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PBA: “Civil Liberties Resolution” Could spell trouble for Asheville

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Letter to Asheville City Council

Council apparently ignored Police warning; Passed measure anyway

By Roger McCredie-The North Carolina Police Benevolent Association warned Asheville City Council of possible administrative complications and even legal consequences if it adopted its “Civil Liberties Resolution” without further study, but council apparently snubbed the PBA and passed the measure anyway.

John Midgette, Executive Director of the state PBA, said in a letter addressed to council that the PBA has “compelling information and evidence that no North Carolina municipality has the legal authority to establish policy or law that supersedes the state and federal authority of local law enforcement officers.” Midgette cited a recent lawsuit against the City of Fayetteville, in which a state superior court struck down a similar resolution because it would have deprived local police of the ability to enforce federal and state powers implicitly granted to them. His letter asked council members to defer any action on the resolution until PBA representatives could meet with them, explore possible problems and develop “alternatives that would address your objectives without jeopardizing the safety and lawful duties of our members.”

Midgette told the Tribune the letter was sent to all members of city council by e-mail on October 21, the day before the council meeting at which the resolution was to be heard. A review of the taped council meeting shows no mention of Midgette’s letter. The resolution, authored by councilman Cecil Bothwell, passed unanimously, with no discussion at all.

According to Bothwell’s website, the resolution “calls for protecting civil liberties and strengthening community-police relations by adopting a policy that prohibits discrimination and profiling based on race, immigration status, sexual orientation, mental or physical disability, ethnic origin, gender, religious or political affiliation, and homed or homeless status.” Bothwell said earlier last month that he had been crafting the measure since he was first elected to city council in 2009. (He did not mention how it came to be finalized and presented two weeks before the November 5th municipal elections, in which he was running for a second term.)

Introducing his resolution at the October 22 meeting, Bothwell told his fellow council members he had been increasingly concerned about the erosion of personal freedoms and the “encroachment on civil liberties” that stemmed from over-zealous enforcement of the Patriot Act after 9/11. Among these, he said, have been increased profiling and targeting of minorities, resulting, for instance, in “preferential traffic stops” resulting in numerous citations for “driving while black” or “driving while brown.” He said such policies are also part of a larger anti-immigration stance at the national and state levels, and that they have seeped into local law enforcement policy where they are subject to even greater misapplication and prejudicial interpretation by local officers.

In fact the immigration protection aspect of the resolution that has attracted the most attention and the greatest controversy. Bothwell told council the National Association of Police Chiefs is on record as saying that organization “does not want to be saddled with” enforcing federal immigration laws because local police want to “engender trust” among immigrant populations and local enforcement of those laws results in mistrust and fear. “This means crimes in immigrant populations go unreported,” Bothwell said.

Asheville’s WLOS-TV said adoption of the resolution brings Asheville “a step closer to becoming a ‘sanctuary city’ – a city where local police do not enforce federal immigration laws.” Bothwell has said that he hopes the city will take the resolution to the next level and make it a full-fledged city ordinance.

And that, according to the PBA, is where real trouble could start.

“It’s confusing enough to make this a non-binding resolution,” Midgette said. “Local police take an oath to uphold the U. S. Constitution and the laws of North Carolina, and as student cops they learn what those laws are and how to apply them. The city employs these cops, but it can’t set standards that negate higher laws. This creates confusion and confusion in enforcing the law is very dangerous. An officer who feels he isn’t allowed to use his own judgment based on what he or she has been taught – sometimes in a split second – can hesitate, and hesitation can get that officer killed while a criminal goes free.” Asheville, he said, “is basically saying, ‘forget what you were taught, we don’t do things that way any more.’

“If a city takes that position and turns it into cold hard law, as an ordinance, it’s basically thumbing its nose at federal and state government. Sixty years of Supreme Court case law make it very clear what an officer can and can’t do. Racial profiling is already illegal. Criminal profiling, regardless of race, is not only legal but necessary. Immigration law is very straightforward and often it depends for success on enforcement at the local level. A city can’t cherry-pick what laws it will enforce. An ordinance that interferes with or ignores police procedure as established by a higher jurisdiction could very well be prosecuted as criminal obstruction of justice,” Midgette said.

In pitching his resolution to city council, Bothwell named several cities that have adopted similar measures, including Anchorage, Alaska; Somerville, Massachusetts; and Paterson and Montclair, New Jersey. He did not mention Fayetteville, North Carolina.

In 2012 Fayetteville police officer Jarryd Rauhoff and five other officers, with the assistance of PBA, sued the City of Fayetteville over a moratorium the city had imposed on consent searches during traffic stops. The officers said the moratorium endangered both the officers and the general public. The Fayetteville city council took a vote on whether to abandon the moratorium, resume consent searches and avoid the lawsuit.

The vote was 7-2 in favor of continuing the moratorium on police searches. One of the two dissenting votes was cast by Val Applewhite, a black council member who is now running for mayor.

According to records, the cost to the city of Fayetteville of unsuccessfully defending its actions in Superior Court came to approximately half a million dollars.

So what are PBA’s intentions with regard to Asheville’s new Civil Liberties Resolution, absent any response to its letter by the city?

“Right now it’s just a wait-and-see-what -happens situation,” Midgette said. “If the resolution becomes law and puts any of our members on the Asheville force at risk, we’ll have to re-evaluate the situation. And if any of them make a formal complaint to us, of course we’ll have to investigate,” Midgette said.

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