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HomeMy WebLinkAboutM-00-0893• CITY OF MIAMI CITY ATTORNEY'S OFFICE 28 MEMORANDUM TO: Carlos Gimenez, City Manager FROM: Alejandro Vilarello, City Attorney DATE: September 27, 2000 RE: Final Report Elian Gonzalez Ad Hoc Committee The members of the Elian Gonzalez Ad Hoc Committee have requested that their Final Report of Findings and Recommendation be placed on the October 12, 2000 City Commission Agenda. AV/hcp/et C: Elvi Alonso, Agenda Coordinator Andrew B. Rosenblatt, Ad Hoc Committee Chairman I ET:Gimenez-AV-AdHoc 00- 893 r INTRODUCTION This committee, which came to be known as the ;Ad Hoc Committee To Investigate Police Community Relations, was formed pursuant to a resolution adopted by the Miami City Commission on January 13, 2000. The committee was charged with the responsibility of investigating and reviewing the interaction between the Miami Police Department and members of the public who gathered during the week of January 3, 2000 to support the granting of political asylum to Elian Gonzalez. The members of Miami City Commission each appointed one person to the Ad Hoc, Committee as did then Miami Police Chief William O'Brien. Mayor Joe Carollo declined to make an appointment. Pursuant to a resolution adopted by the Miami City Commission on April 27, 2000, this committee was further charged with similarly reviewing the interaction between the Miami Police Department and members of the public who gathered on April 22, 2000 to protest the removal of Elian Gonzalez from his relatives' Little Havana home. Beginning in March and continuing through September, 2000, the Ad Hoc Committee held sixteen meetings before completing the attached findings of fact and recommendations. During its deliberations, the Ad Hoc Committee heard the comments of Ramon Saul Sanchez, Jose Basulto, Commissioner Tomas Regalado, Howard Simon and John DeLeon, executive director and president respectively of the American Civil Liberties Union, Miami chapter, Brad Brown, appearing on behalf of Bishop Victor Curry and the National Association for the Advancement ofColored People, Bobby Navarro of the Hispanic Police Officers Association, and representatives of the Miami Police Department including Chief Raul Martinez, Assistant Chief Ray Martinez, Maj. Paul Shepard and Lt. Craig McQueen. The Ad Hoc Committee also held an open meeting to hear comments from persons who participated in or were present in the vicinity of the January 6' demonstrations. At this meeting, approximately one dozen members of the public described their observations of the demonstrations and police efforts to control them. At another meeting, Janet Weinger and William E. Moore III described their observations of police conduct during the April demonstrations. Hundreds of pages of documents were requested of and produced by the Miami Police Department for the Ad Hoc Committee's review and these documents shall serve as an appendix to this committee's report and made available for public inspection at the office of the City Clerk.. Still other prominent Miami journalists, activists, community leaders, police officials and Miami city commissioners were invited to address the Ad Hoc Committee but declined either by choice or due to scheduling conflicts. The following members of the Ad Hoc Committee actively participated in the committee's deliberations and the preparation of the attached findings of fact and recommendations: Jose "Pepe" Page l Herrera, Alberto Milian, Pedro Roig, Andrew Rosenblatt, chairman of the Ad Hoc Committee and Roderick Vereen. Eladio Armesto did not actively participate in the Ad Hoc Committee's work. ADOPTED FINDINGS OF FACT GENERAL On January 5-6, 2000 and April 22, 2000, local citizens conducted civil disobedience demonstrations throughout the City of Miami after the Department of Immigration and Naturalization Service announced its decision to deport Elian Gonzalez back to the county of Cuba where he would be reunited with his biological father. The demonstrations carried into the streets of the local area causing law enforcement to respond with the use of tear gas and force to remove the protesters. Based on the testimony of witnesses that testified before the committee, it appears that the use of force was justified in certain situations, but was not justified in others. The demonstrations that occurred regarding the Elian Gonzalez matter affected the Hispanic community more than any other community and according to the critics, caused an ethnic divide within the City. THE DEMONSTRATIONS On multiple occasions, groups of demonstrators did not apply for the appropriate permits before initiating public demonstrations. The failure of protest organizers to advise Miami city officials of the time and place and nature of their demonstrations made it more difficult for the Miami Police Department to coordinate its efforts with organizers end control the demonstrations. Leaders of various organizations should have made every effort to apply for the appropriate permits. This was not done on several occasions because some groups sought to be arrested in the pursuit of a policy of civil disobedience. Nevertheless, leaders of organizations should have taken steps to avoid blocking traffic or violating laws. If the intent was civil disobedience, leaders bear the duty of informing the public and their respective followers of the responsibilities inherent in civil disobedience. All violations of the law bear the risk of an arrest. Most of the demonstrators protested peacefully. A small number of demonstrators were actually provocateurs or gang members intent upon provoking a harsh police reaction by either attacking the police or committing crimes such as arson or criminal mischief. Provocateurs succeeded in some instances in instigating the police into using tear gas or in clashing with legitimate demonstrators thereby contributing to the perception that police were under orders of a "zero tolerance" policy against demonstrators. Page 2 00- 893 The demonstrators failed to seek or obtain a permit to demonstrate at the identified cites where the protests occurred. Further, some of the demonstrators resorted to destroying public, as well as private property, causing the public to have to pay for the damages caused by their lawlessness. Numerous individuals placed themselves in the zone of danger after having been advised by the law enforcement to leave the area. Their failure to do so resulted in their arrests. According to the testimony of a couple of witnesses that came before the committee, their arrests may have been unlawful. The cases remained pending. POLICE LACK OF PLANNING, TRAINING OR COORDINATION There was inadequate consultation or coordination between City management, both City manager and police departments, and the local political and community leadership. Some police officers appeared not to have a well defined "continuum of force" or criteria delineating the permissible level of force to be employed when handling and/or dispersing the crowds or arresting lawbreakers. This criteria should have taken into account the nature of the crowd, the kind of conduct being engaged in by the crowd, and the nature or gravity of the offenses that were being committed. The City of Miami and its Police Department were not prepared for demonstrations or for the disruption of traffic. The Department was not aware and did not anticipate the demonstrations or their magnitude. The Department had to improvise its response as events unfolded. This was due in part to the Federal government's unilateral action. Public demonstrations are part of the American political tradition. Given the outrage and the sensitivity of the situation, the City must be prepared to deal with future demonstration on short notice. The police department did not have an adequate plan for dealing with demonstrations at multiple locations. The police department, lacking in guidance, mission statement or rules of engagement, used the power of arrest in order to halt "what could have erupted into a major riot." Arrests were made on the premise of"holding ground." The bulk of the arrests were not prosecuted some may have been based on questionable constitutional grounds. Field force commanders experienced periods of confusion because of conflicting instructions provided by their commanders. The department failed to establish policies and plans on how to arrest violators of the law without infringing on the constitutionally protected rights of demonstrators. Law enforcement authorities failed to implement a specific plan regarding how to deal with the civil disobedience demonstrators and therefore resulted in this unnecessary use, at times, of tear gas, which affected local businesses that were lawfully conducting its business operations. The Miami Police Deparment and the city's management sent mixed and potentially confusing signals to the community by allowing demonstrators to march without a permit and to close Page 3 Flagler Street to vehicular traffic in January, then used force to clear other streets during the April demonstrations. POLICE USE OF EXCESSIVE FORCE / ZERO TOLERANCE The City management, specifically police administration, implemented and enforced a strict policy with an objective of clearing streets, sidewalks, and parking lots. The community's perception is that police officers were ordered to operate under a "zero tolerance" policy that forced officers to clear the streets and those who appeared in a public area near a demonstration or even a simple gathering. The arrests may have been based on questionable grounds. The perception contributed to and escalated the feeling of hostility and frustration between the community and the police department. It also resulted in numerous unjustified arrests, most of which were summarily dismissed by the State Attorneys Office. This policy interfered with the community's legitimate exercise of its constitutional right to assemble and voice its grievances against the governmental action. In most encounters between the police and demonstrators, officers used necessary force in arresting lawbreakers. In isolated instances, which are nevertheless troubling, Miami Police Department officers used excessive force and profane and inappropriate language in clearing the streets during the January and April demonstrations. On multiple occasions variable police actions contributed to and exacerbated a hostile response from demonstrators. The indiscriminate, inconsistent and often unnecessary use of tear gas was a typical problem that exacerbated crowd reactions to a police presence. Field force clanging on shields was another technique that has been highlighted as unnecessary and possibly provocative. Throughout the community, the perception continues to persist that police were ordered to operate under a "zero tolerance" policy that forced officers to arrest anyone who merely appeared in a public area near a demonstration. The police department has recognized that it failed to adequately articulate its mission to field force commanders and their subordinates. Mahy officers were left without guidanceand acted individually and too often inconsistently with their brethren. So-called "rules of engagement" were not clearly stated for field force commanders or their subordinates. No specific instructions were provided by senior staff to lower echelons regarding these "rules of engagement." For instance, in some cases no dispersal orders were given to crowds about to be arrested. In other cases, the reported actions of some individual officers were deplorable and warranted investigation. ACTIONS OF FEDERAL GOVERNMENT The federal government did not adequately consult or coordinate its decisions and actions with the City of Miami, and/or other local law enforcement authorities, so as to insure that the local authorities had the necessary resources in place to professionally handle any community reaction, thus straining the resources that were available to local authorities to respond to the Federal government's decision and actions. Page 4 =�Z • MEDIA The media bear no responsibility for inciting crowds of demonstrators or fanning the emotions of the community. The City of Miami and its police department have a duty to provide enough press spokesmen in order to inform the citizenry through the various media outlets, in whatever language is used throughout the various segments of our community. POLICE INTERNAL INVESTIGATIONS Throughout the community and particularly within the ethnic communities, the perception remains that the police department is not effectively policing itself. One credible witness testified as to violence perpetrated against her by City of Miami officers. When an inquiry was initiated by the committee, it was revealed that the investigation into the alleged incident was still pending and critical witnesses, including the complainant, had not been interviewed. This is unacceptable. Allegations of police misconduct should be quickly. and efficiently investigated. TREATMENT OF ARRESTEES The handling and transportation of prisoners by the City of Miami during the January and April demonstrations was improper. The conditions under which prisoners were held and transported were inhumane and a potential violation of constitutional due process. Prisoners were handcuffed behind their backs, placed in a standing position, in crowded and poorly ventilated vehicles for extended periods of time. There were reports of denial of medical treatment by police. Prisoners were transported, standing handcuffed behind their backs, in these ill equipped vehicles at high speeds and with driving patterns which exposed them to unnecessary risk of physical harm. There were numerous problems experienced by prisoners and the police with the booking process. Officers frequently failed to place paperwork with defendants in their respective arrest wagons. Conditions within the arrest wagons have been credibly described as opprobrious. Standing for hours, no air conditioning, and dangerous driving patterns were consistently described by prisoners. USE OF TEAR GAS The police department did not have adequate and clear rules for the use of chemical weapons/tear gas. The use of tear gas was sometimes indiscriminate, interfering with the constitutional rights of peaceful, lawful protestors, who were assembled in constitutionally protected forums, i.e. parking lots and sidewalks. Tear gas was often used without first exhausting an alternative effort to disperse a crowd. The indiscriminate and often unnecessary use of tear gas was a problem that exacerbated community reactions to police presence and was a product of the absence of guidelines and protocol for the use of chemical Page 5 00-- 893 weapons. For example at Versailles Restaurant, gas was used and infringed upon the rights or peaceful, lawful demonstrators. ETHNIC COMPOSITION OF POLICE Ethnicity played no role in the clashes between the police and the demonstrators. The hiring, placement and promotion practices of the police department may still need some fine tuning, especially as it relates to higher management. Nevertheless, the Cuban exile community is well represented within the department and the majority of the officers who dealt with the demonstrators were either Cuban born or of Cuban descent. RECOMMENDATIONS BETTER POLICE PLANNING The City and its police department should design an adequate contingency plan for responding and dealing with demonstrations which are so emotionally charged and politically driven. The plan should place the police in a proactive not a reactive mode and advance community relations, maximum tolerance for constitutional expression, protection of the rights of non - demonstrators and the integrity of all city facilities and thoroughfares. 2. The police department should implement a system which incorporates adequate managerial coordination and direction, and which provides the chain of command and/or the rank and file with clear goals and objectives. There should be a well defined continuum of force or criteria delineating the permissible level of force to employ in handling and dispersing the crowds or in arresting lawbreakers, in accordance with the apparent nature of the crowd, the kind of conduct being engaged in by the crowd, and the nature of the gravity of the Qffense that was committed. 3. The City of Miami and its respective public safety agencies need to review and revise their information gathering plans in order to anticipate similar demonstrations should they occur in the future. The Police Department needs to expand its information gathering capabilities from open sources and establish an "early warning" capability that will permit it to swiftly and effectively deal with future demonstrations. 4. The police department must review and revise its plan of action for dealing with political demonstrations. Legitimate demonstrators committed to civil disobedience must prepare themselves for arrest by the police but the police can and should be encouraged to courteously arrest and expeditiously process legitimate participants engaged in civil disobedience. Moreover, police should identify and arrest provocateurs swiftly. Arrests of lawful demonstrators should be avoided. Police should emphasize the use of arrest teams prepared to sweep in and detain violent elements as soon as they act. One technique that was used successfully was to identify an offender in a crowd and have a squad flank the crowd and Page 6 00- $93 0 • arrest the offender. This methodology will ensure that peaceful demonstrators can continue to exercise their constitutional rights to protest. In all cases, were it is possible and consistent with officer safety and respect for the rights of non -demonstrators, police should allow demonstrations to continue without initiating arrests. 5. The City of Miami Police Department, along with the State Attorney's Office and the City's Legal Unit should establish an Arrest Procedures Review Committee. 6. This committee proposes that the Miami Police Department design a more effective plan regarding the removal of demonstrators who are participating in a "passive resistance" demonstration and have not displayed any aggression towards law enforcement. Further, the Department should utilize.the media to inform the citizens who do not want to participate in the demonstrations to avoid the area. Further, road blocks should be in place and a perimeter set as expeditiously as possible to prevent the demonstration from preventing the ebb and flow of local traffic. USE OF TEAR GAS The police department should design clear rules for the use of chemical weapons/tear gas. The use of tear gas should be used as a last resort and only with the approval of a command officer above the rank of captain if possible. The use of tear gas in places where it will adversely affect or interfere with the constitutional rights of peaceful, lawful protestors, who were assembled in constitutionally protected forums, i.e. parking lots and sidewalks should be completely prohibited unless a last resort and then if approved by the Chief of police or his designee. 2. The police department should develop and implement a coherent and consistent policy on the use of chemical agents. When advisable and consistent with officer safety, warnings. should always be given in whatever language is appropriate. In many instances, warnings were not given and tear gas deployment was not reported through the chain of command. Instances of "friendly gas" were reported. Tactics must be employed that negate the need to deploy gas. 3. The use of tear gas should never be used during a "passive resistance" situation where there has not been shown any signs of violence by the demonstrators toward law enforcement, public or private property of the public at large. POLICE DEPARTMENT'S OWN INTERNAL REPORT The committed adopts the findings made by the Miami Police Department regarding the deficiencies noted in the final report which is attached hereto. The Department needs to ensure that their officers Page 7 00- 893 follow the directions given to them regarding what to do once an arrest is made. Further, law enforcement should not abuse their discretion regarding arrest of protestors. SENSITIVITY AND OTHER TRAINING The City should implement a training program for both police management and rank and file with emphasis in .the legal rights and duties, particularly the boundaries of constitutional permissible conduct for both taw enforcement and the public, and first amendment rights. 2. The City should implement a mandatory community relations and sensitivity program, with mandated periodic attendance. The emphasis of this program should be training officers to use maximum tolerance in dealing with emotionally charged situation and resort to force only as a last resort. The Department should require a course regarding sensitivity training of its officers every two (2) years. CONDUCT OF ELECTED OFFICIALS l . No elected city official should ever interfere, directly of indirectly, with police officers. or their commanders at the scene of a disturbance or a forensic crime scene. Elected city officials should be reminded that their conduct at the scene of a demonstration can cause confusion among the -demonstrators and within the ranks of law enforcement. Elected officials should not interfere with police management of a future crisis. 2. The elected officials of the city of Miami should scrupulously abide by the Miami City Charter provision Section 4 subdivision d which prohibits them from having contact,with or making recommendations to city employees other than the city manager. CONTROL OF DEMONSTRATIONS The City must implement a "zero tolerance" policy which prohibits unnecessary force and unjustified arrest. Arrest and use of force should be closely monitored, and any officers who are found to use unnecessary force or have a large number of unjustified arrests, should be immediately disciplined. 2. With the advent of the age of high technology, video recorders should be strategically placed and used in every civil disturbance scenario. This will document actions and reactions by all participants and provide an additional source of evidence for future prosecutions. During this period of tranquility, the Mayor, Miami City Commission and City Manager should publicly state and reiterate that the closing of streets without permits will not be Page 8 00- 893. tolerated and also publicly identify what steps the Miami Police Department is authorized to take to assure that the public retains access to and use of public streets. USE OF CIVIL DISOBEDIENCE Civil disobedience is part of the American political tradition. Education as to the means and methods of this practice is part of our civic responsibility. Both the public and the police can afford to be more fully educated on this political tradition. The public should be apprized that violence cannot and will not be tolerated. Nevertheless, police can and must assist in respectfully arresting and processing detainees who peacefully participate in civil disobedience. 2. Civil disobedience often times results in the generation of public sentiment against the protestors, therefore, organizers of protests should consider and utilize other effective means to publicly air their grievances. INTERNAL AFFAIRS/DISCIPLINING OF POLICE That a complete review of the City of Miami Police Internal Affairs Unit be initiated in order to ensure that sufficient personnel are assigned and all investigations receive prompt attention. Some members of our community do not know how to process complaints against police. Therefore, the City should educate the public about the internal affairs process and how to file internal affairs complaints. In addition, every complaint, whether eventually founded or not, should be logged and expeditiously investigated. This will restore confidence in the department and its personnel. 2. The Miami Police Department should discipline any officers who used excessive force or profane language during the January and April street demonstrations whether or not these officers are the subject of internal review complaints. POLICE/MEDIA RELATIONS The City of Miami and its police department must provide the media, in all languages, with access to all geographical areas of public concern. The City needs to expand its public information sources and liaison capabilities with all media in all languages in order to provide information, squelch rumors, and defuse alarmist reporting. MISCELLANEOUS The City of Miami Community Relations Board must be augmented, developed and utilized in order to diffuse and resolve future encounters. Despite its existence the CRB was poorly utilized or not used at all. An effective CRB can improve lines of communications between Page 9 00— 893 0 authorities and demonstrators thereby decreasing the chances of violent clashes. The Miami CRB should include a mediation team. EPILOGUE These findings of fact and recommendations were presented to Miami Police Chief Raul Martinez for review and comment. Appearing before the Committee on September 25, 2000, Chief Martinez accepted the findings of fact as accurate and promised to take action on many of the recommendations. Andrew B. Rosenblatt Chairman Ad Hoc Committee Page 10 Gln . 893