Jun 11

2020

Buffalo’s police watchdogs are toothless

Our analysis finds the city has no effective oversight of police, nor has the mayor proposed a mechanism for doing so

The City of Buffalo has three separate police oversight boards, but they’ve done little, if anything, to bring bad cops to heel.

One can’t. It’s an advisory panel with no power beyond its voice.

One won’t. It’s a subcommittee of the Common Council that seldom meets and does not investigate police misconduct.

And the third, a commission mandated by the city’s charter and controlled by Mayor Byron Brown, is hopelessly compromised.

Of the three, the Police Advisory Board has the least power. But it has advanced far more substantial ideas about how to change policing in Buffalo than the tepid package of reforms unveiled by the mayor Wednesday.

In fact, the mayor’s press event, which folded in activist groups, ministers, singing police, NFL players, and elected officials, all but obscured the Advisory Board’s proposals, released earlier in the day.

First on the Advisory Board’s agenda — and absent entirely from the mayor’s — is an overhaul of what the board calls the city’s “piecemeal amalgamation of unconnected” police oversight bodies.

Right now, if a citizen wishes to register an allegation of police misconduct, there are just two places to take it. The first is the police department’s Internal Affairs unit, which exonerates officers 94 percent of the time, according to a 2017 analysis by Investigative Post.

The second in the Commission on Citizens Rights and Community Relations, a practically moribund body whose legal and political conflicts of interest render it practically useless as an investigator of the police.

“The moment that we’re living in now is really the result of folks not getting what they need to have that essential public trust in policing, and that is transparency and accountability,” De’Jon Hall, a member of the Advisory Board, told Investigative Post earlier this week.

The key to accountability, according to Hall, is robust citizen oversight.

“We’re proposing something entirely different, entirely new, and completely independent of political affiliation,” he said.

The oversight we’ve got

According to the Center for Public Integrity, 140 police oversight bodies operate across the country. A handful can exercise real power over police policy and discipline; most cannot. Few, if any, are inoculated against the politics and union pressures that influence the elected officials who empanel them.

Newark’s citizen review board is one of the nation’s strongest: It can subpoena documents and witnesses, monitor police adherence to policy, and dole out discipline when it sees fit. Critical to its independence, seven of 11 members are named by community groups and civil rights organizations; only four are named by elected officials.

Many cities have multiple police oversight bodies, but more isn’t better.

Take Minneapolis, for example. Like Buffalo, it has three police oversight bodies.

The Minneapolis police killing of George Floyd has sparked three weeks of street protests against police brutality across the country, including here in Buffalo. In response, Minneapolis’s city council has voted to reconsider its entire approach to policing — to dissolve its police department and start from scratch.

The recommendations of the Advisory Board in Buffalo do not go that far. But their proposed changes to the citizen oversight of police could remake the law enforcement landscape, if adopted.

Watch our ground-breaking report on police accountability from 2017

The Advisory Board itself can’t exercise meaningful oversight, according Jonathan Manes, a former UB Law School professor who served as its co-chair until last December, because it is not invested with the power or the budget to do so.

“It has zero power, except that they are invited to speak at every Common Council Police Oversight Committee meeting,” Manes said.

The Advisory Board, formed in 2018 to advise the Council’s Police Oversight Committee, includes attorneys, academics and community activists. It holds regular community forums to discuss policing issues with residents. It submits policy papers to the Common Council through the Police Oversight Committee. But it has no investigatory power, no disciplinary power, no legislative power.

“All it has is a voice, really, and the power to schedule meetings at libraries,” Manes said. “Nobody has to listen, nobody has to talk to them. The only reason that the police department sits down with them is because it might look bad if they didn’t.”

The department’s cooperation with the Advisory Board generally extends no further than sending officers to the board’s community forums.

For example, while Manes was co-chair, the Advisory Board requested a copy of the police department’s policy manual — the document that describes how police are supposed to perform their jobs. The BPD refused. The department would agree only to provide the board with the manual’s table of contents.

The department advised the board it could request specific sections of the manual, and it would then determine if it would release those sections.

Little help from Council

The Common Council’s Police Oversight Committee, to which the Advisory Board reports, has significantly more power. The committee can write and submit legislation. It can compel testimony and subpoena police records unavailable to the public.

But the Police Oversight Committee doesn’t use those powers. When it was revived in 2014 after several years of dormancy, Council members said the committee would not investigate allegations of police brutality.

The committee meets twice a year. Its agendas rarely include matters of police policy or misconduct. The committee’s January meeting focused mainly on addressing the poor condition of the police department’s fleet of vehicles, a subject on which Investigative Post has reported extensively.

The committee’s previous meeting, in June 2019 — its only meeting that calendar year — had a more substantial agenda, including the rules governing police body cameras, the status of contract negotiations between the city and the police union, and police oversight issues. No substantial Council activity resulted.

“We should be holding more meetings,” Niagara District Council Member David Rivera, who chairs the Police Oversight Committee, said during Tuesday’s Council meeting.

Follow Investigative Post on Facebook and Twitter

Rivera said in the past he has sometimes been rebuffed by police officials when he invited them to meetings. In light of the protests roiling Buffalo, Rivera said the mayor’s office and the police department had agreed to double the number of meetings to four a year.

Regular standing committees of the Common Council meet every other week.

Rivera was responding to a request from South District Council Member Chris Scanlon for an emergency meeting of the committee. Rivera, a retired police detective, said he would call an emergency meeting “in the next couple weeks.”

The Council is not well equipped to provide focused police oversight anyway, Manes argued, because its members deal with so wide a range of city issues.

“It’s an important forum to have, but not a place for detailed, meaningful oversight,” Manes said.

The conflicted commission

Buffalo’s third police oversight body — the Commission on Citizens’ Rights and Community Relations, founded in 2001 — also has too broad and conflicting a portfolio, Manes said.

But that’s the least of its problems.

The commission has not produced an annual report, as mandated by the City Charter, since 2009.

The commission has at times lacked a quorum of board members and an executive director, all of whom are appointed by the mayor. It didn’t meet at all in 2018, according to its website, and it hasn’t scheduled a meeting yet this year, either.

Its last two agendas — from June and December 2019, the only meetings it held that year — are brief and insubstantial.

The commission has a paid staff — the executive director will make $93,551 this year, his assistant $48,702 — but it’s unclear what they do.

Even if commission were an active, engaged entity, Manes said, it would be hopelessly conflicted. And not simply because its paid staff and volunteer board members are appointed by the mayor, who also appoints the leadership of the police department.

The commission’s legal representation comes from the city’s Corporation Counsel office, which also represents the police department and the mayor, as well as city government broadly, which is legally liable for police misbehavior.

That would pose a huge problem in the event the commission decided to investigate police misconduct, according to both Manes and De’Jon Hall, the current Advisory Board member.

“Maybe they could get outside counsel,” Manes said. “But they don’t have a budget for that.”

Value our reporting? Donate to our nonprofit newsroom

Furthermore, the commission’s portfolio extends beyond police oversight. The “citizen’s rights” part of its job extends to complaints related about all city departments, not just the police. The “community relations” aspect, Manes said, entails “trying to make sure the public feels good about the city and the police department.”

Manes said the commission’s current executive director, Jason Whitaker, seems focused on the “community relations” part of the job.

Whitaker did not respond to two emails this week requesting an interview about the commission’s activities. A February phone call to the commission — regarding a civil lawsuit in which the city paid out $4.5 million to a man shot by Buffalo police in 2012 — was never returned.

The mayor’s press secretary, Mike DeGeorge, did not respond to a request for comment.

Oversight “with teeth”

So what sort of oversight body does Buffalo need?

There are several functional models, said Manes, who then described two critical functions that can be performed by separate entities or be rolled into one body.

The first is the work of an independent citizens review board, controlled by neither the mayor nor the Council. The board should have investigatory powers, the budget to engage its own lawyers, and, Manes said, “ideally a formal role in determining whether a person should be disciplined, so that disciplinary hearings are not just left to the police.”

Subscribe to our free weekly newsletters

Such a panel would review all decisions made by the police department’s Internal Affairs unit.

The second is the work of an independent inspector general, such as exists in Chicago, where Manes now lives. An inspector general does not so much react to complaints and incidents as review police policies and their implementation. An inspector general, too, must have the power to subpoena documents and compel testimony.

“A version of the Police Advisory Board, but with teeth,” Manes said.

What Buffalo’s Advisory Board has proposed rolls those two functions into one body.

It recommended the creation of a new police oversight body that, among other things, would be empowered to:

Review police policies and practices and recommend changes, which the Council would be compelled to approve or disapprove within a set timeframe.
Approve or reject the department’s own proposed changes in policy or practice.
Compel sworn testimony and subpoena documents in the course of investigations.
Review the mayor’s proposed police budget each year.
Play a role in the hiring of the city’s police commissioner.

The Advisory Board also proposed changes to the police department’s use of force policy, to bring it into line with the recommendations of national law enforcement experts.

The Advisory Board also recommended the city ramp up law enforcement assisted diversion, or LEAD, programs. These aim to prevent arrests for low-level offenses — and especially offenses that arise from substance abuse, mental health or poverty issues — in order to keep people out of the criminal justice system, diverting them instead to programs that can get them help.

But the Advisory Board led with changing the oversight structure. There’s good reason for that, according to Manes.

The creation of a truly independent, empowered, and sustainable citizens review process, Manes said, is perhaps the most important policing reform activists can pursue. The “Defund Police” movement is important, he said, if it means taking the burden off armed, uniformed police to respond to calls that would be better handled by social services and mental health professionals.

“Police officers will tell you that would be a good thing,” Manes said.

But diverting resources from police to other services is not enough.

“If it’s just about a smaller police force, but there’s no change in oversight policies or the culture of the police, then it’s not going to solve the problems that people in the streets are marching about,” he said.

Buffalo’s police watchdogs are toothless

The oversight we’ve got

Little help from Council

The conflicted commission

Oversight “with teeth”

Read more of our reporting on police misconduct

Geoff Kelly

Related stories