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Discussions on how to police the police hit snag on proposed panel’s investigatory powers

  • Londonderry Republican Sen. Sharon Carson —Courtesy

  • Concord Police show off their equipment to residents at the National Night Out at Rollins Park on Tuesday, August 3, 2021. GEOFF FORESTER

  • Julian Jefferson says one night in 2010, a Concord police cruiser flashed its lights twice while Jefferson was walking home. He was not able to find out who it was or why. Monitor file

New Hampshire Bulletin
Published: 9/13/2021 4:38:39 PM

When Julian Jefferson finally called the police that night, it wasn’t to report a crime.

Late in the evening in winter 2010, Jefferson was walking home in Concord, making a familiar trip from the University of New Hampshire law school back to his house.

A police cruiser passed by, stopped, and flashed its floodlights. Jefferson, who is Black, froze. The cruiser lights flashed a second time. After a pause, the officer drove off.

Jefferson, then a third-year law student, picked up the phone once home to call the department. He wanted an explanation; he felt he had been targeted for his race.

The sergeant who picked up said a burglary had taken place that night. Jefferson had been stopped, even though he didn’t fit the description of the suspect. The phone call ended there, with no indication that any officer would be investigated for misconduct.

Ten years later, Jefferson, now a public defender and adjunct professor at the law school, says the story contains a lesson. Police departments don’t always investigate their own officers, and citizens don’t always trust that they will. The effect is that some citizens don’t feel they can report the misconduct at all, Jefferson argued Thursday to a panel of lawmakers, police officers, and judicial officials.

“I had enough courage in me to call the Concord Police Department myself, which I suspect a lot of people might not,” he said. “But then I’m stuck at that point. Because I don’t know if that sergeant ever had a conversation” with the officer.

This month, Jefferson is part of a group of policymakers seeking a new approach. Lawmakers and judicial advocates are meeting this fall to explore the creation of a state entity that could field complaints from citizens concerned about actions taken by their local police department, and carry out its own investigations.

But just two meetings into its formation, those on the commission have hit major disagreements over how – and whether – that watchdog should operate.

Some reform proponents are pressing the commission to follow the lead of the Commission on Law Enforcement Accountability, Community, and Transparency (LEACT), the group of stakeholders – from police to civil rights advocates – that met through 2020 to recommend ways to overhaul police laws. That commission, created by Gov. Chris Sununu in the wake of a string of police-involved killings of Black Americans, recommended the creation of a separate watchdog agency.

“Internal investigation is not sufficient for public trust,” Jefferson said. “We need to have other agencies.”

But others – including one key Republican lawmaker – are concerned about giving a statewide entity investigatory powers over local police departments.

“To me it kind of looks like double jeopardy: to be tried twice for the same thing,” said Sen. Sharon Carson, a Londonderry Republican and the chairwoman of the Senate Judiciary Committee. “And I don’t think we want to go into that.”

Instead, those skeptics say they’d favor the creation of an agency that oversees existing internal investigations, rather than creating new ones.

In its 153-page report, released October 2020, the LEACT commission recommended that lawmakers create “a single, neutral, and independent statewide entity to receive complaints alleging misconduct regarding all sworn and elected law enforcement officers.”

This February, a group of stakeholders, including the Attorney General’s Office, law enforcement, and the American Civil Liberties Union of New Hampshire, released a proposal on how to do so.

The proposal was to create the Office of Law Enforcement Conduct, which could take in grievances about individual police officers or departments, investigate the grievances, hold hearings, and issue a public report on their findings.

The office would be staffed by a committee of 21 members, half of whom would be law enforcement, nominated by a range of officials, including the Attorney General’s Office, the New Hampshire Supreme Court, the New Hampshire Public Defender, and others.

The committee would have subpoena power within its hearings, and be allowed to file complaints against officers with the Police Standards and Training Council.

But lawmakers did not pass the proposal into law this year, instead creating a commission to study it as part of the budget trailer bill. Now, members of that commission are at odds over how the watchdog should operate.

Supporters said the independent institution could restore trust in the police.

Joseph Lascaze, the “smart justice organizer” at the ACLU of New Hampshire and a member of the commission, referred to cases in which complainants have struggled to get access to files that would indicate that a police department is investigating their claims seriously. An independent entity with investigatory power would speed up the process, he said.

“This is not to shame New Hampshire law enforcement,” Lascaze said. “This is just solely to have transparency and accountability.”

Carson, however, has reservations. New Hampshire’s police departments already have their own internal policies to investigate complaints and instances of alleged malpractice, Carson noted. Creating a new state agency to do the same work could violate local control, she argued.

“Are we going to have this office step in and do the jobs of police chiefs?” she said. “Is that what people were looking for?”

“This office is going to do their own investigations,” she continued. “Are chiefs going to be allowed to follow their policies in their departments about doing investigations into complaints? Which one is going to trump the other?”

Eddie Edwards, the assistant commissioner of the New Hampshire Department of Safety and a former Salem police chief, agreed. The confusion created by a statewide entity that might produce a contrary conclusion would only diminish support for the police in the state, he warned.

“I think it’s going to have a reverse effect on the general public,” he said. “… You could have different outcomes across the state. That is going to erode public trust. It won’t accomplish the mission.”

But to Jefferson, a loss in trust is what could spur better policing.

“That’s kind of the whole point of creating this independent entity,” he said. “With the internal investigations, police are policing themselves. We’re making a value judgment that we need to have a separate entity.”

On Thursday, Attorney General John Formella – whose office has been at the center of many of the recommendations and efforts around the LEACT commission – remained neutral. But he noted that any hypothetical oversight entity would have to be carefully crafted.

“I think this is a tricky balance between maintaining local control but also recognizing complaints regarding officer misconduct,” Formella said.

The commission has until Nov. 1 to file a report indicating its recommendations. Lawmakers are set to reconvene on Sept. 16 to continue discussing the plan, and to talk about how to incorporate body camera footage into the proposed oversight board.

Until then, Formella gave the commission a telling assignment: “I would suggest that … everyone takes the time to think about whether the concepts in this draft could be accomplished in a different way.”

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care rep



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