PBA sues Fayetteville over ban of police consent searches

FAYETTEVILLE, NC &#8211 Six current and former Fayetteville police officers and the Southern States Police Benevolent Association sued the city of Fayetteville on Wednesday, alleging city leaders have illegally curtailed consent searches during traffic stops.

The lawsuit alleges the City Council and Mayor Tony Chavonne illegally imposed the four-month moratorium on police consent searches, thereby putting officers and the public in greater danger. The plaintiffs are seeking an injunction to allow police to resume such searches and a judgment that the city does not have authority to take such an action.

City officials imposed the moratorium last month in response to questions about police statistics showing blacks are stopped and searched far more often than whites. The moratorium was implemented to allow for an outside assessment of whether Fayetteville police are racially profiling people – an allegation police deny.

The council members held a closed session Wednesday afternoon to talk about the lawsuit with City Attorney Karen McDonald. Afterward, Councilwoman Val Applewhite made a motion to rescind the moratorium in light of the lawsuit and this week’s advisory opinion from the state Justice Department that the council “exceeds the authority to prohibit law enforcement activities.”

She and Keith Bates voted to rescind the moratorium, and Chavonne and the other seven council members voted to keep it.

The council passed the moratorium Jan. 23 by the same 8-2 vote, with Applewhite and Bates dissenting.

McDonald said the city will fight the lawsuit.

John Midgette, executive director of the benevolent association’s North Carolina division, said city officials have been unwilling to listen to the association’s concerns and apparently have not heeded opinions from legal experts, including lawyers for the N.C. Department of Justice.

“We are left with no choice but to seek legal redress for blatantly illegal actions by the mayor and several members of the City Council in enacting a moratorium with the purpose and effect of precluding and obstructing Fayetteville police officers from doing their job to protect law-abiding citizens,” Midgette said. “The legal challenge is a civil rights action to protect the safety and liberty of the citizens of Fayetteville.”

Police Chief Tom Bergamine sought the opinion of the state Justice Department on the moratorium in a letter dated Jan. 24 – a day after the council voted to enact it.

His letter says the state Attorney General’s Office should deem the moratorium invalid. He wrote that the legislature didn’t intend “to allow the local government to circumvent their authority by issuing ‘moratoriums.’ ”

City Manager Dale Iman said Wednesday he had no idea Bergamine had sent the letter until later, but he declined to comment about it. He said he hadn’t reviewed it yet.

“He has authority to do that,” Iman said of Bergamine.

In an email Wednesday to a reporter, Bergamine said his Jan. 24 letter “was simply seeking clarification regarding the authority to issue the moratorium.”

“As stated the night of the council meeting, I was concerned that I and the members of this department would be following an unlawful mandate,” he said. “As the Chief of Police of this department, I feel it was my duty to seek clarification on this matter.”

Still, some council members were taken aback by the letter, which they learned about this week.

“I am very concerned,” Councilman D.J. Haire said.

Councilman Wade Fowler said he didn’t object to Bergamine seeking advice from the state.

“What I do have a problem with is not alerting us that it was coming,” he said.

After voting against rescinding the moratorium in open session Wednesday, the council went back behind closed doors to discuss an unspecified personnel matter.

Afterward, Iman declined to answer any questions about the nature of the second closed meeting and what, if any, direction the council gave him.

In late December, Bergamine announced he intends to retire July 1, and the city has hired a consultant to search for his replacement.

At the Jan. 23 meeting, Chavonne told the audience he didn’t care if the city became “a legal test case, if we are a legal test case for what is right.”

The lawsuit cites state laws that specifically allow consent searches and prohibit municipalities from passing local ordinances to restrict actions expressly made legal under state or federal law.

The lawsuit was filed on behalf of the association and six current and former Fayetteville police officers. They are: Jarryd Rauhoff, Jerry Schrecker, Jeannie Abendanio, William Merriman, Antoine Kincade and George Urian.

Midgette said the officers are of varying races and ranks.

The lawsuit is against the city and does not specifically name Chavonne or the City Council members who approved the moratorium.

Midgette said they might be added as defendants, depending on what happens.

Midgette also suggested the lawsuit might be amended to include grievances about a recent proclamation by Chavonne declaring a “Moorish American Week” to honor a separatist group that claims to be exempt from U.S. law. Chavonne has said he was unaware of the group’s motives and retracted the proclamation. Midgette said Wednesday that Chavonne either knew about the group or should have before he signed off on the proclamation.

Together, the city’s recent actions represent “a pattern and practice of irresponsible and unlawful behavior,” Midgette said. “The recent actions in Fayetteville since the moratorium have become increasingly outrageous.”

He said he expects the city to fight the lawsuit and that it will likely be resolved in the appeals courts.

Consent searches have been controversial for more than a year after activists and the local branch of the National Association for the Advancement of Colored People brought forward police statistics showing Fayetteville officers stop and search blacks three times as often as whites.

The U.S. Justice Department last month declined a request by the city of Fayetteville to investigate allegations of racial profiling by police. Federal authorities did, however, acknowledge the traffic-stop statistics raise concerns.

Authorities said in a letter to city officials that the data give some reason to suspect Fayetteville police are racially profiling drivers. Among the numbers cited in the letter were that out of 38,595 stops in 2010, 40.1 percent were white drivers and 56.9 percent were black. Whites, however, accounted for only 22.4 percent of those searched, while blacks accounted for 75.6 percent.

Police counter that the disproportionate number of black drivers stopped and searched reflects active policing in high-crime areas, which happen to be predominantly black neighborhoods.

Police don’t need permission to search drivers or vehicles during arrests or if there is probable cause, such as the odor of alcohol or the presence of illegal drugs. Drivers can always decline a consent search, but critics of the legal practice say some drivers are intimidated by the police or unaware of their rights.

The city enacted the four-month moratorium to allow an independent assessment of police practices by the National Organization of Black Law Enforcement Executives. The group is scheduled to present its findings to the council March 12.

From The Fayetteville Observer.