By Leslee Kulba – In May, a majority on Asheville City Council succumbed to the pressures of a filibuster launched during public comment demanding the addition of a resolution to the consent agenda adopting a policy the city already had. For those who, like some on council, see nothing wrong with what happened, consent agendas are supposed to include only noncontroversial, routine items like small budget amendments and changes to rights-of-way. The resolution had asked the city to direct the police chief to take certain actions advocated by Patrick Conant and others, some of which staff had not implemented due to permissions and access; others, out of concerns for victim privacy.
Councilor Keith Young had “called the question” before people in attendance were given a chance to speak and, with no public notice, cutting off opportunities for citizens at-large to share insights with council before the vote. Making matters worse, the measure would likely expose the city to legal challenges it would lose. Another procedural issue was city council does not have the legal power to set policy for the police department or to tell the chief what to do.Then, compounding the lack of order, during “Presentation and Reports,” which are normally only informational, council voted to direct the city manager to, (1) “implement a written consent policy for vehicular searches and searches of the person or personal property associated with the person,” (2) “implement a policy that the Asheville Police Department not base a consent search on vehicular stops on a person having a criminal record or suspicious movement or behavior,” and (3) “de-prioritize low-level regulatory stops.”
As night appeared to revolve to day, Mayor Esther Manheimer began council’s last meeting by laying down some ground rules. Noting, “a pretty chaotic meeting last time,” she said henceforth council will not allow (1) clapping or snapping, (2) amendments to the consent agenda other than removal of items for separate consideration, (3) additions to the posted agenda, (4) public comment at the end of the meeting that addresses items on the agenda, and (5) people not affiliated with a group to count in tallies for extended speaking time.
Then, council voted to rescind the three controversial actions, described in a report by Interim City Manager Cathy Ball and City Attorney Robin Currin as, “potentially violating several of the City Council’s Rules of Procedure.” But also, in what appears to have been an end run, council voted to “authorize the city manager to work with the Asheville Police Department” to accomplish the same things.
Council has been listening to presentations and public comment on these issues for almost a year, the allegation being the Asheville Police Department and the city as a whole suffer systemic racism, as evidenced by statistics showing a disproportionate number of African-Americans are involved in vehicle stops and searches.
One of the problems with the entire drama was that council did not approach the matter like it does other issues. Ian Mance and Patrick Conant were allowed to make their presentations repeatedly, and advocates of police restraint dominated public comment periods; but staff never prepared an analysis looking at both sides of the issue, and votes were always sprung on the agenda without public notice. It was as if council knew the statistics and arguments were flawed, but also knew they would be stigmatized as racists if they were to anger the hot topic’s pursuit group.
So, Councilor Vijay Kapoor, who strongly opposed council’s procedural violations as they were occurring, undertook his own study. He spoke with Mance and representatives of the local branches of the NAACP, Police Benevolent Association, and Fraternal Order of Police to find common ground and try to reconcile conflicting stories.
He obtained numbers from the police department to substantiate what officers had told council to no avail: Police officers follow crime. They answer calls for service and they are assigned to patrol high-crime areas. For whatever reason, the high-crime areas in Asheville are also areas with higher populations of African-Americans. As a general rule, drastic increases in the number of African-Americans stopped in traffic correlate to officers being directed to interdict high levels of gun violence in African-American neighborhoods. What’s more, reducing gun violence in African-American neighborhoods should be considered a community benefit.
In a follow-up conversation, Rondell Lance, president of the Asheville FOP, said he didn’t know why the activists kept talking about one spike in traffic-stop data, when it involved a small number of people. Asheville cops don’t have quotas.
Lance said police officers would be fine with council’s requests if they could only add, “when safe and practical” to their requirement for written consent to search. To illustrate, he proposed a high-anxiety scenario in which an officer has to turn his back on somebody who might be armed and dangerous in order to retrieve a consent form from his vehicle. The officers, he said, have forms, they understand the Fourth Amendment, but the problem with council’s rules was, “You can’t say never.” Corroborating this, Kapoor quoted from Obama’s 21st Century Policing report Recommendation 2.10, which said officers “should” seek consent and “ideally” secure it in writing.
Before taking public comment on the resolutions, the mayor spoke like a stern parent, making eye contact with a few individuals. “Folks, I want to tell you that we’re about to enter a part of this agenda that I know is extremely contentious, and people have a lot of feelings about it on both sides. I want to ask you, not to shout out, make outbursts, or any noise while other people are speaking their point of view. If you do, I will ask these officers to ask you to leave. … We’re going to have to respect everyone’s point of view, whether you like it or not, by not shouting out while other people are talking. If we can’t do that, I can adjourn this meeting.”
Over 30 members of the public were called-on to speak, but several had left due to the late hour. The original crowd had necessitated the opening of two overflow chambers.
John Miall, a risk manager who had worked for the city 30 years, led off, speaking about the dangers of law enforcement and protections afforded by state and federal laws written from experience. He cautioned great liability would accompany restricting law enforcement’s ability to protect the innocent. Plaintiff attorneys, he said, were now “salivating” at the potential for failure-to-act lawsuits.
Miall was followed by several law-enforcement officers, expanding on what they had said in public comment before and requesting more time to explain their points of view to council. Kapoor had, in fact, emailed the APD’s statistical summary to all members of council, but gotten no reaction. Advocates for the policies spoke next, some asking why only members of the police department were arguing against their proposals. A few Caucasians argued police abuse targeted poverty, not race. Then, Conant batted cleanup.
Kapoor said he would vote for the resolutions because he had faith the chief’s concerns would be addressed as actual policies are formulated. He repeated cautions raised about the safety of potential victims and police officers themselves, and described a scenario of domestic violence without probable cause justifying a search. To that, Young cited Georgia vs. Randolph and the community caretaker doctrine and said, “Look it up on your own.” As Young spoke, Kapoor did, and came to a different conclusion.
Manheimer noted the fact members of council were having a criminal procedure debate illustrated why council was not the proper body to draft policies for the police department. She said she had talked to mayors who had policies like those the city manager would be drafting with the police chief, and the subject matter is complex.
Young called out critical phrases used during the public hearing, “a social experiment,” “a black thing,” “no wiggle room for them to play fishy with your rights,” and said they all attempted to usurp peoples’ inalienable civil rights. “We were told that council doesn’t understand the manager [sic.] form of government. We might have problems with Robert’s Rules but not the form of government. And to that end, I don’t think what I did at the last meeting was wrong, and I stand by that.”
Young concluded, saying, “Centuries of racial discrimination, of slavery and subjugation and Jim Crowe, didn’t simply vanish with the end of lawful segregation. It didn’t just stop when Dr. King made a speech…” He said bias remains and no institution is immune.
Manheimer said, optimistically, she sees a change occurring in policing nationwide, where it is “juxtaposed with social justice.” She described it as “the nuanced part” of the civil rights movement. Council then voted unanimously in favor of the authorizations.
By Way of the Consent Agenda –
Council approved the creation of a capital reserve fund, which will handle new water development fees. At the recommendation of Raftelis Financial Consultants, the city will be setting up a new fund, which is expected to “capture new revenue of $100,000.” The city expects to issue debt to fund $40 million in repairs at the North Fork facility, and the development fees will go toward debt service. Council will host a public hearing on the as-yet unpublished water fee schedule Monday, July 3.
In approving the consent agenda, council also scheduled a public hearing to consider awarding General Electric $900,960 to match Buncombe County’s recent $685,000 grant. When groups of people with taxing power complain they barely have enough for public safety, hold a post-budget meeting to authorize rate hikes, and transfer earnings to large corporations, they call it investment.