Police Must Make Apology to Man Who Taped Traffic Stops

From time to time, Apology Index looks at apologies by the police. These often involve cases of wrongful arrest or other police misconduct. Here is a case from Pennsylvania in which “Two local police departments have agreed to apologize for citing a man who took video footage of officers’ traffic stops in early 2007.” (Pottstown Mercury)

Here is the gist of the incident:

On Feb. 19, 2007, Spring City police officers asked Hookway to step out of his vehicle after he was seen filming a traffic stop from a distance, according to the Pennsylvania chapter of the American Civil Liberties Union. Police then handcuffed Hookway, placed him in a police car and searched his vehicle, said ACLU staff attorney Mary-Catherine Roper.

Based on (unconfirmed) information in the reader comments following the article, Mr. Hookway may not exactly be a model citizen himself. But that is quite irrelevant to the question of whether he, as a private citizen, has the right to videotape uniformed police officers in the performance of their duties. Under Pennsylvania law, it appears that he does. Hence the settlement in this case:

Roper, the ACLU attorney, said police officers often believe residents do not have the right to film them. She said they erroneously apply the Pennsylvania Wiretap Act, which deals with the discreet recording of private conversations.

Courts have been “very clear” on this matter, she said. So long as residents do not interfere with police duties or harass any other person, they have a right to document officers’ activities while they are in uniform.

I am sure that many police officers do not like the idea of private citizens monitoring their activities, but in a free society it is absolutely essential that our right to do so be protected. We grant our law enforcement officers great powers, including the power to detain, arrest, and question citizens and to use deadly force in the appropriate circumstances. Most officers take that responsibility as seriously as they should. Some bad few abuse it. The police make great sacrifices on our behalf–but that does not mean they should be immune to public scrutiny. 

Quis custodiet ipsos custodes?  The answer is, we, the people.

We don’t have the text of the letters of apology here. They may not have been written yet. But this is a case where an apology is most certainly called for.

Nifong Apology for Attempting to Railroad Duke Lacrosse Players

Better late than never, I suppose.  I could also say third time is the charm. There are probably a few other apt clich├ęs that fit here. So many digital trees have been sacrificed to discuss the false and malicious prosecution of the Duke lacrosse players last year by renegade district attorney Michael Nifong that I’m going to skip over the details. Here is a quick summary:

The case started with a woman’s allegations that she was raped at a
March 2006 lacrosse team party where she was hired as a stripper.
Nifong won indictments against three team members, but the charges were
later dropped, and state Attorney General Roy Cooper went a step
farther by declaring the three men innocent victims of Nifong’s “tragic
rush to accuse.” ( Chron.com)

Nifong is now the definition of disgraced. He has been disbarred and removed from office. He is now facing contempt of court charges for his suppression and misrepresentation of evidence in the (now dismissed) rape case. But he has now, through the redemptive power of apology, avoided additional sanctions previously sought by his erstwhile victims. But it wasn’t easy, even at this late hour, for him to admit he was wrong:

It took three tries for disgraced former prosecutor Mike Nifong to
utter the words that three Duke lacrosse players falsely accused of
rape were determined to hear him say.
On Thursday, more
than 16 months after beginning a disastrous prosecution of the former
players, Nifong offered a complete and unqualified apology.

His first try was a non-apology apology. The day after the rape charges were dismissed:

Nifong issued a written statement apologizing “to the
extent that I made judgments that ultimately proved to be incorrect.”

Still hadn’t quite sunk in.

In
June, Nifong offered a tearful apology to the families but said, “I
think something happened in that bathroom” and “something happened to
make everyone leave that scene very quickly.”

The response enraged the players’ attorneys, and left the mother of one player in tears.

Hmm, still a bit too much in denial and indulging in self-justification.

This time, Nifong admitted he was dead wrong:

“I agree with the attorney general’s statement that there is no
credible evidence that Mr. Seligmann, Mr. Finnerty or Mr. Evans
committed any of the crimes for which they were indicted — or any other
crimes against (the accuser) — during the party,” Nifong said, adding
that state prosecutors uncovered evidence he didn’t have.

So close. He had it, but just had to throw in that bit about additional evidence. Evidence you didn’t bother to look for, Nifong. Let’s hear the apology:

“I have admitted on more than one occasion that I have made mistakes in
the course of my prosecution of these cases,” Nifong told the court.
“For that, I sincerely apologize to Mr. Seligmann, Mr. Finnerty, Mr.
Evans and their families.” ( Chron.com)

Still sounds a little whiny to me. Will this apology take?

Defense attorney Joseph Cheshire called the previous apologies “far
from sincere” and said the families would have to decide whether to
accept the latest one. None of the three players was in court.

“I
think it is a statement that has much more validity than any of the
other so-called apologies he has attempted to make,” Cheshire said
after the hearing. ( Chron.com)

But apparently it was enough:

After listening to Nifong’s first unqualified apology in the 16-month
case, lawyers for the players dropped their request for sanctions,
except for a criminal contempt charge brought by a judge. Those
sanctions could have forced Nifong to pay some defense legal costs.

So what have we learned? Sometimes it is very hard to admit you’re wrong. Even when the whole world knows it. Perhaps especially when the whole world knows it. If there was any single person in America who needed to be on his knees apologizing and begging for forgiveness for his misdeeds, it was Michael Nifong. The man tried to ruin the lives of three innocent young men for his own selfish gain. He brought trumped up rape charges against them and plowed right ahead even after it was obvious to the entire thinking world that the would-be victim was bonkers and her story had no credibility. He suppressed DNA evidence that pointed to the defendants’ innocence. He persisted in justifying his pigheaded wrongdoing even after being booted off the case, losing his license to practice law and kicked out of office. Yet he still couldn’t admit he was wrong, that he had wronged his victims and that he owed them a public apology, at the very least.

In light of the enormity of his misdeeds, the so-called full apology he finally uttered was weak tea indeed. But it was enough to satisfy his victims who, I am sure, are ready to put this whole sorry episode behind them. They just wanted a public admission from their tormentor that he was in the wrong and, having received that, were willing to drop the sanctions they had been pressing for. Fair enough.

What I have not heard from Nifong — and possibly because I haven’t looked for it, so maybe he has done this already — is an apology to the citizens of Durham and of North Carolina for betraying his oath of office. We endow district attorneys with awesome powers. They can take away the freedom and even the lives of their fellow citizens. We expect prosecutors to use the power entrusted to them for the protection of the public. We expect them to act with restraint, with probity, without fear or favor, to see that justice is done. Nifong abused those power and brought not only himself, but the entire justice system into disrepute. He’s got a lot more apologizing to do before his slate is clean … if it ever will be.

APOLOGY RESEARCH: Law enforcement apologies

Something a little different today, recalling the recent apology by the police chief of lovely McKinney, Texas for arresting the wrong woman on drug charges.

The Police Chief ran a 2006 article entitled, “Should Law Enforcement Agencies Apologize for Mistakes?”

The common sense answer would seem to be, “Yes, of course.”

But when the lawyers get involved, it is usually a different story:

Lawyers, on the other hand, typically tell clients to admit nothing and
never apologize.

An approach which pretty much guarantees that if the wronged party is undecided about filing a lawsuit, they’ll go ahead and sue. Which is good for no one.

Except, of course, the lawyers.

However, sometimes it pays to ignore your lawyer:

An apology for wrongdoing can reduce the potential for litigation and
liability and also help maintain or restore public trust. Refusing to
admit wrongdoing may cause greater problems than the wrongdoing itself.
Most agree that public officials would be better off if they simply
admitted their transgressions, apologized, and sought forgiveness. In
recognition of these principles, some law enforcement agencies have
developed standard operating procedures for use of apology and
expressions of regret as risk management tools.

The apology as “risk management tool” still sounds a little cold-blooded, but the basic point is sound. Often when people are harmed by your actions they just want an acknowledgment from you that you messed up, that you realize you were wrong and that you won’t do it again. Yes, we live in an overly litigious society. There is always a Crazy Pants Guy out there. (He lost, by the way). But most people, I believe, are willing, even eager to forgive if you acknowledge their pain and give them a chance.

If you give them that respect, their anger may away and with it the desire for revenge and retaliation. No sane person wants to be involved in a lawsuit if they can avoid it. So, yes, it makes intuitive sense to me that a police apology can forestall a potential lawsuit … which is, in fact, good risk management. As well as being the right thing to do.

The article cites anecdotal evidence, as well as research to support what common sense tells us, but  lawyers won’t.

One interesting tidbit from the article that we will follow up on in a future post is this:

In 2000 California passed a law barring the introduction of apology-like
expressions of sympathy (“I’m sorry that you were hurt”) but not
fault-admitting apologies (“I’m sorry that I hurt you”) after accidents
as evidence of fault. Other states are now debating proposed apology
legislation, including bills that would exclude from evidence even
fault- admitting apologies.

This is a positive development. Often organizations and individuals want to do the right thing and apologize but don’t precisely because they fear the apology being used against them in court. No good deed goes unpunished.

It presents a Catch-22 situation. Your apology may prevent a lawsuit. But if it doesn’t, your apology may be used as evidence against you. In that situation, it may be safer not to apologize.

(Not to be too harsh on the lawyers, they are trained to be cautious and to think about the worst-case scenario, hence the typical advice to clam up).

A law that prevents apologies from being introduced as evidence meets a real human need. It creates room in tense situations for doing the right thing. Aside from that, it may serve the public good by reducing the number of lawsuits. Because in some cases, an apology is all the harmed person really wants.

Hopefully, the number of police departments — and other organizations — willing to apologize when appropriate will continue to grow.

For one thing, that will mean less slow apology news days here at Apology Index.

Police Chief Apologizes for Wrongful Arrest

It is my impression that the government — be it local, state, or federal — is usually slow to admit wrongdoing or mistakes, much less apologize for it. Witness the hundred years or more it took responsible governments to even start apologizing for giving legal recognition and government sanction to slavery, as we were discussing a few entries back.

Law enforcement agencies seem especially stubborn about owning up to their mistakes. It often takes a public hue and cry, bad press, a lengthy investigation, lawsuits and political pressure before before a police department will admit that something like bursting into an 80-something-year-old grandmother’s house and gunning her down in a botched drug raid was a bad thing to do.

This attitude is understandable. Cops have a tough job. They often have to deal with hostile, irrational, violent, drunk, drugged and/or bug-eyed crazy people, not to mentioned desperate, hardened criminals who will not hesitate to shoot, stab, bite, kick, punch or gouge law enforcement officers to avoid arrest. The public does not fully understand, nor fully appreciate the work police do or the demands and pressures they work under. And many people are ready to point fingers and criticize when something does go wrong — politicians, media and the public included.

So it is natural that a kind of “us against them” mentality can evolve in some departments. And “them” is not just the bad guys — it’s all of us who aren’t cops and don’t get it. When the bad shooting, false arrest or other  unflattering incident occurs, we sometimes see that siege mentality on display. The police figure, often correctly, that no one is going to cut them a break whether they made an honest mistake or not.

Everything gets elevated by the fact that even well-intentioned police mistakes can lead to an innocent person being injured or killed or spending time behind bars. Which tends to stir up public outrage. Under those conditions — and counting on the inevitable investigations and lawsuits — there is rarely any incentive for individual officers or departments to admit or apologize for mistakes or wrongdoing until they absolutely have to.

This is unfortunate. Communities in which there is a high level of hostility and mistrust between the public and the police are ill-served by that state of affairs. The police cannot do their jobs well without the trust and support of the public. Likewise, the public does not receive the level of public safety and protection that they want, deserve and are paying for regardless unless there is a strong community bond with their local law enforcement.

All of that is preamble to this apology out of McKinney, Texas. This is a case where the police made a wrongful arrest, recognized the mistake, owned up to it and apologized.

Here is what happened:

“Christi
Hernandez, 35, was thrown in jail and later fired from her job after
she was wrongfully arrested for selling drugs.

A
cafeteria manager at Lovejoy High School, Hernandez was arrested and
handcuffed at the school. She also spent a night in jail and had to
post $2,500 bail to get out.”  (
“McKinney pays up in woman’s wrongful arrest,” WFAA.com)

The wrongful arrest was a case of mistaken identity:

“According to McKinney police records, Christy Marie Hernandez, 32, of
Anna, attempted to purchase cocaine from an undercover McKinney police
officer on Apr. 29, 2006.

Kowalski said the detective handling
the case obtained a name from the woman during the drug deal then
attempted to match a photograph of the woman taken by the Collin County
Detention Center that turned out to be Christi Hernandez from an
issuance of a bad check case filed against her back in 2001. The
detective did not know the spelling of the woman’s name at the time and
incorrectly matched Christi Hernandez’s identity to the case. A warrant
was issued and she was later indicted and arrested.”
(“Police chief makes apology to Hernandez,” McKinney Courier-Gazette)

One letter off from the real coke buyer and she goes to jail:

“Police showed up to Christi’s job at Lovejoy High School, where she was
having lunch with co-workers, pulled her aside and arrested her for
dealing drugs.”
(“Police issue apology for mistaken identity arrest,” CBS11tv.com)

Christi-With-An-I was thrown in jail, fired from her job and suffered obvious damage to her reputation, among other harms. She was finally able to convince the McKinney police they had the wrong woman — several days after her arrest — by rolling up her sleeve and showing that she did not have a tattoo that the undercover officer had seen on the real suspects arm. She was released and the charges were dropped.

Now on to the apology. The below is a mash-up from the articles cited above:

“On behalf of the City of McKinney, the McKinney Police Department, and
our city manager Mr. Robinson, I offer our sincere apology to you for
the events that occurred on January 25, 2007, the day you were arrested
by mistake through the actions of a member of our department,” said
Chief Doug Kowalski, McKinney Police Department.

“I want you to know that we mean this from the bottom of our hearts.
The McKinney Police Department does not accomplish its mission by
making mistakes,” Kowalski said. “The police department does not
accomplish its mission by putting the wrong person in jail. We made a
mistake that day. This young lady has suffered and we’ve done
everything we can from that point forward to make it right … We
apologize to her and I apologize to her, also.”

“That was a series of events that led to what I call a great misfortune
for this young lady right here,” Kowalski said. “Obviously, during the
course of that investigation, she was arrested. Several terrible things
resulted from that for her. She was deprived from her liberty. She was,
for the want of a better term, she lost her job for a period of time.
Additionally, she suffered damage to her reputation. The police
department does not go out and try and put the wrong people in jail.
That’s not what we’re about. The McKinney Police Department tries to do
what’s right, do the best we can and treat other people the way you
want to be treated and although there were probably a number of
defenses the city could have raised under good faith, the city, the
city manager (Larry Robinson) and the city council wanted to do the
right thing and that was make this young lady whole again.”

Kowalski went
on to say that the undercover officer who was responsible for arresting
Christi Hernandez has been counseled and now realizes the consequences
of his actions.

Kowalski said he could not discuss any possible disciplinary actions
that might have been taken against the detective since it is a
personnel matter.

“While he did make a mistake on the one hand,
the things he did afterward go to the level of this officer’s
integrity,” Kowalski said. “He did admit that he made a mistake. He
apologized for making a mistake. He went about trying to rectify his
mistake to the best of his ability with the district attorney and the
charges were dropped immediately. Additionally, he didn’t try to cover
up his mistake. He came back to the department and reported it.”

This was a great apology. The chief stepped right up and said we made a mistake and we’re doing all we can to make it right. No whining about what a tough job they have keeping drugs off the streets. No hiding behind sovereign immunity or any other legal defenses the department might have had. Chief Kowalski strikes me as a consummate professional. His officers too. As he notes in the last paragraph, the detective who screwed up owned up to his mistake and immediately set about to correct it. That speaks well of the professionalism and the culture of the McKinney police department.

From the McKinney Police Department website, Chief Kowalski writes:

We are very proud of the relationship that the McKinney Police
Department shares with the community. Our service delivery is described
as community-problem-solving. This includes citizen participation in
our planning and policy process and partnerships in accomplishing our
goals. Our longstanding goal is to make McKinney a safe city in which
to live, work, and visit.  McKinney is a police department that prides
itself in delivering the highest level of quality service possible.  If
you’re an individual with high standards, integrity, and determination
to excel I encourage you to join our team today and I wish you the best
in your endeavors.

You get the sense he really means it … this isn’t just mission statement happy talk. Also, they seem to be hiring.

Kudos also to the city manager and city council. The city paid Ms. Hernandez $25,000 as compensation for her wrongful arrest. Now she could have won that much and probably more in a lawsuit. And many cities would have made her file the lawsuit and go through all the trouble, expense and aggravation of litigation before paying up. But the City of McKinney did the right thing. If I had some reason to move to Collin County, Texas, I would definitely consider residing in McKinney. It is also, apparently, a great place to visit.

“I’m satisfied,”
Ms. Hernandez said Monday. “I feel like this at least gives me back the
money that I’m out, and, you know, shows that they cared enough to
offer me something.”

Good for her. She is satisfied with the apology. Her attorney is working to have the arrest permanently removed from her record. The department is revamping their identification procedures. As for Christy-With-A-Y, she’s been arrested on the drug charges.

DATE OF APOLOGY: May 29, 2007
APOLOGIZER: McKinney, Texas Chief of Police Doug Kowalski
APOLOGIZEE: Christi Hernandez
FOR: Wrongful arrest