Monday, May 10, 2021

Austin PD failed to define 'resistance' that justifies use of force, made up 'unique' category of force vs. suspects who're 'fixing to' resist

In 2008, Austin PD changed its "use of force" policy to  a "response to resistance" policy, enacting a "Dynamic Resistance Response Model" (DRRM) developed by national experts with the aim of "helping officers to prevail against allegations of excessive use of force," according to a new report from Austin's Office of Police Oversight.

But unlike other agencies that use a "response to resistance" model, the Austin Police Department's General Orders do not define "resistance," much less outline what force may be used by officers in response.

Instead, resistance is used as a catch all and defined as anything that would justify use of force by a "reasonable" officer. This is language from a US Supreme Court case, Graham v. Connor. 

Grits should mention here: I've been reading technical, bureaucratic, legal, and academic writing on police use-of-force issues for about 25 years. Part One of this memo vis a vis response to resistance, providing both legal and conceptual frameworks for understanding the issue, may be the single most clear, cogent, well-written discussion of the topic I've ever seen. Good job, Farah Muscadin!

She outlines how American police department policies broadly regulate police use of force in one of two ways: the "just be reasonable" approach or the "continuum" approach. The DRRM purports to employ a continuum and APD touts the various resistance categories frequently in its rhetoric surrounding use of force. But Muscadin revealed that the actual APD General Orders do not employ a use-of-force continuum. Instead, they merely say officers' actions will be judged based on whether they're "reasonable," but give no guidance as to details.

Muscadin recommended defining "resistance" and detailing a use-of-force continuum similar to other departments which have adopted the DRRM.

Perhaps most remarkably, though, Muscadin revealed that Austin PD has created an additional type of "resistance" - "preparatory resistance" - which appears to be unique among US policing agencies. 

Most agencies that use DRRM use four categories of resistance: Passive, Defensive, Active, and Aggressive. Some use different language, but the concept is the same: Passive resistance is being non-responsive; defensive is trying to get away; active is engaging in combat with the officer; aggressive are situations putting life and limb at risk.

The threshold between when it's acceptable to use force against a suspect more or less falls between "passive" and "defensive."

But Austin has inserted a fifth category between those two: "Preparatory resistance," defined as when the suspect is "preparing to" offer greater resistance but hasn't yet. (Think of it as "fixing-to" resistance, as in, "the suspect was fixing to resist, so I tazed him.") The OPO reviewed 15 other agencies' use of force policies, including nine that used DRRM, plus state of Texas standards and the original research on which the approach is based, and Austin's use of this "preparatory resistance" category appears to be both "unique" and unjustified. Muscadin recommended getting rid of it entirely. 

This analysis raises two, immediate questions: First, will the City launch a community-driven process, as Muscadin suggested, to "finalize definitions" for various "resistance" categories and to debate the appropriate police responses and policies for each? It's been nearly a month since her report came out and we haven't heard a peep from city or police officials about it. They've all been too busy pushing to relaunch the police academy.

Which brings us to the second issue: If APD hasn't even defined "resistance" in their "response to resistance" policy, and it turns out the policy is a hodge podge that makes up terminology and conflates differing approaches to police use of force standards, is the agency really ready to begin training on it three weeks from now? What do they train on if they haven't even defined "resistance"? When do they tell officers to respond with force?

I don't know. I'm pretty sure they don't know. (Before Muscadin's report, nobody was raising these issues.) But it's another reason to think the city was premature to relaunch the police academy without finishing the publicly accountable makeover reformers were promised last year.

Sunday, May 09, 2021

A #cjreform update for 'The Devil's Dictionary'

"The Devil's Dictionary" by Ambrose Bierce remains one of my all-time favorite satirical works. But it's become increasingly dated over time, centered as it was on political questions of his day (1880 to 1911) as opposed to those which preoccupy us now.

Your correspondent focuses mostly on criminal-justice reform, and it's evident upon even a sideways glance that terminology from that field largely escaped Bierce's comic gaze. He did refer to prisons as the purview of the "stone wall, the political parasite and the moral instructor," which I love (even if, today, the first two features have largely eclipsed the third), and police as "An armed force for protection and participation." 

His definition of "arrest " - "[f]ormally to detain one accused of unusualness" - remains as valid today as when he wrote it. And in the wake of the passage of anti-homeless legislation in the Texas House, Grits particularly appreciated Bierce's definition of "distance" as "The only thing that the rich are willing for the poor to call theirs, and keep." But many justice terms were omitted.

Grits thought it might be a fun project to suggest a few new definitions that remedy this longstanding defect. It may turn out to be a recurring effort or just a Sunday-morning one off - we'll see how it goes - but here are a few offhand suggestions. Please feel free to try your hand at others in the comments.

Bail: The process by which society separates wealthy criminals it tolerates from the poor ones it doesn't.

Crime: Written artifacts of political deference from the past. In American democracy, a "crime" is one of several thousand things (no one knows for sure how many) which at some point in history offended the eyes or pocketbook of a person to whom legislators were beholden.

Clearance rates: A rarely-discussed measurement of police incompetence.

Police unions: The armed agents of the state organized in such a way as to maximally intimidate their employers.

Police associations: A euphemism adopted by police-labor leaders who despise both unions and progressivism while desiring the benefits of both.

Police beat (journalism): A sinecure for stenographers.

Meet and confer: An economic process by which slumbering taxpayers are fleeced behind closed doors, waking in their bare skin at the start of the following budget cycle after the wool has already been sent to market and future proceeds have been assigned.

Less lethal: Lethal. (See also, "a little bit pregnant.")

Reform: The point at which vectors emerging from the most disappointing outcome and the best possible one converge.

Response to resistance: When police use violence.

Resistance: Any action by a private person contrary to a police officer's desire, expectation, or demand, whether legal, reasonable, or otherwise.

Officer-involved shooting: Police are "involved" in officer-involved shootings in the same sense the term is used to describe one's bacon-and-egg breakfast: The chicken is involved; the pig is committed. Just reversed.

N.b., this is a work of satire. Comments from humorless scolds will either be deleted or mercilessly mocked, depending on my mood.

Friday, May 07, 2021

Five Observations and a Prediction: Why police budget hikes could become a thing of the past in Texas if HB 1900 becomes law

In no particular order, here are five observations and a prediction about a week filled with losses for the Texas criminal-justice reform movement at the Texas Legislature and in San Antonio and Austin.

#1: Policy fights now head to the courts

Every policy fight can and frequently does play out in an array of venues and the legislative process is only one of them. Some of the legislative losses this week are on topics - more restrictive detention policies from bail reform, limiting prosecutor discretion on new anti-homeless laws and arrested protesters, dictating home-rule-cities' budget prerogatives, etc. - that Grits expects to be litigated as soon as they're implemented. Some of it will stand, some of it won't. ¿Quien sabe? E.g., Austin changed its homeless arrest policy after federal court rulings deemed similar laws in California unconstitutional. Once it's changed back, those precedents will now be litigated here. Hell, if it's extended statewide, litigants can cherry pick which judge they want to bring it before. Right now, debates at the Texas Legislature on everything from bail to homelessness to abortion have become rather unhinged from and not particularly cognizant of nor in any way aligned with federal court rulings governing the same topics. Sign of the times, I guess: Picking needless fights on every front. I can't always tell if it's intentional or they just don't know any better. Little of both, probably.

#2: Ex Post Facto: Know the term

The "defund the police" legislation which will likely pass the Texas House today is a rather blatant example of an "ex post facto law" banned in Art. 1, Sec. 16 of the Texas Constitution and Art. 1, Sections 9 and 10 of the US Constitution. House Parliamentarians don't rule on constitutional issues (with few exceptions, they stick to interpreting the House rules), but IRL, courts do. And the originalist history of the ban on "ex post facto laws" is well established: While more commonly used today in terms of criminal law, it was created so that governments couldn't arbitrarily invalidate budgeting and spending decisions.

#3: The push to disconnect policing from policy makers

An oddity of both the anti-homeless legislation in the Texas Legislature and Prop B approved by Austin voters is the proposal to divorce law enforcement decision making from the policy making bodies that set their budgets and supposedly provide oversight. The state legislation would extend this to prosecutors, limiting prosecutor discretion in Class C cases against the homeless and creating a bizarre situation where prosecutors have more discretion to be lenient to murderers than the poorest of the poor. There are long-term implications for divorcing the armed agents of the state from the control of legitimate democratically-elected policymaking authorities: Examples are numerous, dating at least to the Roman legions' repeated usurpations of the Imperial Senate and various emperors in ancient times. That's more or less how your correspondent views the police-union cabals to whom legislators are kowtowing, and it's hard to see much good coming from disconnecting those folks from the constraints of civil authority.

#4: Why the folks shouting "Back the Blue" don't mind risking cops' lives

The most remarkable thing about this week was that MANY of the same legislators who've been crowing "Back the Blue" for months ignored widespread warnings from law enforcement to pass unlicensed-carry gun legislation. And I mean didn't give a damn: Lip service paid, then vote the other way on a party line, with cops telling them openly, in numbers, "this puts us at risk." Pairing that with the "defund the police" debate on the House floor, one witnessed legislators touting near the top of their lungs that cops deserve absolute deference, then in nearly the next breath insisting the cops were overstating the risks they faced because they were intimidated by some kind of woke, Big Government liberalism from the cities. It was bizarre, and only makes sense if one assumes the love of police is conditional on their political utility. Tbh, I always have, but this made it obvious and nearly inarguable.

#5: A craven betrayal

The word that keeps coming to Grits' mind for the Austin city council restarting cadet classes without demanding a reformed curriculum is "craven." They promised there'd be community participation in the process and then plowed forward without it. And while they added an amendment to the item requiring a report from the City Manager on the progress of curriculum change before the new class starts (June 7), the amendment created no process to halt the class if the curriculum isn't ready. That's because the council majority DOES NOT CARE ABOUT REFORMING THE ACADEMY. It was a promise several of them made when they were running for re-election. But now that they're safely back in their seats, having secured all the support they needed from grassroots reformers in their districts, they don't mind screwing over the Chas Moores and Meme Styles of the world: West Austin brings more votes. Adding insult to injury, most of the key, Austin police-reform leaders skipped the meeting at City Hall to show up at the Legislature and try to fight the "defund" bill, scheduled for the same day on the House floor. No good deed goes unpunished. This was a betrayal and your correspondent won't soon forget it.

Prediction: If "Anti-Defund the Police" bill passes, police budget hikes are a thing of the past

The Legislature gets to write the laws, but even they are not immune from the Law of Unintended Consequences.  I don't think legislators have considered the incentives they're putting in place in HB 1900 punishing cities that "defund" police department (by which in Austin's case they mean delaying cadet classes by one year). Going forward, cities that increase police spending can never again lower it. But they often need to do so. Now, cities will decline to spend more, knowing they won't be allowed to spend less. Bill authors even rejected amendments so that overtime for one-off special events - like a Super Bowl weekend in Houston - would be counted against them the following year. If I'm right about the new incentives facing city councils under this legislation, the result will be to suppress police spending instead of bolster it. I predict that if HB 1900 becomes law, when we look back five years from now the growth rate in police budgets will have flattened, not rallied.

Indeed, the most delicious irony may well come if HB 1900 ends up itself defunding the police! 

Wealthy communities without much police presence have for decades coveted caps on utility rates and property taxes. Some of them also want de-annexation (the recent Austin lakeside de-annexation dispute a case in point). They don't see police much and most of their thinking on this is based more on ideological and partisan predilections than a hard-nosed assessment of self interest.  HB 1900 could well create a "run on the bank" with voters at both ends of the spectrum showing up to defund the police, reallocate hundreds of millions of dollars, and trigger revenue caps and de-annexations that could change fundamentally how cities are constructed and managed in Texas.

Is that the intent of the legislation? No, the intent is to "own the libs." And the libs don't want to be "owned." Other than that, very few under the Pink Dome have thought through the implications of this legislation at all. And it shows.

Thursday, May 06, 2021

Academy relaunch premature until Austin PD eschews hazing culture

The Austin City Council today will consider relaunching its police academy after it was shuttered amidst allegations of cadet hazing and a "culture of violence." 

We've now seen numerous unflattering assessments of the academy, but none more damning than the report from Kroll and Associates. They found the academy uses a "predominantly paramilitary model," has been "reluctant to incorporate a lot of community/civilian input," and remains "distrustful of non-police personnel."

Notably, a majority of both APD brass and the Academy leadership told consultants they don't agree with critiques of paramilitary approaches to policing and don't intend to change: "APD leadership has expressed its belief to Kroll that a paramilitary structure is an essential component of police culture." wrote the consultants. They want to continue group punishments and "stress-based" techniques (this is a cop euphemism for screaming at cadets.)

So APD brass fundamentally disagrees with and is bucking the new direction City Council wants to go, but we're being told "trust us" and asked to move forward, anyway. Honestly, they must think we're suckers: Don't piss on my shoes and tell me it's raining.

City Manager Spencer Cronk has done everything in his power to avoid revamping the academy significantly, last year pressuring the council to move forward without assessing the problem. Then, when they made him perform several "audits" of the academy essentially against his will, they corroborated all the allegations and then some. But in response, Cronk began pushing to relaunch the academy before the problems have been addressed, which leads us to today's vote.

The biggest concern with launching the academy now is that past pedagogical approaches were abusive toward cadets and drove out qualified candidates who chose not to endure these methods. Grits has written about the department's:

strange obsession with perpetuating a culture of hazing and brutality toward cadets, despite evidence this approach drives away women and black people.

Perhaps most telling to this observer, Kroll criticized APD's use of a "Fight Day" at the beginning of the academy, in which martial-arts instructors beat up cadets in a boxing ring before they've received any self defense training. After public criticisms, "Fight Day" was relabeled "Will to Win," but it's still the same program. Exit interviews indicate this practice significantly harms retention rates in particular for women and black men.

The reason given for Fight Day is that if officers are assaulted on the job, they should have experienced being in a fight before to know what to expect. But when Kroll asked why it couldn't be done at the end of the academy, after cadets had been trained in self-defense techniques, "APD personnel were unable to provide a persuasive rationale."

Your correspondent believes it's because they prefer to fight defenseless cadets instead of trained ones. The purpose is hazing, not training. Kroll's questions exposed a culture of bullying and hazing that can't be defended on pedagogical grounds.
When these audits were commissioned, the Mayor and City Council promised there would be a collaborative, community process to develop a new curriculum. But on a Zoom call my wife attended last night, advocates invited to the first meeting of that process - the night before the vote to reopen - were given no curriculum to review and told the list of course topics hadn't yet been finalized. In other words, they're just getting started and have barely checked in with community folks, much less secured their buy in.

Even more concerning, officials on the call confirmed Kroll's assessment that Austin PD brass continue to back hazing techniques at the academy and don't want to give up "stress-based" training practices which have been abandoned by the majority of American law enforcement. (According to the Bureau of Justice Statistics, only 23% of US police academies use a primarily "stress-based" approach like APD.)

Those are some big, unanswered questions! This is why the City Council had originally pushed off a new cadet class until the new fiscal year in October: It's been obvious for many months that the curriculum could not be revamped in time to launch a new class in June. Rather than fulfill their promise of a collaborative process with the community, City Council now wants to renege and launch classes prematurely: The analogy floating around City Hall is that they'll finish building the plane while they're flying it. But that's not how planes work.

More than anything, this is just poor management: Launching a new training regimen before it's been developed or vetted and moving forward without a plan.

Monday, May 03, 2021

The #TexasGeorgeFloydAct: What component bills are still moving in the #txlege homestretch?

Over the weekend, your correspondent put together an update on the status of all the various bills that make up the Texas George Floyd Act for the 65-group coalition promoting them, so let's re-post it here for Grits readers who may be interested. There are four weeks to go in the legislative session, so all these bills are in the make-or-break home stretch.

The Texas George Floyd Act, as distinct from federal legislation by the same name, fundamentally has eight component parts. These have also been broken up into individual, stand-alone legislation, and six of the eight have passed at least one chamber in the Texas Legislature and still have a chance to pass in 2021:

GFA Components:
Ban arrests for traffic offenses
Ban chokeholds
Improve use-of-force standards
Duty to render aid
Duty to intervene
Qualified immunity
Disciplinary matrix
Corroboration in drug cases

Here’s a list of individual bills still moving as of May 2, 2021, along with a summation of what’s not:

HB 830: Banning Class C arrests. This bill was scaled back in committee to ban arrests only for traffic offenses in the Transportation Code. Still, this change would have eliminated roughly 95% of the 64,000 arrests at Texas traffic stops in 2019. The bill passed the Texas House with a bipartisan vote of 113-18, including 57 Democrats and 56 Republicans. It has yet to be referred to committee in the senate.

SB 69: Banning chokeholds and neck restraints by police unless it “is necessary to prevent serious bodily injury to or the death of the officer or another person.” The bill passed the Senate unanimously and is not yet scheduled for a hearing in the House.

HB 833: Improving use of force standards to require an imminent threat. This legislation did not make it out of the Homeland Security and Public Safety Committee and probably can no longer pass this session.

SB 2212: Duty to render aid. This legislation passed out of the senate unanimously, but could be improved to clear up some ambiguity around when the duty is triggered. Officers should render aid unless there’s an “imminent threat.” Alternatively, their duty to render aid to injured members of the public should be the same as when a police officer is injured. It has been referred to the House Homeland Security and Public Safety Committee and there will be a public hearing May 5th.

SB 68: Duty to intervene. This legislation requires law enforcement to intervene when they witness excessive force when a list of four qualifying factors are met. We believe meeting any of these factors justifies intervention and the bill need modest amendment to achieve its goals. The bill is scheduled for a hearing in the House Homeland Security and Public Safety Committee on May 5th.

HB 614: Qualified Immunity: Creating a new cause of action for civil rights violations that bypasses qualified immunity was one of the most prominent demands in the original Texas George Floyd Act. But it has received the most pushback of all and has not moved in either chamber.

HB 829: Creating a disciplinary matrix to ensure fair punishment. In civil service cities, a common excuse for arbitrators overturning police-officer discipline is punishment that differs from other cases. This bill requires those departments to have a disciplinary matrix specifying presumed punishments, and tells arbitrators punishments within those ranges must be presumed reasonable. This will make it easier for chiefs to fire bad cops and make it stick. This bill has yet to be referred to committee in the senate.

HB 834: Corroboration of police testimony in drug cases. This legislation reacts to George Floyd’s conviction based on the testimony of corrupt Houston narcotics officer Gerald Goines in a case with a fabricated informant. This is another bill that passed out of the Texas House with solid bipartisan support, this legislation enjoyed support in the lower chamber from the Sheriffs Association of Texas and the Texas Police Chiefs Association. This bill has yet to be referred to committee in the senate.

***

For more background, check out the special, two-part podcast from Just Liberty on the Texas George Floyd Act: Here's Part One and Part Two.

UPDATE (5/5): The three senate bills discussed above all passed out of the Homeland Security and Public Safety Committee today (SB 69 was added via a rules suspension) with support from the police unions but tepid backing from police-reform advocates, several of whom testified "on" rather than "for" the legislation. The duty to render aid bill lets officers delay assistance until the scene is fully secured, whatever that means. (For my money, Grits thinks they should be taught to "render aid" with the same alacrity and preconditions as if it were an officer who's wounded.) Meanwhile the duty to intervene applies only to excessive force, not other types of misconduct (e.g., fabricating informants, as allegedly happened in George Floyd's Houston drug case). The original Texas-George-Floyd-Act versions were broader. These are probably still an improvement over current law, barely, but the lowest-possible-impact versions of such improvements. With that said, the same committee earlier passed a governor-and-police-union-backed mandate for training on duties to render aid and intervene that the Attorney General says don't currently exist (the police unions disagree). So putting these duties formally on the books is important. But the versions passed by the senate are pretty weak tea.

Wednesday, April 28, 2021

Unions fighting police reforms up at #txlege on Thursday

Three bills scheduled for votes on Thursday on the floor of the Texas House are all stand-alone parts of the Texas George Floyd Act: HBs 829, HB 830, and HB 834, and all by state Rep. Senfronia Thompson.

HB 829 requires civil-service cities to create a disciplinary matrix to keep arbitrators from overturning punishment so often.

HB 830 forbids arrests for Class C violations of the Transportation Code.

HB 834 requires corroboration for police officer testimony to secure a drug conviction.

For the most part, we've heard all the union's arguments before. (See links for HBs 830 and 834 for more background on those bills.) But the Combined Law Enforcement Associations of Texas put out a flyer critical of HB 829 which deserves special attention, as it's focused on a less-high-profile topic than the other two. Here's what CLEAT's distributing against the bill: 

Let's respond to the issues raised one by one.

1. CLEAT argues that Texas’ police civil service statute has not been changed since 2005 and decisions about departmental discipline have been left to local union negotiations, which they prefer.

It’s true the Legislature has not revisited the police civil-service statute for many years. Since that time, we’ve had plenty of opportunities to observe how those 2005 revisions played out in the real world. In Fort Worth, about half of fired officers get back on the force. In San Antonio, 70% of fired officers are reinstated. Notoriously, one San Antonio officer was reinstated after being fired for feeding feces between two pieces of bread to a homeless person. Police chiefs need authority to fire officers under such circumstances. HB 829 is a moderate effort to resolve this problem, giving officers, departments, and the public greater certainty about which punishments are reasonable. While the police chiefs association has suggested getting rid of arbitration altogether, Chairwoman Thompson’s bill keeps arbitration and simply provides arbitrators more guidance.

2. CLEAT argues that HB 829 would “severely limit the discretion of cities to negotiate these issues with their officers back home.”

This is disingenuous. The main thing that currently limits cities’ discretion to strengthen disciplinary processes is that, if the only way to do it is through local meet and confer agreements, the unions will never agree. If unions won’t sign off on a police contract, its provisions cannot take effect. It’s inappropriate to limit police discipline through union negotiations. That should be left to local policy and state law. Certainly no government employee union should have veto power over accountability reforms affecting their profession.

3. CLEAT claims the law would offend “the vote of the people who adopted civil service in the first place.”

This argument lacks context. Texas cities mostly adopted civil service in the 1940s and 1950s. The provisions they’re saying the law would change were not in place when voters adopted Chapter 143 of the Local Government Code, but were added many decades afterward at the unions’ behest. If it was okay to change the rules post hoc in 2005, Chairwoman Thompson should be able to do it now.

***

The other two bills up Thursday have received more attention and will likely draw more natural support on the House floor. HB 829, though, is a more deep-in-the-weeds technical issue which has flown relatively under the radar. Here's hoping all three of them move onto the senate without any hiccups.

Friday, April 23, 2021

Assessing status of police-reform bills as #txlege reaches inflection point

The Texas Tribune published a story in the wake of the Derek Chauvin verdict interviewing families of police brutality victims pushing for the Texas George Floyd Act. While that omnibus legislation appears stalled, as we've discussed in two recent, special podcast episodes, it has also been broken up into a number of different bills, some of which are still wending their way through the process.

Portrait of George Floyd by Nia Palmer
We're now at an inflection point in the Texas legislative process: Bills that are out of committee and moving at this point are still "alive" and could possibly pass. Those that never made it out of committee are largely dead, though conceivably some could be brought back as amendments to other bills. Let's run through the main police-accountability bills still moving.

HB 830 (S. Thompson) passed out of the Homeland Security and Public Safety Committee and was included on House Speaker Dade Phelan's list of priority bills. The committee substitute of that legislation would ban all arrests for Class C traffic offenses, which Grits estimates would prevent more than 80% of Class-C arrests overall. This reform is long overdue; this is its third session hitting the House floor. The provision is in both party platforms and should get done this time.

HB 834 (S. Thompson) cleared the Criminal Jurisprudence Committee and is in Calendars: This bill requires corroboration for testimony by police officers in undercover drug cases, a reform that could have changed George Floyd's entire life (he never got his notice to vacate his old drug case due to Gerald Goines.) 

HB 829 (S. Thompson), which passed out of the Urban Affairs Committee, would require police departments to create a disciplinary matrix articulating acceptable punishments for various types of misconduct: The reform is aimed at preventing arbitrators from overturning disciplinary decisions by police chiefs.

In the Senate, two bills have passed over to the House that include provisions from the George Floyd Act: SB 2212 (West) creating a duty to render aid, and HB 68 (Miles) creating a duty to intervene/report when officers witness excessive force. Both of these include stronger language than the governor's proposed language on the topic, which is contained in HB 3712 by Ed Thompson (not Senfronia). And both potentially are life saving improvements.

What's not here? Stricter use of force standards from HB 833, the chokehold ban in HB 831, and qualified immunity provisions in the original HB 88. The reforms that are moving are important. But some ideas that should have been easy are stuck, like requiring departments to have de-escalation policies. And some ideas are very big and getting their first real attention at the Lege, like limiting the situations where lethal force is authorized.

With the likelihood growing that the Legislature won't enact Sunset reforms at the Texas Commission on Law Enforcement, the bills above that are moving appear to be the main chance we have for improving police accountability this session. Even if everything described here passes, Texas will have a lot more to do.

In the scheme of things, most of these besides HB 830 are relatively small bills. And the prospect for sentencing reform seems dim, with hundreds of new crimes and penalty enhancements having been proposed. By contrast, New Mexico just legalized recreational pot. Colorado created a state civil rights cause of action free from qualified immunity. Red states like Oklahoma and Utah have reduced low-level drug possession from felonies to misdemeanors. And bills still moving in Texas pale compared to the most comprehensive police-reform packages in other states.

That's the context in which Grits recently characterized most of the criminal-justice bills besides HB 830 and the bail legislation as "small potatoes" in the Dallas Morning News. In the scheme of things, it's hard to argue Texas' reforms still moving aren't relatively small time. Sure, compared to the killing field that faced criminal-justice legislation two years ago, these are significant proposals. But compared to the rest of the country, Texas' reform legislation isn't particularly remarkable. The state has fallen a few steps behind the national reform curve, when 12-15 years ago we were ahead of it.

UPDATE: Adding one more piece from the Texas George Floyd Act, HB 831 (S. Thompson) banning chokeholds passed out of the Homeland Security and Public Safety Committee today.

Wednesday, April 21, 2021

With chances for TCOLE Sunset legislation withering, bill heard to expand agency's authority to kick bad cops out of the profession

Your correspondent is beginning to despair that the 87th Texas Legislature may come and go without meaningful reform a the Texas Commission on Law Enforcement, the state's police-and-jailer-licensing agency.

The TCOLE Sunset bill - which drew attention because of an especially harsh critique by Sunset staff calling it a broken system that's failing to achieve its mission - is now languishing with others in House Calendars and appears likely to be pushed off for two years. Instead the Calendars Committee sent forward HB 1600, which has already passed the House and will be heard this afternoon in the Senate Administration Committee. That bill pushes off the Sunset process for TCOLE, the Commission on Jail Standards, and numerous other agencies.

Legislation in the Senate to expand TCOLE's powers has yet to get a hearing, but this afternoon, better late than never, the House Homeland Security and Public Safety Committee will hear HB 3654 by Rodriguez which would beef up the agency's authority to de-certify peace-officer licenses for misconduct.

Regular readers know that, currently, TCOLE can only de-certify an officer’s license if he or she a) is convicted of a felony or certain, specified misdemeanors, or b) has been dishonorably discharged by not one but two different agencies. HB 3654 broadens the circumstances under which TCOLE can suspend licenses, directing the agency to develop rules governing when officers’ licenses may be revoked when the officer’s continued licensing would constitute a “threat to the public welfare.”

Under the bill, the agency would develop rules articulating when officers’ licenses may be revoked on the following grounds:
1) lack of competence

2) illegal drug use or addiction

3) lack of truthfulness in court proceedings, offense reports (unless recanted within 10 days), or employment applications,

4) making a false entry into court records,

5) evidence tampering

6) cheating on promotions exams

7) insubordination

8) discriminatory conduct

9) pattern of excessive force

10) pattern of abuse of official capacity

11) pattern of sexual harassment/misconduct

12) pattern of inappropriate relationships with persons in custody

13) pattern of misuse of information obtained as a result of employment as a peace officer
That'd be a massive and much-needed expansion of TCOLE's authority and would require a significant expansion of staff to fulfill those duties. It's also a list laden with negotiation-fodder; the bill could be scaled back considerably and still be quite a significant improvement.

The bill attempts to mitigate that to some extent by increasing the fee peace officers and jailers pay when their licenses are commissioned. But regular readers know these are among the only licensees in the state who do not pay regular licensing fees to cover the administrative bureaucracy of the agency that regulates them, the way, doctors, lawyers, hairdressers, or plumbers do. Make me Philosopher King and I'd make police officers and jailers pay annual or periodic fees to cover the costs of their licensing regulation. That's how it works for every other class of licensed workers and doing so would eliminate the "fiscal note."

This bill is starting pretty late in the process to make it all the way through in 2021, but it's an opening salvo in a discussion about how TCOLE's authority needs to be expanded. And some of these ideas could see their way into amendments tacked onto other legislation. KXAN-TV has lately been covering related topics, see here and here.

Monday, April 19, 2021

Deeply rooted problems at Austin's police academy justified one-year recruitment delay

So much misinformation has been cast about so frequently regarding the City of Austin's budget and supposedly "defunding the police" that many political actors involved appear to have come to believe their own bullshit. Legislation purporting to punish cities that reduce police budgets, including HB 1900 by Goldman, are sitting in Calendars and could pop out at any time.

In the Texas Senate, Democrats cratered; all but 2 voted in favor of "anti-defund" legislation. So the idea has so far sailed through the political process without being thoroughly debated or vetted. 

Here's what's missing from discussions at the capitol:

First, the full extent of Austin's budget cut was 4.6%, almost all of which stemmed from delaying the cadet classes for a year. (As a point of comparison, when Texas faced budget shortfalls in 2017, the Legislature cut the Department of Public Safety budget by 4%.)

The reason for delaying cadet classes in Austin wasn't to "defund" the department, despite calls in the street to do so. Instead, it was the logical next step in an ongoing accountability effort. The prior December, long before last summer's protests, the City Council had ordered the city manager and police department to conduct an audit to vet problems at the police academy which had been raised by former cadets over several years. The audit was due last June, but APD and the city manager showed up at the appointed time to say, "We haven't done the work you requested, but we want to restart cadet classes, anyway."

By this time, the George-Floyd protests were in full swing and city council members stood their ground, telling the city manager to perform the audit as directed and revamp the cadet-class curriculum before proceeding with another one.

If City Manager Spencer Cronk had performed the audit when he was supposed to, Austin would have only missed one academy class

Instead, he didn't start until the City Council gave him a hard "no" on new cadet classes, and the results didn't come out until earlier this year. The "audit" occurred in multiple parts which came out in January and February. All of them showed major problems with the academy that required complete reworking.

A review of videos used at the academy found consistent, systemic bias:

People of color seldom benefited from crisis intervention or deescalation strategies from officers in videos. Instead, a strong emphasis on gaining compliance and control over all else from communities of color often led to rapid escalation with often violent and even deadly results for minor infractions. In contrast, white community members were most often extended grace and understanding. Opportunities for story-telling and building empathy was almost exclusively given to white men.

A review by the Equity Office found a culture of violence and hazing within the department.

And outside policing experts at Kroll and Associates also identified a strange obsession with perpetuating a culture of hazing and brutality toward cadets, despite evidence this approach drives away women and black people.

Perhaps most telling to this observer, Kroll criticized APD's use of a "Fight Day" at the beginning of the academy, in which martial-arts instructors beat up cadets in a boxing ring before they've received any self defense training. After public criticisms, "Fight Day" was relabeled "Will to Win," but it's still the same program, though supposedly performed at lesser intensity. Exit interviews indicate this practice significantly harms retention rates in particular for women and black men.

The reason given for Fight Day is that if officers are assaulted on the job, they should have experienced being in a fight before to know what to expect. But when Kroll asked why it couldn't be done at the end of the academy, after cadets had been trained in self-defense techniques, "APD personnel were unable to provide a persuasive rationale."

Your correspondent believes it's because they prefer to fight defenseless cadets instead of trained ones. The purpose is hazing, not training. Kroll's questions exposed a culture of bullying and hazing that can't be defended on pedagogical grounds.

They also found department leaders were openly resistant to changing hazing routines at the academy, declaring they were pivotal to its team building mission. 

These problems hadn't even been identified until a few weeks ago. But the police union, the Greater Austin Crime Commission, and their allies have insisted Austin PD should plow forward with a new cadet class before APD has demonstrated that they have fixed what's wrong with it first. They'd prefer to launch a new cadet class in June and repair the plane while it's flying, as it were. By contrast, local police-reform advocates prefer to take a few months to develop a new curriculum that comports with community standards and launch a new academy in the new fiscal year, which begins in October.

So the difference between the cops and reform advocates in Austin amounts to "Do we start a cadet class in six weeks or six months from now." And on that small difference, politicians have built a huge inverted pyramid of bullshit.

Neither the Governor nor Austin's legislative critics acknowledge this context for "cuts" to the budget. They want to pretend the budget cut was an attack on law enforcement when really it was part of an ongoing process that had begun long before the protests to reform what we now know are deeply rooted problems at this particular police academy. Whether state officials ever acknowledge it in public debates, and whether or not Austin is punished for it, it really did have to happen.

The other big "cuts" to Austin PD involved shifting functions like the 911 call center and the forensic lab out of the department, to better serve all emergency response and improve criminal investigation. The city could end up spending more money on those functions once they're more professionally operated. Quality doesn't come cheap. But bills to punish Austin don't "count" more money spent on scientists or emergency med techs or 911 dispatchers as public safety money. Which is why you can be sure that none of this is really about public safety. 

The police unions have thrown in with Republicans, and Republicans have long seen Texas' Democratically controlled cities as the electoral problem they must solve to stay in power. As a consequence, police are helping Republicans attack their Democratic opponents. In Austin it's the budget. In Houston it's the new wave of Democratic judges and the hot topic is bail. Everywhere the core argument is the same: Democrats can't run cities, so the Republican state leadership must step in. If Democrats want to retain control over their cities, they are going to find some backbone and stand up for what's true, including real public safety and the authority of local officials to run their own cities.

Texas Republicans may no longer believe in local control, but Texans still do.

Sheriff's deputy resigned amidst child molestation charges, murdered three people this weekend, but still technically eligible to work in Texas law enforcement

In many other states, former Travis County Sheriff's Deputy Stephen Broderick would have lost his peace officer's license last year. He was allowed to resign in lieu of being fired amidst child molestation allegations, but like so many others before him, he remained eligible under Texas law to be hired at one of Texas' 2,500+ other law enforcement agencies.

He probably would have, too, if he hadn't allegedly murdered three people in Austin this weekend then gone on the lam. (UPDATE: He has since been arrested.)

His story shows why the Sunset Advisory Commission's report on the Texas Commission on Law Enforcement declared the agency's licensing process "broken." Sunset described a "fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training." The agency simply has no statutory authority to kick bad cops out of the profession.

Over a five year period, Sunset staff reported, more than 2,800 officers were dishonorably discharged from their agencies; TCOLE decertified only nine of them. More than a quarter of these officers get re-hired.

The reason: current law requires they be dishonorably discharged TWICE before losing their license. There's no good reason why once isn't enough. There's already an appeals process in place if extenuating circumstances exist.

Similarly, TCOLE may only decertify officers for alleged crimes if they're convicted of a felony or a misdemeanor that relates to their job (a nebulous, ill-defined distinction). So sustained allegations of child abuse that don't result in prosecution aren't enough to decertify someone in Texas, even if they're fired or resign over it. Broderick's case makes that clear. Even now that he's murdered three people. TCOLE doesn't have authority to remove his license unless he's convicted.

The TCOLE Sunset legislation so far addresses none of these issues, Grits reported recently. But HB 8 (Pacheco), which is scheduled for a House floor vote on Wednesday, represents the police union's "solution" to the problem.

This bill 1) requires disclosure of police personnel files of fired officers to any new agency that hires them, and 2) makes those records closed to the public.

The assumption appears to be that agencies won't hire officers if they know about misconduct in their past, but both history and data tell us that's not universally true. We've seen plenty of anecdotal examples of bad cops getting hired somewhere else. And as mentioned, Sunset staff reported that more than one in four dishonorably discharged officers get rehired every year. 

Moreover, the closed records provisions in HB 8 are over-broad. Personnel files presently are only confidential at the 73-or-so agencies covered under Ch. 143 of the Local Government Code. At all other 2,500+ agencies, including every county sheriff in the state - personnel files are subject to the Texas Public Information Act. HB 8 should be amended to ensure only records from Ch. 143 agencies are closed; this ostensible reform bill shouldn't become a vehicle to diminish transparency around police misconduct.

HB 8 is a baby step, at best, and may be a step backward if it diminishes transparency around police misconduct. Texas needs to do much more to make police licensing in this state anything more than a fig leaf for police misconduct and ultimately, a bad joke.

Saturday, April 17, 2021

#txlege bill eliminating Class-C arrests for traffic offenses moving forward with bipartisan support

The death of Daunte Wright traffic enforcement by police back in the spotlight, raising the profile of the issue just as HB 830 (Thompson) passed out of committee at the Texas Legislature this week. Next week will be dominated by debate over the budget, but HB 830 could hit the House floor as early as the week after.

The committee substitute to the bill would ban arrests for Class C traffic violations in Texas, but not other Class Cs. Looking at recent cases, the bill would affect Dillon Puente in Keller but not Rodney Reese in Plano. There are a variety of reasons for that and I'd prefer all Class C arrests were banned. But in 2020, traffic violations accounted for 95% of arrests for Class Cs at traffic stops, so the bill as it stands would have a large impact.

These low level arrests take up a huge proportion of law enforcement's time and resources. In Texas in 2019, police arrested some ~45,000 people for marijuana, plus another ~137,000 at traffic stops alone for Class C misdemeanors (64K), and warrants for debt (73K). Those low-level categories made up more than a quarter of all arrests statewide that year (total arrests was 689,109, says DPS).

Every such arrest risks the bad outcomes witnessed in cases ranging from Daunte Wright to Philando Castile to Sandra Bland. Eliminating tens of thousands such arrests could definitely save lives.

We're kind of headed in that direction, anyway. Notably, Texas has radically reduced traffic enforcement over the last decade with no notable change in road-death rates. So we're already trending in the direction of fewer traffic stops. Eliminating Class C traffic arrests further minimizes the risk of harm at traffic stops, making it more likely driver and officer alike will end encounters safely and go on their way.

Make me Philosopher King and I'd probably take traffic enforcement completely out of law enforcement's hands except for a tiny handful of exceptional circumstances. The reason cops do it in the first place is the supposed risks, but those are far overstated, as Jordan Blair Woods, who analyzed detailed data of police violence at traffic stops in Florida, articulated in this interview:

the danger narrative about traffic stops that is commonly perpetuated in courts and law enforcement circles isn’t supported by empirical research. What I found is that overall, violence against officers during traffic stops was fairly infrequent and the incidents that did happen were generally low-risk and didn’t involve weapons.

Using my most conservative estimates, I found that the rate for felonious killing of an officer during routine traffic stops was 1 in every 6.5 million stops. The rate for an assault resulting in serious injury to an officer was 1 in every 361,111 stops. The rate for assault against an officer, whether it results in injury or not, was 1 in every 6,959 stops. The least conservative estimates suggest that the rates are much less: 1 in every 27.6 million stops for a killing, 1 in every 1.53 million stops involving an assault that results in serious injury to an officer, and 1 in every 29,550 stops for an assault against an officer, whether it resulted in officer injury or not.

The bottom line is the idea that routine traffic stops are these exceptionally dangerous events for police didn’t pan out with my results.

Moreover, many of the risks at traffic stops arise from the nature of American policing and its routine overreaction to the mildest resistance and focus on arrests for warrants. If unarmed civilian bureaucrats performed that role, maybe it could be done with less risk to everyone.

Grits recognizes, though, that's not happening anytime soon. As my father likes to say, "If wishes were horses, beggars would ride."

In the meantime, limiting arrests limits the number of times police forcibly detain someone and should reduce resulting police violence. If more than a quarter of 2019 arrests in Texas were for marijuana, Class C misdemeanors, and outstanding debt (warrants), those arrests conceivably could be eliminated. And many "small government" conservatives would be on board with the idea, just as HB 830 has both Republican and Democratic authors.

Finally, readers may recall that eliminating Class C arrests was one of the areas of agreement between the Democratic and Republican Party platforms in Texas on criminal-justice reform, a recollection that gives me the opportunity to bring back this short video with one of my favorite jingles: 

Tuesday, April 13, 2021

Austin PD won't disavow 'paramilitary' culture in its academy; Dallas cops caught using unauthorized facial recognition tech; police reform in Houston hits a dead end; and other stories

Here are a few odds and ends that merit Grits readers' attention while mine is focused elsewhere.

Consultant: Austin PD still embraces 'paramilitary' culture

Austin's police academy retains a "predominantly paramilitary model," consultants Kroll and Associates found, and their training staff lacks diversity. "For the most part, Kroll has found APD reluctant to incorporate a lot of community/civilian input and distrustful of non-police personnel." Changes so far sound largely cosmetic: "there is less one-on-one, in your face stress actions (yelling and screaming), which are now more group focused." Yelling at a group doesn't seem much more pedagogically effective than yelling at an individual, though perhaps it's at least a tad less abusive. "The Academy has modified some past abusive practices, such as 'Fight Day' and Stress Reaction Testing (SRT), in an attempt to reduce cadet injuries, lower the rate of attrition (which disproportionately impacted females and cadets of color), and create an environment more conducive to success and graduation." Fundamentally, though, APD leadership told the consultants they don't agree with critiques of paramilitary approaches to policing and don't intend to change: "APD leadership has expressed its belief to Kroll that a paramilitary structure is an essential component of police culture."

Police reform in Houston appears to hit dead end

This quote accurately sums up the state of police reform in Houston under Mayor Sylvester Turner:

“We haven’t made any meaningful progress since the George Floyd protests, just forget about it,” said Alan M. de León, an organizer with MOVE Texas. “Whether the oversight board, union contract negotiation, or crisis intervention, on no front are we making meaningful progress, and that’s completely disappointing.”

Some are hoping things will change under the new chief:

Those pushing for police reform hope new Police Chief Troy Finner, a native Houstonian who took over Monday, will push reform. Since being appointed in March, Finner has promised to meet with and listen to reformers.

“You could tell he wanted changes to happen,” said Harrison Guy, a police reform task force member who met with Finner twice last year. “I feel like (former chief Art Acevedo) led with a lot of ego, so I felt like he got in the way of a lot of change.”

I don't know Finner but share the hope that he's more reform minded than his predecessor, which is a low bar. For more background, see Grits' extensive coverage of the Houston Mayor's task force from last year. Not by much, but Dallas has done a little better.

SA ballot initiative vs police union contract w/in striking distance

Polling on the May 1st ballot initiative in San Antonio taking aim at eliminating the police union's meet and confer contract show the race to be wide open: 34% in favor, 39% opposed, and more than a quarter undecided, leaving plenty of room for the outcome to swing either way.

Chalk one up for Renee Hall

I've gotta say, the outcome of the examining trial against the Dallas cop accused of hiring a hit man seems to vindicate former Chief Renee Hall. She'd made the decision there wasn't enough evidence to accuse the officer, and though it made big headlines when her successor had him arrested, now a court has agreed. That said, there may be administrative violations that could be pursued even if they can't show he violated criminal statutes. But after all the eye-popping headlines, it looks like criminal charges won't be forthcoming.

A friggin' Ponzi scheme?!

Dallas police announced they suspended an officer for operating a "Ponzi scheme" targeting other officers in which 8-10 others may also have been involved, but so far have released no additional information.

Affidavit: Pointless police pursuit resulted in bystander death

A high-speed chase in Fort Worth that killed an innocent bystander in 2018 “should either never have been initiated or it should have been immediately terminated,” wrote a former Richland Hills police officer in an affidavit unsealed by a Tarrant County district court. Wrote the officer, the suspect being pursued “was not suspected of any specific crime and there were no outstanding warrants concerning him.” The victim's son, a River Oaks police officer, sued the department and, though the suit was recently dismissed, the litigation revealed details indicating the department's policy was inadequate, not followed, and/or both.

False accusation, confession, centered on assault that never occurred

In Bexar County, the Conviction Integrity Unit unearthed a false confession case in which a man pled guilty to an assault that in fact never happened. Your correspondent learned a lot about false confessions when I was policy director at the Innocence Project of Texas. Some of the most complicated, self-incriminating examples arise from family disputes like the one that sparked this story, in which a gay immigrant was accused of assaulting his partner, whom he later married. Witnesses confirmed the alleged assault never occurred. I'm glad this was finally sorted out but it highlights the incalculable damage that can be done by a false confession and the fact that police are largely ill-suited for the role of intervening in domestic disputes beyond preventing immediate violence.

Dallas cops used facial recognition software w/o authorization

Dallas police officers used unauthorized facial recognition software last year to try to track protesters, reported Gizmodo.

The spokesperson, Senior Cpl. Melinda Gutierrez, said the department first learned of the matter after being contacted by investigative reporters at BuzzFeed News. Use of the face recognition app, known as Clearview AI, was not approved, she said, “for use by any member of the department.”

Department leaders have since ordered the software deleted from all city-issued devices.

Officers are not entirely banned from possessing the software, however. No order has been given to delete copies of the app installed on personal phones. “They were only instructed not to use the app as a part of their job functions,” Gutierrez said.
More background from Buzzfeed.

Politicians far behind public opinion in Texas on pot

It's remarkable the extent to which Texas legislators' are SO far behind public sentiment on marijuana. Most Texans support full-blown legalization of recreational pot, like New Mexico just enacted, according to fairly consistent polling results. But all the marijuana bills at the Texas Legislature that are moving are relatively small potatoes. Do I want to see penalties lowered for small amounts? Sure. As my father likes to say, it's better than a sharp stick in they eye. But 15 states have fully legalized recreational weed and, if legislators in Texas cared what their voters think on the matter, the Lone Star State would follow suit.

Out-of-state odds and ends

Finally, here are few items that caught my attention:

Monday, April 12, 2021

A dirty, uncomfortable feeling: TCOLE Sunset bill lame, inadequate, and kicks can down the road on the biggest police accountability issues

After staff at the Texas Sunset Commission issued a scathing assessment of the Texas Commission on Law Enforcement, the legislation enacting their vision couldn't be more disappointing. The bill passed out of committee as filed this week with no changes.

It would create a blue-ribbon commission to evaluate all the biggest questions, even though Sunset staff already identified the problems. See Grits' write-up of Sunset staff's concerns for more detail, but big picture, Sunset staff said "Texas' Approach to Regulating Law Enforcement is Ineffective" and "the state’s regulation of law enforcement is, by and large, toothless." They cited a "fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training."

Further, they declared "The state’s regulatory model, bifurcated between state and local government, creates significant gaps that undermine the purpose of statewide licensure, and does not best ensure public safety or law enforcement accountability and transparency."

Last but not least, the Sunset review found that "TCOLE’s minimum training standards are outdated and ultimately do not meet the evolving needs of law enforcement personnel in Texas."

None of this is being addressed, even though solutions are apparent for most of the problems.

You see, TCOLE is not like a regular licensing agency. If they were licensing plumbers or beauticians, they would identify oversight required to keep the public safe, calculate the costs, then charge licensees a fee to cover it. TCOLE is the only licensing agency I'm aware of to which licensees pay no fees. Their money largely comes from a fund generated by court costs which have been declining in recent years and is scheduled to run out.

So there's a strong argument to charge TCOLE licensees a fee, anyway. But that's even more the case when you realize there's so much they need they can't pay for: Curriculum development specialists, issue-area-experts, an expanded decertification program (appeals require lawyers), more inspectors to ensure training requirements are met ... even tasks like gathering data from the Sandra Bland Act get messed up because the agency has no staff or expertise to assign to it.

TCOLE needs expanded authority and expanded staff. Creating a licensing fee is how to pay for the extra staff. It's how every other licensed industry pays for oversight. If the Legislature won't enact licensing fees in this Sunset bill, at a minimum they should add a requirement to the bill that the "blue ribbon commission" study creating them.

As for expanded authority, TCOLE is one of only a handful of states whose authority to decertify officers who engage in misconduct is so incredibly limited. In Texas, officers must be convicted of a felony, a serious misdemeanor, or be dishonorably discharged as an officer TWICE before TCOLE can decertify them. According to the Sunset review, more than 2,800 officers over five years were dishonorably discharged in Texas, but only nine lost their licenses.

The easiest, most high-impact reform the Legislature could make in the TCOLE Sunset bill would be decertify officers licenses when they're dishonorably discharged. The legislative fix is easy: delete the final clause of Sec. 1701.4521 of the Occupations Code. Here's how to do it:
Sec. 1701.4521. LICENSE SUSPENSION FOR OFFICER DISHONORABLY DISCHARGED. (a) The commission shall suspend the license of an officer licensed under this chapter on notification that the officer has been dishonorably discharged if the officer has previously been dishonorably discharged from another law enforcement agency.
There's already an appeals process in place. TCOLE might need more resources to manage a greater number of appeals, but that's not an insurmountable problem. And why even bother to license officers if misconduct so extreme they're "dishonorably discharged" isn't enough to take away their badge?

Decertification authority needs to be bolstered in other ways, some of which were captured in Rep. Vicki Goodwin's HB 2844. It doesn't make sense to wait until cops are convicted of felonies before they can lose their licenses, but that's the way the law reads now.

There are other, obvious changes needed. One small thing, but dear to my heart: Texas was once the "epicenter" of forensic hypnosis in America. But now that no police agency in the state admits to using it and it's no longer possible to get training in the discipline, it's time to "sunset" the forensic hypnosis certification program at TCOLE. Legislation is moving in both chambers to ban the practice from Texas courts and nobody showed up to oppose either bill. What's the point of keeping this dead discipline on the books?

Another unaddressed topic: The board membership at TCOLE needs to be expanded. IMO, three heads of local civilian-oversight agencies should be added to round out all the law-enforcement management and union interests represented.

Finally, Grits would like to see the Sandra Bland Data collection at TCOLE expanded to include police use of force, as New Jersey recently mandated. (If Grits had his way, they'd report every time they pointed their weapon.) Not only should this data be gathered, TCOLE should be staffed to clean, manage, analyze, and report on it.

Nothing like that is in the Sunset bill. They kick the can down the road and everyone is asked to wait patiently for a blue-ribbon panel's recommendations so they can then ignore them like they are suggested improvements now.

Leadership is saying they don't want to take amendments and prefer to keep the bill "clean," but to be honest, it all feels pretty dirty: Another regulator in thrall to the industry it regulates, only this time the industry capturing its regulators isn't electric-power producers, it's law enforcement. And it's not so much the regulators who've been captured (TCOLE boss Kim Vickers wants more resources and authority), it's the lawmakers who write the rules and draft their budgets who're hamstringing greater accountability.

Finally, the blue-ribbon panel itself as written is dominated by law enforcement interests and contains scarce few slots that could even conceivably be filled by anyone with a civil-rights or police-accountability background: It's theoretically possible but unlikely, and if it happens, it'll be one or two token appointments. This is a panel designed to defend the status quo, not to challenge it.

Grits was hopeful the TCOLE Sunset process would provide opportunities for accountability-focused police reform, but that doesn't seem to be the case so far.

Sunday, April 11, 2021

Two decades after Tulia, corroboration requirement for police in drug cases may finally have its day

Debates around the Texas George Floyd Act have revived discussions of accountability in drug enforcement that first arose two decades ago following the Tulia drug stings. Regular readers know George Floyd was one of scores of Houstonians convicted of drug possession based on the uncorroborated testimony of Houston Police Narcotics Officer Gerald Goines, whose mendacious testimony about fabricated informants resulted in the deadly Harding Street raid.

Goines' case - and the audit of the HPD narcotics unit showing similar practices by other officers were largely unregulated and unsupervised - revived failed efforts following the Tulia episode to require corroboration for police officer testimony in drug cases. This week, HB 834 (Thompson) requiring corroboration for undercover officers in drug cases passed out of committee.

Notably, as if to corroborate the need for corroboration, a couple of days before that bill cleared committee, a similar case arose in the national press. A NYPD narcotics detective responsible for thousands of arrests was found to have falsified testimony in at least 90 cases and likely many more.

Like Gerald Goines and Tom Coleman, NYPD Detective Joseph Franco has caused incalculable harm. As in Houston with Goines' victims:

erasing records can only go so far, public defenders say.

“The damage is done at the point of arrest,” said Tina Luongo, a lawyer who heads the criminal defense practice at the Legal Aid Society. “They likely had bail set on them, spent time at Rikers Island, lost jobs, were separated from their families — no matter what happens, those harms were done.” 

How much of that could have been prevented just by requiring some evidence - any evidence - beyond a police officers' word to secure a conviction?

On the most recent Reasonably Suspicious podcast, Mandy and I interviewed Jeff Blackburn, a civil rights lawyer out of Amarillo (and my old boss at the Innocence Project of Texas) about the Tulia drug stings and pending legislation to require corroboration. Jeff also testified by video at the hearing for HB 834, which is a stand-alone bill including the corroboration provision from the #TexasGeorgeFloydAct. I pulled that podcast segment out as a little seven-minute stand-alone, you can listen to it here:

Grits is excited this Texas legislation appears to have legs this year, but part of me can't help but lament our failure to secure this reform 20 years ago. Back then, the corroboration bill was scaled back to require it only for informants, not police officers, How many false convictions and abuses of power might have been prevented in the ensuing two decades if we'd won this reform back in the day? We will never know. But better late than never, the Texas Legislature has an opportunity to rectify this oversight now.

Yes, Mr. Schaefer, police violence is a problem, even in Tyler

Rep. Matt Schaefer (R-Tyler), who represents my hometown, said at the Homeland Security and Pubic Safety Committee hearing the other day that there'd been no serious police violence incidents in his district in many years. Maybe he meant police shootings or deadly force. But a couple of folks in the audience grumbled that somebody should tell that to the 15-year old kid thrown to the pavement by a Bullard police officer last fall. Here's video from the incident:

The kid was 15 and had tried to charge his phone without making a purchase, which was against store policy. Off-duty Bullard police officers told him store owners didn't want him there. He asked to speak to the manager but they refused and put him in handcuffs, took him outside, then threw him to the ground as seen above in front of cell-phone wielding witnesses. The episode sparked protests in response.

Might this incident have been prevented if HB 830 - part of the Texas George Floyd Act - barring arrests for Class C misdemeanors had already been law? Maybe not. No arrests were made because Bullard police officers had no authority to make them outside their jurisdiction, according to local news reports. (They were at a facility in Tyler, not Bullard.) So the kid was merely handcuffed and detained by police then assaulted before being let go with no charges. On the other hand, HB 833 limiting police use of force would have prohibited this entirely gratuitous force incident. And HB 832 would have created a duty for the other officers to intervene and stop it.

It's one thing to tell people in Austin there's no problem with police violence in his district. But folks back home who've seen this video on the evening news already know better. Chairwoman Senfronia Thompson has been working with all the police groups who will work with her on substitute language for these bills, and Mr. Schaefer will soon have an opportunity to do something about it.

Tarrant medical examiner who led Forensic Science Commission found to have misled jury in murder case

After an initial, failed run led by a tough-on-crime prosecutor, Texas' Forensic Science Commission has oddly been led by medical examiners, even though the agency doesn't regulate that profession and their offices are separate from forensic analysis divisions in most counties. One of these was Tarrant County medical examiner Nizam Peerwani, so Grits was interested to see this news:
A man who was sentenced to death in a 2004 Fort Worth murder case should get a new trial because of false and misleading testimony by Tarrant County Medical Examiner Dr. Nizam Peerwani, a judge has ruled.

In a 51-page finding, Tarrant County District Court Judge Mollee Westfall said Peerwani made “false, inaccurate or misleading” statements in at least 10 crucial elements of the prosecution case.

The timing of the judge's ruling is remarkable because Peerwani recently placed his longtime former top deputy, Dr. Marc Krouse, on administrative leave after an audit of 40 death investigations last year found he made 59 mistakes. Krouse was barred from conducting autopsies in homicide cases in November.

In the the complex and multi-faceted world of criminal-justice reform, forensics and medical examiners are roughly a fourth-tier concern: Police brutality, mass incarceration, an impoverished indigent defense culture, pretrial detention, overcriminalization of juveniles, and myriad other topics grab a greater share of the public's and advocates' attention.

But forensic science is a mess and as the Forensic Science Commission has been larded with new responsibilities including professional licensing, it has become less aggressive over time in using its platform to confront bad science.

Texas has a long, misbegotten history with corrupt medical examiners giving false testimony. Perhaps Peerwani's fall from grace is a good opportunity to begin appointing forensic scientists to lead the FSC instead of politically connected medical examiners? It was always an odd fit.

Now the question is raised: If Peerwani was willing to give "false, inaccurate, or misleading" statements to a jury in a death penalty case, should we accept pronouncements from the FSC during his tenure that exonerated allegedly flawed practices? 

Your correspondent stopped tracking the FSC closely after I left my gig at the Innocence Project of Texas: Forensics reform is an issue that requires professional-level engagement; it's hard to do as a sideline. But my impression is that progress has stalled. They've addressed much of the low hanging fruit but elided calling more commonly used forensic methods into question. And even where they've rebuffed old, flawed, forensic methods, the Government Always Wins faction on the Texas Court of Criminal Appeals has frequently refused to then excise them from the courts.

Between the Forensic Science Commission and its first-in-the-nation junk-science writ, Texas has created the infrastructure needed to root out flawed forensics. But its political will to do so seems to have dissipated since the heady days when DNA exonerations seemed to be happening every other month.

That's too bad because the slowing of DNA exonerations isn't because innocent people aren't being convicted anymore. Only 10 percent or so of violent crimes involve DNA evidence, so finding those few doesn't help the other 90 percent convicted on the same bad evidence. DNA exonerations exposed flawed policing methods - including less-than-reliable forensics - but for the most part, the system kept using them.

To the extent that's been because the Forensic Science Commission has been led by medical examiners who're too embedded in the system to critique it, it's probably time for that to change.

Saturday, April 10, 2021

Ridding South Texas of DPS part of forgotten populist agenda for the region

Many Democrats were surprised in November when their candidates lost ground in Texas border regions, but Grits was not: The party has no substantive agenda either to entice voters in rural areas or to address the unique challenges facing the sprawling mass of increasingly urban voters in the Rio Grande Valley.

Here's a topic state candidates could run on: From the Rio Grande Guardian, "Heavy DPS Presence in Starr County is Unnecessary." Starr County Judge Eloy Vera articulated populist criticisms of DPS' presence that would no doubt resonate with most border residents who don't profit from it:

Drive along U.S. 83 and they are parked every 100 or 200 feet, he said. Unless there is a speed chase they have nothing to do but write tickets for motorists with tail lights not working, the judge said.

“Our people are complaining that they are getting stopped and getting cited. So, even though that was not the purpose of DPS being down here, and I was assured that they were not going to be stopping people and giving a lot of warnings, that is what is happening,” said Vera, pictured above. “I think a lot of our people are being cited.”

Debtors-prison practices, including the state's Omnibase program which uses arrest warrants to collect debt, turn this over-policing into a de facto, year-round warrant roundup:

“The other problem this causes is on the warrant side. If someone has a warrant, and this is by statute, they (DPS) pick them up and they take them to the jail and that is putting a burden on our jail. Now, we don’t have beds for paying inmates because we have a bunch of ours.”

Vera said he wanted to reiterate that he is pro-law enforcement.

“I guess in a nutshell we certainly appreciate the law enforcement help that we are getting but again they must stick to what their mission is and that is to curtail drug and human trafficking. If someone has a lightbulb that is not working, there is not need to cite them or anyone else, in my opinion.”

For those who don't live in the region, these criticisms fly in the face of glowing praise from politicians for DPS' presence we routinely see in the press. DPS and the Governor will always be able to find locals to sing their praises because a small minority of people profit from their presence. But for average folks, it creates more problems, reported the Guardan.

The one good thing about having so many state troopers in Starr County, Vera said, is that they fill up the local restaurants and hotels.

“Our restaurants and hotels and those people, they love it because it is more business for us. But the average citizen that is barely making it, it is a big burden for them.”

These are not isolated sentiments:

McAllen Mayor Dim Darling has also spoken about the recent influx of DPS troopers to the Rio Grande Valley. Appearing on a Zoom conversation with U.S. Rep. Veronica Escobar that was hosted by the Texas Tribune, Darling shook his head and rolled his eyes when asked a question about DPS.

“I’ve always said they need social workers not DPS. And we have a lot of DPS officers. If you ride around near Chimney Park and all that, I feel sorry for them. Sitting out there and there really is not much for them to do from the standpoint they do not have jurisdiction,” Darling said.

Chimney Park in Mission is on the banks of the Rio Grande.

“If you really want to do it, at least maybe split it half DPS and half social workers. The social work could get done by the people that know how to do it and send the Border Patrol back out to protect the border like they want to do and they are paid and trained to do,” Darling said.

“It is just ridiculous. If you talk to the average Border Patrol person, they are miserable, they are not doing what they are supposed to do. They are not trained to take care of kids. They are not social workers.”

It's been long acknowledged DPS border deployments have had little impact on drug trafficking. Meanwhile, DPS has pulled all these troopers from the rest of the state, contributing to DWI enforcement statewide declining despite large population increases during this period, after their border deployment began. Here's a graphic from the 2020 Office of Court Administration Annual Statistical Report depicting the decline:


So there's your political messaging: DPS over-polices border communities, resulting in ratcheting up debtor's prison practices along the border, while reducing DWI enforcement elsewhere and making all Texans less safe. Hell, I've even got theme music for the debtor's prison angle:

It's been years - maybe since Carlos Truan, God rest his soul, was state senator from the Valley - since I've heard politicians talking about a populist agenda to benefit South Texas. In recent years, the debate's all been about preventing imaginary terrorists from sneaking across the border. But for a Democratic statewide candidate, it wouldn't be hard to find a justice-reform-and-infrastructure agenda that would excite South Texans: Scale back DPS' presence; build a new, job-creating South Texas port and another international bridge to take traffic pressure off the Houston port and I-35. Tack on Medicaid expansion, and bada bing, bada boom, there's an agenda that would speak to South Texas voters.

You're welcome, Gov. McConaughey.