Rochester’s headstart on police reforms

The Rochester Police Department firing gags onto protestors on September 5, 2020.
The Rochester Police Department firing gags onto protestors on September 5, 2020.
Preston Ehrler/SOPA Images/Shutterstock
The Rochester Police Department firing gags onto protestors on September 5, 2020.

Rochester’s headstart on police reforms

Before Daniel Prude’s death, Rochester overhauled its police oversight board to give it significantly more power.
September 10, 2020

Rochester is reeling from the release of body camera footage of the death of Daniel Prude, a Black man suffocated by police upon responding to a mental health call, as nightly protests continue and top brass at the police department announced their retirement amid allegations of a coverup. 

Now, protesters and Prude’s family are demanding police reform and greater accountability from the department that withheld details of Prude’s March death. While the spotlight on the upstate city may be new, its issues with alleged police brutality are not. However, it also has already begun the work of reform. 

After years of work by police reform advocates, the Rochester City Council unanimously passed legislation in May 2019 creating the Police Accountability Board, an independent civilian oversight organization that has the power to investigate allegations of police misconduct, hold its own hearings based on the evidence it has gathered. Crucially, it can issue binding disciplinary recommendations, which sets it apart from other civilian oversight boards, including New York City’s Civilian Complaint Review Board. The CCRB has investigatory powers, but it does not hold its own hearings and can only give non-binding recommendations to the police commissioner when it comes to discipline.

Following legislative approval, Rochester voters overwhelmingly approved the Police Accountability Board’s creation in a November referendum, officially establishing it in January of this year. “I hope that there will be greater attention paid to the Police Accountability Board here in Rochester because it is such a – it’s a marvel to have 75% to 77% of your population in the city come out to vote for this,” Shani Wilson, chair of the Rochester Police Accountability Board, told City & State. The board is not currently involved in the Prude case, though, because it hasn’t been entirely set up yet – it still lacks an executive director and the board members must approve its procedures and disciplinary matrix.

Although the report laying out the modern case for the Police Accountability Board came out in February of 2017, the fight for a transparent civilian police oversight agency “with teeth” in Rochester dates back decades, Ted Forsyth, report author and member of the Police Accountability Board Alliance – a coalition of nearly 100 community groups that signed onto the report and pushed for the board – told City & State. He said the “five pillars of accountability” – including subpoena power, discipline and the ability to review police patterns to prevent them in the future – that guided the formation of the Police Accountability Board were present in proposals that date back as far as the 1980s, but that lawmakers didn’t take action until recently.

Unlike in New York City, in an attempt to maintain complete independence, none of the nine board members are required to have any ties to police or a policing background. Four of the members are appointed by the Police Accountability Board Alliance four by the City Council and one by the mayor. This also differs from New York City’s Civilian Complaint Review Board, which has five board members chosen by the City Council, five by the mayor, three by the police commissioner with police background and none by community groups.

The Police Accountability Board faces institutional resistance from the police. The Rochester Police Locust Club, the city’s police union, sued to keep the referendum creating the board off the ballot. While a judge initially ruled in its favor, the city successfully appealed the decision and voters overwhelmingly approved its creation. But the Locust Club did not, suing again to get the new law overturned. After a preliminary injunction in January halting the board’s disciplinary power, the same judge ruled in May that the board’s ability to issue discipline and to hold hearings violated state law and the city charter. While the rest of the law would not be overturned, the judge said Rochester lawmakers must amend the law by removing the parts deemed illegal. 

The city has appealed, and City Council President Loretta Scott said in a statement at the time that the decision “negates the will of the citizens of Rochester” and that “this decision is not the final say.” Forsyth, who helped craft the legislation to create the Police Accountability Board said it was carefully worded in order to be in compliance with state law and said that Rochester will “absolutely” win its appeal. The board will continue to exist either way, but the question is now a matter of how much of its original power is still in place. 

Wilson said that the appeal has caused some public confusion about the status of the Police Accountability Board. “Because of the appeal, a lot of people – sadly – thought that we had been disbanded,” Wilson said. “There’s been a lot of misconceptions about the PAB.” 

Once the board is up and running, it will replace the current police oversight group, the Civilian Review Board, which was established in 1992. Forsyth argued that the existing agency lacks teeth, as it is incapable of conducting its own investigations or issuing discipline. Rather, all civilian complaints of police misconduct, even those made through the Civilian Review Board, are referred to the police department’s internal affairs department, which conducts the only investigation. The Civilian Review Board can only review the case after the fact and make recommendations if it disagreed with the findings, which the police chief rarely implements.

Forsyth said the Civilian Review Board’s structure effectively set it up for failure, making both discipline and police oversight a major issue for Rochester. According to his report, only 2% of civilian complaints of unnecessary force were “sustained” by the police chief between 2002 and 2015. In other words, police wrongdoing and potential for discipline was found in only 2% of use of force complaints over a 14-year period. That number increased slightly to 5% sustained by the Civilian Review Board upon review after the fact, but the chief alone doles out discipline. The report compared that to Syracuse’s Citizen Review Board, which the new Rochester Police Accountability Board is partially modeled on, which sustained 23% of excessive force complaints in 2015. “Rochester’s rate is closer to Chicago (2%), which is notorious for its lack of police transparency and accountability,” the 2017 report reads.

In addition, the report found that over the course of the 14 years of reviewed data, which included several police killings that led to public accusations of misconduct, the most severe discipline issued were six suspensions. This time period included the case of Lawrence Rogers, which has been compared to George Floyd’s death as video showed police kneeling on Rogers’ neck during the arrest before he died of asphyxiation. It also bears similarities to Prude’s death – it too started as a response to a mental health call. In the case of Richard Gregory Davis– who died as a result of being tasered by police in 2015 after a traffic stop – information from his autopsy ruling the death a homicide took 10 months to reach his family, once again reminiscent of the months-long delay in information about Prude’s death and the investigation into it. Though Prude died in March, details did not reach the public until his family released body camera footage in September obtained through a Freedom of Information Law request.

In New York City, activists have been pushing for an Elected Complaint Review Board to replace the CCRB. As the name implies, the public would elect members rather than have them appointed by elected officials and the police commissioner. It would also, like Rochester’s Police Accountability Board, have the power to order discipline after its investigations. Yet the same year that Rochester was approving an overhaul of its police oversight board, proponents of the Elected Complaint Review Board failed to get its proposal on the ballot as the 2019 New York City Charter Revision Commission considered potential changes to the city’s governing document. While voters did approve minor tweaks to the Civilian Complaint Review Board last year, it hardly compares to what Rochester managed, albeit with some ongoing legal hurdles.

Forsyth said that a pretty steady stream of alleged police brutality cases in Rochester has kept the issue at the front of people’s minds. He pointed in particular to press from the case of Christopher Pate, which played out in court around the time the Police Accountability Board legislation was approved and sent to voters. Pate in 2018 had been asked by officers to provide identification while walking in what turned out to be a case of mistaken identity, but the encounter ended with Pate tased, handcuffed and beaten. One of the officers involved was charged, and later found guilty, of assault in a trial that played out in mid-2019. “So that happened right as the PAB was gearing up for a referendum,” Forsyth said. “So it was really this interesting confluence where you had a very informed base of people.” 

Forsyth added that the Police Accountability Board Alliance, the coalition group, worked tirelessly during that time to get the legislation passed through constant community education and outreach to lawmakers. Wilson said that drive was key to effecting change. “Because people were just so tired of being over policed, that they decided to do something in this (Police Accountability Board Alliance,” Wilson said. “To have a local city, to have a city at all, to have 90 different organizations to just pass one thing forward and actually see that agenda happen is amazing.”

But formation of the Police Accountability Board is not the end all for police reform, even if those who pushed for its passage consider it a momentous step forward. On the same day Rochester’s police chief’s announced retirement, Prude’s family also filed a lawsuit against the city and a number of officers. Among other things, it demands the appointment of a federal monitor to oversee reforms to how the department disciplines officers. Federal monitors for police reform are certainly nothing new – one is still in place in New York City after a 2013 judge ruled that stop-and-frisk was illegal and required the New York City Police Department to phase out its use. 

Rochester Mayor Lovely Warren has said she is committed to police reforms, and had already been pushing for state legislation that would require officers to live in the communities that they serve prior to Prude’s death becoming public.

And criminal justice advocates are demanding broader reforms beyond police oversight as well. At a Wednesday evening town hall held by the anti-racist and police reform advocacy group Free the People Roc, activists spoke about ways to change the structure of police and shift resources to social services. Much of the conversation revolved around getting the appropriately trained people to respond to calls, like a mental health professional in the case of Prude. “If I want my car worked on, I don’t get my manicurist,” Melanie Funchess, director of community engagement for the Mental Health Association of Rochester, said during the virtual town hall. “Why is it that when we need someone to do mental health, we call a cop?”

Wilson, who also participated in that town hall, wouldn’t opine on whether Rochester’s formation of the Police Accountability Board and national attention means the city is more likely to implement more sweeping reforms in light of Prude’s death. But she said the board will play a crucial part as reform advocates continue to demand change. “Of course, these systems created to suppress Black and brown people will continue to do so,” Wilson said. “When we have outside pressure these systems, I believe, is when they start to change.”

Rebecca C. Lewis
is deputy state politics reporter at City & State.