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As the country continues to reckon with police violence and the disproportionate impact it has on Black people, the D.C. Police Union is seeking to paint Metropolitan Police Department officers as the real victims.
In the past two weeks, the union representing 3,600 sworn MPD members has filed two lawsuits challenging pieces of sweeping police reform legislation that the D.C. Council passed on an emergency and temporary basis in July. The bill, which Mayor Muriel Bowser signed on July 22, was crafted in direct response to uprisings over the deaths of George Floyd, a Black man killed when Minneapolis police officer Derek Chauvin knelt on his neck for nearly nine minutes, and Breonna Taylor, who was shot and killed by officers in Louisville, Kentucky, while they were executing a no-knock warrant.
The union disagrees with two provisions in the legislation. The first bars the union from negotiating the terms of officer discipline during collective bargaining. The second requires the mayor to identify officers involved in serious and fatal uses of force and to release the body camera footage of those incidents dating back to the inception of the body camera footage program in October 2014. The bill gives the mayor an August 15 deadline for old cases and requires the release of footage from new incidents within five days.
The union is challenging those pieces of the bill in two separate lawsuits filed in the U.S. District Court for the District of Columbia and D.C. Superior Court, respectively.
“The Act lacks a rational basis, but was instead offered as a punishment of sworn law enforcement officers in the District of Columbia to quell rising tensions and protests in the District coming as a result of the death of George Floyd in Minnesota,” the union claims in its federal court filing, which challenges the law’s restrictions on collective bargaining. “No studies or surveys were conducted, no research was performed or basis was proffered for the passage of the Act other than the protests arising out of an incident that occurred over one thousand miles from the District of Columbia, and that was unrelated to any District resident, agency, or officer.”
Ward 6 Councilmember Charles Allen, the bill’s primary author, does not seem bothered in the slightest by the union’s pushback.
“Having the police union criticize a policing reform bill is usually a metric of whether you actually made an impact or not,” says Allen, who spoke with City Paper before the union filed its second lawsuit. “I don’t have a regret around the legislation. I think that it was timely. I think it was necessary. I think it’s important.”
While the police union criticizes the Council’s bill as reactionary for its reference to an incident that occurred in another city, it ignores MPD’s role in multiple fatal incidents between 2016 and the present, about which the department has, for years, refused to release full details. Protesters in D.C. connected the deaths of Floyd and Taylor to three Black men killed by MPD officers in the span of two months in 2018, and chanted their names—Marqueese Alston, Jeffrey Price, and D’Quan Young—as they took to the streets.
The Council passed the reforms on an emergency and temporary basis, which allowed lawmakers to sidestep the otherwise required public debates. As Allen prepares for a hearing on a permanent bill this fall, some provisions in the temporary version are taking effect. For some families who’ve sought answers from police and the District for years, the law is not working as they expected it to. Victims of police violence thought the release of body camera footage would bring them justice, but many were retraumatized and the government’s edited videos, along with its unwillingness to release all the available footage, left them with more questions than answers. The strong reactions to the legislation mere weeks into implementation underscore how difficult police reform actually is.
Kenithia Alston says she was notified that the mayor was releasing body camera footage of a cop fatally shooting her son, Marqueese, 90 minutes before it was published on MPD’s website on the morning of July 31. Denise Price received a voicemail from an MPD lieutenant at 9 a.m. that same morning, saying they had information regarding her son, Jeffrey, who was killed in a dirt bike collision with an officer. The message came 90 minutes before city officials briefed the media about the release of police video of the fatal incident.
“I’m so pissed,” Denise’s brother, Jay Brown, said in a phone call with City Paper immediately after the mayor’s 11:30 a.m. press conference. He was unable to articulate how he was feeling beyond rage.
In follow-up conversations, Brown says the family learned of the release from acquaintances and members of the media who were watching the press conference and called or texted them. Price’s family wanted the mayor to publicly release the video, but only when they were ready and had sought counseling. Their lawyer, David Shurtz, is aware of 51 videos related to Price’s death and filed a motion in court to prevent the release of any footage until he and the family secured and reviewed all the footage associated with the case. He was negotiating the terms of the footage’s release on the morning Bowser made a small portion of the footage public.
At the July 31 media briefing, an MPD official said the Office of the Attorney General and the U.S. Attorney’s Office asked them to not release all of the footage because it could hamper the OAG’s ability to defend lawsuits. Generally, the OAG is responsible for representing nonindependent city agencies in court.
Shurtz believes it was wrong for the government to decline to release all of the video and to not give his clients notice of when footage was being released. But he says the hourlong body camera footage that MPD eventually published is critical, as it shows the officer running a stop sign and fatally striking Price, and supports claims and witness testimony in the family’s lawsuit against the District. In the hourlong video, unlike in the edited version, the officer who struck Price says he saw Price coming in his direction.
“I personally want to give the Council credit for releasing the video,” says Shurtz. “It was very helpful.”
The Council’s emergency police reform bill says the mayor cannot release body camera footage if the “decedent’s next of kin” objects to the release. The bill directs MPD to consult with an organization with experience in trauma and grief to understand best practices of how to show the footage to families, notify the next of kin of its impending release, and offer them an opportunity for a private showing.
Up to two weeks before the footage was released, Deputy Mayor for Public Safety and Justice Kevin Donahue tells City Paper that workers with the Office of Victim Services and Justice Grants and the Department of Behavioral Health began reaching out to families whose relatives were killed by police. He says these workers went over the requirements of the law, and the next of kin for four people killed by police between 2017 and 2020—Timothy Williams, Isabelle Duval, Eric Carter, and Devonne Harris—stated they did not consent to the release of police video. OVSJG told the deputy mayor the families of Alston, Price, and Young and their lawyers did not explicitly say they did not wish for the video to be released, and the law does not require affirmative consent, so footage was made public. Donahue describes the families and their lawyers’ requests as ambiguous, as they wanted to negotiate terms of release. But he says officials were moving expeditiously through the process to fulfill the legislative intent of the bill.
“I respect the families and respect their viewpoints if they didn’t like the way in which we went through the process, and that should inform legislators and inform the executive,” says Donahue.
Allen says the law worked insofar as four families’ wishes were respected. He is still trying to understand the communication breakdown between the Alston, Price, and Young families and public officials. The Washington Lawyers’ Committee, a nonprofit that’s advocated for more police transparency and accountability, says the Council should revisit the law’s language and consider requiring families’ verbal or written consent to release footage.
“I think [the Council] should look at that, especially since this was the first time footage was released under the bill and you already have family members talking about the process and being re-traumatized [and] causing further harm,” says Marques Banks, an associate lawyer with Washington Lawyers’ Committee.
Open government lawyers and advocates disagree that family members should have the power to keep the footage from the public. Allen does not sound interested in changing the current language around consent, but says it’s possible for the Council to tweak this language, or any section of the law, once members make it permanent.
“There is a default position that when there’s a police officer-involved death, that the video should be released,” says Allen. “In the spirit of transparency and accountability, we want that to be released.”
Catherine Young, whose son, D’Quan, was fatally shot by an off-duty MPD officer in May 2018, says she objected to the release of police footage after privately viewing an edited version on July 28.
“I guess I didn’t want people to see my son like that, getting shot,” she says. “I just didn’t want this.”
Her sister, Michelle Young, who also watched the footage before it was publicly released, objects to the way the department edited the footage, including the narrative introduction, which she believes attempts to paint D’Quan in a negative light.
“Let the people form their own opinion,” she says.
The Youngs’ attorney, Caleb Joseph, says it was unfair of the department to ask for the family’s consent to release the video without showing them all of the unedited footage.
“We thought they were providing an incomplete story and we identified it for what it was, which was a production,” Joseph says. “We did not feel comfortable consenting to that without being able to … view the entirety of footage that existed.”
For Catherine Young, the release of the video footage and the officer’s name only brought more questions and confusion. At the hospital on the day her son was killed, she spoke to an MPD detective named James Wilson. The off-duty officer who shot and killed her son is also named James Wilson. An MPD spokesperson tells City Paper that the officer, not the detective, was the shooter, but the department did not make that clear to Young’s family. The spokesperson says MPD “[does] not have information to suggest that they’re related.”
“I feel like I had to relive the whole situation all over again,” Catherine Young says.
D.C. law has always permitted Bowser to release police video on a case-by-case basis in matters of significant public interest, and the newly passed law mandates the release of videos for officers who killed or used serious force on an individual.
In addition to the release of video footage in Price, Young, and Alston’s deaths, MPD identified 21 officers involved in fatal incidents dating back to October 2014. Still, the police union’s most recent lawsuit filed in D.C. Superior Court seeks to prevent the future release of footage and the identities of officers involved in fatal incidents.
“If there are additional names, whether the department has failed to identify anyone unintentionally, we’d like to prevent that,” D.C. Police Union president Gregg Pemberton says. “Not all the videos have been released. We’d like to prevent that until the issue is litigated.”
Pemberton adds that body camera footage does not provide all the context necessary to evaluate an incident, and releasing it without a full investigation could distort public opinion.
The union’s lawsuit claims that the Council is illegally usurping the mayor’s authority and is putting officers in danger by identifying them.
The suit cites a letter from Acting United States Attorney for D.C. Michael Sherwin, who argues that the release of body camera footage, as the bill requires, could complicate his office’s investigation of officers who use deadly force.
“The early publication of [body-worn camera footage] could create a narrative that makes it difficult to conduct an investigation, as it may lead witnesses to a conclusion that affects their testimony,” Sherwin writes in the letter sent to Allen.
But in the same letter, Sherwin makes the case that officers should be allowed to watch body camera footage to ensure their police reports are accurate.
Attorneys for the ACLU-DC and the D.C. Open Government Coalition, both proponents of greater transparency around policing, scratch their heads at the lawsuit. Arthur Spitzer, senior counsel at the ACLU, says the separation of powers between the legislative and executive branches clearly gives the Council the authority to direct how body camera footage is handled.
“I just don’t think they know what they’re talking about, frankly, in this separation of powers claim,” Spitzer says.
Thomas Susman, president of the D.C. OGC, adds that the right to privacy is not absolute, and the determination for the appropriate level of invasiveness is up to the Council.
“I think it’s what one might call a ‘message lawsuit.’ They feel strongly about it, but I see very little chance of a legal case prevailing,” Susman says. “This lawsuit is to enjoin disclosure, and I think that is tone-deaf to the public sentiment.”
The D.C. Police Union’s other lawsuit, filed in the U.S. District Court for the District of Columbia, objects to the law’s changes to collective bargaining. Under the new law, the union could not negotiate the terms of officer discipline, which the lawsuit claims unconstitutionally singles out police officers.
“No other public employees of the District of labor unions representing those employees are restricted from bargaining with management concerning discipline,” the lawsuit says.
In a statement released at the time the lawsuit was filed, Pemberton said D.C.’s elected leaders are violating the constitutional rights of the city’s first responders in order to “preserve their own political survival.”
He tells City Paper that unfavorable working conditions will deter officers from working in D.C., which could ultimately harm the quality of policing in the District.
Council Chairman Phil Mendelson, who introduced the collective bargaining provision as an amendment to Allen’s bill, dismissed the union’s lawsuit and the notion that all unions should be treated equally.
“The police have a different responsibility than any other workers in government,” Mendelson says. “When one has the ability to deprive others of liberty … accountability becomes more important than, say, a clerk in civil service.”
Mendelson has clashed with police labor before, most recently when the union launched a mailer campaign and website called “Mendelson Must Go” during the 2014 election. The chairman believes he may have an ally in Chief Peter Newsham, who has previously expressed frustration with the disciplinary process. Newsham has fired several officers only to have an arbitrator overrule his decisions and reinstate the officers.
“These types of lawsuits are not typical,” says Stephen Saltzburg, a George Washington University law professor and former deputy assistant attorney general within the Department of Justice.
Saltzburg believes the union’s strongest argument in the lawsuit is its claim that the District is violating the contract clause of the Constitution. “A state can interfere with existing contracts if there is a strong public interested in doing so,” he says. “Reasonable people can differ to justify this.”
The emergency legislation is in effect until March 4, 2021, or 225 days from when Bowser signed it into law, and could easily change as members look to make it permanent. The Committee on the Judiciary and Public Safety expects to hold a hearing on the legislation in September.
“I certainly want to be open to hear about what parts of the legislation are working. Are there problems that we hadn’t anticipated? Are there places where we need to go further?” Allen, who chairs the public safety committee, says. “I’m not starting from a place of saying, ‘What do I remove from the bill?’”
Other members might try to remove provisions. Mendelson, for example, continues to disagree with the provision that says all members of the Police Complaints Board have to be unaffiliated with law enforcement. Morgan Kane, the commander of MPD’s First District, is currently a member of the Office of Police Complaints’ governing body, and Mendelson says he’s seen no evidence of undue influence.
Not all critics of the 26-page law are cops. A few days after Mendelson announced the members appointed to the Police Reform Commission that the legislation established, he received emails taking issue with his selections. Philip Pannell, the executive director of the Anacostia Coordinating Council, pointed out the lack of geographic diversity.
“To have a 20-member commission to deal with police reform and to have only one person from Ward 8 is tokenism at best or graphical insensitivity at worse,” Pannell tells City Paper. “There is no substitute for a place at the table.”
“I’m sure they are really concerned about east of the river,” Pannell says of the commission members. “But to be honest about it, some of these people have appeared in Ward 8 as often as a solar eclipse.”
Pannell believes representation is critical given Ward 8 residents’ experience with MPD. Police focus on Ward 8 because it is disproportionately impacted by gun violence, but residents have testified to feeling targeted.
Robert Bobb, the former city administrator, and Christy Lopez, the primary drafter of the Ferguson report and negotiator of the Ferguson consent decree, chair the board. According to Pannell, the only Ward 8 resident on the commission is Corwin Knight, the founder and CEO of the Hope Foundation Reentry Network.
Mendelson says geography was not a consideration for the commission, which was given a whopping $500,000 budget and is expected to deliver a final report in December.
“I don’t know if the residents of Ward 8 are more knowledgeable of victims of racism than African Americans of Ward 7 or pick another ward,” he tells City Paper.
Some residents wish the legislation went further, particularly as it relates to discipline. Brown, Jeffrey Price’s uncle, has been trying to learn about disciplinary decisions. MPD’s Crash Review Board determined the traffic crash that killed Price was “preventable” because the officer, Michael Pearson, failed to stop at a sign without clearing the intersection and thus violated the department’s general orders. Pearson served a one-day suspension. Brown does not understand why the U.S. Attorneys’ Office for D.C. declined to criminally prosecute Pearson in February 2019 after reviewing the evidence, but has failed to get answers.
Meanwhile, the Price family’s attorney, Shurtz, is still trying to get all of the footage associated with the case, because the footage they do have shows an incomplete picture. There were multiple officers with body-worn cameras at the scene, of which the public has not seen, and hourlong redacted footage shows Pearson’s body camera did not always have audio.
“This is murder,” says Shurtz.