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N.H. police misconduct committee nears deadline, but members remain divided on investigatory powers

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Darnell Hill was driving down Route 202 around midnight last August when he was pulled over for speeding.

During the stop, Officer Luis Berdecia of the Henniker Police Department, told Hill that he had another car to pull over. He instructed Hill to follow him. Hill, who is Black, was to pull over once they caught up to the second car.

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Confused, and uncomfortable with following the police cruiser in chasing another car, Hill turned his vehicle around and drove in the other direction. Berdecia notified then-Sgt. Christopher Parsons of the Hillsboro Police Department, who was in the area, and Parsons pulled Hill over.

Hill, 35, was arrested for disobeying an officer, and was taken to the Henniker Police Department while his car was towed to the Hillsboro Police Department.

After being released on bail, Hill was driven from Henniker to Hillsboro. To get his car back, Hill, who lives in Rochester, New York, said he was told he needed to sign a consent form to have it searched.

He said that Berdecia told him there would be no issue as long as there weren’t “drugs, guns or a body” in the car. Not wanting to be stranded in Hillsboro with no vehicle, he signed the form.

Parsons did the search. He seized several items from Hills’ car, citing suspicion that they were stolen. Hill said as Parsons searched his car in front of him, he heard the officer use the ‘N’ word.

Upset, Hill called 9-1-1 to report the officer’s language. His call was routed back to the Hillsboro Police Department. No action was taken.

Months later, Hill’s charge of disobeying an officer was dropped.

Feeling that he was unfairly targeted because of his race, Hill filed a Civil Rights Complaint in November against the Hillsboro Police Department. The complaint, which went to the state Department of Justice Civil Rights Unit, was not investigated on the grounds that it did not allege a violation of either the New Hampshire Law Against Discrimination or the Civil Rights Act.

According to the Civil Rights Unit, because Hill didn't allege an actual or threatened use of force that would have interfered with his rights or actions, the Civil Rights Act didn't apply.

Further, with the exception of a teacher, the Law Against Discrimination, does not typically apply to government agencies or actors, including police officers.

Sean Locke, the Civil Rights Unit Director, ended his response letter to Hill with a reminder:

“Complaints related to the officers' conduct or operation of the Henniker and Hillsborough Police Departments may be made to the chiefs of those departments or to the respective town's leadership.”

There was a reason Hill did not make a complaint directly to the Hillsboro Police Department.

“I definitely feel that they’re biased there,” he said. “They would not help me.”

Parsons, who was promoted to lieutenant in March, did not respond to multiple requests for comment. Berdecia left Henniker Police Department last fall and now works at Dover Police Department. He declined to comment.

Hill’s attorney Donna Brown said she thought the Civil Rights Unit would be the best option when filing against a department in a small town like Hillsboro, which has a population of around 6,000.

“It’s human nature that if you’re investigating the guy that you have beer with on Friday nights, that’s not going to be fruitful,” Brown said. “In these small towns, we felt that any chance of getting an independent investigation might be the Office of the Attorney General.”

But even the Attorney General’s Office regularly works with the police, Brown said.

“We all have biases,” she said. “There is that problem with the lack of trust. There’s just no separation among these police officers.”

How NH handles misconduct complaints

Hill’s experience is one example of how police misconduct complaints are handled in New Hampshire — if a complaint is not filed directly with the department, there are few viable options left for anyone who has a sense of futility or fear about going to their local agency.

Following last summer’s police killing of George Floyd, which sparked months of unrest and racial reckoning nationwide, New Hampshire joined the rest of the country in reviewing its policing structures and policies. How the state handles misconduct complaints is one key area that is facing potential change today.

Currently, when a person alleges police misconduct, that complaint goes to the captain of the department, who is generally responsible for all internal affairs functions. What happens from there varies across the more than 200 police agencies in the state. There is no state law that defines misconduct and no standardized procedures for investigating misconduct complaints.

Each department has its own definition and procedures for whether and how to investigate.

In addition to local department policies, officers are subject to rules set by the Police Standards and Training Council — an agency that operates the state’s single police academy and provides training to New Hampshire’s 4,000-plus police officers. The Council also holds disciplinary hearings, reviews internal investigation reports and has the power to decertify and suspend officers.

PSTC does not typically investigate the original allegation unless the department requests assistance.

If a department finds that an officer violated PSTC’s misconduct policy, the officer goes before the Council for a certification hearing, and either a. No action is taken, b. Their license is suspended or c. Their license is revoked.

However, police chiefs are not required to report all complaints to PSTC. For instance, if an investigation does not result in a violation of the department’s misconduct policy, PSTC never gets notified. Whether or not to investigate a complaint is also dependent on an agency’s individual policy.

PSTC does informally receive complaints from the public, but it does not receive them often, and there is no established avenue for the public to report an incident to the organization.

Complaints that do come in are rerouted either back to the local department or to the Public Integrity Unit — which prosecutes criminal wrongdoing by state government officials — for alleged criminal conduct.

This decentralized structure means there is no single, statewide location where police misconduct complaints are received or tracked, leaving gaps in the oversight of local agencies’ internal investigations.

Another avenue for complaints

How to create such a centralized agency is the issue that a commission of legislators, law enforcement representatives and advocates has been tackling over the past two months.

The effort comes as part of a yearlong process that began with the governor’s police accountability commission: The New Hampshire Commission on Law Enforcement Accountability, Community, and Transparency, or LEACT, released a comprehensive list of 48 recommendations to improve policing in New Hampshire last August.

The list, fully endorsed by Gov. Chris Sununu, includes “the establishment of a single, neutral and independent statewide entity to receive complaints alleging misconduct regarding all sworn and elected law enforcement officers.”

After a proposal on how to create the entity failed to pass into law this year, the legislature instead created the ongoing commission to study it as part of the budget bill.

The group is charged with developing recommendations on how to create a new police misconduct committee — one that would receive and oversee all misconduct complaints throughout the entire state.

Under this new system, complaints filed at any New Hampshire police department would have to be documented and publicly available through an online database. The names of the officer(s) and department involved would not be included unless the complaint is “sustained”, which means the investigation found an officer guilty of a policy violation.

There would also be a clear path for members of the public to submit complaints directly to the new committee.

The commission has a deadline of Nov. 1 to submit its recommendations to the state legislature, but members are still divided on major details of how the new avenue for misconduct complaints should operate — including if it should have investigatory powers, who it should report to and what makes a complaint valid.

Police Standards and Training Council

A major sticking point early on in the discussions was where to house the committee. The commission landed on establishing it under PSTC, a move that was met with disagreement by some commission members who felt the decision contradicted the “neutral and independent” section of the original LEACT recommendation.

“This body administratively being attached to PSTC is a huge concession on our part,” said commission member Joseph Lascaze, the smart justice organizer for the American Civil Liberties Union of New Hampshire.

PSTC Director John Scippa said his organization already is an independent branch with regulatory authority over New Hampshire police.

“To create a whole other organization that does what we do right now is duplicative and it's financially irresponsible,” Scippa, who sits on the study commission, said. “The problem is not the disciplining of police officers or holding officers accountable for prohibited conduct. That is not a problem here in New Hampshire.”

Instead, Scippa said the main issue that the commission is trying to address is filling in the gaps where complaints might fall through PSTC’s regulatory net.

Misconduct Investigations

Whether the committee would actually investigate complaints or not is still up in the air.

What the study commission has agreed on is that the committee would establish a single, statewide definition of misconduct to bring every local department up to the same standard; and it would review internal investigations to make sure they are done properly.

The original LEACT recommendation included that the committee would be “staffed by full-time attorneys, paralegals, legal assistants and investigators” and “provide robust due process with multiple levels of review, including both sides having the right to appeal.”

But Scippa — who sat on LEACT — and other commission members have argued that adding investigatory powers to the committee would be redundant and would undermine the local control of police departments.

“Are we going to have this office step in and do the jobs of the police chiefs?” asked Sen. Sharon Carson, a Londonderry Republican and the chairwoman of the Senate Judiciary Committee, at a meeting in early September. “To me it kind of looks a little like double jeopardy for being tried twice for the same thing, and I don't think we want to go into that.”

Julian Jefferson, a public defender and an adjunct professor at the University of New Hampshire law school, argued that redundancy is important.

“The whole point of creating this independent agency is that the internal investigation — the police policing themselves — is not sufficient for public trust,” Jefferson said at the September meeting. “We need to have this other agency that is not just asking if investigations were done correctly, but is independently coming to their own assessment.”

Jefferson added that the ‘thin blue line’ between police officers, the nature of whose occupations is often familial, is real.

“People would be naive to think there isn’t an opportunity for bias there,” he said in an interview. “We need to be aware of that and have an extra layer of independence.”

Lacaze agreed.

“Last year, I publicly put my name and my word on something — on a recommendation for the betterment of the state of New Hampshire,” he said in an interview. “There has to be an investigative function to this entity in order to resolve the issues that we’re trying to address.”

Who should be on the Council

The makeup of the Police Standards and Training Council has also become a subject of debate. That’s because the new committee would report its findings to PSTC, but PSTC would continue having the ultimate say on the certification of an officer.

“If this group of people have this much power over citizens, then the makeup is important,” Jefferson said at a recent meeting.

The original LEACT recommendation for the new organization specified that “any committee or panel would be slightly weighted toward law enforcement.”

PSTC currently has 14 members: 8 law enforcement representatives; 2 judges of courts; 2 members of the public; the Attorney General, or designee; and the chancellor of the state community college system, or designee.

Some commission members have advocated for more members of the public. A recent draft from PSTC added 1 public member, while a draft from the ACLU added 8.

Who the committee should report to

The two drafts also differ on who exactly the new committee would report to, with the PSTC draft having the committee to report to the director of PSTC and the ACLU draft having it report to the Police Standards and Training Council as a whole.

“They would have to report to me. I do that because I’m the director of Police Standards and Training. We are the regulatory body that oversees the certification process of all police officers,” Scippa said at a meeting mid-October. “To have a different person overseeing that, from a pragmatic view it does not make sense.”

Lacaze said the committee should report to the entire standards and training council rather than to an individual.

“I would ask anyone to explain to me this: ‘How can you have a body that would report to the director of an agency, and the reporting body would still be seen as neutral and independent?’ You can’t,” Lacaze said in an interview.

Valid complaints

The drafts also diverge on what makes a complaint valid. While PSTC’s draft would require a sworn statement in writing made by a person who identifies themselves to the Council or to law enforcement, ACLU’s draft included a clause that would allow the committee to accept anonymous complaints if the statement alleges the commission of a crime.

“If I call in and I don’t want to ID myself to law enforcement, that is a significant reality. People could be hesitant, especially to submit something in writing,” Jefferson said at a recent meeting. “The point should be the substance of the complaint.”

Citing concern that some anonymous complaints would be difficult to investigate, Scippa said the sworn statement requirement is an attempt “to balance the interest and protect the officer from frivolous, vindictive complaints versus a valid complaint.”

Jefferson, who initially had concerns about the committee being housed under PSTC, said as long as the new organization is structured independently from the PSTC director and it has the ability to take action with its own attorney, it’s a fair compromise.

With one scheduled meeting left, the commission will have to come to a unanimous agreement — or put certain items to a vote — before its Nov. 1 deadline, at which point the recommendations will go to the state legislature for consideration.

“Everybody here is committed to doing the right thing, and doing the right thing for New Hampshire,” Scippa said.

These articles are being shared by partners in The Granite State News Collaborative as part of our race and equity project. For more information visit collaborativenh.org.