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Bar News - January 15, 2014

DEBATE: Should NH Create a Citizens Review Board?
Police-Involved Shootings
Need Citizen Review

By Mark Sisti and Jared Bedrick

Prince said, “When I woke up this morning, I could have sworn it was judgment day.”

It’s not just a flip line from the hyperbolic, apocalyptic dance hit, but an all-too-possible reaction to the recent tragedy near exit 9 on Interstate 93, where members of the State Police shot and killed a woman in a car they were trying to stop, and others. The visage of governmental collapse is no more embodied in any event than the pre-judgment (and altogether sans-process) death of a civilian at the hands of a government agent. And as other events in 2013 have shown us, the time has passed for the general population to dismiss concerns of high-level government secrecy as mere paranoia. This ever-emerging zeitgeist poses a serious threat to our profession as a whole, because a certain level of trust is required to keep the cogs of justice grinding.

To address this issue, other states and metropolitan areas have hearkened to the wisdom of Justice Brandeis’s famous saying: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” The manifestation of this comes in the form of a Citizen Review Board (or Civilian Review Board), a panel mostly or completely composed of ordinary citizens that review alleged governmental – namely police – misconduct. For example, in response to the police shooting of Daniel Mendoza in 1997, the City of Las Vegas created a panel of 25 ordinary citizens to hear and oversee complaints and investigations into police misconduct, imbued with the subpoena power and the ability to recommend sanctions.

But the aims of a Citizen Review Board must not be understood as a punishment tool for bad police. In establishing such a board, determining whether citizen participation actually increases the frequency of police punishment or ferrets out police misconduct is of little importance. Instead, it works best to combat the waning trust in our government. Indeed many, if not all, of our citizens – police, lawyers, and laypeople alike – cherish a “cleared” incident and hope that those involved in future incidents continue to be cleared of wrongdoing, but only when the announcement is trusted. To have the clearance announced by citizens provides at least some insulation from public scrutiny. By shining “sunlight,” we’re not necessarily aiming to “disinfect” police conduct, but only to prove to the citizenry that the press releases are fit for human consumption.

Defenders of the status quo would offer the suggestion that such citizen participation is unworkable because civilians do not have the training and experience necessary to determine whether the subject of the investigation made the right call. Other states address this by mandating a particular composition for citizens review boards. For example, the New Haven, Conn., board ensures that law enforcement has representation by allowing the police commissioner to select one of the members. Other interested departments can be afforded the same opportunity. These delegates balance the voices on the board and educate the laypeople in what training and experience they might lack; mirroring similar hybrid panels that oversee the conduct of lawyers and judges in New Hampshire. How can we say that the police should not be subject to the same scrutiny as the bench and bar? Or have we simply grown accustomed to a vestigial double-standard that we now try to retrospectively justify?

Furthermore, a citizen review board would likely be instituted in addition to current systems, replacing nothing. The attorney general would retain the authority to determine the appropriate response, like withholding presentment to a grand jury. The board would seek only to have citizens involved in the process, so that the attorney general’s decision could be compared to the findings of the population’s representatives. In this way, the board is less a decision-maker and more a barometer – allaying fears that an officer would be wrongfully terminated for following protocol and deflecting scrutiny to those accountable to the ballot box.

So, what do we have to lose? Many boards are volunteer-based, which alleviates monetary concerns. Confidentiality can be secured by binding the members of the board to a certain level of secrecy during the pendency of an investigation. With the infrequency of police-involved shootings, the board is not likely to consume a great many governmental resources.

There is nothing to lose. We can only gain from allowing our citizens to see the men and women behind the curtain. After all, the people deserve to peer inside the mechanism that determines whether one of our fallen citizens died lawfully. We must not be afraid to create a population more informed of, and involved with, our government’s processes. There is no greater means of nourishing our democracy and ensuring its longevity.

Mark Sisti is a longstanding member of the New Hampshire criminal defense bar. Before going into private practice in 1988, he worked for the newly-established NH Public Defender, later serving as its deputy director. Jared Bedrick is an associate at Sisti Law Offices, which handles criminal matters exclusively.

State Review of Police Shootings Is Adequate

By Kirsten Wilson

The Roman poet Juvenal was first quoted in The Sixteen Satires as questioning “who will watch the watchmen?” Seeking to answer this question in modern society, several communities have set up a system in which review boards are comprised of everyday citizens to investigate the reasonableness of police actions in certain circumstances.

Police are entrusted by all of us to maintain order and protect us, and not to abuse their authority. It is imperative that when an officer uses force, that it be seen as reasonable and proportionate, to maintain the trust we must have in our public officials. Without that assurance, they lose legitimacy in the eyes of the public, and a negative cycle of “us vs. them” begins. But is a citizen review board the solution, or does it embody what we are trying to avoid – that idea that we are somehow in opposition to the police?

In theory, citizen review boards are a solid idea based on the premise that the police are employed by taxpayers and should be accountable to them for their actions. In reality, however, the types of cases that will be subject to review – officer-involved shootings and other emotionally charged situations – are the ones that laypeople have the most difficult time understanding. Police protocol are grounded in the somewhat unnatural ability to remove emotion from a situation. Police officers are trained to gauge probabilities and use protocol to guide their actions in intense emotional scenarios. Their training is based on statistical analysis of many incidents. This is why citizens aren’t just thrown into blue uniforms and given guns to patrol the streets. The reality is that the often split-second decisions required when officers are faced with the imminent use of deadly force against them or others are precisely the kinds of situations that citizens can’t comprehend. In reviewing these situations, laypeople without experience may make judgments based on emotions instead of comprehending protocol that have been formulated based on analysis of hundreds of other cases and years of training.

Deadly-force situations are seemingly on the rise, with school shootings, terrorist threats, and random violent acts on the news weekly. Police routinely deal with a segment of our society that is inherently unstable, often people who are drug-addicted, drug-addled, in withdrawals, have untreated severe mental health issues, or who have some combination of these problems.

In October of this year, Washington, DC, was on lockdown as a black sedan attempted to ram through barriers at the White House, struck and injured one Secret Service agent, and then evaded numerous law enforcement officers that were pursuing it and ordering the driver to stop. The sedan careened towards the US Capitol and the driver continued to ignore orders to stop and exit the car. The Secret Service and Capitol Police have been trained, as we would want them to be, to respond to the most serious threats. When all was said and done, Miriam Carey, a 34-year-old dental hygienist from Connecticut was dead behind the wheel, with her 18-month-old daughter unharmed in the backseat.

While this case remains under investigation, what is clear is that Carey was behaving erratically, with disregard for the safety of others and herself. What is also clear is she was unarmed. In hindsight, is it easy to portray Carey as a young single mom that posed no risk? Of course it is. In the moment of the threat, though, it was a sedan with a driver that showed udder disregard for government buildings, law enforcement personnel safety and orders at some of our most venerable government buildings. Was it reasonable for the police and Secret Service to assume an imminent threat? Absolutely. But the emotional imagery of a small child being pulled out of a car riddled with government bullets is a powerful one.

The reality is that often citizen review boards are a feel-good creation thrown together after tragic events to lessen the tension between law enforcement and disenfranchised segments of the community. While there are certainly some people simply interested in board membership as a way to fulfill a sense of civic duty, there is no denying that this type of position would be attractive to many conspiracy theorists or someone with ill will toward the police. Some may see these boards as a chance to prove themself “right” and punish officers, seeing only the embodiment of preconceived notions through the lens of hindsight. In such a situation, the citizens review board becomes at best, ineffective, and at worst, dangerous.

Someone should absolutely police the police. Currently in New Hampshire, the Attorney General’s Office oversees investigations of officer-involved shootings. The assistant attorney generals that oversee the investigations are familiar with and aware of protocol in deadly situations, but they are not personally tied to or invested in the police departments or officers under investigation. It is a qualified group of professionals that has experience with policy as well as victims’ rights. When coupled with Right-to-Know laws at the conclusion of these investigations, the current process strikes the right balance of professionalism and public transparency that is required to respect all parties involved in such somber and sensitive situations.

A former senior assistant attorney general at the NH Attorney General’s Office, Kirsten Wilson is an assistant county attorney in the Rockingham County Attorney’s Office. She also acts as a criminal justice news analyst on Fox News.

RELATED Morning Mail: Bar Members Uniquely Equipped to Discuss Police Shooting Review

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