MEMORANDUM OF AGREEMENT
Between the United States Department of Justice
and the
City of Buffalo, New York and
the Buffalo Police Department,
the Police Benevolent Association, Inc., and
the American Federation of State, County, and Municipal Employees Local 264
September 19, 2002
TABLE OF CONTENTS
INTRODUCTION
DEFINITIONS
POLICIES AND PROCEDURES
TRAINING
MANAGEMENT AND SUPERVISION
COMPLAINT AND INVESTIGATION PROCESS
Quality Assurance
Filing a Complaint
Investigating Complaints
Resolving the Complaint
REVIEWER
COMPLIANCE
MODIFICATIONS & SEVERABILITY
Agreement
INTRODUCTION
1. This Agreement is entered into by the United States Department of Justice ("DOJ"), the
City of Buffalo and its police department (collectively referred to as"BPD"), the Police
Benevolent Association, Inc. ("PBA"), and the American Federation of State, County, and
Municipal Employees Local 264 ("Local 264").
2. The purpose of this Agreement is to provide for a cooperative effort by DOJ, the City, the
BPD, the PBA and Local 264 to establish management practices by the City and BPD that
promote lawful use of chemical agent propellant ("CAP") spray and community support for the
BPD and its officers. Entry of this Agreement is in the public interest since it provides for
management practices consistent with the best standards of police practices.
3. This Agreement is effectuated pursuant to the Violent Crime Control and Law
Enforcement Act of 1994, 42 U.S.C. § 14141.
4. This Agreement resolves the DOJ's investigation, undertaken pursuant to 42 U.S.C. §
14141, into the BPD's use of CAP spray. DOJ, the City, BPD, PBA, and Local 264 have
worked together in this investigation to establish a model for the best police practices in the use
of CAP spray in the City of Buffalo. The goal of each of the parties has been, and remains,
providing the best police service to the City of Buffalo and its citizens and residents. DOJ
expresses its gratitude to the City, the BPD, the PBA, the Local 264, and the officers of the BPD
for their cooperation and assistance throughout the process of building the model of best police
practices for the City as embodied by this cooperative Agreement. The City, the BPD, the PBA,
and the Local 264 express their gratitude to DOJ for its welcome assistance in making the
recommendations and proposing the improvements that have led to the provision of better police
service in the City of Buffalo. DOJ acknowledges that BPD has voluntarily instituted many of
the initiatives proposed by the DOJ, as well as its own independent initiatives, and has shared
information with DOJ that enabled DOJ to make those productive proposals. The parties believe
that this Agreement will continue the progress already well underway.
5. Nothing in this Agreement alters the lawful authority of BPD officers to use CAP spray in
carrying out their law enforcement duties in a manner consistent with the United States and New
York State Constitutions and federal and state law. Furthermore, nothing in this Agreement is
intended to alter past, current, or future judicial interpretation of the constitutional standards for
the use of force by law enforcement personnel, including the use of CAP spray. The DOJ and
BPD also acknowledge that the proper use of CAP spray is a useful tool in law enforcement.
6. Nothing in this Agreement shall be construed as an acknowledgment, agreement,
admission, statement or evidence of liability of the City, the BPD or any of its officers or
officials, the PBA, or the Local 264 under 42 U.S.C. § 14141. Nor shall the Agreement
constitute or be construed as an acknowledgment, agreement, admission, statement or evidence
of any violation of applicable law or of the existence of a pattern or practice of conduct by law
enforcement officers of the City that deprives persons of rights, privileges, and immunities
secured or protected by the Constitution and laws of the United States. Nor does the Agreement
constitute an admission that any individual complaint reviewed by DOJ was meritorious or
improperly addressed by BPD.
7. This Agreement is enforceable only by the parties and is binding upon the parties, by and
through their officials, agents, employees and successors. No person, class or entity is intended
to be a third party beneficiary of the provisions of this Agreement for purposes of any civil,
criminal or administrative action or proceeding, and accordingly, no person, class or entity may
assert any claim or right as a beneficiary in such action or proceeding. Nothing in this
Agreement shall be construed to impair the right of any person or organization to seek relief
against the City for conduct by BPD officers.
8. The City, by and through its officials, agents, employees, and successors, shall not engage
in a pattern or practice by BPD officers of using CAP spray that deprives persons of rights,
privileges, and immunities secured and protected by the Constitution and laws of the United
States.
9. No prior communications, oral or written, or prior drafts shall be relevant or admissible for
purposes of determining the meaning of any provisions herein in any litigation or any other
proceeding.
10. The signatures below of the officials representing the DOJ, the City, the BPD, the PBA,
and the Local 264 signify that the parties have given final approval to this Agreement. The
effective date of the Agreement shall be the date it is signed by the last official of any party
executing the Agreement.
DEFINITIONS
11. The following definitions apply to this Agreement:
A. The term "investigation history" means a summary of all criminal and
administrative investigations, including Professional Standards Division ("PSD")
investigations, of a particular officer and a summary, with a narrative description
of the allegations, and discipline determined and imposed, if any.
B. The terms "document" and "record" shall be interpreted to include "writings and
recordings" as defined by Federal Rule of Evidence 1001(1).
C. The term "field training officer" or "FTO" means an experienced police
officer whose responsibilities include providing on-the-job training and
supervision of probationary police officers.
D. The term "officer" means any law enforcement officer employed by the BPD,
including police officers , supervisors and senior supervisors, and cellblock
attendants employed in the BPD cellblock.
E. The term "supervisor" means a sworn police officer holding the rank of detective
sergeant, lieutenant, assistant chief of detectives, captain, or inspector. The term
"senior supervisor" means a sworn police officer holding the rank of chief, deputy
commissioner, and the commissioner.
F. The term "district" means a geographic subdivision of the City of Buffalo used by
the BPD to delineate the jurisdiction of each police station.
G. The term "non-disciplinary corrective action" means non-disciplinary action
taken by a supervisor to enable or encourage an officer to modify his or her
performance. It may include oral or written educational counseling, training,
increased field supervision for a specified time period, voluntary professional
assistance/evaluation or voluntary referral to the Employee Assistance Program.
H. A "complaint" means an allegation of an act or omission which if proven true
would be misconduct or incompetence. For purposes of this Agreement, a
complaint does not mean an allegation of employment discrimination.
I. The term "use of force" means a reportable use of force as defined by BPD
Training Bulletin number 2002-02 (Use of Force Report).
POLICIES AND PROCEDURES
12. The BPD shall continue to follow and enforce the following General Order and Training
Bulletins which were all effective on or before April 8, 2002 and include detailed policies and
procedures for the use of force, use of force reporting, and use of CAP spray: General Order
number 2002-02 (Use of Force Report Requirement); and Training Bulletins numbered 2002-01
(Use of Force), 2002-02 (Use of Force Report), and 2002-03 (Use of Chemical Agent Projectors
Spray). The BPD shall obtain approval from the Reviewer and DOJ for any proposed changes to
this General Order and these Training Bulletins during the term of this Agreement.
13. The requirements of this paragraph apply so long as the City has any role in prisoner
processing. The BPD shall continue to maintain a working camera in the prisoner processing
room in Central Booking (or wherever this processing occurs in any location controlled by the
City) along with a monitor for that camera in at least one location customarily staffed by a
supervisor on a 24/7 basis. The BPD shall install a working camera, that can be viewed from a
monitor, in the elevator which is located directly opposite Central Booking that is used to transfer
processed prisoners to the BPD cellblock (or in any other elevator used for this same purpose that
is controlled by the City) and that can be viewed from a monitor. Whenever the circumstances
and timing of the incident allow, and to the extent that videotaping does not put any person in
danger, the BPD shall videotape all uses of CAP spray in the BPD cellblock, including any
conduct forming the factual basis for using the spray. The recordings on these cellblock tapes
shall be maintained for at least 3 years. All equipment required by this paragraph shall be
maintained in good working order.
TRAINING
14. The BPD shall continue to provide officers with at least 8 hours of training on the use of
CAP spray prior to authorizing an officer to carry and use CAP spray. The training shall be
revised to include discussion and role plays of situations in which use of CAP spray is and is not
permissible and how to assess relevant factors before using CAP spray. BPD shall provide
training to officers already authorized to use CAP spray on the policies and procedures
concerning CAP spray in accordance with General Order number 2002-02 (Use of Force Report
Requirement) and Training Bulletins numbered 2002-01 (Use of Force), 2002-02 (Use of Force
Report), and 2002-03 (Use of Chemical Agent Projectors Spray).
15. The BPD shall continue to train all officers in the use of verbal de-escalation techniques as
an alternative to the use of CAP spray and other uses of force as defined by General Order
number 2002-02 (Use of Force Report Requirement), and shall incorporate such techniques into
all other training that implicates the use of force. Such training shall include specific examples
of situations that do not require the use of force or CAP spray, but may be commonly
mishandled, resulting in force or CAP spray being used.
16. The BPD shall continue to provide all officers with periodic training in integrity and ethics.
This training shall cover the duties of truthfulness, the importance of avoiding misconduct, and
professionalism. The BPD shall instruct all officers in the PSD complaint process and their
obligation to cooperate with PSD investigations.
17. If the BPD implements a Field Training Officer (FTO) program, the BPD shall require
FTOs to evaluate and instruct probationary police officers based on the appropriateness of their
use of CAP spray, if applicable.
18. The BPD shall maintain written records documenting all training, reflected in this
Agreement, of officers. At a minimum, these records shall reflect the name of the officer, the
dates of the training, the general subject matter of the training (including lesson plans where
available), and whether the training was completed satisfactorily. Whenever training results from
a claim of alleged improper use CAP spray, a record of completion of the training will be
maintained in the PSD file to the extent allowed by law or collective bargaining agreements.
19. The BPD shall provide training to all current and future officers concerning the
requirements of this Agreement as they pertain to reporting or documenting all use of force as
defined by General Order number 2002-02 (Use of Force Report Requirement) and as they
pertain to the complaint and investigation process.
MANAGEMENT AND SUPERVISION
20. The BPD shall implement a system(s) for tracking and analyzing officer use of force and
complaints within twelve (12) months of entry of this Agreement.
A. The system(s) shall collect and record, at a minimum, the following information:
1. incidents involving a use of force that result in a complaint investigation:
subject officer name and identification number; witness officer name and
identification number; summary of the complaint/incident; file number;
status of the investigation; disposition; discipline; non-disciplinary
corrective action; description of injuries alleged/sustained and any BPD
action to provide treatment for those injuries; and contact information for
all officers and complainants;
2. incidents involving a reportable use of force: officer name and unique
identification number; witness officer name and identification number;
date of incident; description of incident with sufficient detail to permit a
meaningful supervisory review of the justification for the use of force;
identification of each specific type of force used and the effectiveness of
each type of force used; for uses of CAP spray, a description of the
number of bursts of CAP spray and the area of the body sprayed; name of
the person against whom force was used; description of injury to subject
and officer, if any, resulting from the use of force; medical treatment,
including decontamination if CAP spray was used; and whether the
individual against whom force was used was arrested or issued a citation
or summons, and if so, the arrest report or citation number;
3. each officer's investigation history; and
4. A description of all civil or administrative claims filed against an officer
arising from BPD operations; a description of all other known civil or
administrative claims to which the officer is a named party and which
involve allegations of untruthfulness, physical force, or assault.
B. The system(s) shall have, at a minimum, the capability to retrieve information by
any of the categories in the database(s), and perform statistical analyses of such
information, 1) for an individual officer, and for districts, shifts, or special units
of officers; and 2) by incident or groups of incidents (e.g., all CAP spray
incidents).
C. Data regarding an officer shall be maintained in the system for at least seven years
during that officer's employment with the BPD and in accordance with the
minimum periods set forth in New York State's record retention regulations after
the officer leaves the BPD. Whenever a complaint rises to the level of
disciplinary charges, the BPD shall continue its current practice of maintaining
those records indefinitely. Data that does not identify an officer, or where officer
identifying information can be removed, shall be maintained for at least the
duration of this Agreement so that aggregate statistical analysis can be performed.
The City and BPD shall input all available data into the complaint tracking system
for the two (2) years prior to the effective date of this Agreement.
D. Within six (6) months of the effective date of this Agreement, the BPD shall
develop a written protocol governing the use of the tracking system(s). This
protocol shall specify, at a minimum: (i) threshold number and type of incidents
and/or complaints per officer triggering mandatory review by senior supervisors,
(ii) the frequency of additional routine reviews (e.g., routine reviews by senior
supervisors of use of force and complaint data for officers under their command),
(iii) the follow-up actions to be taken by BPD senior supervisors based on
information in the system(s) (including meeting with the officer and/or the
officer's supervisor and recommending non-disciplinary corrective action); and
(iv) quality assurance checks of data input. The City shall provide this protocol to
the United States for review and approval at least 30 days prior to its
implementation. If the parties are unable to agree on a written protocol, the
Reviewer, described later in this Agreement, shall have final authority to
determine the protocol.
E. The BPD shall ensure that information is entered into the system database
accurately and timely, and is maintained in a secure and confidential manner as
allowed or required by law.
F. The BPD shall provide officers with an annual opportunity to review, and correct
errors in, tracking system information regarding them, except regarding open or
ongoing investigations or cases.
21. As described below, the BPD shall conduct regular audits and reviews of all reportable
uses of force by officers. BPD supervisors and senior supervisors shall act on this data, including
requiring non-disciplinary corrective actions consistent with the applicable collective bargaining
agreement in force on the effective date of this Agreement, with the goal of preventing the use of
excessive force.
A. Each use of force report prepared as required by General Order number 2002-02
(Use of Force Report Requirement) shall be reviewed by the reporting officer's
chain of command within ten (10) days of the use of force. Supervisors shall refer
to PSD, which will analyze the form to determine whether to open an
investigation, all incidents where a use of force report reasonably indicates a
possible violation of BPD policies or state or federal law or where a use of force
results in an injury requiring medical treatment.
B. BPD senior supervisors shall analyze use of force data on a quarterly, cumulative
basis to detect trends in BPD use of force (including CAP spray). BPD senior
supervisors shall act on this data to determine whether BPD officers are engaging
in appropriate uses of CAP spray. The analysis shall include a review by officer,
groups of officers, injury, and type of force used, and as required by the
established protocol.
C. Senior supervisors responsible for developing training for BPD officers shall
review appropriate data regarding use of force and related complaints to develop
training needs for the BPD.
22. The BPD shall conduct regular audits and reviews of officers' investigation histories.
BPD supervisors and senior supervisors shall act on this data, including requiring non-disciplinary action, with the goal of preventing misconduct by officers.
BPD senior supervisors shall analyze complaint data from the complaint tracking system on a
quarterly, cumulative basis to detect trends of BPD officer complaints.
23. After evaluating the most recent quarterly complaint tracking system reports described
above and evaluating an officer's investigation history, the BPD shall provide non-disciplinary
corrective action, where appropriate and so long as it does not violate the applicable collective
bargaining agreement in force on the effective date of this Agreement, to officers as identified
using the protocol developed: (i) against whom at least three (3) complaints containing
allegations of similar types of misconduct (e.g., excessive force, improper search and seizure, or
criminal activity) have been initiated within the last two years, regardless of whether the
complaints are sustained (except that anonymous complaints need not be considered unless
sustained); or (ii) against whom at least four complaints of any kind have been initiated within
the last two years, regardless of whether the complaints were sustained (except that anonymous
complaints need not be considered unless sustained).
24. To the extent allowed under the applicable collective bargaining agreement in force on the
effective date of this Agreement, the BPD shall require every officer to notify the BPD when he
or she, whether on- or off-duty, has been arrested or criminally charged. To the extent not
already allowed under the applicable collective bargaining agreement in force on the effective
date of this Agreement, the City shall initiate negotiations, and shall bargain in good faith, for the right to require every officer to notify the BPD when he
or she, whether on- or off-duty, has been arrested or criminally charged. (This Agreement does
not impose upon the PBA and Local 264, as organizations, any duty to notify the BPD of these
events.)
The City and BPD management shall monitor all known civil litigation involving
allegations of untruthfulness, or physical force and all known criminal prosecutions of officers.
A. BPD shall discipline (subject to applicable provisions in the collective bargaining
agreements in force on the effective date of this Agreement) and, unless the
discipline is termination, provide appropriate non-disciplinary corrective action to
officers found guilty or liable by a court or jury of acts that would be misconduct
or incompetence.
B. PSD shall independently investigate, and BPD shall make findings, and take any
appropriate disciplinary or non-disciplinary action on all incidents giving rise to
such civil litigation, which arises from officers' actions within the scope of their
employment, or prosecution where the court or jury does not find the officer guilty
or liable, regardless of whether the complaint is withdrawn or settled.
C. A brief written summary of such litigation and investigations shall be included in
the officer's investigation history.
COMPLAINT AND INVESTIGATION PROCESS
Quality Assurance
25. The BPD shall track all open complaint investigations to assure that investigations are
completed within 45 days of receipt of the complaint by PSD, unless documented extensions are
granted by the Commissioner. Open investigations shall be tracked from the event that began the
investigation to the final action resolving the investigation. Complaint investigations shall be
tracked using a uniform numbering system.
26. The BPD shall publish, and shall make available at various places evenly distributed
throughout the city, pamphlets describing the PSD complaint process.
27. PSD shall create a manual concerning PSD policies and investigative procedures (including
complaint receipt, report writing, other relevant policies and procedures, locating witnesses,
investigative and interview techniques, and objective bases on which to make credibility
determinations). This manual shall include, at a minimum, a description of the investigative
process and procedures to be used in carrying out that process. The City shall make the PSD
manual of policies and procedures available for inspection by the public and officers at PSD
headquarters and at each BPD facility, except those portions of the manual, that if made public,
would compromise the ability of the BPD to conduct its law enforcement activities. The City
shall ensure that all PSD investigators receive adequate training in these policies and procedures
to enable them to carry out their duties.
28. The BPD shall continue to encourage highly-qualified candidates to become PSD police
investigators. The BPD shall continue to select PSD police investigators based on their previous
superior performance as police officers, including management potential, commitment to police
integrity, and cultural-community sensitivity.
Filing a Complaint
29. Complainants may initiate a complaint against an officer either in person or by telephone,
mail, or facsimile transmission. Complainants shall not be required to file a complaint "form" to
initiate an investigation. Forms shall be available at all police stations and completed complaint
forms shall be forwarded to the PSD within three (3) working days.
30. Officers shall inform any individual who indicates a desire to file a complaint of the means
by which a complaint may be filed. BPD employees may not refuse to accept a complaint or
attempt to dissuade a person from filing a complaint for any reason.
31. No complainant shall be required to make an appointment or to go to a police station, any
police building or PSD office to provide a statement. If complainants or witnesses are
uncomfortable or unavailable to be interviewed at PSD offices during business hours, PSD
investigators shall offer to interview them at alternate sites and times, e.g. at residences or places
of business, and during reasonable weekend or after business hours.
32. A complainant may file an anonymous verbal or written complaint. PSD shall accept and
investigate complaints filed by individuals other than the alleged victim of misconduct or
incompetence (third-party complaints). PSD shall ask anonymous and third-party complainants
for corroborating evidence. PSD shall investigate anonymous and third-party complaints to the
extent the information collected allows PSD to determine whether the complaint is corroborated.
33. The BPD complaint intake form shall be revised to include greater space in which to
describe the relevant incident. PSD investigators shall document in that space, and attached
pages as necessary, all of the relevant facts and circumstances of the incident, as described during
the initial interview of the complainant.
34. To the extent allowed under the applicable collective bargaining agreement in force on the
effective date of this Agreement, the City shall require officers to report misconduct by other
officers. To the extent not already allowed under the applicable collective bargaining agreement
in force on the effective date of this Agreement, the City shall initiate negotiations and shall
bargain in good faith for the right to require officers to report misconduct by other officers.
Where reporting is required, misconduct by fellow officers shall be reported directly to PSD or
through an officer's chain of command. Where reporting is required, the BPD shall discipline
(subject to applicable provisions in the applicable collective bargaining agreement in force on the
effective date of this Agreement), when appropriate, any officer who observes misconduct by
another officer and fails to report it promptly to a supervisor or to PSD. The BPD shall
discipline any officer who is proven to have provided knowingly false information in a complaint
investigation or any report or log.
35. The BPD shall not close an investigation based on an external complaint or any investigation
based on a complaint of excessive force without rendering a disposition solely because the
complainant withdraws the complaint, is unavailable or not able to be located to make a
statement, accepts an Adjournment in Contemplation of Dismissal ("ACD"), or is convicted of
any charge arising from the incident to which the complaint relates. PSD shall investigate such
complaints to the extent information collected allows PSD to determine whether the complaint
can be corroborated.
36. BPD officers shall continue to be required to provide their name and badge number to any
individual who requests it.
Investigating Complaints
37. PSD shall investigate all complaints alleging improper use of CAP spray or improper use of
force where fists, kicks, or weapons are used or where the improper use of force results in
apparent or evident physical injury or visible physical trauma -- except officer-involved
shootings and uses of deadly force for which the BPD Major Crimes Unit shall have primary
investigative responsibility. PSD shall monitor and be responsible for the progress and
completeness of all complaint investigations. The City shall not permit any BPD officer to
attempt to settle or resolve a PSD complaint involving excessive force through any means other
than the PSD investigation. Nothing in this paragraph shall limit the authority of the Corporation
Counsel, or an officer's private counsel, to settle legal claims at his/her discretion.
38. The complaint intake officer shall prepare a written description of all visible injuries and
arrange for those injuries to be video-taped or photographed, with the subject's consent, as soon
as practical. In instances where there is a claim that an individual was subjected to the use of
CAP spray where the BPD disputes the use of the spray and where the complaint is filed within
one week of the use of the spray, the complaint intake officer shall make arrangements for the
subject to be placed under an ultra-violet light to detect dye, and shall document the result,
including the location on the subject's body and/or clothing where dye was found to be present.
39. In complaints involving improper use of CAP spray or improper use of force where fists,
kicks, or weapons are used or where the improper use of force results in apparent or evident
physical injury or visible physical trauma, PSD investigators shall individually interview each
subject and witness officer, including any supervisor and senior supervisor officers. All
interviews of complainants, subject officers, witness officers, and other witnesses shall be
tape-recorded and transcribed. Brief, immediate "thumb-nail sketch" conversations which may
be necessary to gain understanding of an incident and "minor clarification" follow-up
conversations (so long as the follow-up conversation does not address a matter significant or
material to the incident) of persons may be taken without being tape-recorded or transcribed.
Interview tapes shall be maintained and kept as part of the PSD investigative file. If a
complainant or witness refuses to be tape-recorded, then PSD shall prepare a written narrative of
the statement to be signed by the complainant or witness. PSD shall not conduct group
interviews. PSD shall not accept a "P-73" (interdepartmental memo) or written statement from
any officer in lieu of an interview. PSD investigators shall have the authority and responsibility
to question all interviewees and to challenge their versions of the facts. This paragraph shall not
apply to cases of officer-involved shootings or uses of deadly physical force where the Major
Crimes Unit has primary investigative jurisdiction.
40. During a PSD investigation, supervisors and senior supervisors who are present on the
scene or called to the scene, shall be required to detail their handling of any matters during and
after the alleged incident and their observations of the complainant and accused officers and any
actions taken by the supervisor or senior supervisor.
41. Whenever appropriate, and especially when the evidence on hand is insufficient to
conduct a complete investigation of the complaint, PSD investigators shall canvass the scene of
an incident for witnesses as soon as possible after receiving a complaint.
42. PSD shall aggressively collect all appropriate evidence to document each complaint, and
any injury of a complainant, including medical records and photographs of injuries. PSD shall
not require complainants or other witnesses to provide evidence that PSD itself reasonably can
obtain. In cases in which the complainant has obtained medical treatment other than that
provided by the BPD, PSD shall ask complainants to sign release forms, but shall not require a
complainant to do so.
43. PSD shall review all notices of claim and summonses and complaints regarding any
allegation of improper use of CAP spray or improper use of force where fists, kicks, or weapons
are used or where the improper use of force results in demonstrable physical injury or visible
physical trauma, and then (i) open an investigation if one has not been opened previously unless
barred by an applicable statute of limitations, (ii) once or if an investigation on the matter is
opened, use any information from readily available transcripts and documents, including General
Municipal Law §50-h hearing transcripts, to assist in further investigation of the matter, or (iii) to
the extent any contractual time limit or statute of limitations has not expired, if an investigation
has already been closed but discipline has not yet been imposed, reopen it and investigate further
based on information obtained from the transcripts and documents. Nothing in this paragraph
shall compel the City to order or purchase non- 50-h transcripts from outside sources.
44. PSD shall assess the propriety of all officer conduct during an incident it investigates,
regardless of whether the complainant specifically articulated that conduct as part of his or her
complaint. If during the course of a PSD investigation, the PSD investigator has reason to
believe that misconduct other than that alleged by the complainant has occurred, PSD must
investigate and report with respect to such misconduct unless the misconduct is strictly of an
administrative nature (e.g., dress code violations, hours of work) and the Commissioner
determines that further investigation is not warranted.
45. At the conclusion of each investigation, PSD shall prepare a synopsis and checklist of the
evidence gathered during the investigation (including an explanation for the absence of any
evidence), evidence relevant to credibility determinations, and the accused officer's investigation
history. This synopsis and checklist shall be made a part of the investigation file.
Resolving the Complaint
46. The BPD shall make findings regarding administrative complaint investigations using a
"preponderance of the evidence" standard. The BPD shall resolve investigations using the
following classifications: "Sustained"; "Unfounded"; "Not sustained"; "Exonerated"; or "Other
with explanation." Any finding of "Other with explanation" must be reviewed by the Reviewer
to determine the appropriateness of such a finding.
47. In making credibility determinations, the BPD shall consider, at a minimum, the following
factors: (i) the officer's investigation history (if relevant to his or her credibility in the
investigation); (ii) the complainant's or witness's criminal history (if relevant to his or her
credibility in the investigation); and, (iii) other credible facts suggesting a propensity for
untruthfulness of the persons involved or credibility of the complaint in general.
48. After final determination of any use of force complaint that results in a finding other than
"Sustained", a copy of the final disposition and reasons for it (including any credibility
determinations), shall be placed in the PSD file.
49. The BPD shall take all necessary steps to impose appropriate discipline (subject to
applicable provisions in the applicable collective bargaining agreement in force on the effective
date of this Agreement) on each officer against whom a complaint is sustained as soon as
possible after its final disposition, whether by way of plea or decision after hearing. Except
where the discipline is termination, non-disciplinary corrective action shall also be provided to
each officer against whom a complaint is ultimately sustained, where appropriate and where
permitted by the applicable collective bargaining agreement in force on the effective date of this
Agreement; where a complaint is disposed of by other means, the BPD shall consider providing
appropriate non-disciplinary corrective actions.
50. For each officer against whom a complaint is sustained after final determination, the
amount of discipline sought to be imposed shall in part be determined by considering an officer's
prior record of ultimately sustained complaints and any information contained in those files as
well as the immediate sustained allegation of complaint (to the extent permitted by the applicable
collective bargaining agreement in force on the effective date of this Agreement).
51. When imposing discipline, the BPD shall record in its PSD records the name of the
officer, the discipline determined, the date(s) discipline was imposed, any PSD file number or
other related cross-references, and the reason or reasons for the particular penalty imposed or
sought to be imposed. A copy of this record shall be placed in the appropriate PSD complaint
file. All sustained complaints must be easily retrievable from these PSD records.
52. PSD shall issue a public semi-annual statistical report of investigations filed with PSD.
For unresolved allegations, the reports shall include numbers of open investigations by category.
For cases reviewed by the Commissioner during that period, the reports shall include the number
of cases by categories and disposition of each charge. For any cases ultimately sustained during
that period, the reports shall include the dates each case was opened and resolved, the categories
of complaint including each charge, dispositions of all charges, and any resulting discipline.
REVIEWER
53. The City shall maintain a Reviewer throughout the life of this Agreement. Within 90
days after the effective date of this Agreement, the parties shall select an independent Reviewer
who shall review and report to the parties on a quarterly basis the City's implementation of and
compliance with the following provisions of this Agreement: paragraphs 12-15, 18 as they relate
to the use of CAP spray, 25, 29-33, 35, 38-45, 47-51 as they relate to use of force complaints,
20-23, 37, 46, and 54-57, 61. The City shall report to the parties on a quarterly basis the City's
implementation of and compliance with all other provisions, paragraphs, or portions of
paragraphs, in this Agreement. The Reviewer shall not be retained (on a paid or unpaid basis) by
any current or future litigant or claimant in a claim or suit against the City or its officers. The
Reviewer will not issue statements or make findings with regard to any act or omission of the
City, the BPD, or their agents or representatives, except as required by the terms of this
Agreement. The Reviewer may testify in any case brought by any party to this Agreement
regarding any matter relating to the implementation, enforcement, or dissolution of this
Agreement. The Reviewer, however, will not testify in any other litigation or proceeding with
regard to any act or omission of the City, the BPD, or any of their agents, representatives, or
employees related to this Agreement or regarding any matter or subject that the Reviewer may
have received knowledge of as a result of his or her performance under this Agreement. Unless
agreed to by all parties, the Reviewer will not accept employment or provide consulting services
related to his responsibilities under this Agreement, including but not limited to being retained
(on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant's or
claimant's attorney, in connection with a claim or suit against the City or its departments,
officers, agents or employees. The Reviewer will not be liable for any claim, lawsuit, or demand
arising out of the Reviewer's performance pursuant to this Agreement. Provided, however, that
this paragraph does not apply to any proceeding before a court related to performance of
contracts or subcontracts for monitoring this Agreement. DOJ commits to supporting, whether
as a party, an amicus, or in some other meaningful fashion, any reasonable effort by any party to
prevent the Reviewer from giving sworn testimony in any such litigation or proceeding should
any party asks DOJ to do so.
The Reviewer shall be acceptable to all parties. If the parties are unable to agree on a
Reviewer, each party shall submit two names, along with resumes or curricula vitae and cost
proposals, to a third party neutral, selected with the assistance of the Federal Mediation and
Conciliation Service, and the third party neutral shall appoint the Reviewer from among the
names submitted.
54. The Reviewer shall perform quality assurance checks of PSD use of force investigations.
The City shall provide the Reviewer with full access to all BPD staff, documents, databases, and
records that the Reviewer deems necessary to fulfill his or her duties, as defined below. The
Reviewer shall review and evaluate the following information, and file with the parties a
quarterly report describing the review and analysis of:
A. Statistical information, trends, and patterns, in BPD officers' use of CAP spray
and other uses of force;
B. All PSD investigations into potential improper uses of force, and all non-disciplinary corrective action and disciplinary records resulting from such
incidents. The City shall forward all PSD final reports and all disciplinary and
training records for such investigations to the Reviewer immediately upon their
completion.
C. Statistical information on the number of BPD use of force complaint
investigations, the timeliness of the investigations, the disposition, and any non-disciplinary corrective action taken.
55. The Reviewer shall be afforded the opportunity to review any complaint investigation
alleging improper use of CAP spray prior to final adjudication. The Reviewer may evaluate the
investigation and may provide written recommendations for conducting additional investigation.
56. The City and BPD shall maintain all records necessary to document their compliance with
all terms of this Agreement. The City and BPD shall also maintain any and all records required
by or developed under this Agreement.
57. During all times of this Agreement, the United States and the Reviewer shall have
unrestricted access to all BPD staff, facilities, and documents (including databases), and, upon
request made to the City Attorney, receive copies of any documents and any databases relating to
the implementation of this Agreement except for documents: (a) covered by the attorney-client
privilege; (b) prepared in anticipation of litigation or for trial where disclosure would reveal the
mental impressions, conclusions , opinions, or legal theories of an attorney for the City, or (c)
containing information that might disclose the identity of a confidential informant. Should the
City decline to provide the DOJ or the Reviewer with access to a document based on any of these
grounds, the City will provide the Reviewer and DOJ with a log describing the document. The
Reviewer shall retain any non-public information in a confidential manner and shall not disclose
any non-public information to any person or entity, other than a court or DOJ, absent written
notice to the City and either written consent by the City or a court order authorizing disclosure.
Before the City provides any such written consent to the Reviewer, the City must first provide the
PBA and the Local 264 written notice if any non-public information sought to be disclosed
identifies any officer covered by the applicable collective bargaining agreement in force on the
effective date of this Agreement.
58. The Reviewer shall only have the duties, responsibilities, and authority conferred by this
Agreement. The Reviewer shall not, and is not intended to, replace or take over the role and
duties of the Mayor, City Council, Police Commissioner, or any other police or City official.59. The Reviewer may offer the City and BPD technical assistance regarding compliance
with this Agreement. The Reviewer may not modify, amend, diminish, or expand this
Agreement.
60. In auditing the implementation of this Agreement, the Reviewer shall maintain regular
contact with the parties.
COMPLIANCE
61. Except where otherwise specifically indicated, the City shall implement all provisions of
this Agreement within 90 days after the effective date of this Agreement.
62. The signatures below of the officials representing the DOJ, the City of Buffalo, the BPD,
the PBA, and Local 264 signify that these parties have given their final approval to this
Agreement. The effective date of the Agreement shall be the date it is signed by the last official
of any party executing the Agreement. The Agreement shall remain in effect for three years,
subject to the provisions below.
A. The City and BPD may request, of DOJ, to terminate this Agreement if the
Reviewer finds that the City has been in substantial compliance with the terms of
this Agreement for a period of no less than two years, even if the two years of
substantial compliance occur before the three-year anniversary of this Agreement.
DOJ shall not unreasonably refuse termination of this Agreement, either before or
after the three-year anniversary, and shall bear the burden of demonstrating that its
refusal to terminate is reasonable.
B. This Agreement will terminate on the three-year anniversary of the effective date
of the Agreement if DOJ agrees that BPD and the City have substantially
complied with each provision of this Agreement and maintained substantial
compliance for a period of no less than one year. The burden shall be on the City
and BPD to demonstrate that it has fully and faithfully implemented all provisions
of this Agreement and maintained substantial compliance for a period of no less
than one year.
C. For purposes of this paragraph, "substantial compliance" means there has been
performance of the material terms of the Agreement. Materiality shall be
determined by reference to the overall objectives of the Agreement.
Noncompliance with mere technicalities, or temporary failure during a period of
otherwise sustained compliance, will not constitute failure to maintain substantial
compliance. At the same time, temporary compliance during a period of
otherwise sustained noncompliance shall not constitute substantial compliance.
MODIFICATIONS & SEVERABILITY
63. No changes, modifications, or amendments of this Agreement shall be effective unless
the parties agree in writing.
64. The parties agree to defend the provisions of this Agreement. The Parties shall notify
each other of any court or administrative challenge to this Agreement. In the event any provision
of this Settlement Agreement is challenged in any local or state court, removal to a federal court
shall be sought.
65. This Agreement is enforceable through specific performance in Federal Court. Failure by
any party to enforce this entire Agreement or any provision thereof with respect to any deadline
or any other provision herein shall not be construed as a waiver of its right to enforce other
deadlines and provisions of this Agreement.
66. In the event any party fails to fulfill any obligation under this Agreement, prior to
initiating any court proceeding to remedy such failure, the party shall give written notice of the
failure to the other parties. The parties shall have 45 days from receipt of such notice to discuss
the alleged failure and resolve it. At the end of the 45-day period, in the event the noticing party
determines that the alleged failure has not been resolved, the noticing party may, without further
notice to the parties, file an action in the United States District Court for the Western District of
New York (the "Federal Court Action") against the party or parties for breach of contract and any
other appropriate causes of action and may seek specific performance and any other appropriate
form of relief.
67. In connection with the Federal Court Action, the parties agree as follows:
A. The parties shall stipulate to in personam jurisdiction and to venue in the Western
District of New York.
B. The City agrees that service by hand delivery of the summons, complaint, and any
other documents required to be filed in connection with the initiation of the
Federal Court Action upon the Corporation Counsel of the City shall be deemed
good and sufficient service upon the City. The unions agree that service by hand
delivery of the summons, complaint, and any other documents required to be filed
in connection with the initiation of the Federal Court Action upon the union
president or legal counsel to the union president shall be deemed good and
sufficient service upon the union. DOJ agrees that service by hand delivery of the
summons, complaint, and any other documents required to be filed in connection
with the initiation of the Federal Court Action upon the Chief of the Special
Litigation Section of the Civil Rights Division shall be deemed good and
sufficient service upon the DOJ.
C. The parties hereby waive the right to file, and agree not to file or otherwise assert,
any motion to dismiss (except for failure to state a claim or failure to meet the
service requirements of paragraph 67(b)), to stay or otherwise defer, a Federal
Court Action alleging a failure to fulfill any obligation under this Agreement.
D. The parties agree to a trial of the Federal Court Action alleging a failure to fulfill
any obligation under this Agreement commencing (a) 120 days after service of the
summons and complaint as set forth above, or (b) the Court's earliest availability,
whichever is later. Pursuant to Fed. Civ. Pro. R 26(d), the parties agree that
discovery in the Federal Court Action alleging a failure to fulfill any obligation
under this Agreement may begin within 15 days after service of the summons and
complaint. The parties agree to submit all discovery requests and to schedule all
depositions within 75 days after the service of the summons and complaint.
68. In the event the Court finds that any party has engaged in a material breach of the
Agreement, the parties hereby stipulate that they shall move jointly for the Court to enter the
Agreement (and any modifications that have been made pursuant to paragraph 63) as an order of
the Court and to retain jurisdiction over the Agreement to resolve any and all disputes arising out
of the Agreement.
69. Nothing in this Agreement shall preclude DOJ from filing an action against the BPD
under any provision of federal law, except that this Agreement precludes DOJ from filing a claim
under 42 U.S.C. § 14141 alleging a pattern or practice of excessive force or the improper use of
CAP spray, when any such claim or claims are predicated on incidents that occurred before the
effective date of this Agreement. The United States represents that as of the effective date of this
Agreement, the City and the BPD are not the subject of any other investigation or action by the
Department of Justice under 42 U.S.C §§ 3789d, 2000d, or 14141.
70. In the event any provision of this Agreement is declared invalid for any reason by a Court
of competent jurisdiction, said finding shall not affect the remaining provisions of this
Agreement.
For the United States Department of Justice:
/s/ Ralph F. Boyd
Ralph F. Boyd
Assistant Attorney General
Civil Rights Division
/s/ Steven H. Rosenbaum
/s/ Donna M. Murphy
/s/ Blaise Supler
Steven H. Rosenbaum
Chief
Donna M. Murphy
Deputy Chief
Blaise Supler
Senior Trial Attorney
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66400
Washington, D.C. 20035-6400
202-616-1959
For the City of Buffalo and the Buffalo Police Department:
/s/ Anthony M. Masiello
Hon. Anthony M. Masiello
Mayor
City of Buffalo
201 City Hall
Buffalo, New York 14202
(716)851-4841
/s/ Rocco J. Diina
Hon. Rocco J. Diina
Police Commissioner
Buffalo Police Department
City of Buffalo
74 Franklin Street
Buffalo, New York 14202
(716) 851-4571
For the PBA:
/s/ Robert Meegan
Robert Meegan
President
Police Benevolent Association, Inc.
74 Franklin Street
Buffalo, New York 14202
(716) 851-4501
Thomas H. Burton
Attorney for the PBA
716 Brisbane Building
Buffalo, New York 14203-2194
(716) 853-2888
For the Local 264:
/s/ William D. McGuire
William D. McGuire
President
AFSCME Local 264
120 Delaware Avenue
Suite 428
Buffalo, NY 14202
716-852-0883
Updated 2008-07-25