Category: Nationally relevant

Competing narratives emerged from dueling press conferences about an incident in the streets of South Providence on June 29. By 6pm, scorching temperatures had cooled only slightly from the afternoon high of 97 degrees, breaking a record that had stood since 1934. On Sayles Street between Searle and Cahill streets, two blocks west of Eddy Street, people had opened a fire hydrant so children could cool off in the water. Two families in neighboring houses at 260 and 264, separated by a few dozen feet of grassy yard, were part of this impromptu street party.

The residents of 260 Sayles St held a press conference July 1, alleging that police overreacted to 14 year olds having an argument, with the police themselves escalating a situation over the course of several hours that resulted in children as young as 1 year old being exposed to pepper spray, beaten to point of injury, and detained in total darkness inside police vans without air conditioning. Witnesses said they counted 18 police cars, two vans used to detain and transport arrestees, and fire and rescue apparatus.

The City of Providence held a press conference July 2, where Mayor Jorge Elorza, Public Safety Commissioner Steven Pare and Police Chief Hugh Clements portrayed the police response as professional, although the matter is still under investigation. According to Clements, police responded initially to a noise complaint but had to return, eventually leading to a major incident where at least one officer activated their personal “officer needs assistance” alarm, directing every available police officer to the scene, at least 35 officers in this case.

On July 1, the city publicly released an hour-long video taken from the body-worn camera of one of the responding officers. That video recorded comments from some of the police officers talking among themselves, making unprofessional comments that betrayed racist and anti-LGBTQ prejudice. At one point, an officer is heard saying, “We’re out here all summer with these two houses. They hate each other. It’s the Spanish against the Blacks.” The same officer then describes one of the people as a “shemale,” a derogatory slur to describe someone with male genitalia trying to appear female, saying, “I told you, that’s the one I wanted to go [be arrested] the most, the one in the black there that has the man haircut that they said, ‘Oh, it’s a girl,” and I said, ‘She ain’t a girl.’” Later on, he says, “I don’t wanna hear it. All animals.” Remarks are captured of officers criticizing the fire department for being slow to respond and criticizing the police dispatcher as an “idiot” and “moron.” At one point, an officer challenges a 14 year old, “You wanna fuckin’ fight me, kid?” A few minutes before the end of that video recording, the officers say they hope they “don’t look bad,” but by then it is way too late.

Two additional body cam videos were released by the city on July 2, with a promise that they are working to redact private information so that the estimated 25 body cam videos can be released as soon as possible.

At the city’s press conference, Providence Mayor Jorge Elorza acknowledged at least the public relations problem resulting from the body cam video. “I’ve reviewed some of the tapes myself, and I’ve seen what’s out there publicly, and I’m reviewing the video that we released yesterday. Now what I saw are two things. On the one hand, we see officers that arrived, who act professionally and de-escalate the situation. But you also see several instances of officers who use inappropriate language, did not de-escalate the situation, and certainly did not reflect the police department that we strive to be.” Elorza promised, “We will do is we’ll do a full investigation. And any officer or anyone on the scene, who acted inappropriate, who acted unprofessional, or did not comply with our stated goal of de-escalating situations is going to be held accountable.”

Taffii Moore, who said she is the resident of 260 Sayles St and was the principal speaker at the Thursday press conference, said that police arrived at the scene with an unnecessarily confrontational attitude, saying they lined up in the street facing the house “like ‘we will get ready for war.’” She said, “When they attacked us, they attacked our children, they attacked everybody that was in this home. If you were recording, they attacked. They pepper sprayed. My son is who is 14 years old, Rashad, was protecting his cousin, Juan, from being beat by the police. They then pulled out their baton: beat him; five, six police officers at a time beat him. I have my neighbors in houses saying, ‘You know, why are you beating them? Why are you beating them?’ You know, trying. They pepper sprayed with my grandkids sitting on the porch.”

According to the police report, people on the street began fighting with each other, and when police tried to arrest them, the crowd began fighting with the police trying to prevent the arrests, and “the crowd followed and attempted to interfere with Ptlm. Benros, who deployed [pepper spray] as a defensive measure. Lt. Barros then ordered the crowd to back up as they continued their threatening behaving and ignored commands as he issued a short burst of pepper spray to create distance for the officers who were wrestling on the ground in a vulnerable position. It was at this time that several police officers had to use their department issued pepper spray, due to the large size of the crowd, as well as the crowd becoming threatening towards police.” The use of pepper spray “to create distance” as described in the police report, effectively dispersing it into a wide area without any specific threatening target, is questionable at best, especially in the presence of so many children.

Moore continued, “We sat right here on our property and bothered nobody. They came up in this yard. They dragged one of the young ladies out of the yard, not hitting nobody, not having no weapons, slammed her against the paddy wagon, threw her on the paddy wagon. They had their knees in my daughter’s face, beating and punching her, yelling at her that she was a man, as we were telling her she’s not a man, she’s a woman. They still didn’t care. They still beat on her. They beat on my son who was ill. Beat him with batons on his back.… My 1-year-old grandson was sprayed, my 5-year-old granddaughter was pepper sprayed, and they were looking right at her pepper-spraying. Didn’t even care that there was children.”

Moore’s daughter Zyrray, age 21, was the only adult among the five arrestees; she was charged with assaulting a police officer. She appears to have been the person referred to on the body cam video by a police officer as a “shemale.” At the press conference, she recounted her experience of being detained in a police van with no light and no air, despite the oppressive heat, as her juvenile family members were put in the van with her. “It was a pretty crazy situation. Just us trying to be protective of our young ones and my family…. [The police are] taught for crowd control and they’re… ready to be aggressive and just trying to pretty much arrest everybody down to the kids.… I had got punched in the face by several officers. I’m trying to explain to them like, ‘You guys. I’m not resisting arrest. There’s no reason for you guys to have your feet in my neck, on top of me, stuff like that.’ They put me inside the van. And as I’m inside the van, I still hear everything going on outside, I can’t see. There was no lights, there’s no air. And then I hear them putting my cousin and my other cousin in the van. And they’re just crying, they can’t see… and me being the oldest I’m trying to keep them calm, trying to sing music, do something, because of everything they’ve been through and we’ve been through, it’s a lot.”

Zyrray said she was pleading for air. “We’re yelling, we’re screaming… just open the door. You don’t even gotta turn on the AC, it’s hot, just open the door. You wouldn’t leave a dog in the friggin’ car for 20 minutes. We’re getting arrested. It has been there for over an hour, yelling and screaming, just ‘Open the door, open the door’… You can see on the videos, one of the officers is sitting in the back of the van as we’re banging on it. He was laughing [with other police officers] and talking to each other and just conversing like we’re not in the back of that van with our eyes burning, they want to give us no medical attention..”

At the city press conference, Pare conceded that the police vans have no air conditioning in the back, but denied that anyone was confined in them for longer than 30 minutes and said that no one was denied medical attention.

The Moore family has received death threats as a result of their press conference, Motif was told, and there are websites blogging about the incident using numerous racial slurs and providing personal identifying information about the adults involved.

Clements said that police responded 42 times over the past 18 months to these addresses on Sayles Street. Motif asked both Pare and Clements whether this might itself have been indicative of a failure of policing, inducing a kind of frustration and fatigue that was ultimately going to blow up in some kind of incident as finally happened.

We asked Pare, “If the police are called to the scene 42 times over the course of 18 months, is there any city service that could be provided, other than law enforcement, to try to deal with that?” Pare answered, “Without examining each and every call to that address, it’s hard for me to say. They weren’t calling the police because they needed food or shelter, they were calling because there was a public safety issue, and we respond when people call for the police on a public safety issue.” We followed up, “The city has a big effort to deal with gang violence, to try to intervene in a preventative way. Is there something the city could have done other than what has been done?” Pare answered, “I don’t know of any other service that we could have plugged in to prevent the repeated calls. I think a part of this is a feud in the neighborhood among neighbors, that we get called because there’s feuding, there’s loud music, there’s allegations of assault and those kinds of things.” We continued, “If you had gangs feuding you have a process for that, you have people for that.” Pare said, “Right, and this isn’t gang related.”

We asked Clements the same question, “Is there anything other than a police response that the city had available on social services to respond to that situation?” Clements answered, “That’s a very good question. Had clinicians or street workers been on the scene could we have had a different outcome? I don’t know, but I don’t think so. This was pretty tense, these two families were very agitated with each other, and they really wanted to get to each other. So to answer your question, I think at the end of the day it’s a police response.” We asked, “The city has an effective program and has for years: If this was a feud between gangs, which I understand it wasn’t, there are resources you have to deal with that. But in a feud between families, it seems you’ve got nothing.” Clements answered, “Correct. I don’t believe there was a constant family feud going on – but were that the case, there was certainly opportunity to use some form of mediation between the families, or maybe the police introduce that model and then step out. So, yes, that’s a possibility.”

At the Sayles Street press conference, a neighbor from across the street who identified herself only by her first name, “Linda,” provided an eyewitness account that raised an intriguing possibility the police may have made a classic tactical error that in military situations almost always leads to disaster. “The sergeant who was getting in front of my garage yelled to his police officers, ‘Get him.’ And six police officers ran after, ran in the yard. And all of the mothers were like, ‘Please, my son, don’t bother my son, he’s just a teenager.’ And so the police couldn’t get to him. So the sergeant ran to the back, came around the back side here, and pushed everybody out into the street. And he actually pushed everyone into the other police. So the police were acting like they were being attacked, but it was actually the sergeant who invaded everyone’s personal space and pushed them into the street. And when [the boy] got pushed into the street, he was the target. And so four policemen came after him.” (It should be noted that Linda may be in error about the “sergeant” because she said she knew he was of higher rank because he was wearing a white shirt, but in Providence that would indicate a lieutenant or above.)

What may have happened was that the police failed to coordinate properly, so one phalanx of police moved toward the children from the street while another phalanx of police went around the house and moved toward the children from the opposite direction. That could have led each police phalanx to assume the children were charging them, although each police phalanx was pushing the children toward the other phalanx, which each phalanx interpreted as hostile action. That’s a classic military disaster that usually results in death by friendly fire. No shots were fired by anyone, but it would explain the strange near-panic the police seemed to exhibit.

Video:
Press conference, July 1, with Sayles Street residents: facebook.com/motifri/videos/1147054699105481/
Press conference, July 2, with City of Providence: facebook.com/motifri/videos/163628802488366/
Police body-worn cameras: providenceri.gov/police/ppd-video-release-62921/

The Cranston Police were wrong to seize guns without a warrant from a possibly suicidal man’s home after he had already been transported to a hospital for psychological evaluation, the United States Supreme Court ruled this morning, unanimously, in a 9-0 vote. The case is Caniglia v. Strom (20-157).

On August 20, 2015, Edward Caniglia argued with his wife Kim in their home in Cranston. He got a handgun from the bedroom, put it on the table, and told her something like “shoot me now and get it over with.” It was not loaded, but she said she didn’t know that at the time. He went out for a ride while she returned the gun to the bedroom and hid its ammunition. When he got back the argument resumed, so she packed a bag and spent the night at a hotel. The next morning she was unable to reach him by telephone, so she was worried he had killed himself and called the police to ask them to accompany her back to the house to check the well-being of her husband, worried what she might find. She met with Ptlm. John Mastrati and explained the situation.

It turned out that her husband seemed fine, denying he was suicidal and saying the events of the prior night were simply him being dramatic. By this time, three other officers had arrived, Sgt. Brandon Barth, Ptlm. Wayne Russell, and Ptlm. Austin Smith. As the ranking officer, Barth determined that Mr. Caniglia posed an imminent danger to himself or others, and determined that he needed to be psychologically evaluated at a hospital. Barth decided to seize the firearms, getting telephone approval from his superior Cpt. Russell C. Henry, Jr.

In an interview with Motif, Caniglia’s attorney Thomas Lyons, of Strauss, Factor, Laing, and Lyons, said that his client felt he had no option to refuse the evaluation. “They came to the house, they spoke with him. He said he was fine. They said they didn’t believe him. They wanted him to go to the hospital for the psychological evaluation. He agreed to that, because it was also represented to him that they would not seize his handguns if he went to the hospital for the psychological evaluation and checked out okay. He went to the hospital. While he was still at the hospital, the police were still at his house, told his wife that he had agreed to the seizure of the handguns, and she showed them where they were. And they seized them,” Lyons said. “Our argument was that he did not voluntarily consent, he only agreed based on the representation the police made to him that if he went to the hospital, got checked out, was okay, they would not seize his firearms. And then when he agreed to that under duress, they nonetheless seized his firearms.”

Mrs. Caniglia had not wanted the police to intervene to the extent they did, Lyons said. “His wife actually testified that all she wanted the police to do when she contacted them was just accompany her to the house to make sure Ed was okay, and if Ed was fine, that’s all, she’d be fine, too. That was it. She just wanted someone to make what they call a ‘wellness call’ with her to make sure he was okay. And what happened was entirely unexpected to her.”

Without explanation or reason, Lyons said, the police refused to return the guns for over three months until they were sued in federal court, claiming a court order was required for the return of the guns. “That was one issue on which we did prevail before Judge McConnell at the federal district court: He held that the police requiring Mr. Caniglia to go to court to get a court order to get back his guns was a violation of his procedural due process rights,” Lyons said.

The key issue in the case was whether police could bypass the usual requirement for a warrant under the “community caretaking” exception to the constitutional Fourth Amendment protections against search and seizure. For the Court, Justice Clarence Thomas wrote, “Decades ago [in Cady v. Dombrowski (1973)], this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. In reaching this conclusion, the Court observed that police officers who patrol the ‘public highways’ are often called to discharge noncriminal ‘community caretaking functions,’ such as responding to disabled vehicles or investigating accidents. The question today is whether Cady’s acknowledgment of these ‘caretaking’ duties creates a standalone doctrine that justifies warrantless searches and seizures in the home. It does not.”

Thomas’ opinion for the Court was unusually short, only four pages. For Thomas, the principle was simple: a house is not a car, so a search and seizure requires a warrant.

We asked Lyons why didn’t the Cranston Police just get a warrant? Mr. Caniglia was either at the hospital, or at least on his way to the hospital, with no access to his guns in his house. Lyons said it had been stipulated that there were no “exigent circumstances” requiring action so quickly that there would have been no time to obtain a warrant. Lyons said that “part of the argument that we raised was he was actually gone. He was gone like almost all day at the hospital as it turned out, waiting to see someone. So yes, they had plenty of time to get a warrant, certainly for the seizure of the guns. And for that matter, our position that we argued was they get plenty of time to get a warrant or a court order for his seizure [of Mr. Caniglia himself] because there were four police officers standing on his back deck talking with him, and he was just chatting with them and drinking his coffee. Our position was that it would not have been all that difficult for one of the four officers to leave the scene to make a phone call or otherwise get a warrant since it’s not very far in Rhode Island to a judge or a magistrate.”

A concurring opinion by Chief Justice John Roberts, joined by Justice Stephen Breyer, was even shorter, a single paragraph noting that prior cases allowed police officers to enter homes without warrants when there was a “need to assist persons who are seriously injured or threatened with such injury” or “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.” At oral argument on March 24, Roberts asked whether the community was relevant to deciding what was appropriate for the police to do in checking on an elderly neighbor without a warrant, humorously referencing decades-old television shows: “Could it be that, you know, somebody like Andy of Mayberry is all right because people expect him to, you know, keep track of things, but, you know, Kojak isn’t?”

Justice Samuel Alito in a five-page concurrence – one page longer than the official opinion by Thomas – takes great pains to emphasize what the Court did not decide in the instant case. “The Court holds — and I entirely agree — that there is no special Fourth Amendment rule for a broad category of cases involving ‘community caretaking.’ As I understand the term, it describes the many police tasks that go beyond criminal law enforcement. These tasks vary widely, and there is no clear limit on how far they might extend in the future. The category potentially includes any non-law-enforcement work that a community chooses to assign, and because of the breadth of activities that may be described as community caretaking, we should not assume that the Fourth Amendment’s command of reasonableness applies in the same way to everything that might be viewed as falling into this broad category.”

Alito noted that it was not only the guns that were seized but the person transported to the hospital. “Assuming that petitioner did not voluntarily consent to go with the officers for a psychological assessment, he was seized and thus subjected to a serious deprivation of liberty. But was this warrantless seizure ‘reasonable’? We have addressed the standards required by due process for involuntary commitment to a mental treatment facility… but we have not addressed Fourth Amendment restrictions on seizures like the one that we must assume occurred here, i.e., a short-term seizure conducted for the purpose of ascertaining whether a person presents an imminent risk of suicide. Every State has laws allowing emergency seizures for psychiatric treatment, observation, or stabilization, but these laws vary in many respects, including the categories of persons who may request the emergency action, the reasons that can justify the action, the necessity of a judicial proceeding, and the nature of the proceeding. Mentioning these laws only in passing, petitioner asked us to render a decision that could call features of these laws into question. The Court appropriately refrains from doing so.”

Alito continued, “This case also implicates another body of law that petitioner glossed over: the so-called ‘red flag’ laws that some States are now enacting. These laws enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons… They typically specify the standard that must be met and the procedures that must be followed before firearms may be seized. Provisions of red flag laws may be challenged under the Fourth Amendment, and those cases may come before us. Our decision today does not address those issues.”

Lyons said, “While this doesn’t rule that red flag laws per se are unconstitutional, I think there is still the open question as to whether any particular red flag law may or may not be unconstitutional, and if it was based on a reasoning like community caretaking and it did not require, for example, some sort of previously issued court order or warrant, then it may be in some trouble.” Asked about the implication to the red flag law in RI specifically (“Red Flags: Taking Guns from the Mentally Ill”, by Michael Bilow, Mar 14, 2018), Lyons said, “I know one of the concerns that was out there was whether or not you had to get a court order in advance for the seizure, and the statute as presently written does require that as well as a follow-up proceeding at which the defendant is entitled to be present to object. In terms of the vagueness of the proceeding, of the statute, I think that there may still be questions about that, but to the extent to which it’s vague, that may depend on the particular circumstances of a particular case. So it’s a little hard to make a general statement about that.” The RI red flag law was not enacted until several years after the incident that gave rise to the Caniglia case.

Justice Brett Kavanaugh also wrote his own five-page concurrence, saying that while he agreed with the Court that there is no “community caretaking” exception to the Fourth Amendment, the “exigent circumstances” exception would usually apply when police are trying to determine whether someone is injured or needs assistance. As noted, however, it had been agreed by the parties that there were no exigent circumstances in this particular case.

Asked how it felt to be on the winning side of a unanimous Supreme Court decision, “Well, I would say we are immensely gratified – and by ‘we,’ I would include our client – that the court ruled in his favor unanimously. It feels great,” Lyons said. “Now, the case isn’t over though, because there still may be issues to address on what they call remand, that is to say, when the case goes back down again [to the lower courts], but it means that we’re still alive, still in the hunt, so to speak.”

Originally the suit was brought not only against the City of Cranston, but against the individual police officers and police chief Col. Michael J. Winquist under the Civil Rights Act, and the case was dismissed against the police officers on grounds of “qualified immunity” that holds police officers cannot be held responsible for violating civil rights unless those rights have been clearly established by prior court cases. “Our position would be is that the defendants stipulated that exigent circumstances did not apply here. However, one issue, at least that remains, is so-called qualified immunity, and the district court had held, first, that our client’s constitutional rights were not violated, but even if they were violated then qualified immunity would apply. The First Circuit Court of Appeals did not address that issue on appeal, and so, conceivably, the defendants may, for example, argue that they’re still entitled to qualified immunity,” Lyons said. “I think we have some pretty good arguments on that. It is certainly clear that the City of Cranston as the municipal entity cannot claim the benefit of qualified immunity. I think that’s pluperfectly clear, and that was even something that the First Circuit, at least at oral argument, seemed to agree with, so, at least in that respect, I think we’re in fairly good shape. The issue of whether the individual officers can get qualified immunity may be something that gets argued further.”

Marc DeSisto, attorney for the City of Cranston, and Col. Michael J. Winquist, police chief at the time of the incident and still currently, did not respond to inquiries by press time.