My Votes on the Police Resolutions
My rationale for my votes on the police resolutions.
It’s summertime, but I haven’t taken a vacation from doing my homework, meeting with constituents, and showing up ready to listen, engage, and serve you at every City Council meeting. On June 19, 2018, City Council unanimously passed three resolutions regarding the Asheville Police Department (APD) search matters. One resolution involved obtaining written consent for certain searches, one involved de-prioritizing regulatory vehicle stops (highlighting what is already an APD practice), and one involved not using apparent nervousness or prior criminal record as the sole reason for a search. The following are the remarks I made that evening which explain my vote and interpretation of the resolutions along with a couple of notes in italics for context. As always, I welcome your feedback.
Since our last meeting on May 22nd, in an attempt to better understand these issues and to try reach a consensus on these resolutions, I’ve independently reviewed some of the data presented, I’ve met with the local NAACP and Mr. Mance, and I’ve met with the leaders of the Police Benevolent Association (PBA) and the Fraternal Order of Police (FOP).
Having been able to talk to them around the table, I learned that there's a lot of shared values among the four organizations that I spoke with. The Asheville leaders of the PBA and the FOP expressed to me that they recognize the lack of trust in law enforcement by some, locally and nationally. I learned that neither the PBA nor the FOP have blanket opposition to a written consent policy. In fact, they see the value in some form of written consent policy and also in the other two policies that we are considering. They agreed with recommendation 2.10 in the 21st Century Policing report cited by Mr. Mance that states, and I quote, “Law enforcement officers should be required to seek consent before a search and explain that a person has the right to refuse consent when there is no warrant or probable cause. Furthermore, officers should ideally obtain written acknowledgement that they have sought consent to a search in these circumstances.” (emphasis mine). To be clear, I've just outlined ways in which the four groups who have most vocally put themselves forward in this matter are, in fact, aligned and in agreement.
The one possible area of disagreement comes from the perspective of law enforcement officers who are doing the daily work of public safety. That point is that not allowing verbal consent to suffice in some situations, such as for the public’s and the officer’s safety, could seriously jeopardize the safety of people who are counting on the police for assistance. No city with written consent policies that we’ve been provided, not even Durham, prohibits verbal consent to suffice in some situations. [Note: Durham’s written consent policy does not apply to personal property within a person’s immediate possession or control. Chapel Hill’s policy does not apply to the person (just vehicle and home) and states that if obtaining written consent “isn’t feasible, officers should clearly document the circumstances under which consent was granted in an incident report and indicate same on the consent form.”]
I'll share with you the following example of a possible domestic violence situation: A person calls the police saying they hear their neighbors, a husband and a wife, loudly arguing. An officer is dispatched and arrives at the scene. The officer hears the arguing and knocks on the door. The husband opens the door and the officer sees the husband and the wife, who does not appear to have any bruises on her. At that point, the officer doesn’t have probable cause and there are no exigent circumstances, so the officer would need consent to enter the home and search the parties. Why would the officer want to enter the home? Because the officer wants to make sure everyone is ok, and the officer may feel it is necessary to search the individuals to see if they have any weapons that could be used to harm others or themselves. Under current policy, the officer can verbally ask “can I come in to see if everyone is ok” or “can I just pat you down to make sure there isn’t anything on you that might hurt me or you?” If they say yes, that’s consent. This allows the officer get in quickly and make sure that everyone is ok, to deescalate the situation, and to prevent potentially serious bodily harm.
Now imagine that same scenario under a mandated written consent policy without any exceptions. The officer shows up, knocks on the door, the husband answers, the wife says “please come in,” but in order to follow the mandate, the officer must have both the husband and wife sign a piece of paper allowing the officer to enter or to pat down the parties to see if there were weapons. If the husband had hit his wife, do you think he’d sign a piece of paper letting an officer come in? I doubt it. In those cases, wouldn’t verbal consent recorded by a body camera be enough? What if there were children in the house? In a situation like this, do we really want the officer’s hands to be occupied with paper rather than being free in case they need them?
This isn’t some far-fetched example – it’s what police officers deal with on a day to day basis. This is just one example. Under a written consent policy with no exceptions for accepting verbal consent, we unnecessarily put the safety of the public, police officers and other first responders in danger. And furthermore, we can track the data with body cameras so that we know exactly which officers used verbal consent under exactly what situations. The Department already has supervisors reviewing body camera footage for every vehicle consent search.
[Note: During the Council discussion, Council Member Young referenced my possible domestic violence situation and, in his words, “call[ed] B.S.” claiming that the Supreme Court case of Georgia vs. Randolph referenced a “community caretaker” exception that would have allowed the officer to enter the home without consent. Respectfully, Georgia vs. Randolph did nothing of the sort. In fact, the holding in that case was that absent a search warrant, police could not search a house where one resident provides consent and the other does not – exactly the situation that I described. While North Carolina does have a “community caretaker” exception, courts review situations on a case-by-case basis and in the 2017 case of State vs. Huddy (unanimous opinion), the N.C. Court of Appeals noted that the community caretaker exception has never been extended to a residential search in North Carolina.]
As a policy matter, I prefer that our officers obtain written consent, but I know that in real life there will be situations where it is impractical or unnecessarily risky to do so. With respect to the written consent resolution before us tonight, I am voting in favor of it as it leaves the discretion of developing a written consent policy to the Chief of Police, which is what our charter and ordinances require. Furthermore, this resolution allows the Chief to consider circumstances where she, as a nationally recognized law enforcement expert, believes not allowing verbal consent to suffice would put the public or officers at unnecessary risk. A written consent policy allowing for reasonable exceptions that will be tracked and reviewed, will implement the 21st Century Policing report’s recommendations, builds trust with the community, and will protect our first responders and the public.