Proposed Directive Prohibiting “Political Profiling”

Below is my proposal  letter to the Board of Aldermen:

Honorable Mayor and fellow Board of Alderman Members, 

As you may or may not have been informed through the media or other sources, on March 12, 2009  Conservative talk show host, Alex Jones published a report written by the Missouri Information Analysis Center on the Modern Day Militia Movement which was published on February 20th, 2009. 

The report which was sent anonymously to Jones by a Missouri police officer attempts to associate the modern militia movement with political third parties and those that are considered to be radical Christian, anti-immigration and anti-abortion beliefs. The  report defines “political paraphernalia” as: 

“Constitution Party, Campaign for Liberty or Libertarian Party material” in addition the MIAC report on the Modern Day Militia Movement also lists a number of variations of U.S, U.S. Civil and U.S. Historical flags as “political paraphernalia”. 

In response to this report, Missouri 5th District State Representative Jim Guest wrote an editorial entitled: “Are you a Militant?” in it Guest stated: 

“It is profiling to the highest degree to identify citizens of this country who display bumper stickers or other labels as being part of a modern militia movement. This includes members of any 3rd party, such as, the Constitution Party or Libertarian party. The idea that free speech and free press are under surveillance by our law enforcement is in violation of the 1st amendment.” 

The MIAC report was also later condemned by Lt. Governor Peter Kinder. In a report published in the Southeast Missourian newspaper on Wednesday  March 25,2009 ( “Lt. Governor, Highway Patrol leader criticize controversial report”) , Kinder stated that:

 “The report is unfair because it mentions anti-abortion and anti-illegal immigration groups but does not include domestic terror groups associated with fundamentalist Muslims or extreme environmentalists.”

Kinder also called for the Missouri Department of Public Safety , John Britt to be put on administrative leave pending an investigation regarding the report. 

In addition to Lt. Governor Kinder, the same Southeast Missourian news story reports that:

“The outcry prompted James Keathley, the superintendent of the Highway Patrol, to stop distributing the document to law enforcement officers” 

On Thursday March 26, 2009 the Southeast Missourian newspaper published a story ( “Nixon blames ‘Overzealousness’ for Militia Report” which states that: 

“Overzealousness” of a Missouri State Highway Patrol unit is to blame for a report drawing intense opposition from conservatives because it links various right-wing organizations with the modern militia movement. 

In addition the March 25, 2009 issue of the Springfield News-Leader reported that:

“In response to a controversial report profiling political beliefs of militia members, the Missouri House of Representatives has barred the Department of Public Safety from spending any “state or federal funds for political profiling.”

On a voice vote, the Republican-controlled House adopted an amendment to the budget bill for Department of Public Safety, forbidding that state agency from funding reports like the Missouri Information Analysis Center’s recent Feb. 20 “modern militia movement” report.

The Department of Public Safety has apologized for the militia report, which links fundamentalist Christians, strict followers of the U.S. Constitution and people who oppose taxes, abortion and illegal immigration as possible members of militias.

Earlier today, the Missouri State Highway Patrol retracted the militia report and admitted errors in the way the report was distributed without getting reviewed by top state officials, including DPS Director John Britt.” 

In accordance with the Missouri House of Representatives prohibiting future funding of any reports that encourage “political profiling”, the condemnation of Lt. Governor Kinder of such reports and the retracting of the distribution of the recent MIAC report on the Modern Day Militia Movement which profiles, Christians, those opposed to illegal immigration and those who hold pro-life views, as well as those who show support for political “Third Parties” and Constitutional views,  I am submitting the following directive for the Marble Hill Police Department which defines the scope and limits of law enforcement authority as it pertains to “the enforcements of laws, statues, ordinances and arrests”. 

I used a model racial profiling ordinance found on the Missouri Municipal League website and made some brief modifications so that it pertains to “political profiling”. 

I want to make it perfectly clear, that I do not believe that the City of Marble Hill’s police officers have engaged or would ever engage in the act of “political profiling”.  

That being said, I think it is wrong for anyone to be “profiled” for their political support or beliefs.  Such actions infringe upon our First Amendment rights to Free Speech and undermine the sacrifices made by our veterans both past and present. 

I ask that you, Honorable Mayor and Board members please review the proposed directive and consider giving it your approval. I also ask that you please disregard any past or present differences that we might have held for each other, before taking office, all of us swore an Oath to the Constitutions of the State of Missouri and the United States of America, it is our duty to make sure that the freedoms protected in these Constitutions are guaranteed to the citizens that we represent. 

Thank You,

Alderman Clint E. Lacy

Ward I

City of Marble Hill.

Proposed Directive:

 

I PURPOSE

The purpose of this directive is to define and elaborate on the scope and limits of law enforcement authority as it pertains to the enforcement of laws, statutes, ordinances and arrests.

II. DEFINITIONS

A. CONTACT – A contact is a face-to-face communication between an officer and a private person under circumstances where the person is free to leave.

B. FRISK – A frisk occurs when an officer makes contact with the outer clothing of a person, using a feel and/or pat down methods to detect whether a concealed weapon or dangerous instrument is being carried.

C. PERSONALLY INVOLVED: Where the off-duty officer, a family member, or a friend becomes engaged in a dispute or incident with the person to be arrested or any other person connected with the incident.

D. REASONABLE OFFICER: A reasonable officer can be defined as one who acts as other similarly trained and experienced officers could be expected to act, under similar circumstances. The reasonableness of an officers actions will be reviewed based on the facts and circumstances known to him at the time of the action.

E. REASONABLE SUSPICION: A police officer has reasonable suspicion to detain a citizen briefly for purposes of investigation when the officer, in light of experience and training, is aware of articulable facts or circumstances which could lead a reasonably prudent person to believe that a crime has occurred, criminal activity is going to occur, or someone is otherwise in need of police assistance.

F. REASONABLE SUSPICION TO FRISK A police officer has reasonable suspicion to frisk a citizen during an investigative detention when the officer is concerned for their personal safety and in light of experience and training, is aware of articulable facts or circumstances which could lead a reasonably prudent person to believe that the citizen may be armed with a weapon.

G. STOP – A stop is a temporary detention of a person for investigation. A stop occurs when officers use their authority either to compel a person to halt, to remain in a certain place, or to perform some act (such as walking to a nearby location where the officer can use a radio, telephone, etc.). Both pedestrians and persons in vehicles may be stopped.

 

III. POLICY

It is the policy of this department to investigate suspicious persons, incidents and other activities which officers encounter on patrol. It is also the intent of the department to respect and protect the constitutional rights of all individuals during law enforcement contacts and/or enforcement actions. The department encourages its officers to initiate citizen contacts as a means to stay informed about activities and concerns of persons in the community.

IV. RULES

A. For purposes beyond a mere contact, officers should realize that they must be within their jurisdiction or have statutory authority.

B. For purposes beyond a mere contact, non-uniformed officers will identify themselves if circumstances require.

 

V. CITIZEN ENCOUNTERS

A. Contacts

1.       Officers are encouraged to initiate contacts with individuals in the community in order to gain knowledge of their patrol districts and the community.

2.       A contact is different from a detention or arrest in that it does not involve the seizure of a person within the meaning of the Fourth Amendment. The officer does not need reasonable suspicion, probable cause, or any other specific display of criminal activity in order to initiate a contact.

3.       Officers may feel the need to investigate the activities of a person when they do not possess sufficient information to make a stop or arrest. In such a case, the officer may initiate a contact with the person in any place that the officer has a right to be.

4.       Unless an officer concludes that an arrest should be made or that a stop is justifiable and appropriate, communications with a private person should begin with a contact.

5.       Although no legal cause need be present for the officer to initiate a contact, the persons contacted may not be halted, detained, or frisked against their will. They may not be required to answer questions or to cooperate in any way if they do not wish to do so. If they refuse to cooperate, they must be permitted to go on their way, unless the officer has developed reasonable suspicion to escalate the contact to a stop or has developed probable cause to arrest. If it seems appropriate under the circumstances, however, the person may be kept under surveillance. Since a contact is not a stop or an arrest, and those persons contacted may be innocent of wrongdoing of any kind, officers should take special care to act in a restrained and courteous manner.

 

B. Stops

1.       If an officer reasonably suspects that a person has committed, is committing, or is about to commit any crime, the authority to stop that person exists. The officer may exercise this authority in any place that the officer has the right to be. Both

 

 

pedestrians and persons in vehicles may be stopped. A stop is warranted if there is a reasonable suspicion by the officer that some activity out of the ordinary is or has occurred, some indication to connect the person under suspicion with the unusual activity, and some suggestion that the activity is related to a crime.

2. Factors to consider in determining whether reasonable suspicion exists for a stop.

a. Appearance – Does the person generally fit the description of a person wanted for a known offense? Do they appear to be suffering from a recent injury or to be under the influence of alcohol, drugs, or other intoxicants?

b. Actions – Is the person running away from an actual or possible crime scene? Are they behaving in a manner indicating possible criminal conduct? If so, in what way? Were incriminating statements or conversations overheard?

c. Demeanor – Is the person responsive to questions during the contact; were their answers evasive, suspicious, or incriminating? Were they excessively nervous during the contact?

d. Officer’s Prior Knowledge – Does the person have a prior arrest or conviction record, or are they known to have committed a serious offense? If so, is it for offenses similar to one that has just occurred, or which you suspect is about to occur?

e. Area – Is the person near the location of a known offense soon after its commission? Is the person in an area known for an unusually high incidence of a particular criminal activity? If so, is it the kind of activity the person is thought to have committed, be committing, or is about to commit?. If reference is made to the area of the stop, officers should be able to articulate specific facts concerning that area (i.e., four commercial burglaries during the past week and within several blocks of the stop).

f. Time of Day – Is it usual for people to be in the area at this particular time? Is it the time of day or night during which criminal activity of the kind suspected usually occurs?

g. Prior Police Training and Experience – Does the person’s conduct resemble the pattern or modus operandi used in particular criminal offenses? Does the investigating officer have experience in dealing with the particular kind of criminal activity being investigated?

h. Police Purpose – Was the officer investigating a specific crime or specific type of criminal activity? How serious is the

 

 

suspected criminal activity? Might innocent people be endangered if investigative action is not taken at once?

i. Source of Information – If the basis of the officer’s reasonable suspicions is, in whole or in part, information supplied by another person, what kind of person was involved? Were they a criminal informant, a witness, or a victim of a crime? How reliable does the person appear to be? Have they supplied information in the past that proved to be reliable? Are they known to the officer? Did the officer obtain the information directly from that person? How did the person obtain the information? Was any part of the information corroborated prior to making the stop?

 

3. Every officer who conducts a stop, as opposed to a contact, must be prepared to cite those specific factors which led the officer to believe that the stop is justifiable.

4. Proper justification for a stop does not permit unreasonable conduct during the stop. All police activity during a stop must be done in a reasonable manner, because each phase of the stop will be considered by the courts in determining whether the stop was reasonable and, therefore, lawful. Enforcement decisions will not be based solely on known political affiliations, political beliefs or political symbols (such as bumper or window stickers); unless the officer is seeking an individual with one or more of those identified attributes.

a. A person stopped pursuant to this Directive may only be detained at or near the scene of the stop for a reasonable length of time. Officers should detain a person only for the length of time necessary to obtain or verify the person’s presence or conduct, or an account of the offense, or otherwise determine if the person should be arrested or released.

b. Officers must act with as much restraint and courtesy towards the person stopped as is possible under the circumstances. Non uniformed officers making a stop shall identify themselves as law enforcement officers as soon as practical after making the stop. Prior to termination of the stop, the officer shall give the person stopped an explanation of the purpose of the stop.

c. Officers may direct questions to the detained person(s) for the purpose of obtaining their name, address, and an explanation of their presence and conduct. However, absent probable cause for an arrest, the detained person may not be compelled to answer these questions (even that of identity) except as required or mandated by applicable state law.

d. Refusal to answer questions does not by itself establish probable cause to arrest, but such refusal may be considered

 

 

along with other facts as a factor to be considered in determining whether the investigation would be continued.

e. Officers shall use the least compelling means necessary under the circumstances to effect the stop of a person. The compelling means may be a verbal request, an order, or the use of physical force. If circumstances exist that create probable cause to arrest, the officer may use that amount of force reasonable and justifiable to effect a full custody arrest. The officer may use that amount of force responsible and justifiably for self defense.

 

5. Each officer upon stopping a person or vehicle will complete documentation containing the following information;

a. The age, gender and race or minority group of the individual stopped;

b. The traffic violation or violations committed, which led to the stop;

c. Whether a search was conducted as a result of the stop;

d. If a search of the person, their property or vehicle is conducted; the officer shall document the probable cause and the duration of the search;

e. The searching officer(s) shall document any contraband or evidence found during the search;

f. Warnings or citations issued as a result of the stop;

g. Any arrests resulting from the stop or search, to include charges;

h. The location of the stop.

 

C Frisks

1.       An officer may frisk any person who has been stopped when the officer reasonably suspects that the person is carrying a concealed weapon or dangerous instrument. The frisk may be conducted immediately upon making the stop or at any time during the stop whenever a reasonable suspicion to frisk develops. During traffic stops the officer may frisk both the driver and any passengers if the above conditions are met.

2.       Reasonable suspicion for a valid frisk is more than a vague hunch and less than probable cause. If a reasonably prudent officer, under the circumstances, would believe the officer’s safety or that of other persons in the vicinity is in danger, because a particular person might be carrying a weapon or dangerous instrument, a frisk is justified.

 

 

3. An officer who conducts a frisk must be prepared to cite those specific factors which led the officer to conclude that reasonable suspicion existed before the frisk began. Factors to consider are:

a. Appearance – Do the clothes bulge in a manner suggesting the presence of any object capable of inflicting injury?

b. Actions – Did the person make movements as if to hide a weapon when they were approached? Are they nervous during the course of the detention? Are their words or actions threatening?

c. Prior Knowledge – Does the officer know the person to have a record for weapons offenses or assaultive behavior? Does the officer know if the person has a reputation for carrying weapons?

d. Location – Is the area sufficiently isolated so that the officer is unlikely to receive immediate aid if attacked?

e. Time of Day – Is the confrontation taking place at night? Does this contribute to the likelihood that the officer will be attacked?

f. Police Purpose – Does the officer’s suspicion of the suspect relate to a serious and violent offense? An armed offense? (If so, those same factors justifying the stop also justify the frisk.)

g. Companions – Has the officer detained a number of people at the same time? Has a frisk of a companion, to the suspect, revealed a weapon? Does the officer have assistance immediately available to handle the number of persons stopped?

4. A frisk is a limited search for the purpose of protection only. Reasonable suspicion to frisk does not permit a full scale search.

5. General Conduct of a Frisk.

a. Items in possession of the subject to be frisked (i.e., purses, shopping bags, or briefcases) should be taken from the person. The object may then be inspected visually and by pat down of the exterior. If there is further cause to believe the object contains a weapon, then the officer may look inside.

b. Prior to beginning the frisk, the officer should advise the person that they are going to conduct a frisk. The frisk should begin in those parts of the clothing most likely to contain a weapon or dangerous instrument.

c. Frisks are a limited pat down of the person’s outer clothing, unless:

            The outer clothing is too bulky to determine if a weapon is concealed underneath. In this case the outer clothing may be opened.

            The officer has a reasonable belief, based upon reliable information or knowledge and observations, that a weapon or dangerous instrument is concealed at a particular location on the person, such as a pocket, waistband, or sleeve. If so, the

 

 

officer may reach directly into the suspect area. (Note: the officer must be able to explain the precise factors leading to this exception.)

d. The officer may also frisk or secure any areas within the detained person’s immediate reach, if the officer reasonably suspects that such areas might contain a weapon or dangerous instrument.

 

6. When an officer conducting a frisk, feels an object which the officer reasonably believes is a weapon or dangerous instrument or may contain such an item, the officer may reach into the area and remove the object.

a. Weapons or dangerous instruments – Determine if the person’s possession of the instrument is licensed or otherwise legal, or if it is unlawful. If the instrument is legally possessed it should be secured away from the person’s location for the duration of the detention. If a weapon, dangerous instrument, contraband or seizable items are discovered by the officer and the possession is unlawful, then appropriate search and/or arrest procedures should be followed.

b. Contraband or seizable items – The officer may seize the item and consider it in determining if probable cause exists to arrest the person. (If the person is arrested, then a full custodial search is proper.)

c. An object which could reasonably contain a weapon or dangerous instrument – with reasonable suspicion the officer may look inside the container and briefly examine its contents. If a weapon, dangerous instrument, contraband or seizable items are discovered by the officer and the possession is unlawful, then appropriate search and/or arrest procedures should be followed. If none of the above are located, return the object to the person.

d. If a container could not reasonably contain a weapon or dangerous instrument, or the officer does not have a reasonable belief that it contains such an item, then the officer may not look inside it. The item should then be returned to the owner or treated as a separable item.

7. If removal of the suspected object simultaneously discloses a second object that itself is a seizable item, the officer may lawfully seize the second object. The second object should then be considered in determining whether probable cause exists to arrest the person. If so, the officer should tell the person they are under arrest and proceed with a full custodial search incidental to the arrest.

8.Under the “Plain Feel Doctrine”, an officer may take reasonable steps to examine an object or article if, while conducting a frisk:

a. the officer feels an object which the officer does not believe to be a weapon or dangerous instrument, but

b. does believe to be contraband, based upon

1.       the properties of the object determined by “plain feel” through the subject s clothing (such as size, shape, or consistency); and

2.       the officer s experience and the totality of the current incident.

 

Upon confirmation that the object or article is an illegal object, the officer may appropriately seize the object, and arrest and charge the suspect.

VI. COMPLIANCE

Violations of this policy, or portions thereof, may result in disciplinary action.

VII. OFFICERS ASSIGNED TO OTHER AGENCIES

Officers of this department assigned to or assisting other law enforcement agencies will be guided by this policy.

VIII. APPLICATION

This order constitutes department policy, and is not intended to enlarge the employee s civil or criminal liability in any way. It shall not be construed as the creation of a higher legal standard or safety or care in an evidentiary sense with respect to third party claims insofar as the employee s legal duty as imposed by law.

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