Asheville council shifts on police search limits after contentious meeting

Joel Burgess | The Citizen-Times

Show Caption Hide Caption Asheville City Council meets following police beating video. Members of the public address the Asheville City Council during their first regular meeting since the publishing of a video showing a police officer beating a man stopped for jaywalking.

ASHEVILLE - After a contentious two-hour debate on race and policing, City Council shifted Tuesday on an earlier stance to limit officer search powers, gathering more votes in favor of the limits.

But even in unanimously passing three policy mandates, council members remained starkly divided over how strict to make one requirement that Asheville police officers get written consent before performing some types of searches and whether there should be exceptions.

"I prefer that our officers obtain written consent, but I know that in real life there will be situations where it is impractical or unnecessarily risky to do so," Councilman Vijay Kapoor said of the mandate that officers go further than getting just verbal consent, which is current policy.

The issue pertains to situations in which police don't have at least a reasonable suspicion that a crime is being committed but still want to conduct a search. When officers have such reasonable suspicion or probable cause to believe a crime is being committed, they don't need a person's consent, according to the courts.

Councilman Keith Young called for a more absolute policy where police must always get written permission for "consent" searches.

Young strongly disagreed with an example Kapoor gave where an officer might be dealing with a potential domestic violence situation. Kapoor said the written requirement could hamper officers from stopping domestic abuse — or worse.

"I'm going to call BS on that," Young said.

"We were told written consent gives police no wiggle room — no wiggle room to play fishy with your rights," Young said.

APD beating video, data prompt search policies

The council originally passed three mandates by 5-2 votes on May 22. The move was spurred by data showing a high number of police traffic stops and searches of African Americans as well as outrage over a well-publicized beating by of a black pedestrian by an APD officer.

But following criticism the votes happened too fast and without notice or public comment, the council revisited the mandates, putting them on the agenda for Tuesday.

The process in May "appeared to potentially violate" several of the council's rules of procedure, Interim City Manager Cathy Ball and City Attorney Robin Currin said in a report to the council published with the agenda.

Controversy over the budget preceded the search limit debate. The council voted 4-3 to pass the city's $180 million operating budget, drawing protests from members of the public opposed to a $2 million increase for police

One protester, the Rev. Amy Cantrell, who was arrested and charged with trespassing for sitting on the floor and refusing to move.

Other members of the public spoke out loudly, protesting statements about police funding or telling each other to shut up. Mayor Esther Manheimer said she would use police or even adjourn the meeting if necessary to keep order. All told, the meeting, which included an array of different city business, lasted more than five hours, stretching until after 10 p.m.

The council took public comment on the search limits from 30 people who were part of a crowd that filled the chambers and spilled into an overflow room.

Speakers included police officers, former council candidates, an ex-mayor and social justice activists.

Speaking for and against limits

Leaders of police advocacy groups said the limits were improper attempts to fix larger social ills. Police Benevolent Association staff representative Brandon McGaha read statistics saying African Americans were more likely to be victims of crimes and face other disadvantages, such as teen pregnancy.

APD Sgt. Rick Tullis said the proliferation of body-worn cameras made written consent unnecessary.

"These body worn cameras are on and they record all consent searches," Tullis said. "So, we do have oversight already."

Proponents of the limits said the current oversight wasn't enough since state law blocks the general public from seeing body cam footage.

Asheville-Buncombe NAACP President Carmen Ramos-Kennedy pointed to the August beating, shocking and choking of black pedestrian Johnnie Rush by an officer which was revealed to the public by leaked body cam footage.

"That video did not prevent Johnnie Rush from being brutally beaten," Ramos-Kennedy said.

Speakers on both sides said they believed the majority of police officers performed well in a dangerous and often thankless job. And several on both sides also said they understood there was a historic problem with trust between officers and African Americans.

Michael Hayes, who is black, said he knew and trusted Craig Loveland, a white officer who spoke against the limits. Hayes said he considers Loveland "my brother," but he disagreed with him, saying the issue was about "everyone being held accountable."

Downtown resident Peter Landis struck a sort of middle ground, saying he supported Police Chief Tammy Hooper — who opposed the mandates — and disagreed with the way in which the mandates were passed in May. But Landis said he actually supports the limits.

"I hope that you will vote in the affirmative, now that you’ve heard in the proper form from the people you represent," he said.

Afterward the council voted to undo the prior mandate resolutions, then took new votes. The revised process seemed to satisfy the two original "no" votes — Kapoor and Vice Mayor Gwen Wisler, who joined the majority to pass all three mandates 7-0.

But exact nuances in the policies will not be known until they are hashed out by Ball, whom the council has the power to direct as city manager, and Hooper, who as police chief reports to Ball.

Ball and Hooper will also be writing policies for the two other mandates: that police not attempt consent searches based on a person's criminal history or "apparent nervousness" and that the department "de-emphasize" traffic stops for nondangerous regulatory or equipment-based violations, like expired vehicle registration.

Search mandates have key wording differences

Changes in the wording of Tuesday's official resolutions may prove important. In May's resolutions, the majority voted to mandate that officers get consent before searching a vehicle, a person or a person's possessions.

Tuesday's resolutions seemed to back off protections from body searches, saying the council supported written consent for searches "of vehicles or premises so that all individuals are informed of their rights."

But the resolution also left leeway for the final wording, saying the city manager and chief should implement a policy requiring written consent for searches, without saying what type of searches.

Councilman Brian Haynes argued for strict search limits reflected in the original votes, saying, "the intent was clear."

"While the wording has changed, the expectations have not," said Haynes, the chairman of the council's public safety committee, which makes recommendations to the full council on police issues.

But Wisler, who is also a member of the committee, said she expected there to be some situations where officers wouldn't be required to get written consent.

"I expect the policies prepared by APD will reflect our values, 21st century policing guidelines and will be prepared with the safety of officers, civilians and emergency workers as a top priority," the vice mayor said in a written statement she read aloud.

Police search limits

Here are the three mandates passed 7-0 Tuesday by the City Council. In order for the limits to take effect, Police Chief Tammy Hooper must translate the mandates into policies

If there is not at least a reasonable suspicion of a crime, an officer must get written consent before doing a search and explain the person has a right to refuse. Currently, verbal permission is enough for a consent search.

An officer cannot attempt a consent search based on a person's criminal history or "apparent nervous" behavior.

Police will de-emphasize enforcement of regulatory and equipment-based vehicle violations that don't endanger the public. Such non-dangerous violations would include "expired registrations and equipment."