Challenging Authority    

Martin Luther King Jr.

I think there's no better way to honor Martin Luther King than to think of his commitment to challenging authority, to changing the status quo. It's a legacy we can think of on King's official birthday. But it's also a stance one needs to take often to preserve individual liberties.

A number of issues have come up this year around police powers. In the legislature, the ACLU-VT is dealing with bills involving police oversight, police access to Vermonters' prescription drug records, and search warrants. We've also been involved in efforts to ensure bias-free policing. The issues are detailed below. 

To no other government official but a police officer is given the power to instantly take away an individual's liberties. It's why the way in which police carry out their duties is of singular importance to every citizen. It behooves us all to insist on police professionalism and accountability, and on respect for citizens' rights.

I recently participated in a discussion at FlynnSpace in Burlington on Daisy Lee Bates, a black activist who helped organize the effort to integrate Central High School in Little Rock, Ark., in 1957. Like King, Bates challenged authority. Challenging authority is usually unpopular, often uncomfortable, and never easy.

But not speaking up when there is an injustice done to others, or a corner of the Constitution is about to be trimmed, is not acceptable. Complacency simply emboldens efforts that encroach on personal freedoms, such as the recent provision on indefinite detention Congress approved in the National Defense Authorization Act.

Supreme Court Justice Robert Jackson once remarked that "There is no such thing as an achieved liberty; like electricity, there can be no substantial storage and it must be generated as it is enjoyed, or the lights go out." Dr. King and Ms. Bates would agree with that sentiment, I believe. 

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Between The Lines:
Hartford Police Screwed Up

Police in Hartford have once again been under scrutiny for alleged misconduct. The Attorney General's Office reported Friday on an investigation into two arrests where excessive force by town police was alleged. As it has done in past reviews, the AG's office found the allegations had no basis. But there's a twist.

The most recent review of Hartford officers' conduct covers two different arrests. One arrest resulted from an inebriated woman walking away from the cops when told to put her hands behind her back. The officer at the scene grabbed her by the shoulder. She fell and suffered head injuries that landed her in Dartmouth Hitchcock Hospital for two days.

The other arrest resulted from police entering a man's home without a warrant, dragging him outside, "kneeing" and pushing him onto the ground, striking him with a heavy flashlight four times, and then putting him in handcuffs. The man suffered cuts to his head during the arrest.

Despite the significant injuries, the AG's office said there was "insufficient evidence to prove beyond a reasonable doubt" that the officer in the first case "used an unreasonable level of force" when trying to take the woman into "protective custody." And the use of an "impact tool" in the second case "to deliver controlled strikes" to the man "were not unreasonable under the circumstances and were consistent with the Town of Hartford's Use of Force Manual," the attorney general's office said in a press release issued Friday afternoon.

And the illegal entry, in the second case, into the man's house?

"The remedy for an alleged illegal arrest is suppression of any evidence wrongfully obtained, or the filing of a lawsuit for civil damages," according to the AG's office. To someone dragged out of his house and thrown onto the ground, this analysis must have come across as less than apologetic.

These cases mark the third time in a little more than a year that the Attorney General's Office has looked at what have appeared to be abusive police practices in Hartford. In 2010, Hartford cops dragged a naked African-American man from the bathroom in his own home after they had pepper-sprayed, beat, and handcuffed him because he allegedly wouldn't put his hands down when instructed to do so. The AG's office investigated and said there was no excessive use of force in that case, either. 

But at least in the most recent cases the AG's office acknowledged there might be something peculiar going on in Hartford.

"Given the number of use of force complaints in approximately a year's time, the Attorney General has met with the Town of Hartford's Chief of Police, Town Manager, and Town Attorney," the AG's press release said. "At this meeting these Hartford Officials represented that the Town has already taken measures to ensure its police officers use an appropriate amount of force in the line of duty, and attempt to de-escalate potential violent encounters whenever possible. Specifically, it has made some personnel changes, provided supervisory level leadership training to four police department supervisors, confirmed that the entire police department has participated in a domestic violence training program, and plans to conduct a training on the need, absent exigent circumstances, to obtain either a consent or a search warrant in order to enter a residence."

Attorney General William Sorrell

Attorney General William Sorrell included a personal quotation in the press release. Saying it was "regrettable" that the woman and the man in the most recent cases "suffered injuries," Sorrell slapped the professionalism of the officers: "The State's law enforcement officers must have adequate training to de-escalate situations and to recognize when the law requires a search warrant," he said. "This type of training is crucial in enabling officers to exercise good judgment when responding both to emergencies and potential threats. It is important for the Town of Hartford to provide continuing training for its officers so they can properly serve their community."

That's as close as the attorney general has gotten to acknowledging what's become painfully obvious as numerous Vermont officers have misstepped in recent years: Bad cops do no good either to the profession or to the community they serve.

In the same week the Attorney General's Office released its report, a bill (S. 248) was introduced in the legislature to create a statewide police licensing system. It was introduced by Sen. Dick McCormack of Windsor County. McCormack has watched police activities in his county (the town of Hartford is in Windsor County) and become increasingly concerned about oversight.

Some officers within the profession are also beginning to see that their profession needs more oversight and consistent standards. They sense it might be time for police officers to be licensed, as are members of 45 other professions -- from plumbers to doctors, and teachers to beauticians. Currently, police officers take a training course at the Vermont Police Academy and are certified to be officers. But there is no ongoing supervision and relicensing as with other professions.

Vermont police are looking at the state Health Department's prescription drug database in a way they promised they never would -- as a law enforcement tool they should be able to snoop through at will.

Police want access to individuals' drug records, contained in the database, without a warrant. The Fourth Amendment -- the right to be free from unreasonable search and seizure -- is viewed as an inconvenience. Direct access will make our work easier, officers say.

The state's computerized drug database (for Schedule II through IV drugs) was created in 2006 after extensive discussion in the Legislature over what the data could be used for. The ACLU and other privacy advocates insisted police not have carte blanche access. Eventually, then-Public Safety Commissioner Kerry Sleeper -- himself a former drug investigator -- agreed with state Health Department officials that the database would be for health, not law enforcement, purposes.

Now, six years later, law enforcement is going back on the assurance it gave. Police have told the press the state is being overwhelmed by prescription drug abuse. We acknowledge that some Vermonters misuse prescription painkillers. But snipping a corner off the Constitution to make police investigations easier sacrifices all Vermonters' medical privacy in the name of punishing the few who exploit the trust of doctors and pharmacists.

This "data creep" raises issues the ACLU has seen in other areas where extensive databases of personal information are built. While such databases may offer benefits, they also pose significant privacy risks if the information starts to be used for purposes other than what was originally established.

The state is embarking on creating a comprehensive e-medical records system that will hold all of our personal health information. We're being told the information will be private and secure. If police get their way to browse the prescription drug database without any oversight, however, the assurance that e-medical records are safe may be worth little.

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Here's the problem. In the 2001 case, In re Sealed Documents (172 Vt. 152, 161-16, 2001), the Vermont Supreme Court said the public has a presumed right of access to court records, including warrants, and that court records may only be sealed where:

i. that presumption of access has been overcome by the "substantial threat . . . to the interests of effective law enforcement, or individual privacy and safety" posed by normal public access to the record;

ii. the substantial threat has been "demonstrated with specificity as to each document" to be sealed rather than by "general allegations of harm";

iii. that the sealing order extend "no further than necessary to protect the interests in confidentiality" provided by the substantial threat; and

iv. that any sealing order "examine each document individually, and make fact-specific findings with regard to why the presumption of access has been overcome."

The Supreme Court's decision in Sealed Documents properly recognizes that in a democracy, the business of the courts is the business of the public. The standard the court established appropriately places the burden on the party seeking to have the record sealed to demonstrate what harm will flow from disclosure -- "access absent harm," in other words.

We are concerned that the "good cause" standard articulated in S. 138 would make it easier to keep documents secret from the public. Ironically, this would have the effect of undoing the first part of S. 138. You could create a comprehensive warrant tracking system, but large numbers of warrants could end up being sealed. We don't think this broadens government transparency.

The public is entitled to know when police agencies are receiving judicial permission to breach Vermonters' privacy by searching their homes and property.  

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