Policing the Police

Thomas and Tina Mlodzinski have filed a suit in US Federal District Court in Concord.

They charge that on August 2, 2006, 3 Bristol police officers and 20 members of the Central New Hampshire Special Operations Unit broke down their apartment door.

It was 3:56 in the morning.

They say police said they were there to arrest 17 year old Michael Rothman and search for a baton he had allegedly used in a recent assault.

Dressed in military gear, armed with rifles and concealed behind masks, officers quickly whisked Rothman out.

Then, according to Mlodzinski’s attorney Matt Lahey, officers herded everyone else into the living room.

TAPE: handcuffing them. Holding them in their own living room. Taking them out separately to other parts of the house and interrogating them was completely unjustified.

He says law enforcement officers questioned the family about the location of the baton.

Lahey, who has practiced law for the past 25 years, is mayor of Laconia.

He says this is the first time he has filed a lawsuit against police for excessive force.

TAPE: to wait until the middle of the night and come in with that amount of force, manpower and firepower, arrest a 17 year old who lived in that town and could have been easily arrested was completely over the top.

The lawyer who represents the Central New Hampshire Special Operations Unit says the allegations in the complaint are completely false.

He says Special Operations Officers were not in masks and left the house within minutes of entry.

Nonetheless, Lahey wonders how anyone could justify serving an arrest warrant like that.

TAPE:....it leads me to believe is there is not the kind of supervision at the top that would say, ‘wait a minute, why are we using this unit under this circumstance?’

We’ll get back to Lahey’s question in a minute.

But first a little background.

SWAT teams, or Special Operations Units, are common in New Hampshire.

Presently, 11 teams are in operation.

They’re made up of law enforcement officers and first aid responders.

Police Chiefs call on these units to respond to high risk incidents- like barricaded hostage takers and active shooters.

Those kinds of operations usually fall outside the training of rank and file patrol officers.

When attorney Lahey questions the supervision of Special Ops Units, he’s not so much talking about the teams within a particular police department like Manchester or Nashua.

He’s concerned about the six regional SWAT teams that are formed as non-profit organizations, like the one in the Bristol incident.

TAPE: basically the local departments donate officers to these units and then the units essentially answer to themselves and they are self-governing, without any oversight by any elected official or body.

Typically, law enforcement agencies are overseen by some governmental entity.

The Sheriff’s Office is run through the county, the Manchester Police Department is responsible to the city, and even the state’s multi-jurisdictional Drug Task Force is managed by the Attorney General’s Office.

In an effort to share costs and be eligible for federal grants, cities and towns banded together to create the regional teams.

Local police chiefs serve as the boards of directors.

Defense attorney Michael Iacopino doesn’t believe police departments acted maliciously when they created these units as non-profits.

But he says the structure gives them too much autonomy.

TAPE: they can make rules about who can be members, what towns can be in, they will make decisions on what weapons they will buy, what grants they will look for. And all of that will be done without the voice of the people behind it. It will be done because whoever is managing that special operations unit decides that is what they want to do.

Iacopino believes with more oversight, teams like Central Special Ops never would have gone into the Mlodzinski’s apartment in Bristol.

Given lack of apparent oversight, he says it’s unclear who in government is responsible if a team member breaks the law, or violates a person’s civil rights.

But not everyone agrees with Iacopino.

TAPE: they are under the authority and jurisdiction of the chief law enforcement officer for that incident.

That’s Deputy Attorney General Bud Fitch.

He says the law is clear when it comes to responsibility for Special Operations Units.

TAPE: the decisions about the tactics and the tools and the procedures to be used in law enforcement operations is ultimately a decision within the chief law enforcement officer...most of the time it’s going to be a municipal police chief.

Fitch says when a chief asks a Special Operations Unit for help the chief doesn’t necessarily make the tactical decisions about how to handle a hostage negotiation for example.

But he has legal authority for any action the team takes while it’s in town.

Fitch and other law enforcement officers insist sufficient checks and balances are in place.

Tilton Police Chief Bob Cormier is also President of the New Hampshire Tactical Officers Association.

He says if a citizen files a complaint; odds are a lot of people will hear about it.

TAPE: they can go to the requesting agency that requested the team to that community. They can go to the five or six police chiefs that make up the board...and the police chiefs that make up the board, they are accountable to the 20-40 communities that belong to this...to those chiefs, and those chiefs are accountable to their selectmen.

Cormier says the arrangement communities have to share Special Operations Units isn’t much different than the mutual aid agreements that cities and towns have to share HAZMAT teams.

Ultimately, Cormier says being a member of a Special Operations team doesn’t come with any special immunity.

TAPE: they are all sworn to uphold the law. They are all sworn to protect the rights of citizens. They all are governed by everything a normal police officer in his or her day to day function. There’s no exception for specialized teams. There’s no exemption...from any RSA’s. They are not exempt from any training at Police Standards and Training.

On top of that, Cormier says the Special Operations Units follow training and protocol standards set by national organizations like the National Tactical Officer’s Association.

Right now, the New Hampshire Police Standards and Training Council does not have oversight of training certification of these groups.

The Council certifies individual police officers, and the units are made up of police officers.

But no one at the state level knows whether team members are adequately trained to handle the highly specialized Special Operation functions.

Making sure officers are prepared falls to the local chiefs of police and the SWAT Team officials.

Units say they have developed policies that govern the selection of team members, the training requirements and disciplinary action.

Two teams of the six regional teams- Western New Hampshire Special Operations Unit and Central New Hampshire Special Operations Unit provided portions of their manuals that outline those protocols.

A third, the Seacoast Emergency Response Team, sent an email describing its guidelines.

All three require a minimum of two years of law enforcement experience to be a SWAT team member.

Annual training requirements vary from 96-172 hours, and the three units all can take disciplinary action against those officers who fail to receive adequate training.

Attorney Michael Iacopino says police should not be policing themselves when it comes to Special Ops.

TAPE: we give them a lot of authority. We give them more authority than we give to anybody in the state. We give them guns, badges and in these cases we give them big guns. So they should be accountable to the government.

Iacopino says he would like to see legislation that requires all units in the state operated and governed by a Sheriff’s Department or the State Police, or a municipality.

At this point, legislation seems unlikely.

But the Attorney General’s Office has called for Police Standards and Training to conduct a review of Special Operations Team protocols.

That comes after the AG investigated a 2008 Charlestown incident involving members from the Western team and other law enforcement officers.

That incident resulted in a state trooper wounded and another person dead.

Deputy AG Bud Fitch says the review could lead to changes.

TAPE: I think a reasonable outcome of this review process will be the Police Standards and Training Council potentially adopting some additional training programs...and the Council considering adopting a model policy and procedure statement.

Fitch explains that means police departments could adopt Special Operations Unit best practices that have been endorsed by Police Standards and Training.

A report is expected this spring.

Those modifications fall short of the oversight that critics like attorneys Iacopino and Lahey seek.

Belknap County Sherriff Craig Wiggin is the Commander for the Belknap Regional Special Operations Group.

He says he believes the teams have the burden to prove they are responsible.

TAPE: at the end of the day, we need to make sure the public trusts us. that we are not operating in the shadows, that they realize they have nothing to fear from us, that we are here to protect the public, not terrorize the public. And that we are not a bunch of rouges out there running around with machine guns. That we do know what we are doing. We are competent, we are qualified and we are using these teams judiciously and when they are necessary to help make this a safer state.

Sheriff Wiggin says he’s glad the teams have come under greater scrutiny.

He says if the team members don’t know what they are doing, then they are going to get people hurt, including themselves.

For NHPR News, I’m DG.