By Leslee Kulba
“I want to comment on what happened tonight relating to council’s actions on the written consent and search policy. This was an important issue; there’s no doubt about it. But this was not on the agenda tonight. It wasn’t advertised to the public, it didn’t go through the committee process, staff wasn’t expecting it, I certainly wasn’t expecting it, and we did not even take public comment on it before voting.
We talk about, on council, the importance of transparency and democratic process, but we violated every tenet of that tonight. What many of us criticize Congress and the North Carolina General Assembly for doing, we just did tonight. I’m embarrassed, and I want to apologize to the citizens of Asheville.
Regardless of how you feel about the substance of that issue, how this was done tonight will be a black eye on this coun–”
The official video recording stops there, but the speaker, Councilor Vijay Kapoor, has since continued to apologize in public venues for the embarrassing behavior of his peers.
Minutes before the meeting, also-ran piano teacher Kim Roney, who speaks at just about every city council meeting, appeared to be the leader of a congregation outside city hall. When it came time for public comment, she made her way to the podium, and her following, of perhaps a dozen, assembled a line behind her. Mayor Esther Manheimer explained not-so spontaneous lines are not consistent with the manner in which the city conducts its public hearings, and asked that all return to their seats until called to the podium.
Roney began with a 10-minute directory of “the community,” listing names, landscaping highlights, and livelihoods. She said she would talk until council adopted the motion she had writ large and displayed on the podium. It read, “I make a motion to add a resolution to the consent agenda adopting open data policy as presented by [Patrick Conant and] Code for Asheville.” As she spoke, an epidemic of reading – papers, books, phones – broke out in the audience. Roney then shared some notes with the next speaker, Andrew Vasco, who took up a 10-minute reading from Kurt Vonnegut.
City council was under filibuster. What “the community” had not been able to sway by facts, they were forcing through belligerence. This was not democracy, it was the law of the jungle. But nobody was to complain. The game was, if one did not accept that the city suffered systemic racism, one himself was racist and a party to police brutality.
After Vasco, Councilor Sheneika Smith said she was ready to make a motion to add Roney’s resolution to the consent agenda. The measure passed 4-3, Kapoor, Gwen Wisler, and Julie Mayfield opposed. After the vote, the mayor said, with a cringe and a smile, “I don’t know what it means, exactly? Because we have an open data policy that was adopted in 2013.” She said a search of Conant’s documents did not reveal a policy, per se, but a request for publishing nine data sets. Four of them had already been published, three could soon be published, and Interim City Manager Cathy Ball explained staff had concerns about releasing the other two, as it could compromise criminal and internal investigations and put victims in retribution’s way.
Mayfield asked what council had approved: support for the policy they already have or the release of the data Conant was requesting. This led to council amending the amendment to the consent agenda they had already adopted, a withdrawal of the consent agenda as adopted, approval of the consent agenda without amendment, and then consideration of Roney’s request and what that actually meant. At one point, Manheimer said, “But that’s not procedurally correct, but whatever. I’m not going to worry about it.” After the un-amended consent agenda was adopted, Smith moved, “to support the release of the data sets presented by Code for Asheville, with reason of legal and personnel information being undisclosed.” The measure passed unanimously.
The next part of the meeting was Presentations & Reports. As usual of late, council was going to hear more from Ian Mance of the Southern Coalition for Social Justice. Mance has been sharing data with council about racial disparities in police traffic stops for a year, now. His presentations substantiated bringing Asheville into the public fray accusing police forces across the nation of perpetrating systemic, racist, white-on-black violence. Then, as Philando Castile, Freddie Gray, and Michael Brown before him; Johnnie Rush became Asheville’s own cause celebre. This time, Mance repeated his request for (1) the deprioritization or prohibition of traffic stops for low-level regulatory and equipment violations and (2) mandatory written authorization for consent-based searches.
Police Chief Tammy Hooper was then given the chance to present data not published with council’s agenda. Hooper, whose request for more officers last year was overridden by Black Lives Matter activists, shared, “Crime in the City of Asheville is extremely high.” Violent crime increased 17% in 2016 and 10% in 2017, and this year it’s already up 32% year-over-year. Later in the meeting, citizen Amy Cantrell would urge council to refrain from allowing the police department to hire more officers again this year, noting the city was not even spending 1% of its budget on its Office of Equity and Inclusion.
From before the time Mance came on the scene, Hooper has maintained traffic stops for low-level violations are not a priority. What’s more, the police are not issuing citations for low-level violations, but issuing warnings to work with people who don’t have enough money to be compliant. On written consent, Hooper said every patrol officer now wears a bodycam that accurately records all police interactions, and supervisors must now review the bodycam footage of every consent search. Bodycam footage is a far better record of what happens than a forgeable consent form. The only change Hooper saw coming from adopting Mance’s recommendations was putting cops at-risk of running afoul of a formalized policy. That seemed to be the agenda, since nobody was articulating why Mance, a lawyer, was so bent on getting the city to require one.
Smith viewed the written consent forms as “a peace treaty,” and accused representatives of law enforcement as coming to meetings, “with clenched fists;” she could feel the resistance coming from those in the audience. Law enforcement, she said, had to give something; and to that, Hooper said she had already conceded a lot. Manheimer then expressed her wishes that the discussion not become politicized and polarized with rhetoric. Mayfield hinted a chance to reconcile statistical discrepancies presented in Mance’s and Hooper’s presentations would be nice.
Members of city council do not have the power to set policy for the police department, so Councilor Brian Haynes made a motion to direct the city manager to direct the police chief to adopt policy requiring written consents to search and asked that it apply to backpacks and other personal effects, not just cars. Then, Councilor Keith Young asked Haynes to withdraw his motion so he could make three. The final wording of the motions was: (1) “to direct the city manager to implement a written consent policy for vehicular searches and searches of the person or personal property associated with the person,” (2) “to direct the city manager to implement a policy that the Asheville Police Department not base a consent search on vehicular stops on a person having a criminal record or suspicious movement or behavior,” and (3) “to de-prioritize low-level regulatory stops.”
Kapoor blew the whistle again. For the third time in two weeks, council members were being blindsided by a request for a vote on an item that was not on the formal agenda, thus keeping members of the public in the dark; had not been vetted by staff, thus providing council with only one side of the issue; and had not been run through the committee process, thus preventing resolution of conflicting datasets. Wisler concurred; due process required noticing the public of potential changes in policy and inviting them to speak on the topics.
When Manheimer asked if council wanted to table the matter until their June meeting, Young said, “I will not make a motion to lay [it] on the table.” He said if members of council did not like the measures he had proposed, they could vote against them. “Call the question!” he ordered.
“You-you don’t want public comment?” asked the mayor. Young shook his head no. “Oh-ka-ay,” said the mayor hesitantly. Council then rashly approved all three measures, with only Kapoor and Wisler voting in opposition.
Council’s third presentation was an update from staff on policy changes made reactionary to the Rush incident. Ball said that information was provided in memo form, and no members of council had any questions. The memo noted all use of force complaints are now subject to immediate criminal review; staff is working out legal challenges to informing council of use-of-force incidents; the third-party review of the Rush incident is underway; the Human Resources Commission has been established and Conant is on the inaugural board; additional positions for Equity and Inclusion staff have been created; the city is lobbying the state to allow Equity and Inclusion staff to review bodycam footage, expand powers for dismissing civil servants, allow citizen review of police complaints, eliminate the Civil Service Board, allow victims to know how personnel complaints have been dispensed, and create a pro-bono law-enforcement complaint navigator position; and city staff is reviewing policies governing the handling of bodycam footage, aggressively recruiting minority officers, and facilitating processes for public complaints against police officers.