Tuesday, November 09, 2004

ACLU Testimony: Limit Specialized Police Force Proliferation

For those with a particular interest or a great deal of time on your hands, here's the rather lengthy ACLU of Texas testimony to the Texas Senate Criminal Justice Committee. The topic: specialized police agencies, with a special emphasis on drug task forces. It was authored by yours truly, with information and assistance from the ACLU Drug Policy Litigation Project and Ann del Llano.

In particular, folks who've followed Byrne grant funded drug task force scandals, like the innocent people set up in Tulia or the racial profiling problem in Palestine, will be interested in reading the sometimes outrageous updates from ACLU litigation against a drug task force in Hearne, Texas. Astonishingly, case logs revealed in discovery show black people accounted for 85% of all arrests by the Hearne drug task force.

I included some of my notes for this testimony in a previous blog entry, but this is more fully developed, and includes the new information on the Hearne case.

TO: Honorable Members of the Texas Senate Criminal Justice Committee

FROM: ACLU of Texas

DATE: November 3, 2004

RE: Written Testimony on Interim Charge Number 5: Special Police Forces

Interim Charge Number 5:
Study and make recommendations relating to improving the use of specialized police agencies and officers, specifically, the necessity, accountability, qualifications, and jurisdictions of such police agencies.

Proliferation of special police forces poses question: when is enough, enough?
ACLU of Texas appreciates the opportunity to contribute written testimony on this important topic. The proliferation of special police forces has been an almost universally negative development in the recent history of Texas law enforcement. We hope this committee will take the opportunity to rethink whether this proliferation really helps keep Texans safer.

We have two broad concerns regarding special police forces:
  • a large number of small police agencies such as ISD, college campus and parks police are less accountable than more centralized bigger shops, and
  • problems with the most notorious special police forces in Texas -- the Byrne grant funded drug task forces.
Proliferation threatens law enforcement credibility
Presently Texas has 2,540 separate law enforcement agencies licensed with TCLEOSE, including ISD police, college campus police (universities, junior and community colleges), parks police, airport police, administrative agency police and a wide variety of others. Article 2.12 of the Texas Code of Criminal Procedure (CCP) lists 32 different types of specialized police officers, in addition to municipal police and sheriffs. Many of those officers don't receive the same level of training or oversight as regular law enforcement agencies, or, e.g. arson investigators, on paper possess narrow jurisdictions and expertise.

Even so, they have the same police powers, with few exceptions, as a supervised officer acting in his or her jurisdiction.

Language already exists in the law that, by itself, would be sufficiently limiting to allow for officer action but protect the public from abuse. CCP 14.03(d) allows officers to arrest outside of their jurisdictions for felonies, breaches of the peace, disorderly conduct and drunkenness committed in their presence. That is a reasonable limitation that allows officers to keep the peace but, by itself, restricts routine law enforcement to officers employed in the jurisdiction.

CCP 14.03(g), however, expands that power dramatically, allowing arrests for "any offense" except traffic violations. (Drug task force officers are even exempt from that.) 14.03(g) completely overrides and subsumes 14.03(d), for the worse, allowing officers to arrest for even the most petty misdemeanors, even fine-only offenses, punishments for which don't even merit incarceration. That's too broad.

The proliferation of special police forces threatens to undermine the credibility of law enforcement, especially at smaller agencies, and has caused accountability for police officers generally to decline. Here are the main problems caused by this explosion of specialized agencies:

1. Gypsy cops. Special forces create a problem with so-called "gypsy cops" where officers move from small agency to small agency, typically after misconduct or other problems that may indicate their unsuitability to wear a police uniform. Officers know if they misbehave and get fired they can just move on down the road. Tom Coleman, the undercover officer in the Tulia scandal, is the most famous example of a gypsy cop (which is law enforcement slang popularized by the Tulia case). Coleman's troubles at a prior agency came to a head in Tulia when a misdemeanor warrant was issued for his arrest while he was working undercover.

2. Resources: Smaller forces don't have sufficient resources for modern, high quality training or equipment for more specialized work involving special types of crimes.

3. Fragmentation: Having so many different agencies assures that information sharing will never be reliable, fragmenting potential for seamless intelligence gathering regarding criminal activity. After 9-11, the federal government changed its laws to allow federal agencies to share more information with law enforcement regarding terrorism, but this local fragmentation makes that goal unwieldy at best and unachievable at worst. Reporting, even for key statistics like arrests and prosecutions, is not consistent in Texas even among the 254 counties in the state, much less for the 2500+ separate little agencies around the state. The sheer number of distinct agencies makes monitoring compliance with reporting virtually impossible, which in turn means that this state does not have clear data upon which to base criminal justice policy.

4. Supervisor shortage: The pool of quality police supervisors in Texas simply is not deep enough to manage 2,540 different agencies. That means many of these special agencies are being led by managers who are frankly unqualified.

5. Qualifications not uniform: Having so many agencies means that a mind-boggling array of differing hiring, training and employment policies and practices from agency to agency muddy the public's ability to determine if an agency hires good officers or maintains high quality policies and practices in the department.

6. Equal protection: Non-civil service agencies in cities whose main police department is covered under the state civil service code can find themselves in a situation where different labor rules cover different law enforcement employees, even when they have the same employer. E.g., in Austin APD is covered under the civil service code, while the Parks police and Austin ISD police are not civil service agencies.

7. Too expensive: Having police in schools and parks is overkill, a more-expensive-than-necessary overreaction to security problems. Security guards equipped to call 911 if needed would be cheaper than commissioned Texas peace officers, and could handle virtually every situation that arises, especially in school scenarios. For parks police, police officers from the local PD could write necessary tickets.

8. Mission creep: In schools, officers presence has led to mission creep, where officers now teach DARE programs in schools as though they're a regular teacher. Studies show these programs are ineffective at preventing drug use, and using commissioned officers as teachers is much more expensive than paying teachers to handle the same classroom duties. Additionally, because they are so abundant police officers end up enforcing simple school rules that would be more appropriately handled by the principle.

9. Letting loose the dogs: Off-duty employment of officers is common, so even at the most marginal departments, officers will possess full-blown police powers 24-7, often exercised on Friday and Saturday night, for example, as bouncers at bars or in some other potentially problematic capacity. But it's likely that the level of supervision found at larger agencies, where some like Houston PD still have had problems, will be lower or non-existent at these tiny agencies no one pays attention to.

Byrne-grant funded drug task forces are counterproductive
The most counterproductive special police forces in Texas are the Byrne-funded regional narcotics task forces. After the infamous Tulia drug sting in 1999, problems at other Byrne-grant funded drug task forces began cropping up statewide. ACLU of Texas has published two public policy reports describing the problems:
Flawed Enforcement includes a list of programs besides drug task forces that Byrne grant money can be used for in Texas (Flawed Enforcement, page 5). Many of the options would address the state's identified critical criminal justice needs and protect the public safety more effectively than continued funding of drug task forces. This committee should consider changing the way the Byrne grant money is spent in Texas. These particular special police forces are not necessary at this time, and the funds could be spent on programs that more effectively protect the public safety.

Case in point: Hearne, Texas - Tulia, but worse.
The ACLU is currently engaged in litigation against the officers of the South Central Texas Narcotics Task Force (this task force was recently consolidated with the Agriplex Drug Task Force) regarding its operations in Hearne, Robertson County, Texas (Regina Kelly v. John Paschall Civ.02-A-02-CA-702 JN). We believe that the egregiously flawed investigations, corruption, and lack of accountability in this task force are endemic to task forces operating throughout the state and elsewhere in the country.

The Tulia scandal in 1999 cost Texas law enforcement and local government entities millions of dollars in litigation fees and damages and sparked national outrage. Once Governor Perry fully pardoned the defendants in Tulia and the City of Amarillo settled for $5 million, the public believed the last chapters of the debacle were finally coming to an end. "Tulia - Part II" is unfolding, however, in the small town of Hearne, and it brings to light the worst of the worst in regional narcotics task forces.

The Hearne case, Kelly v. Paschall, demonstrates that the systemic failures of regional narcotics task forces go far beyond the events in Tulia and the actions of one rogue Texas peace officer, Tom Coleman. In Hearne, the district attorney's office, the commander of the task force and all of the agents involved - essentially the entire infrastructure surrounding the task force-bears blame.

15% of Hearne's Young Black Male Population Arrested on Bogus Drug Charges
In November of 2000, 15% of Hearne's young black male population was arrested and charged with felony-level cocaine sales. Most of them were arrested from the town's public housing complex known as Columbus Village during a swat-style drug raid.

After tabulating hand-written case logs from the task force, since the task force does not compile or report its racial profiling statistics, we found that the South Central Texas Narcotics Task Force has focused its enforcement efforts almost exclusively on Texans who have black skin - 85% of its arrests over several years targeted blacks. 85% black, even though clear data from President Bush's research office shows that people in America use illegal drugs at the same rate whether their skin is black, brown or white.

Six months after the arrests, District Attorney John Paschall dismissed all remaining cases after the arrestees sat in jail - some for as long as six months - awaiting trial and/or posted bonds for bails that the court set as high as $140,000.

The ACLU currently represents 10 of the arrestees in a civil lawsuit, Kelly v. Paschall, against the officers and counties that formed the South Central Texas Narcotics Task Force. We allege that task force officers and the District Attorney directed the arrests of our clients based on fabricated evidence and allowed them to sit jail long after the evidence against them was known to be false.

Task Force Uses Paranoid Schizophrenic, Cocaine-Addicted, Suicidal Confidential Informant
The task force in Hearne recruited an inmate to work as a confidential informant in more than 20 "controlled drug buy" cases. The C.I. is a diagnosed paranoid schizophrenic, has been institutionalized for mental illness, tried to commit suicide in jail, is admittedly addicted to cocaine, and has an extensive rap sheet of parole violations of every sort. The C.I. had repeatedly failed to keep his contract with the court, and yet with knowledge of his history, the task force chose to draw up a contract with him to work as a confidential informant in the largest drug investigation in recent memory.

The contract the task force struck with the C.I. was this: the task force gave him $250-$350 to go out and buy powder cocaine from a list of individuals. They gave him a list of Hearne residents who were to be his targets, all African American, and told him that for every person over 20 he could buy cocaine from, they would pay him $100. The C.I. had to get more than 4 grams of powder cocaine so as to ensure decades of incarceration for each defendant.

No Corroboration or Reliable Evidence beyond the Informant's Word

The only corroboration for the buys made by the confidential informant come from a hand held tape recorder to put in his pocket to record the deals. The informant was rarely searched for drugs before or after the deals, he was told by the District Attorney and agents of the task force that he would not be punished for failing drug tests while he worked as an informant, and the task force did not monitor with wire, videotape, or visual surveillance his movements or time his deals - all violating common practice and policy for professional narcotics enforcement units.

A Threat to Public Safety
The task force agents turned a known mentally ill cocaine addict onto the streets with hundreds of dollars in cash and absolutely no form of back up or plan to protect the informant or bystanders in the community if something went wrong with the deals. To add another factor into the mix, we now know that the task force agents threatened the C.I. with lifetime incarceration of himself and incarceration of his family members, physical harm, and prison rape if he did not agree to work as a confidential informant and succeed in making all the cases. In fact, the C.I. and other former confidential informants have testified that the District Attorney did not merely make this as an empty threat; the D.A. said he would make a phone call to his buddy who happened to be the warden of the prison and assure that the C.I. would be put in a cell with someone with a reputation for raping his cellmates. (See excerpts of the deposition of the C.I on the attached 13-minute video: "Deposition of Derrick Megress".)

The confidential informant was clearly acting out of fear and coercion. Law enforcement officials will tell you that when working with a confidential informant, you always assume that they will lie, steal, and resort to violence if allowed to. Yet in the South Central Texas Narcotics Task Force, the C.I. was trusted as if he were an angel.

No wonder things went wrong.
Task Force Facilitates the Fabrication of Evidence Against Innocent People

In the recent deposition of the confidential informant, excerpts of which are provided to the Committee on videotape attached hereto, the C.I. confesses to crushing up small amounts of crack cocaine and mixing it with non-drug powder - like baking soda or flour - so as to inflate the amount of drugs purchased. He also testifies that task force agents instructed him and taught him to do this. It was a deal for the C.I., because he could buy smaller quantities of less expensive crack cocaine and use it to create the larger quantity of powder cocaine and then pocket the rest of the money from the task force.

The C.I. knew that he could get away with it because he had such little visual surveillance from the task force and no corroboration of the audiotapes, which are wholly incomprehensible and only record loud music, the sounds of car engines, and long periods of silence - but no drug deals.

Drug Sweeps, Arrests, and Time in Jail Based on False Evidence
Before the November 2000 drug bust, the District Attorney felt he had enough evidence - the testimony of the confidential informant and the audiotapes - to conduct a mass arrest of 28 people from which the C.I. supposedly bought drugs. Presumably this poor quality of evidence was presented to the grand jury, and they issued indictments. Grand jury proceedings are held in secret, and the court recently ruled that the information regarding what evidence was presented in the grand jury must remain sealed. So we will never have direct knowledge of the grand jury's basis to indict these individuals, but we do know that the most comprehensive evidence they could have received has turned out to be a series of lies from the confidential informant and audiotapes containing no usable information.

Additionally we have discovered that the confidential informant failed at least one polygraph test concerning his testimony in these cases at least five months before the district attorney dismissed the charges.

All Participating Entities Are Liable for Illegal Actions of a Special Police Force

A federal district court recently issued recommendations to hold Limestone County (in addition to Robertson County) fully liable for the actions of the South Central Texas Narcotics Task Force in Kelly v. Paschall. This is the first federal court statement on the issue of whether counties are liable for the illegal actions of multi-jurisdictional narcotics task forces operating throughout Texas.

Limestone County first applied for a federal grant to fund the South Central Texas Narcotics Task Force jointly with Robertson County in July 1998. Limestone County argued in its motion for summary judgment that it should not be included in the trial phase of the ACLU's lawsuit, scheduled for May 2005, because it did not cooperate in the actions of John Paschall, the Task Force's Project Director and District Attorney of Robertson County, or any other participant in the Task Force.

Magistrate Judge Jeffrey C. Manske of the U.S. District Court for the Western District of Texas, Waco Divison, issued the recommendation against Limestone County because Limestone County signed over all final policymaking authority to John Paschall. The recommendation stated that, "Limestone County, for whatever reason, entered into an agreement with Robertson County by which Limestone County fully delegated its policymaking authority to Defendant John Paschall and retained, at most, a degree of financial control over the Task Force and Paschall by way of yearly renewals of the grant…"

The court found that even though Limestone County may not have directly participated in the Task Force's investigations, that "…the Defendant's [Limestone County] liability is dependant on Limestone County's delegation of policymaking authority, not upon the employment relationship between Limestone County and John Paschall."

Task Forces Do Not Meet Basic Law Enforcement Standards
The agents of the South Central Texas Narcotics Task Force came from the ranks of the local police force. They had minimal narcotics-specific training, no on-the-job evaluation or structured supervisor and they seem to have been recruited and hired through a casual word-of-mouth process, instead through a competitive job search with objective standards of review. This fact virtually guaranteed that none of the task force agents could do undercover work themselves, since they were recognizable faces in the community.

These agents were trusted to handle money, drugs and guns without meaningful supervision or safeguards - a combination that any seasoned law enforcement official will tell you is disastrous. As it turned out, two task force agents were found to be using or harboring cocaine - one had a bag of crack cocaine in his house and another tested positive for cocaine and resigned.

Regional narcotics task forces are ineffective
Their existence and record of arrests have shown virtually no demonstrable decrease in drug supply or demand in local communities. In fact, their stated goal is to simply increase the number of petty drug arrests each year. These types of task forces explicitly target the lowest level dealers and users who are easily replaced and self-replicating due to the power of addiction and economic incentives of the black market. The state of Texas would do better to allow highly-trained law enforcement agencies, such as those incorporated directly into the Department of Public Safety or the DEA, to enforce current drug laws at the very highest levels of supply.

Meanwhile, Texas has a serious need for evidence-based cognitive skills programs that are proven to stop crime. Research is now conclusive that certain programs stop crime and protect the public safety more effectively, especially with drug users. The state of Texas should reserve federal Byrne grant money for prevention and treatment programs that are proven to decrease substance abuse and related crime.

Regional narcotics task forces are doing more harm than good
These drug task forces use much-needed drug and violent crime prevention funding better spent on other programs, put confidential informants and the general public in greater danger of falling victim to the violence associated with illicit drug markets. In some cases, the task forces introduce an artificial demand for drugs through their own investigations by coercing local citizens to convince as many other people in town as possible to help them find illegal drugs and then arresting them. Over and over, we find the task forces offering drug users a free ride if they can lure others into the drug market to boost the task forces' arrest numbers.

It is not possible for DPS to "command and control" the task forces
The DPS experiment has failed. The lack of management, supervision, and accountability that has become the defining characteristic of regional narcotics task forces makes virtually impossible their effectiveness and compliance with basic constitutional requirements.

The state of Texas has attempted to significantly alter the structure of supervision, training, and accountability through a division of DPS that attempts to "command and control" each and every agent of each and every regional narcotics task force. More cases like Tulia and Hearne continue to arise, even in the past month, conclusively demonstrating that DPS is not able to command or control these rogue task forces due to their innately flawed political structures.

The commander of the drug task force that supervised notorious officer Tom Coleman and the Tulia drug bust, Lt. Mike Amos, testified in court under oath during the Tulia writ hearings that nothing had changed in how the task force operated after DPS took "command and control."

A drug task force in Palestine, Texas, executed a drug sweep in October of this year that proves that two years after DPS has taken "command and control", DPS has absolutely no command or control. The recent news article, "The Usual Suspects," details how the Dogwood Trails Narcotics Task Force publicly defies DPS rules and policies. In spite of DPS' clear instructions to work on drug organizations with the goal of reaching the top distribution points, the Byrne-funded drug task force is proud to announce in the media that they have caught 72 drug dealers (statistically impossible, most of them are accused of having small quantities) in a town of 17,000 people and they intend to send them each to prison for decades. We are sad to report that once again, every single defendant has black skin.

It is impossible for DPS to "command and control" localized task forces because they are political entities controlled by political players from various jurisdictions. When DPS attempted hold a Byrne-funded drug task force accountable, DPS was completely ignored and was forced to write an embarrassing account of the problems in a public memorandum to the Governor's Criminal Justice Division. The memorandum shows that no entity, not even the Governor's office, is responsive to DPS. (See the attached 2-20-03 DPS memorandum, one copy of the attachments to the memorandum is provided to the committee clerk.)

Even if they could control the task forces, do the State of Texas and DPS really want to take legal responsibility for groups of unsupervised and unaccountable peace officers who deal irresponsibly with drugs, money, and the black market on a daily basis? Regional narcotics task forces are impossible law enforcement entities that set officers up to fail, create dangerous situations for the public, and expose all participating government entities to unprecedented risk of financial liability.

Recently the Lubbock Police withdrew from the South Plains Regional Narcotics Task Force, citing increased liability risks for the department for the actions of all participating officers - officers over which the leader of the task force does not have hiring discretion. The Lubbock police also stated that the large geographical area to be covered made supervision extremely difficult.

Since Tulia and Hearne and a host of other incidents, we have reached a point where no one - not even law enforcement - wants to be liable or responsible for the actions of regional narcotics task forces. This is perhaps the most telling testimony of their incorrigible failure.

1. Consolidation of specialized police forces should be a state priority, with both carrots and sticks employed to convince local agencies to cooperate.

2. Alternative security arrangements to using commissioned Texas peace officers should be explored where possible like in parks and schools and administrative agencies, with security relying on 911 service in the event of occasional but rare need for actual peace officer powers.

3. Funding for regional narcotics task forces should cease and instead Texas should reallocate the almost $31 million per year in federal Byrne funds to effective drug and violent crime prevention, most importantly, to much-needed drug treatment programs and drug courts to alleviate the current Texas prison over-crowding crisis.

4. Delete CCP 14.03(g). The provision in 14.03(d) provides out of jurisdiction officers all the leeway they need to keep the peace. 14.03(g) removes all restrictions on officers' actions, making them as powerful outside their jurisdiction as within it. Officers in their jurisdiction are subject to supervision and oversight; outside their jurisdictions they become potential loose cannons, creating liability with every law enforcement action.

5. Limit scope of specialized police officers' authority. Consider implementing restrictions on the law enforcement powers of specialized police forces listed in CCP Art. 2.12

6. Corroboration of evidence should be required in all undercover drug cases. Police officer testimony must already be corroborated in certain cases. (See attached fact sheet, "Require Corroborating Evidence in Undercover Drug Stings.") Texas law should provide this logical safeguard in undercover drug cases because it is undisputedly a special high-risk environment for corruption.

7. All special police forces should be required to comply with Texas' racial profiling statute. Although special police forces like the drug task forces may be the most unaccountable police forces in the state, they argue that they are not required to comply with Texas' racial profiling statute. All Texas police forces should be required to track their actions, especially when hand-tabulated numbers from hundreds of pages of logs show that 85% of enforcement is against blacks in some drug task forces.

8. Consent searches should be banned in Texas. California has banned consent searches because they waste officers' time and they tend to be used more often against people of color. Texas should take this common sense step.

We are grateful for the Committee's time and would be happy to supplement our statements with further documentation at the request of the Committee.

Respectfully submitted,

Scott Henson
ACLU of Texas