journal, a study indicated nearly 50 per cent of black males are arrested before the age of 23. I have no doubt that at least half of those arrests were unwarranted such as mine.

A harsh reminder as to why we used to run when we saw a patrol car coming our way.

Dennis Henderson is a middle school teacher at Manchester Academic Charter School in Pittsburgh. Read more about Mr. Henderson’s case

This post is part of a series in honor of Black History Month.