Loopholes or due process? Lexington council police discipline debate goes to day 2
The Lexington city council has agreed to continue to study the use of no-knock warrants and learn more about police disciplinary procedures amid calls locally and nationally for greater police accountability.
A six-hour meeting Tuesday on police discipline, no-knock warrants and other police oversight issues went so long that not all of the 100 people who wanted to speak were able to do so. The Lexington-Fayette Urban County Council was scheduled to take public comment on the issues Wednesday night.
During the council’s Planning and Public Safety Committee meeting Tuesday, the council agreed to keep the issue of no-knock warrants in committee despite Mayor Linda Gorton’s decision Monday to issue a moratorium on the practice that allows officers to enter a home without knocking or announcing themselves.
Lexington Police Chief Lawrence Weathers told the council Tuesday that the moratorium did not exclude the use of no-knock warrants entirely. The warrants can only be used in a “life or death situation.”
When council members pressed on what situations that would include, Weathers said if there was an imminent threat to someone’s life — such as a kidnapping victim being held in an apartment with a kidnapper police knew was armed.
No-knock warrants go through several layers of review before they go to a judge for a sign off, Weathers has repeatedly stressed. Under the current moratorium, Weathers would also have to convince Gorton that a no-knock warrant was needed.
Weathers said a cursory review of more than 480 warrants from the city’s narcotics unit, shows no-knock warrants have only been used four times in five years. Louisville Metro Police officers were serving a no-knock warrant when they shot Breonna Taylor in her apartment in Louisville in mid-March. That no-knock warrant was also connected to an alleged narcotics case.
Weathers said he didn’t want that tool unavailable in case there was a life or death situation.
“I’m reluctant to take the policy off the table,” Weathers said.
Weathers also said there is typically a videographer on the team that executes those warrants to ensure the practice is videotaped. But Weathers also said not every officer in the Lexington Police Department has a body-worn camera and not everyone that would serve that type of warrant has a body camera.
People in administrative positions in the police department, including some supervisors who have minimal contact with the public do not wear body cameras, he said.
That’s largely due to the cost of the cameras, he said.
Councilman Richard Moloney and other council members said they wanted to learn more about the practice before deciding to enact a local ordinance either banning or limiting no-knock warrants.
Much of Tuesday’s meeting was spent on the local ordinances, state laws and the collective bargaining agreement with the police union that controls police disciplinary procedures.
Keith Horn, a lawyer for the city, said much of the Lexington Police Department’s disciplinary procedures are controlled by state law that is often referred to as the Officer’s Bill of Rights. That state law lays out the discipline process and prohibits anyone from commenting on a police officer’s pending disciplinary action until after that disciplinary action is finalized.
The city’s collective bargaining agreement with police officers and sergeants expires on June 30. Negotiations between the administration and the Fraternal Order of Police Bluegrass Lodge 4 have not yet begun, said David Barberie, a lawyer with the city. The provisions of the previous contract just roll over until a new contract is signed, he said.
Negotiations haven’t started in part because of restrictions on large gatherings put in place to stop the spread of the coronavirus. There is also little incentive for the FOP to do so because the city’s recently passed $378 million budget for the fiscal year that begins July 1 has no money for raises for police officers, Barberie said.
The negotiations and the bargaining process are confidential, he said. The contract is negotiated between city officials and the union. The council does not have an official seat at the bargaining table, he said.
Councilman Chuck Ellinger pressed Barberie over whether or not the council could develop its own list of what it wanted changed in the contract. Barberie said that list could be communicated with city officials at the bargaining table.
FOP Bluegrass Lodge 4 President Jonathan Bastian also told the council that some of the issues raised by protesters — who have marched on Lexington streets for more than two weeks about changes they wanted in the contract — have been inaccurate.
For example, some have asked that the city do away with a provision that allows police officers to remove coaching and counseling forms after 12 months and also remove other disciplinary actions after 12 or 24 months. Bastian said the only forms removed from officer’s files are coaching and counseling forms after 12 months. Coaching and counseling forms are not considered disciplinary actions. Those are performance issues.
Bastian also said some protesters had asked that a provision in the collective bargaining agreement that limits access to a police officer’s files be removed to create more transparency.
But Bastian said that’s in the contract to prohibit officers from looking at another officer’s personnel files. The information is still available to the public, he said.
“The personnel file is still accessible to the public through an Open Records Act request,” Bastian said.
Disciplinary actions remain in the police officer’s file, he said.
Bastian said the provision in state law that prohibits disclosure of information about the status of a complaint against an officer until after the disciplinary process is closed is not extraordinary.
“It’s due process,” Bastian said.
But the vast majority of complaints against police officers are considered informal complaints — which are handled by the officer’s supervisors. According to the collective bargaining agreement, those informal complaints are handled by coaching and counseling forms.
In 2019, there were 215 informal complaints compared to 20 formal complaints. Formal complaints are investigated by the department’s public integrity unit and can result in disciplinary actions such as written reprimands, demotions, retraining, suspensions and terminations.
Bastian said if a citizen is not satisfied with the resolution to informal complaints, those will be referred to the public integrity unit and investigated as a formal complaint.
Councilwoman Angela Evans pressed Bastian on why the FOP has not issued a formal statement condemning the death of George Floyd in Minneapolis and Taylor. Other police organizations and unions have. Evans also asked repeatedly if the union was going to come forward with its own recommendations for changes to make disciplinary procedures more transparent.
Bastian said he condemns the death of Floyd, who died after Minneapolis police officer Derek Chauvin kneeled on his neck for more than eight minutes.
“What happened in Minneapolis was 100 percent unacceptable,” Bastian said. “Our membership, our leadership in the FOP, do not accept police brutality as an acceptable solution.”
Bastian said the union wanted to show that some issues raised by those seeking reform were not based on accurate information.
“What may be a problem in other places may not be a problem in Lexington,” he said.
Bastian later said the union membership was putting together a committee to look at the issues raised, but since the nightly protests began in late May, police officers have been stretched thin. Bastian said no one wants to do more to root out bad officers than fellow police officers.
Evans said the FOP itself has made it difficult to go after and terminate bad officers. It has lobbied the General Assembly to make those changes over years.
“The problem is that the disciplinary process that the FOP lobbies for makes it more difficult to get rid of those bad officers,” Evans said. “The way this disciplinary process works is more of a protectionary process than to root out bad officers.”
Several members of the public who waited five hours to speak at the end of the meeting blasted Weathers and Bastian for being defensive and critical of the suggestions.
A spokesperson for the Lexington Police Department said the council had asked the FOP and Weathers to prepare presentations about topics about which there were questions. The council had not asked them to come to the meeting with suggestions on changes.
Sarah Williams, one of the organizers of the Lexington protests who crafted some of the proposed changes, said in a Facebook post during the meeting that she had offered to meet the FOP more than a year ago via a Facebook message and never heard back.
During the public comment in the meeting, Williams also criticized routing most complaints through the informal complaint process, saying it was a “an extreme loophole.”
The city can also change through the collective bargaining agreement the internal police disciplinary review board that consists entirely of upper-level assistant chiefs or commanders. When an officer is disciplined the police chief can make a recommendation on the punishment. If the officer doesn’t accept it, it goes to the internal disciplinary review board, which can then make a recommendation to the chief on another punishment. The make up of that board could be changed to include people other than police officers, she said.
Areil Arthur said the FOP seemed more interested in correcting protesters than listening to the long-repeated concerns about the lack of transparency in the disciplinary process.
“These are purposefully confusing policies that allow the police to avoid accountability,” Arthur said.
Rev. David Peoples echoed Arthur’s and others comments. Peoples said racial profiling of black people happens all the time in Lexington by Lexington Police.
“As a Black man, I’m telling you, it happens,” Peoples said. His 28-year-old son was recently home from the military and standing outside Peoples’ house when a police officer stopped and asked to see his identification to make sure he lived in that home.
Racial profiling is not just an issue in other cities. It happens here, he said.
“There is a problem,” Peoples said.
This story was originally published June 17, 2020 at 7:02 AM.
