After implementing reco’s, lawmakers consider controversial proposals

NEWS COLLABORATIVE

A long list of changes to the way New Hampshire police are recruited, trained, supervised and held accountable is about to move from the recommendation stage to implementation, with potentially farreaching consequences for law enforcement and the public at large.

The Commission on Law Enforcement Accountability, Community and Transparency has been quietly at work since June.

Although its meetings over the summer were public, they received little attention amid the noise of a national election, a public health crisis and a struggling economy.

That’s about to change with the new year, as legislation to implement the commission’s findings begins to work its way through the Statehouse and the reality of what is being proposed becomes more apparent to the many stakeholders.

Some of the more controversial proposals, all of which have been endorsed by Gov. Chris Sununu, include requiring body cameras on all police, creating a statelevel Misconduct Review Board to hear complaints of police misconduct and new guidelines on the use of force.

Sununu has asked the Attorney General to lead the effort to craft legislation in those areas where new laws will be necessary. Once a draft of that legislation is prepared, Sununu will ask the majority and minority leaders in both the House and Senate to sponsor and shepherd the legislation through, according to his spokesperson, Ben Vihstadt.

A quick reaction

New Hampshire lawmakers were among the first to react to calls for change after the brutal murder of George Floyd in Minneapolis, handcuffed and pinned to the ground with a police officer’s knee on his neck. Just two months after the tragedy of May 25 set in motion a national reckoning on race and law enforcement, a bipartisan bill on criminal justice reform was signed into law by Sununu.

The July 16 signing codified a prohibition on the use of chokeholds by law enforcement, banned private prisons in the state and required officers to cross the “thin blue line” to report misconduct by their peers or supervisors. Lawmakers appropriated $100,000 to provide local police departments with funding to improve the psychological screening for law enforcement candidates.

But that was just the beginning. One month earlier, on June 16, Sununu had issued an executive order creating the LEACT commission, with a broad mandate to examine virtually every area of policing including training, procedures and community relations.

Chaired by Deputy Attorney General Jane Young, the 14-member panel included representatives from law enforcement, the courts, state agencies, Black Lives Matter, the NAACP, the ACLU and other stakeholders. After 10 weeks of deliberations that included oral and written testimony and voluminous research, the commission issued its 48 recommendations.

Broad support from Sununu

Sununu expressed support for all of them, and in October issued an executive order on 20 recommendations that were within his power to implement immediately for state-run law enforcement agencies. Those included creation of a Public Integrity Unit in the Department of Justice, changes to the psychological screening and recruitment procedures for new police hires, and new guidelines on the use of force.

The order also calls for a review of the procedures for certifying part-time officers and increased training on bias, ethics, de-escalation and “respectful interactions with trans and gender nonconforming population.”

Some of the most significant recommendations will require legislation to be enacted.

Those include the Misconduct Review Board, the order on body cameras, compiling and releasing demographic data on all stops and arrests, and adding race to the state ID or driver’s license, with an opt-out option.

The recommendations also set the stage for release of the so-called “Laurie List,” the list of officers with credibility problems in court proceedings.

Sununu can order certain steps be taken within the state police and other law enforcement agencies under state control but cannot dictate local policy for the 200-plus municipal and county departments.

“Municipalities need to make their own decisions regarding some of these recommendations and how they move them forward,” said commission member Ken Norton, executive director of NAMI New Hampshire, the state chapter of the National Alliance on Mental Illness.

Ambitious deadlines

The governor set some aggressive deadlines for the areas within his control. The Attorney General had until Nov. 11 to establish a Public Integrity Unit, create a community outreach position, and order training on implicit bias and racial profiling. Standardized mandated training for school resource officers was also supposed to be in place by that date.

The commissioner of the Department of Safety had until Dec. 7 to submit a plan for implementation of body cameras, and a plan to recruit and retain diverse law enforcement officers. And by February, the state’s police academy must demonstrate that it has implemented all the new training requirements in the report. The deadline for all the provisions that can be implemented by executive order is July 1.

So far, agency heads have met those deadlines, are well on their way or have requested some extensions, based on updates posted monthly since Nov. 7 on the commission’s website.

The Department of Safety has issued a request for proposals on the purchase of body-worn cameras.

The Attorney General has established a dedicated Public Integrity Unit charged with investigating and prosecuting alleged crimes by government officials including law enforcement officials. The DOJ hosted an implicit bias training program in November, and is “reviewing several options for filling a community outreach position.”

What didn’t make the cut

Just as important as the recommendations to emerge from the commission are those that didn’t get off the table. The commission members agreed that no recommendation would be put forward without a unanimous vote, not counting abstentions.

So despite the urging of some members, the commission took no action on the question of qualified immunity, a judicial principle that protects law enforcement officers from civil prosecution. Also not making the cut were proposed restrictions on socalled “pretextual stops,” in which an officer pulls over a racially profiled motorist for an alleged minor traffic or equipment violation and ends up charging a more serious crime.

The ACLU urged the commission to have the Department of Justice review its process for investigating officer-involved shootings and develop a procedure to include members of the public in those investigations, but that got no traction.

“We tried very diligently to walk that line of working with, not against, the police and with, not against, the public … really trying to strike a balance between the needs of both sides,” said commission member Ahni Malachi, executive director of the state Commission on Human Rights.

The issue of pretextual stops and policies on use of force were not addressed individually but should be covered in the new training programs, she said, adding that the question of qualified immunity proved too complex for the commission’s timetable.

“We had a lot of work to do in a very short period of time, and we could have taken testimony for several weeks on qualified immunity … We did not have the time to give it the due diligence it deserves,” Malachi said.

There was also strong opposition voiced to any changes in qualified immunity by John Scippa, head of the state’s police academy, and others in law enforcement.

According to Scippa, “Without qualified immunity, officers will hesitate to make decisions on the enforcement of law and will not proactively attempt to identify and arrest criminals because they will fear that their good faith efforts will expose them to frivolous civil lawsuits.”

When it came to the matters that failed, the votes weren’t there.

Joseph Lascaze, a first-generation American whose parents moved here from Haiti, represented the ACLU on the commission. “There may be some issues we disagreed on,” he said, “but it’s clear that measurable progress is being made, and we’re happy to be a part of it. We’re also very encouraged that Governor Sununu is taking this seriously.”

Optimism about progress

Sununu is optimistic that the bills will become law. “These issues are incredibly important and should not be political,” he said in announcing his support. “I am confident these reforms, which received unanimous support from the commission, will be enacted with bipartisan support. And, as I have long said, cost will not be a barrier to implementation.”

As the proposals move from the commission into the Statehouse, the process is likely to become more adversarial.

Hanover Police Chief Charlie Dennis, head of the New Hampshire Chiefs of Police Association, says he has not heard of much opposition from rank-and-file officers to the commission’s report.

“There were several people representing law enforcement on that commission, and we were unanimous on all the recommendations,” he said. “I believe law enforcement will support the recommendations in the Legislature.”

Robin Malone, president of New Hampshire Association of Criminal Defense Lawyers, is not so sure. She recently told Center Square New Hampshire, a local news website, that “there has been pushback from police unions and law enforcement associations opposed to some of the reforms.”

“Policing generally is founded on, and perpetuates, a lot of racist policies,” she said. “It’s a system that has a lot of bias built into it and trying to work those out is going to take some deliberate effort on the part of everyone involved. The effort has to start with an acknowledgment that there is an issue with bias in policing. I think some people are not yet willing to do that.”

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