Batavia Police Collaboration Advisory Stakeholder Group

The third meeting of the Batavia's Police Collaboration Advisory Stakeholder Group covered several topics related to the local criminal justice system, including:

• Restorative Justice/Genesee Justice;
• Implicit bias training;
• The juvenile diversion program;
• Procedural justice -- standards of conduct, community relations, and biases in policing.

Cathy Uhly, program coordinator for Genesee Justice (top photo), spoke about restorative justice at the meeting on Thursday night at the City Centre Board Room.

In contrast to punitive justice, which doesn't take into account victims and ignores any possibility of rehabilitation, restorative justice gives an opportunity for crime victims to be heard so that criminals might better understand the impact of their actions as well potentially make amends or pay restitution. It also offers offenders an opportunity to reform and become productive members of society.

Genesee Justice was the first county-level restorative justice program in the nation, was started in 1980 by then-Sheriff Douglas Call, former probation officer Dennis Wittman, and former County Court Judge Glenn Morton.

Genesee Justice represents criminal victims, supervises accused criminal defendants prior to sentencing, manages DWI (driving while intoxicated) convicts going through the conditional discharge program, and conducts a judicial diversion program.

Julie Carasone, a certified trainer who will conduct an implicit bias seminar for Batavia police officers in December, gave a brief overview of the training course she will present. 

Implicit bias is a bias a person might possess and be unaware of it. The course Carasone teaches involves exercises to help people learn both how biases affect their perceptions and judgments and the roots of such biases.

The course also touches on cognitive biases such as confirmation bias and the halo effect.

A confirmation bias is the tendency of people to seek out information that confirms what they already believe and dismisses information that contradicts their beliefs. The halo effect is attributing abilities or attributes to a person for no other reason than appearance, speech or past performance.

Her training also covers institutional, structural and historic racism.

Paula Campbell, an attorney in the County Attorney's Office who works in Family Court, spoke about current diversion programs designed to help young people from getting caught up in the justice system and learning to cope with any problems they might have.

Programs include PINS (person in need of supervision), youth court, family court, and programs for youths determined to be juvenile delinquents.

What program a youth enters depends on age, the severity of any behavioral issues of criminal conduct, and past record.

Anybody in the community can refer a youth to probation for consideration of possible intervention if that person has had harmed by a youth. Most commonly, referrals come from parents, schools or police.

In youth court, young people act as the judge, attorneys and jury to help deal with minor youthful offenses. It is the offender's peers who decide the best course of action to help correct a wrong or put youth on a more productive path.

Chief Shawn Heubusch spoke about police department policies that deal with procedural justice. These policies include standards of conduct, community relations, and bias in policing. These policies cover ethical behavior, building connections with community members, and avoiding prejudice in professional decision making.

It's now a felony in New York for a police officer to use a chokehold that results in the serious injury or death of a person, but Batavia police officers who have come through the academy in the past 10 years haven't even learned that maneuver, Chief Shawn Heubusch told the city's stakeholders' group at Thursday's meeting.

Since officers aren't trained in the procedure, it isn't even mentioned in the city's use of force policy, Heubusch said.

The Batavia's Police Collaboration Advisory Stakeholder Group was formed in response to an executive order from Gov. Andrew Cuomo mandating that all municipalities with a police force form a community-based group that reviews all of a police department's policies and procedures.

Thursday meeting concentrated on Batavia's use of force policy (pdf).

Chokeholds fell out of favor more than a decade ago, but their use declined steeply after New York legislators passed a law in the wake of the 2014 death of Eric Garner. He died in New York City while in police custody and restrained in a chokehold. Even while officers continued to restrain him, Garner warned them, "I can't breathe."

As a result, the State Legislature approved the Eric Garner Anti-Chokehold Act, making "aggravated strangulation" by a police officer a Class C felony punishable up to 15 years in prison.

While the city's use of policy is silent specifically on the use of a chokehold, it does allow a police officer to use any means necessary to protect his or her life or the life of another person if somebody is in imminent danger of being killed.

An officer, for example, fighting for his or her life, could use a chokehold.

"If the officer is in serious peril, you are going to do whatever you can to prevent yourself or somebody else from being killed," Heubusch said.

The use of force policy outlines when a police officer is authorized to employ a reasonable level of force in order to effect an arrest or protect him or herself or another person, up to the use of deadly force.

Reasonable, of course, is a subjective term but a 1989 Supreme Court decision, Graham vs. Connor, provides police with a method to evaluate reasonable use of force.

What is deemed reasonable? Basically, what any other typical officer would have done under a similar set of circumstances with the knowledge the officer had the time of the incident without the benefit of hindsight. In other words, if an officer has substantial reason to believe a subject has a weapon and is likely to use it, an action taken to neutralize the ability of the subject to use that weapon is reasonable, even if it turns out later the subject didn't have a weapon.

"No policy can possibly predict every situation a police officer will face," Heubusch said. "We can't reasonably think of everything and put in a policy when there is so much judgment involved in every single action an officer takes on a daily basis."

While an officer wants to avoid or minimize the use of force, nothing in the law or policy requires an officer to retreat (unlike a civilian in a public place) in the face of a threat.

When an officer uses unreasonable force, his or her fellow officers have a duty to intervene, and a duty to report under Federal law and local policy.

"We've always had a duty to intercede in our policy," Heubusch said.

Use of force can be authorized to try and capture a fleeing criminal suspect but again, sometimes the use of force is reasonable, and sometimes it isn't. An officer wouldn't use the same force to apprehend a shoplifter that he would for a bank robber. The officer must also evaluate whether the subject is a physical threat to other people.

It's never acceptable to fire a weapon at a moving vehicle. Unlike the movies, it's rarely effective and it's a danger to others.

Deadly force is only authorized when the officer or another person is in imminent threat of death or serious injury. Imminent doesn't mean immediate, Heubusch said. 

"If you point a gun at me I don’t have to wait for that trigger to be pulled," Heubusch said. "It doesn’t matter if the gun is loaded or not. We don’t have to find out if there are actually bullets in the weapon."

Anytime any level of use of force is deployed, Heubusch said, the officers must complete a report, which is another reason officers, he said, would rather avoid the use of force if at all possible.

The report is reviewed by supervisors. The information can sometimes help identify training needs and corrective measures and in rare circumstances result in disciplinary action.

"Officers hate paperwork and when they use force, they have to report it every time they wrestle with somebody," Heubusch said.

Heubusch said the use of force reports are not public even though New York recently repealed the law, Civil Rights Law 50a, which used to make records private used to evaluation police officer performance.

The reports are apparently not aggregated into any kind of statistical table.

Committee members wanted to know more about how the police department handles complaints about the possible use of force violations, particularly what protections are in place to protect an officer who cites a possible violation by a fellow officer.

Some committee members wanted to know just how thick that "thin blue line" is that supposedly protects police officers from being reported by fellow officers.

Heubusch said the department does have a whistlerblower policy that protects employees who file complaints but also noted, it's a small department -- only 33 officers on the force -- so it's hard to remain anonymous. 

That being said, Heubusch added, "supervisors know what their job is. They are not going to put their careers on the line. It's their job and their living on the line. I think our officers are comfortable coming forward if they run into a situation. I have yet to uncover a problem of an officer reporting something to a supervisor."

Public Defender Jerry Ader

Top photo: Chief Shawn Heubusch

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Eight of the 20 "resident" members of the City Police Collaboration Advisory Stakeholder Group are diverse Batavians who say they desire to build a bridge between citizens and law enforcement that will lead to a safe and healthy community for all.

“Obviously, there’s a problem going on with police in America so I want to be a part of the solution, starting with that, if I can be,” said Brandon Armstrong, owner of Royal’s Barber Shop at 56 Harvester Ave. “And other than that, I pretty much want to help out in the community to make sure they’re (police) doing their part and to make sure the community is safe.”

Armstrong, one of three members of Just Kings Social Club, a local organization formed to foster equality and racial justice, also brought up the issue of respect.

“I want to make sure we’re being treated properly and we’re not living as if we’re in a prison or living in fear in our own hometown,” he offered. “I just want to be a little more comfortable.”

Francis Marchese, a semi-retired certified public accountant, said he is eager to see what comes out of the group discussions. The first meeting is scheduled for 7 p.m. Sept. 24 at City Centre Council Chambers.

“I have lived in Batavia all my life and I feel that I will be able to help format a better condition for the City of Batavia and for the people who live here – that my voice may be heard,” he said. “I want to listen to what the group has to say … a group made up of people of different nationalities and to see what their consensus is and to see what they really want to accomplish.”

Marchese acknowledged “a lot of injustice in cities … but I also feel that no matter what the people department does, (the perception is that) they’re in the wrong – and that’s not right either.”

Victor Thomas, an employee of Western New York Concrete and Just Kings member, said he wants to be involved in “something that could help my community” and is pleased that the committee includes several citizens and not just law enforcement or government and civic officials.

“It’s a great place to start,” he said. “I hope to get a better understanding of how police officers view something and to bring issues to them that they may or may not be aware of. It’s definitely a challenge but I’m looking forward to it.”

For Raelene Christian, a retired NYS employee, the advisory group could be a way to restore community policing the way that her mother, City Council member Rose Mary Christian, remembers it.

“I believe that our police in our nation are being vilified, but the vast majority are good, hard-working people who just want to do their jobs … to serve and protect. Of course, there are bad officers, so I’m not saying there isn’t room for community policing,” she said. “In the old days, my mother knew all of the police officers. So, how do we get back there? Today, there is a lot of mistrust.”

Bill Hayes, owner Turnbull Heating & Air and active community member, said serving on the advisory group is a way that he can “give back to the county and city that have been very good to me” over the past 30 years.

“When I was in the service, there was no black, white, Hispanic – everybody mattered and we need to believe that in order to stand by it,” he said. “There are three stories to be told, and the third one is what are you going to do about it?”

He said that he is there for people to lean on, if necessary, and to hear others’ viewpoints.

“Hopefully, I can help. If not, I’ll leave the board,” he said. “I didn’t sign up to just be on another committee.”

Establishing a rapport with the police is vital to Gregory Munroe II, a Pioneer Credit Recovery employee and Just Kings representative.

“I am looking to learn how Batavia works and if something terrible (police action leading to tragedy) ever happened in Batavia -- and I sure hope it never does -- to make sure there is accountability,” he said. “I want see Batavia stay as safe as it is and even safer. It’s important to build the connection between police and the community.”

On having three Just Kings members in the group, he said the “city has embraced our group for the most part … and we’re heading in the right direction.”

Michael Henry, lifelong Batavian who works at the DePaul residence in Warsaw, said support and accountability go hand in hand.

“I want to know that the police are doing the best that they are capable of and have what they need to do their best, and also to make sure there is a measure of accountability,” he said.

The Batavian was unable to reach Bill Blackshear, who like Henry was added to the group earlier today.

Blackshear has spoken in favor of increased dialogue among different racial groups and law enforcement in the past, including a 2017 plea to City Council to act to bring citizens together “for a better communication and a better understanding of each other.”

The City of Batavia Police Department today announced the addition of two people in the “resident” category of its Police Collaboration Advisory Stakeholder Group, increasing the total number to 20.

Michael Henry and Bill Blackshear have been added to the committee, and will join residents Raelene Christian, Bill Hayes, Francis Marchese and Gregory Munroe II.

Others who have been selected are as follows:

Police Chief Shawn Heubusch, Assistant Chief Chris Camp and Batavia Police Benevolent Association President Matt Wojtaszczyk;

Public Defender Jerry Ader and First Assistant District Attorney Kevin Finnell;

Acting City Manager Rachael Tabelski, City Council Member Kathleen Briggs and City Attorney George Van Nest;

Batavia City School Superintendent Anibal Soler Jr., YWCA Executive Director Millie Tomidy-Pepper, Batavia Housing Authority Director Nathan Varland;

Business owner Brandon Armstrong, Just Kings representative Victor Thomas and Rev. Martin Macdonald, City Church pastor.

Jay Gsell and Erik Fix have been appointed as facilitators/moderators.

The group has been formed in compliance with Gov. Andrew Cuomo’s Executive Order No. 203 on police reform.

It is charged with reviewing police policies and procedures, and adopting a plan that addresses, per the mandate, “the particular needs of the communities served by such police agency and promote community engagement to foster trust, fairness, and legitimacy, and to address any racial bias and disproportionate policing of communities of color.”

The advisory group’s first meeting, which is open to the public, is scheduled for 7 p.m. Thursday, Sept. 24 at the City Centre Council Chambers. All COVID-19 protocols will be in effect.

The governor’s executive order stipulates that municipalities must adopt a plan and submit it to the state by April 1 to be eligible for future state funding.

The roster of an 18-member City of Batavia Police Collaboration Advisory Stakeholder Group is complete and the task of formulating a plan to coincide with Gov. Andrew Cuomo’s Executive Order No. 203 on police reform will begin in a couple weeks.

The Batavia Police Department today issued a press release indicating that the selection process has been finalized, and that the first meeting of the committee will take place at 7 p.m. Sept. 24 at the City Centre Council Chambers.

The meeting is open to the public, with all COVID-19 protocols in effect, Interim City Manager Rachael Tabelski said.

Per the governor’s Executive Order, “New York State Police Reform and Reinvention Collaborative,” municipal police departments must adopt a plan by April 1 to be eligible for future state funding.

Members of the advisory group are as follows:

• Interim City Manager Rachael Tabelski;
• Police Chief Shawn Heubusch;
• Assistant Police Chief Chris Camp;
• City Attorney George Van Nest;
• City Council Member Kathleen Briggs;
• Just Kings representative Victor Thomas;
• Citizen representatives Raelene Christian, Bill Hayes, Francis Marchese, Gregory Munroe II;
• Batavia Housing Authority Director Nathan Varland;
• YWCA Executive Director Millie Tomidy;
• First District Attorney Kevin Finnell;
• Public Defender Jerry Ader;
• Batavia Police Benevolent Association President Matt Wojtaszczyk;
• Batavia City School District Superintendent Anibal Soler Jr.;
• Business leader Brandon Armstrong;
• Rev. Martin Macdonald, City Church.

The press release notes that “other industry experts have been invited to attend the meetings and participate to assist the group in developing the plan.”

They are the Genesee County Department of Social Services, NYS Department of Corrections and Community Supervision, Genesee County Mental Health Services, Lake Plains Community Care, RESTORE Sexual Assault Services, City of Batavia Youth Center and Genesee County Sheriff’s Office 9-1-1 Center.

Jay Gsell and Erik Fix have been appointed as facilitators/moderators.

“We look forward to positive dialogue that will bring this community closer together and foster positive relationships between those we serve and the stakeholders in the community,” Heubusch said.

Cuomo’s Executive Order includes wording that stakeholders should include “but not (be) limited to membership and leadership of the local police force, members of the community with emphasis in areas with high numbers of police and community interactions, interested nonprofit and faith-based community groups, local office of the district attorney, local public defender and local elected officials.”

Tabelski said the stakeholder group will meet on a regular basis to help identify recommendations for more effective strategies, policies, and procedures to better serve all residents within the City of Batavia.

The Sept. 24 meeting agenda includes a review of the Executive Order, presentation by the Batavia Police Department focusing on the evolution of policing, current operations and its policy manual, and a discussion of the police agency’s Policy 300 -- Use of Force.

The three other Genesee County police agencies affected by the Executive Order are at various stages.

Genesee County Sheriff’s Department

Sheriff William Sheron and Manager Matt Landers said the county will be ready to move forward once the renewal of the department’s New York State accreditation is finalized. A review of the sheriff’s office accreditation status is set for the end of the week.

Sheron said that having accreditation status means that “some of the requirements in the governor’s order have already been met.”

“We have a sincere interest in getting public input and involvement,” Sheron said, pointing out the high level of cooperation among county agencies. “We all adhere to the same standards of excellence.”

Landers said that he will be meeting with Sheron and Legislature Chair Rochelle Stein in the near future to put together a plan, following the governor’s guidelines.

“We are ready to move forward,” he said. “We have been waiting until the sheriff’s office goes through the accreditation process.”

Le Roy Police Department

Village of Le Roy Police Chief Chris Hayward said the subject will be discussed at the next Village Board meeting on Sept. 16.

He said the small size of the community could present a challenge as far as filling all of the “slots” outlined in the Executive Order.

“What he is asking us to do is to draft a plan that makes the best sense for our community – it’s a little bit difficult to do that when you may have to bring people in from outside of the community to participate in the process, who may or may not have a lot of knowledge of what goes on in Le Roy,” he explained.

Still, Hayward said his goal is to have a plan in place before he retires on Jan. 8, ending 36 years of service – including the past 18 as police chief.

Corfu Police Department

Village of Corfu Mayor Thomas Sargent said he plans to discuss the Executive Order with the village board in the near future.

If you’re going to form a committee to build a plan that addresses community policing issues and encourages trust between residents and law enforcement, it has to include people of color – those who are speaking out for equality and racial justice.

That is the position stated by Batavia City Council members tonight as they approved the formation of the Batavia Police Collaboration Advisory Stakeholder Group as mandated by Gov. Andrew Cuomo’s executive order No. 203.

“I think it’s very important to have diversity in the committee because that is the people, and some of the people just like everyone else in the community, who are being affected,” City Council President Eugene Jankowski Jr. said following the board’s Conference and Business meetings. “So, every stakeholder from every diverse demographic that we can come up with, I’d like to see on that committee – so that everyone has a say, to a point.”

Jankowski said filling the committee with people of the same perspective is not the answer.

“If we end up one-siding it or lopsiding it, we’re not really going to solve the problem,” he said. “We need to have legitimate conversations from all the stakeholders – all the people that might or might not be involved – so we can get as much input as we can.”

As previously reported on The Batavian, the advisory group, per a memo from Acting City Manager Rachael Tabelski, was set up to consist of 15 members – including the city manager, three police department representatives, three attorneys, one Council member, a faith-based leader, Batavia Housing Authority director, not-for-profit representative, Batavia City School District superintendent, business leader and two citizen representatives.

Prior to a vote, Council member Robert Bialkowski made a motion to amend the list to include four citizen representatives to ensure minority input. The amendment was accepted and the measure passed unanimously.

The advisory group came up at the outset of tonight’s proceedings when Batavia resident Sammy DiSalvo used the public comments segment to say he opposed the makeup of it.

After reading off the list of proposed committee members, DiSalvo said, “And finally you’re rounding out this 15-person committee with two citizens, which is atrocious.”

“I hope everybody remembers why this entire executive order was proposed by Cuomo in the first place. And if you’re only going to put two out of 15 positions as citizens to help discuss how police can better police citizens, then this is a moronic proposal put forward,” he said. “This was started because of police brutality nationwide against people of color. And there is also nothing in this resolution about including those disadvantaged groups in this conversation.”

DiSalvo suggested having just one police officer and one attorney – not three of each – and called for half of the group to be “citizens,” with at least two people of color.

“Make sure your citizens are represented and right now they are not,” he said.

Council member Rose Mary Christian said she disagreed “with most of the things that DiSalvo said, and I will not sit here and think that our police department has abused anyone. I will not defend, I will not defund, our police and, as a matter of fact, I stand behind them.”

She said she has a flag at her home with a blue line for the police and a red line for the fire department.

“Safety is number one to me, and I’ll be damned if somebody is going to tell me anything different,” she added.

Fellow Council member Robert Bialkowski offered that the City doesn’t have a lot of the problems that occur in larger cities, punctuating that with “it’s simple – don’t break the law.”

Wording in the governor's executive order does not specifically stipulate the actual members, but mentions that stakeholders should include “but not (be) limited to membership and leadership of the local police force, members of the community with emphasis in areas with high numbers of police and community interactions, interested non-profit and faith-based community groups, local office of the district attorney, local public defender and local elected officials.”

Tabelski said that she and Police Chief Shawn Heubusch used the information in the previous paragraph to analyze “the members listed to make up the group, and then applied it to local conditions here in Batavia to form the parameters of our local group.”

“Our intent was to have good representation from all sides and to comply with the executive order,” she said.

During a presentation to Council, City Attorney George Van Nest outlined eight recently enacted pieces of legislation, including an anti-chokehold act and providing medical attention to persons in custody act.

Heubusch, meanwhile, reported that his agency has achieved all but a couple of the dozen or so standards spelled out in the governor’s executive order, and cited statistics showing a downward trend in crime in the city over the past five years.

Tabelski said that persons seeking to serve on the committee should send a “letter of interest” via email to her at rtabelski@batavianewyork.com or call 585-345-6300 by Sept. 1.

Regular meetings will be scheduled starting in September, followed by a draft presentation to Council in January, public comments in February, final version of the plan in March and submission to the state by April 1.

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