Bills aimed at police misconduct, including use of excessive force, advance in Albany

ALBANY — Bills advancing in the State Legislature would require police officers to intervene when a fellow officer is using excessive force and would prohibit officers who are fired from getting hired at other police departments in New York State.

The proposals are among many under consideration in the Democrat-controlled legislature following a year of protests and demonstrations led by the Black Lives Matter movement and cases nationwide in which Black men died in police interactions.

Patrick Phelan, executive director of the New York State Association of Chiefs of Police, said he’s never seen a year with so many bills focused on police conduct.

"Are police a target? Yes," Phelan said in an interview with Newsday.

"It’s political grandstanding," Phelan said. "The flavor of the day is anti-law enforcement legislation."

Phelan said the legislative focus instead should be on rising crime rates in New York City and in some upstate cities.

The bill that would require officers to try to stop other officers from using excessive force would require that an officer to "safely intervene to prevent the use of such excessive force and report to the supervisor."

The proposal, sponsored by State Sen. James Sanders Jr. (D-Queens) and Assemb. Nick Perry (D-Brooklyn), was sparked in part by the death of George Floyd nearly a year ago in Minneapolis police custody.

Former Minneapolis Police Officer Derek Chauvin was convicted of murder last month, after video evidence showed him pinning Floyd to the pavement with his knee on Floyd’s neck for more than eight minutes.

On Friday, two former officers at the Floyd arrest, Tou Thao and J. Alexander Kueng, faced a federal charge of failing to intervene to stop Chauvin’s use of unreasonable force. The New York bill would in effect duplicate the federal crime of failing to intervene so that law enforcement at the local and state level could level the charge as a violation of state and U.S. constitutions. The trio also faces charges of aiding and abetting. Another former officer, Thomas Lane, and the other three defendants are charged federally with failing to give medical help to Floyd.

"I believe most officers would not do what Chauvin did," Sanders said in an interview. "But there are too many of them that wouldn’t do anything."

Sanders said lawmakers weren't grandstanding.

"I didn’t create the atrocities that we’re seeing," Sanders said. "I am responding to the atrocities … I’m more interested in people standing on people’s necks than grandstanding."

Sanders' and Perry's bill was advanced to the powerful Assembly Codes Committee last week and is in the Senate Finance Committee. Each committee could move the bills to floor votes in the Senate and Assembly.

"Officers are required to stop any wrongdoing by another officer and to report it immediately to a supervisor, or they will be held accountable, so I don’t see a reason for the law, but I understand it," said Nassau County Police Commissioner Patrick Ryder.

A spokesman for the Suffolk County Police Department said the agency doesn’t comment on pending legislation.

Other measures dealing with police conduct have majority Democratic sponsors, and are moving through committees in the last weeks of the session in which some of the state's biggest policy issues are passed. The legislative session is scheduled to end June 10.

Sanders' and Perry's bill is unusual in that it carries no penalty.

Perry said his strategy is to pass the bill by avoiding a fight over penalties, then seek to add penalties in follow-up legislation. Sanders said he still intends to add penalties to the bill.

The sponsors said their measure would codify a directive already contained in police manuals statewide.

By codifying the imperative to intervene, the legislation would bolster the policy within police agencies and make it harder to ignore, sponsors said.

"There is flagrant, daily violation," Perry said.

Sanders said the bill also aims to help cops who want to intervene to stop the use of excessive force, but need the support to challenge the culture of police protecting their own.

"That blue wall of silence, that culture of not confronting one another, has been so strong and we haven’t given the good officers a hand here," Sanders said.

Phelan said there’s no need for the legislation because police already follow departmental policies on use of force and intervening when necessary.

"People are speaking out of ignorance," Phelan said. "I don’t think it’s being ignored at all."

A study last year by researchers at California State Polytechnic University, the University of California-Santa Cruz and Washington University in St. Louis examined "duty to intervene" language in police policies.

Among the issues considered were the difficulties officers face in determining when or whether to intervene because of complex definitions of excessive force.

"These types of state laws, by themselves, are unlikely to change officer behavior," said Peter Hanink, assistant professor of sociology and criminology at California State Polytechnic University, Pomona, a co-author of the study.

"It’s unreasonable to expect officers to decide what sort of force counts as ‘reasonable’ and what doesn’t," Hanink said in an interview.

"As it stands, when it comes to questions of whether force was ‘excessive,’ juries rarely second guess officers' decisions," Hanink said.

"So when juries are tasked with determining, months after the events occurred, whether ‘present’ and ‘observing’ officers who failed to intervene, not only should have known that the force used was ‘clearly excessive,’ but also were ‘in a position to’ intervene and whether such intervention would be ‘safe’ or not, [juries] are even less likely to second guess the other officers," Hanink said.

Another bill, sponsored by State Sen. Kevin Parker (D-Brooklyn), a retired New York City police officer, would subject police officers to civil penalties if they fail to intervene in excessive force incidents.

The bill, proposed last year, would diminish legal immunity for police, and calls for unspecified monetary damages in civil court when a police officer violates a person’s civil rights under the state and U.S. constitutions.

A third bill proposed by Assemb. Patricia Fahy (D-Albany) and State Sen. Robert Jackson (D-Manhattan) would create a "Good Samaritan" law to protect police officers who report police misconduct, including use of excessive force.

The measure would provide the reporting officers with "immunity from any liability, civil or criminal." It also would prohibit "any retaliatory personnel action" against an officer who reports or acts to stop misconduct.

The bill cites the case of Buffalo Police Officer Cariol Horne, who was fired after attempting to stop a fellow officer’s chokehold on a suspect during a 2006 arrest.

Last month, Horne won a lawsuit in which she sought to collect her pension, benefits and back pay.

Another bill with powerful sponsors would prohibit the hiring of anyone who was fired as a police officer, faced disciplinary action that could result in firing or who resigned with criminal charges pending.

"I've seen firsthand the good and bad realities of our state's policing practices," co-sponsor Assemb. Phil Ramos (D-Brentwood), a former Suffolk County police officer, said in a statement.

"This legislation will keep New Yorkers safe by keeping abusive officers off our streets and setting a national precedent for reform," Ramos said.

The bill cites a 2020 Yale Law Journal study of "wandering" officers. Rehiring of fired officers could pose a serious risk given how difficult it can be to fire a unionized police officer, the study said.

The study also found once-fired officers were more prone to receiving "moral character violations" of any of an array of police procedures or agency policies in their new jobs.

Phelan said police also want to keep bad cops off the streets, but Ramos' bill is too simplistic.

Police officers sometimes choose to resign rather than fight for months or years against charges that might not be proven or might not result in termination, Phelan noted.

Ramos' measure could unfairly end the careers of highly trained, good cops, Phelan said.

"It’s politically expedient to make law and propose legislation that is anti-police and that’s not the best path forward," Phelan said.

"But it follows the narrative and that’s why politicians do it," he said.

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.