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Proposal Would Codify NY AG Role as Special Prosecutor in Police-Involved Deaths

New York Gov. Andrew Cuomo. Photo: Mark Reinstein/Shutterstock.com

Gov. Andrew Cuomo is asking state lawmakers to make permanent an executive order he first signed more than three years ago that appointed the New York attorney general as special prosecutor in cases where a law enforcement officer causes the death of an unarmed civilian.

The proposal, included in Cuomo’s executive budget legislation this month, would also task the attorney general’s office with developing a statewide policy for those officers to follow when deciding whether to use force in an encounter, according to the legislation.

It’s the first time Cuomo has included the idea in his pitch for the state’s spending plan, which is typically used as a catchall for major pieces of legislation during the first half of the legislative session. Lawmakers typically negotiate a final budget with Cuomo and approve it before April.

"We believe the Executive Order has been successful in addressing both real and perceived inequities in our justice system," said Cuomo Spokesman Jason Conwall. "For several years now, we’ve sought to codify it into law to ensure this progress cannot be undone by a stroke of the pen from a future governor. With new partners in the legislature, we’re hopeful that this – and many other critical reforms – will be addressed this year."

The legislation, if enacted, would essentially codify and expand the attorney general’s current role in cases where an unarmed civilian is killed by a member of law enforcement. The office would also continue to examine cases where it was unclear whether a civilian was armed before he or she was killed during an encounter with police.

Those cases are currently handled by the Special Investigations and Prosecutions Unit within the attorney general’s office, which was created in response to Cuomo’s executive order. The office would be made permanent in state law by the legislation.

Cuomo issued the executive order in 2015 over concerns that some local prosecutors may not be impartial while investigating alleged misconduct by police officers within their jurisdiction. The District Attorneys Association of the State of New York took issue with that opinion at the time and had other concerns about the order, according to Albany County District Attorney David Soares, the current president of DAASNY.

“When Executive Order 147 first went into effect, DAASNY took issue with the notion that prosecutors could not objectively investigate police-involved fatalities,” Soares said. “There were also practical concerns about shared jurisdiction and the roles of various investigative agencies, which have since largely been ironed out.”

Soares said DAASNY has not taken a collective position on Cuomo’s current proposal, but that it plans to review the legislation at its winter conference next week in Manhattan.

"The governor is well within his rights to draft legislation that would designate the Office of the Attorney General as special prosecutor in police-involved fatalities of unarmed persons,” Soares said. “DAASNY has yet to review this proposed legislation and come to a consensus on support.”

Tisha James, a Democrat who took office as attorney general this month, has long-supported the reform. She called for a special prosecutor to be appointed in cases of police misconduct as early as 2014, the first year she held citywide office as New York City public advocate.

"Recent national events have raised serious questions about the ability of local prosecutors to bring charges against police officers,” James said at the time. “It is unrealistic to expect district attorneys who regularly rely on local police to make cases to be absolutely impartial when investigating police misconduct. In order to remove conflict of interest or bias, it is imperative that a separate prosecutor—with no connection to the local police department—pursue police misconduct cases.”

Her comments were in response to a grand jury’s decision not to indict a police officer for the death of Eric Garner, a man killed by police on Staten Island earlier that year. Garner was put into a choke hold by Daniel Pantaleo, an officer with the New York City Police Department, despite being unarmed. Pantaleo and other officers initially approached Garner for allegedly selling untaxed cigarettes.

Her views on allowing the attorney general’s office to have sole jurisdiction over cases similar to Garner’s haven’t changed. She pushed during last year’s campaign for Cuomo’s executive order to be codified into state law. Delaney Kempner, a spokeswoman for James, said she still supports making that happen.

“The attorney general’s role as special prosecutor in police-involved civilian fatalities is an important policy and Attorney General James was an early champion of this idea,” Kempner said. “It should be codified into law so that New Yorkers can be confident that this important measure will remain in place to advance accountability and transparency in our criminal justice system.”

Cuomo’s proposal doesn’t go as far as what James pushed for during the campaign. She has also called for the attorney general’s office to have permanent jurisdiction over cases where civilians are injured during an interaction with law enforcement or when an officer is accused of sexual assault or a hate crime.

It would, however, give the attorney general’s office tools to have more oversight of certain incidents of alleged police misconduct. The proposal would require law enforcement agencies to report to the state when an officer is accused of using an unnecessary amount of force in an encounter involving a firearm, whether it results in the death of another person or not.

The superintendent of the state police, each local police department, and every county sheriff would be required to make those reports, according to the legislation. An account would have to be taken and sent each time an officer “discharges a firearm in the direction of another person, or where his or her action results in the death or serious bodily injury of another person,” the proposal reads.

Those incidents would be measured against a model policy on the use of force by officers that would be established by the attorney general’s office. Law enforcement agencies would have to adopt the policy, but could also add additional guidelines for their officers.

“The use of force policy shall include, but not be limited to, information on current law as it relates to use of force and acts or techniques a police officer or peace officer may not use in the course of acting in his or her official capacity,” the legislation reads.

Lawmakers began holding hearings on the state budget on Tuesday. A final spending plan is due to be passed by the Legislature and approved by Cuomo by the end of March.


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