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What you need to know for 10/16/2017

Forms keep cops in check

Forms keep cops in check

It was just before midnight on Christmas evening when officers responded to Cutler Street for a repo

It was just before midnight on Christmas evening when officers responded to Cutler Street for a report of a man kicking a table across a room, hitting his girlfriend in the knee.

When officers arrived, the man, identified as 31-year-old Rolando Hernaiz, struggled with officers, pulling away and dropping himself to the ground. When officers attempted to put him in the patrol car, he head-butted officer Helen Reedy.

Officers finally gained control of the man through defensive tactics, including a “bar hammer” and a bent-wrist lock. One used a hand strike to his face. The man was finally put in handcuffs.

Afterwards, officers observed abrasions on Hernaiz’ wrists and right elbow; Hernaiz reported pain in his finger and wrist. He was treated by paramedics at the police station. Reedy reported a headache and bruising to her temple.

That account — with the names redacted — comes from department use of force forms filed hours later. The reviewing supervisor found the force used to be proper.

Proper documentation

The incident was one of nearly 50 in November and December where officers used physical force and one of nearly 500 in the 16 months since the forms were first required in July 2006.

November and December forms were released to The Sunday Gazette under a Freedom of Information Law request. Names of suspects and officers were redacted, though in some cases, names could be restored from newspaper and court records.

The forms show officers used a range of force, from “resistant handcuffing” to pointing a service weapon at a suspect.

The forms offer officers 11 options on force, including defensive tactics, pepper spray, strikes, police dogs and a firearm pointed or fired.

Schenectady Police Commissioner Wayne Bennett, who has changed and updated several policies in his nearly 12 months on the job, said that at this point, he is satisfied with the use of force policy. However, he said he reserves the right to modify it in the future.

“I am satisfied that reporting requirements are being met and officers are complying with the order,” Bennett said. “At some point, I would at least want to take a look at further breaking it down.”

Raw force numbers, he said, may be skewed by simple “resistant handcuffing” reports. In 12 of the 43 cases reviewed by The Gazette, the only force listed was resistant handcuffing.

Policing the police

The existence — or nonexistence — of the forms has been an issue in the department for years and no less so since five officers were placed on paid leave in December following allegations of excessive force.

The officers remain on leave while an investigation continues into the Dec. 7 arrest of Pattersonville resident Donald Randolph.

Randolph’s family alleged that a half-dozen officers beat him while arresting him, and he has since filed a notice of claim against the city, reserving the right to sue. A police internal affairs investigation concluded that Randolph’s complaint had merit, referring it for possible criminal prosecution.

It was unclear if use of force forms were filed in Randolph’s arrest. Forms submitted in two cases were not included in the FOIL request because they were part of unnamed internal affairs cases.

The use of force issue has come up before, most notably in the federal investigation into the department in the early part of this decade.

The U.S. Justice Department has had an ongoing investigation into the police department since 2002, looking into, among other things, whether officers used excessive force in the five years prior.

In a March 2003 letter — now five years old itself — the Justice Department recommended revamping a vague policy on the use of force.

The policy also followed a high-profile lawsuit by the New York Civil Liberties Union on the subject. An NYCLU Freedom of Information Law request was stymied, as no use of force form existed. Instead, the information had to be gleaned from vast numbers of incident reports.

Melanie Trimble, executive director of the group’s Capital Region chapter, said she was glad to hear the forms are being filled out. The forms, she said, appeared to follow the outcome of the group’s lawsuit.

“That’s great,” Trimble said when told of the forms and the numbers. “It looks like they’ve been using them since 2006, when they told me they would.”

Necessary paperwork

The current policy requires documentation of every use of “physical force” or each time a firearm is pointed at a suspect.

That means any time officers have an interaction with a suspect, including resistant handcuffing, the document must be filled out before the end of the shift. Touching or handcuffing without resistance from the suspect does not require reporting.

Trimble said the Capital Region NYCLU intends to follow up on use of force reporting at some point, once other cases are finished. The group, however, has followed up with the Justice Department, asking it to return to ensure that necessary improvements were made.

A Department of Justice official declined to comment in a statement, only saying that the police department is working with them.

“If there are any remaining issues, we are confident that we can work amicably to resolve them,” the statement reads.

An important use of the form, Trimble said, can be statistical analysis, comparing one department to another or one officer to another. Repeated use of force by one officer or complaints against the officer can indicate problems, she said.

Assistant Police Chief Mark Chaires does keep an eye on how many instances of force are attributed to individual officers, though he said there is no magic number that would cause concern. A lot can depend on the officer’s regular assignment, he said.

“I read these every day,” said Chaires, the head of the Administrative Services Bureau. “We all get copies of them. There are four sets of eyes looking at them.”

The department policy requires that copies be given to Chaires, the bureau commander, platoon commander and supervisor.

“I feel very, very happy with the compliance,” Chaires said. “It’s a rarity that somebody will not comply, and even then, it’s an oversight.”

Supervisors also take a second look at the forms if there is a complaint from the public, Chaires said.

Board’s watchful eye

Force is often the topic for the Civilian Police Review Board. Schenectady board chairman A.C. “Budd“ Mazurek said he has talked with the city about assigning numbers to officers to get around provisions preventing identification of officers under investigation. But he said he was told that was an issue to be taken up with the union.

“Even if he’s found not guilty, the idea that there have been a number of complaints against him may warrant the fellow needing sensitivity training or some other type of training,” Mazurek said. “A lot of times guys are in the right. They follow procedure and policy to the letter, but the way it’s delivered to the civilian becomes offensive.”

Union president Robert Hamilton did not return calls for comment.

Mazurek said he is satisfied with the synopsis the board receives from the internal affairs investigators, rather than the original documents.

Some of the complaints that ultimately make it to the review board start with the local chapter of the NAACP. Fred Clark, organization vice president, has stayed in contact with the Department of Justice, passing on updates. The federal investigation has been delayed as other issues have taken precedence, Clark said.

In such situations, Clark said, the department should document what happens before and after the use of force. Photos should also be taken.

When read the narratives filed in two December cases, Clark said he was satisfied. Also, most of the forms indicate photos were taken. “As long as they do that on all of them ...” Clark said.

Apart from the use of force itself, the forms also provide another account of an incident for defense attorneys.

Steve Kouray, the conflict defender, said he discovered the documents during a trial last year when an officer mentioned them.

He called the forms a good idea, protecting the city. But he said he was able to use the form to find inconsistencies in the officer testimony at that trial.

Chaires said he sees the forms as another check, to make sure officers don’t go too far.

“It’s only human nature for your temper to increase, and you might become excited,” Chaires said. “But knowing you might have to explain yourself down the road ... this could keep you from making a mistake and getting carried away.”

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