It’s a question that has taken on greater urgency in post-Ferguson America: Who polices the police?
The answer in Buffalo is no one.
The city’s police department is not subject to the type of civilian oversight that takes place in cities such as Rochester, Pittsburgh and, more recently, Chicago.
The task of investigating citizen complaints of police misconduct in Buffalo is assigned primarily to the department itself. But its Internal Affairs Division rarely finds officers at fault when it investigates allegations of excessive use of force. Internal Affairs cleared officers of wrongdoing in 58 of the 62 completed investigations into excessive force complaints filed between Jan. 1, 2014, and mid-September 2016.
“Some Buffalo Police Department officers appear to believe they can abuse Buffalo residents, and particularly people of color, with impunity,” Anjana Malhotra, an associate law professor at the University of Buffalo, told Investigative Post.
The city’s Commission on Citizens’ Rights and Community Relations, whose mission includes helping the public file complaints of police misconduct and review the police department’s internal investigations, is flawed, Investigative Post found. The Commission hasn’t issued an annual report since 2009 and has not used its subpoena power to get documents when the department has not cooperated. Four of the commission’s 11 seats, appointed by the mayor, are vacant.
Likewise, the Common Council’s Police Oversight Committee has sidestepped the issue of police accountability. Council members, for example, have been largely silent on the department’s shortcomings in officer training in the use of force and firearms.
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Efforts to hold police accountable are further thwarted by state law. New York State Civil Rights Law 50(a) has morphed into a virtual blanket exemption on the release of police personnel records, including an officer’s disciplinary history.
“Their job is to protect and serve the public,”said Merrick Bobb, co-director of a consulting firm on accountable policing and currently a federal court-appointed monitor to the Seattle Police Department. “That means the public are the ones who need to have the information to decide whether a given officer is or is not professionally serving the public.”
Strained community relations
Police complain of what they say is an anti-snitch culture among Buffalo’s African American community that hampers their ability to solve murders and other serious crimes. Some residents counter that police have failed to build sufficient relationships with the community, due in part to what they describe as insensitive conduct.
“My community has seen law enforcement abuse their power or misuse their power, and we no longer feel safe when it comes to them,” said Denise Walden, a community health worker. “We no longer trust them.”
According to a 2016 survey on community policing administered by Open Buffalo, a local advocacy organization, less than half of the city’s African American residents said they would feel comfortable calling the police in an emergency.
“A significant part of the community does not trust the police department because they only encounter them in enforcement circumstances,” said Steve Peraza, co-author of a report on police-community relations published by the Partnership for the Public Good, a social justice research organization.
Last week, a crowd of protesters gathered outside the police precinct on Main and Tupper streets calling for more transparency around the department’s actions in the wake of Wardel Davis’s death while being apprehended Feb. 7. Protesters held signs saying “Police Accountability Now” and “Stop Killing Black People.”
An attorney retained by the Davis family has subsequently expressed concerns about “troubling inconsistencies with the police version of events.”
The state attorney general’s office has opened an investigation into Davis’s death in accordance with a 2015 executive order by Gov. Andrew Cuomo authorizing the attorney general’s office to review cases in which unarmed civilians die in interactions with law enforcement.
“Without sufficient oversight and sanctions, these problems are bound to be repeated and further erode community trust in police,” said Malhotra, the U.B. law professor.
Officers usually cleared
In a 2013 deposition related to a wrongful death suit against the City of Buffalo and the Police Department, former Police Commissioner McCarthy Gipson was asked: “Is it fair to say, sir, that it happens, that police officers will lie to protect other officers regarding duty-related incidents?”
“I guess so, yes,” he replied.
Gipson’s answer is part of a more than seven-year struggle by the Connors family to determine the sequence of events that resulted in Officer James Reese shooting Matthew Connors in what police said was an act of self-defense.
Matthew’s parents, Garry Connors and the late Jean Bridenbaker, won a state Appellate Division Supreme Court judgement last year against the City of Buffalo.
“I don’t feel as if [police are] held accountable because it’s the fox watching the chicken coop when it comes to Internal Affairs,” Garry said.
An analysis of a database of 886 Internal Affairs investigations conducted from the start of 2014 to last September shows officers are usually cleared of wrongdoing.
Out of the 62 completed investigations into excessive use of force complaints, only four resulted in any kind of discipline, police records show. In most cases, Internal Affairs found there wasn’t enough evidence to support the complaints.
The department does not publicly release the details of its investigations, nor does it disclose any disciplinary action taken when officers are found at fault, except in some high-profile cases.
As of September, Internal Affairs had yet to rule on another 26 complaints of excessive use of force. The oldest of these complaints dates to January 2014.
Internal Affairs completed investigations into an additional 182 complaints filed by citizens alleging less serious types of police misconduct such as rude behavior, improper searches and racist comments. Officers were cleared of wrongdoing in 110 of the cases, or 60 percent.
“I think that fairness demands that there be some transparency with what Internal Affairs does. There is none. It’s absolutely secret,” said Steven Cohen, a civil rights attorney who is representing the Connors family in its suit against the city.
City Communications Director Mike DeGeorge did not respond to repeated requests for interviews with Mayor Byron Brown or senior police officials.
Civilian oversight lacking
While there is no consensus on the best way to investigate complaints of police misconduct, a rule of thumb has emerged: Civilians need to be involved one way or another.
“The privilege of the police to self-regulate comes with an obligation to fully open the agency’s records to responsible public representatives,” wrote Bobb, the police accountability consultant.
In Rochester, complaints against police involving use of force or possible criminal activity are reviewed by certified mediators from the Civilian Review Board, a part of the city’s nonprofit Center for Dispute Resolution.
In the wake of backlash against the Chicago police after police shot and killed Laquan McDonald, the city council established the Civilian Office of Police Accountability, which will serve as an independent intake authority for civilian complaints, along with an inspector general.
Pittsburgh’s Citizen Police Review Board employs investigators to review cases of police misconduct and is authorized to host hearings on complaints, the records of which are available to the public. For less serious complaints, the board coordinates low-level conflict mediation.
In Buffalo, the Council’s Police Oversight Committee and the Commission on Citizens’ Rights and Community Relations have been unwilling or unable to use their powers to monitor police conduct.
As Investigative Post has previously reported, the Police Oversight Committee, despite its title, does not seek to hold the department accountable. As a result, it is reluctant to consider hot-button issues such as police brutality and inadequate training.
“We’re an advisory committee. We don’t run the Buffalo Police Department,” Committee Chairman David Rivera said in an interview last fall.
The committee’s effectiveness is also limited by its sporadic meeting schedule. The first meeting of the year was held Jan. 24; its next scheduled one is July 18.
On paper, the Commission on Citizens’ Rights and Community Relations has greater authority to safeguard against police misconduct, specifically by reviewing documents related to Internal Affairs investigations.
Under the tenure of former Executive Director Crystal Rodriguez, three cases of police misconduct were referred jointly by the Commission and the police department to federal prosecutors. But the commission is otherwise failing to meet its mandate or to exercise its full powers.
Investigative Post reviewed records pertaining to citizen complaints for 2001 to 2002 and 2014 to 2016. In rare instances, the police department provided a detailed write-up explaining the case’s disposition. Other times, the police would provide a brief letter from the commissioner stating the investigation’s outcome.
Sometimes communications would stop, either because the Commission was unsuccessful following up with the complainant or the police failed to respond to the Commission. Nowhere in these files is it apparent that the Commission received or sometimes even asked for what it had a legal right to: internal files from the investigations in order to assess the police’s decision.
Although Rodriguez could not access personnel files, she said the police always gave her the documents she requested, such as commissioner’s notes on the officer’s discipline, and she had regular meetings with Internal Affairs to review complaints. Nonetheless, Rodriguez could not see complete complaint files.
Richard Morrisroe, the commission’s executive director since April, said he sees the commission as a body that can promote better community relations with the police through programming and settling minor customer service complaints about police behaviour.
And like his predecessors, Morrisroe said he believes the commission is a safe space for citizens to express grievances about police conduct. But, he said, “oversight of the police is essentially a function of police administration.”
Community organizers want more say in the oversight process.
The community would have more faith in the Commission’s work if the public had more direct involvement, said Danielle Johnson, co-chair of the Justice and Opportunity Coalition for Open Buffalo, which is focused on criminal justice reform. For example, she said, some seats could be filled with representatives elected by a consortium of community organizations.
“It’s only right for the community to have a say and to have input as to how things proceed when they feel as though they have been wronged,” Johnson said.
Legal barriers to disclosure
State law provides police protections not afforded to citizens or other government employees.
New York Civil Rights Law 50(a) prohibits the disclosure of police personnel records used to evaluate an officer’s performance except by consent of the officer or court order. The law has been widely interpreted to prevent the release of any and all police personnel records to the public. The records are even difficult to obtain during legal proceedings, where judges decide on a case-by-case basis whether to release documents.
The law means an officer’s history of misconduct can remain concealed. That was the case for Buffalo Police Officer Corey Krug in successive lawsuits filed against him for excessive force.
On the night before Thanksgiving in 2014, Krug was videotaped pushing Devin Ford, a civilian, onto the hood of a car. Krug proceeded to hit Ford with his knee and a baton, the video shows.
Just under a year later, federal prosecutors indicted Krug for using excessive force. Ford has filed a civil lawsuit against the City of Buffalo.
Krug’s attorney, Terrence Connors, denied repeated requests for an interview.
This incident is not the first time Krug has been accused of using excessive force. But in these previous lawsuits, those alleging Krug used excessive force against them were denied access to because of 50(a).
Cohen, who is not involved in the Krug case but has worked on many other cases of police misconduct, said it’s up to the judge to decide whether records are made available. For the most part, he thinks they make the right decision. Still, when records are denied, he said “it’s very frustrating.”
“I want to let the jury know that the person is a monster,” he said. “It gets frustrating for me not to be able to show what this officer has done and to not be able to bring out their prior conduct in a court of law.”
Regarding 50(a), Kevin Kennedy, president of the Buffalo Police Benevolent Association, said he does not think allowing public access to police records “would do the public any good,” arguing that the information is inconsequential.
There has been some movement in Albany to amend or repeal 50(a).
In December, the Committee on Open Government called for changing or repealing 50(a), citing a “corrosive absence of transparency” around the actions of police and correctional officers, arguing, “there is no reason for requiring a different standard of accountability for those public employees than others.”
Assembly Member Daniel O’Donnell, a Democrat who represents Manhattan’s Upper West Side, has been one of the legislators pushing for amending or repealing 50(a).
“FOIL laws, I believe, are sufficient to protect the privacy of public employees, including police officers,” he said. “There’s no need to have an additional layer of protection.”
Settlements against Buffalo police officers have cost the city at least $371,000 since 2011.
It’s hard to tell if that’s all. The size of settlements for police misconduct are not easily available to the public. Settlements approved by the Common Council are listed by the type of claim, such as personal injury, but do not identify which city agency the claim was filed against. The city comptroller’s office also does not organize its records on settlements by agency.
There’s at least one pending suit that the city hopes to avoid paying for.
Krug, with the help of the Buffalo Police Benevolent Association, sued the city over its refusal to represent Krug in Ford’s civil case. The city, which maintained in court filings that Krug “without a doubt crossed the line,” does not want to provide legal counsel or pay for a settlement. A decision is pending.
Family seeks closure
The lack of transparency extends to the outcome of some criminal investigations into police alleged misconduct. The death of Matthew Connors is a case in point.
“We were stonewalled,” said his father, Garry.
Garry requested records on the incident and was initially denied on the grounds the case was an “active investigation.” The family was barred from identifying Matthew’s body and denied autopsy results for nearly seven months.
“We couldn’t say goodbye to him. We couldn’t touch his body. We couldn’t do anything,” Garry said.
“Right now, we’re waiting to spread his ashes. And we can’t do that until this is over with.”