For the first time, police have arrested a complainant for statements made in the internal complaint form on police behavior.
A woman in an on-again, off-again relationship with a police officer alleged that police entered her apartment against her will and without a warrant. That’s a serious accusation. Although there are gray areas, entering a home without a warrant can be a violation of the 4th Amendment.
A review of court records finds no warrant issued to the officers. They arrested her on a harassment charge, saying she texted and called her officer-boyfriend 60 times over the course of one night. The couple was arguing over whether he would watch their child while she went to the emergency room.
Smith filed a complaint over the way they arrested her, saying they should not have entered her apartment without her permission. Police investigated and decided the complaint was “knowingly fabricated.” Public Safety Commissioner Wayne Bennett declined to describe the alleged fabrication, but Schenectady County District Attorney Robert Carney said police believe the entire complaint was a lie.
Smith surrendered Thursday afternoon and was charged with making a false written statement, a misdemeanor. It is the first time anyone has been charged over what they wrote on the internal police misconduct complaint form, and some advocates fear the arrest will scare off residents who have legitimate abuses to report.
The New York Civil Liberties Union said Smith’s arrest could have a “chilling effect” on other residents who want to report police misconduct. But a member of the Civilian Police Review Board said the arrest could instead get residents to stop lying on their complaints.
“I don’t think it has a chilling effect,” member Darlene Lee said. “I’m hoping it has the effect that they take it seriously. I hope it will be sobering.”
Her husband, Fred, who was on the review board for many years, said complaints are commonly fabricated.
“What we run into so often is they make up stories thinking they’ll get out of being arrested,” he said. “I don’t think they realize the expense ... A whole team of people go to work on [the complaint].”
Throughout this apparent stream of falsehoods, police have never charged someone with lying on a complaint. Bennett said the department acted in this case because officers could prove Smith lied.
“This one here, it isn’t a matter of opinion involved here, it’s a matter of fact, provable fact,” he said. “I would hope it would encourage people to simply be honest about their accusations.”
But Melanie Trimble, executive director of the New York Civil Liberties Union, said residents won’t report misconduct if they might be arrested.
“We fear it will have a chilling effect,” she said, adding that it’s better to “weed out” false complaints through investigation.
“That’s how it should happen,” she said.
Darlene Lee said police have often told the review board that complaints were “unsubstantiated” because witness statements, patrol car video and audio recordings from officers’ microphones prove the complaint false. The review board isn’t allowed to review that evidence, however.
Carney said the district attorney’s office will investigate the charge, as usual, before prosecution. He said his office has made no determination yet, but said he was aware police planned to charge Smith.
“It’s their charge,” he said. “It’s their position that the complaint is false.”
Proving it in court won’t be easy, he added.
“Perjury is not an easy case to prove,” he said. “People disagree about facts all the time. There’s a lot of reasons why people disagree about things. There’s lying, there’s memory loss, people observe things from different perspectives.”
He’s not sure how the case will affect others who want to complain about police.
“You don’t want to chill the ability of people to complain about police behavior,” he said. “You also don’t want to encourage them to lie about it.”
He said police told him Smith’s allegation was wholly false.
“They believe it was a waste of their resources. You don’t want them to waste resources on something that’s based on total falsehoods,” he said.
The complaint form has been used for decades for the public to report misconduct that might not otherwise be investigated by police. Internal affairs investigators look into each complaint, come to a conclusion, then submit the details of the investigation to the review board. The board reviews the matter and decides whether police should take another look at it or close the case.