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On Wednesday, more than one week into the murder trial of former Minneapolis police officer Derek Chauvin for the killing of George Floyd, Chauvins lawyer read an excerpt from the departments manual governing the use of force.

The reasonableness of a particular use of force, the manual stated, must be judged from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Minneapolis revised its manual after Floyds death to place clearer and tighter constraints on officers engaged in the use of force. But the vague rule laid out in the version of the manual that was in effect during Floyds fatal encounter with Chauvin is fairly typical of the guidance provided to officers in the field.

As Sgt. Jody Stiger, a member of the Los Angeles Police Department called by prosecutors in the Chauvin trial, testified, most police departments derive their policies governing the use of force from Graham v. Connor. Graham is a 1989 Supreme Court case that, in the words of scholars Osagie Obasogie and Zachary Newman, established the modern constitutional landscape for police excessive force claims.

The language Chauvins lawyer read from the police manual was lifted, word for word, from the Courts decision in Graham.

Authored by Chief Justice William Rehnquist, one of the primary proponents of a tough-on-crime approach that often animated the Courts decisions during his tenure, the Graham opinion warns that police accused of using excessive force often have to make difficult decisions in highly stressful situations. In determining whether an officer acted reasonably, Rehnquist wrote for his Court, the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.

Perhaps even more significantly, Graham left cops with little guidance on just what limits the Constitution places on use of force by police. As then-University of Virginia law professor William Stuntz wrote six years after Graham was handed down, one searches in vain for any body of case law that gives Grahams vague reasonableness standard some content.

Yet, while some academics did criticize Grahams approach early on, many prominent commentators outside of the academy only recently have started to think of Graham as a major wrong turn by the Supreme Court. Though three justices joined a partial dissent by Justice Harry Blackmun that criticized some parts of Rehnquists decision, all nine justices agreed with most of Rehnquists reasoning. That includes Justice Thurgood Marshall, the legendary civil rights lawyer.

But with the benefit of hindsight and with the benefit of empirical evidence showing that clear legal rules lead to better policing Graham now looks like a serious error by the Court. As Rachel Harmon, a law professor at the University of Virginia and author of The Law of the Police, told me in an email, Graham offers a standard focused on judging the use of force after it has happened, and it offers very little guidance to officers and departments about how to use force.

It does little, in other words, to advise police on how they can avoid conduct that might needlessly injure or kill a criminal suspect.

Its unlikely that clearer rules would have saved George Floyds life. As Minneapolis Police Chief Medaria Arradondo testified at Chauvins trial, Chauvin absolutely violated department policy when he knelt on Floyds neck after Floyd was already subdued and handcuffed.

But clear rules can ensure that cops tossed into a dangerous and uncertain situation can fall back on those rules, rather than making a potentially deadly decision with only their fear to guide them. As law professors Brandon Garrett and Seth Stoughton wrote in a 2017 article, Grahams split-second approach presents obvious problems from the perspective of law enforcement supervisors, who cannot provide meaningful guidance about or oversight of how officers react in the moment in an objectively reasonable way.

Graham was correct about one thing. Officers do sometimes find themselves in tense, uncertain, and rapidly evolving encounters where they have to make quick decisions about how to use force. But if we want these officers to make the right decision in these fraught moments, police departments need to provide them with clear guidance on how they should react.

And the Supreme Courts vague reasonableness standard does nothing of the sort.

On a fall night in 1974, Officer Elton Hymon arrived at the scene of an alleged home break-in. He soon found Edward Garner, an eighth-grade boy weighing about 110 pounds, in the backyard of the home. Hymon later admitted that he was reasonably sure that Garner was unarmed. Yet, as Garner attempted to climb a fence at the edge of the yard, Hymon shot him in the back of the head and killed him.

Police later found a stolen purse and $10 in Garners possession.

The stunning thing about Garners death, which formed the basis of the Supreme Courts decision in Tennessee v. Garner (1985), is that Officer Hymon had every reason to believe that he acted lawfully when he killed an unarmed 15-year-old boy whod committed a fairly minor act of theft.

A Tennessee state law provided that, after an officer notifies a suspect of their intention to arrest the suspect, if he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest. In other words, state law clearly permitted police to use deadly force against fleeing felony suspects.

Nor was Tennessee particularly unusual in this regard. As Justice Sandra Day OConnor noted in her dissenting opinion in Garner, in 1985 nearly half the States still followed a venerable common law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon. As a 1736 treatise described that common law rule, it is no felony for a law enforcement officer to slay a suspect who shall either resist or fly before they are apprehended.

Garner, which abandoned that common law rule in a 6-3 decision, represents a high-water mark in the Courts decisions governing use of force by police, according to Garrett and Stoughton. Unlike future decisions like Graham, Garner laid down a fairly clear rule that police could follow when determining whether to use deadly force against a fleeing suspect.

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Under Garner, in other words, police would no longer use their own judgment to decide whether to fire on a fleeing suspect. The Court told police when they could use deadly force if the suspect poses a threat of serious physical harm, if they threaten[] the officer with a weapon, or when the suspect committed a crime involving the infliction or threatened infliction of serious physical harm and thus informed police that they could not use deadly force against other fleeing suspects.

The impact of Garner on police behavior was swift and dramatic. According to a 1994 study by criminologist Abraham Tennenbaum, homicides committed by police dropped about 16 percent in the nation as a whole after Garner was decided. In states that previously followed the unconstitutional common law rule, the reduction was approximately twenty-four percent (23.80%).

A more recent appeals court decision bolsters the proposition that clear legal rules are effective in reducing police violence.

In Estate of Armstrong v. Village of Pinehurst (2016), the United States Court of Appeals for the Fourth Circuit heard an allegation that police used excessive force when they repeatedly used a taser to subdue a mentally ill man, who died during his encounter with the police. Though the Fourth Circuit ruled in favor of the cops, on the theory that the officers were protected under a doctrine known as qualified immunity, the court also laid down several limits on the use of tasers by police.

A police officer may only use serious injurious force, like a taser, when an objectively reasonable officer would conclude that the circumstances present a risk of immediate danger that could be mitigated by the use of force, Judge Stephanie Thacker wrote for her court. She added that physical resistance is not synonymous with risk of immediate danger.

The Fourth Circuit oversees federal litigation in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, and a 2017 report by Reuters found that eight major cities in those states adopted stricter policies governing the use of tasers by police in the immediate wake of the Armstrong decision. These policies proved very successful in reducing the use of tasers.

In Baltimore, police used Tasers 47 percent fewer times last year than in 2015, according to records reviewed by Reuters. Deployments fell 65 percent in Virginia Beach; 60 percent in Greensboro, North Carolina; 55 percent in Charleston, South Carolina; and 52 percent in Huntington, West Virginia. Norfolk, Virginia, saw deployments plunge 95 percent.

As Professor Harmon told me, cases like Garner and Armstrong demonstrate that when courts provide clearer guidance, it can make a difference. Regarding the Armstrong case, Harmon told me that she would want to know more about what officers used instead of tasers before throwing a victory parade, but it does illustrate the power of the law, when courts actually provide specific and meaningful guidance to the police.

The facts of Graham v. Connor are as shocking as the facts are in Garner, even though they did not result in anyones death.

Dethorne Graham was a Black man and a diabetic living in Charlotte, North Carolina, in 1984, when he felt the beginning of an insulin reaction. Because such a reaction is treated with sugar, Graham asked a friend to drive him to a convenience store so he could buy some orange juice. But when they arrived at the store, there was a long line. Fearing he would not be able to buy the juice fast enough, Graham immediately left and asked his friend to take him to a friends house instead.

A police officer witnessed Grahams very brief visit to the store and deemed it suspicious, because the cop pulled Graham and his friend over and would not let the two men go even after Grahams friend explained Grahams medical condition to the cop.

At one point, while Graham was waiting for the officer to let him go, he got out of the car, ran around it twice, and then passed out on the curb. Erratic behavior can be a symptom of a diabetic emergency, but the police apparently took Grahams behavior as a sign of something sinister. After more officers arrived on the scene, Graham was handcuffed and forced face-down onto the cars hood. When Graham told the police to check his wallet for a decal indicating that he is diabetic, an officer told him to shut up.

They eventually let him go after they received a report that Graham hadnt done anything wrong at the convenience store.

And yet, despite these disturbing facts, the Supreme Courts decision emphasized that police must deal with tense, uncertain, and rapidly evolving situations when they encounter someone like Dethorne Graham.

Graham didnt say that there are no limits on police conduct. In addition to holding that police must behave as a reasonable officer would behave, the Court also listed several factors that lower courts could consider when an officer is accused of excessive force, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

But these were simply factors that could be considered, not bright-line rules that gave clear guidance to police about what kind of conduct is permitted. And the Graham case itself suggests that these factors offer little protection for many victims of excessive force.

After all, Graham himself committed no crime. He posed no threat to anyone, and he neither resisted arrest nor attempted to flee. But the Supreme Court sent his case back down to a trial court for a second hearing, and Graham ultimately lost his case.

One possible explanation for the lopsided vote in the Graham case again, much of the decision was unanimous is that the Supreme Court hands down decisions that are intended to be read and applied by lawyers and judges, not by police officers.

Despite Grahams admonition that judges should evaluate an officers conduct without the 20/20 vision of hindsight, courts are in the business of hindsight. Lawsuits, by their very nature, do not arise until after an alleged legal violation has occurred. So, when an officer is hauled into Court due to allegations of excessive force, Graham reminds judges that they will probably know more about the circumstances that led to that allegation than the officer reasonably could have known at the time.

Yet, while Grahams holding may offer a useful reminder to judges, we also know that police departments use decisions like Graham to shape their own policies and training manuals. And the sort of open-ended legal standards that judges are accustomed to applying to individual cases do not provide adequate guidance to police officers. A vague standard may be useful for a judge with a law degree, years of legal experience, and months to study the facts of a particular case. But such standards are inadequate for a cop who, often for the first and only time in their career, is caught in a dangerous situation with their gun drawn.

Nevertheless, since Graham, the Court has only doubled down on its preference for vague, flexible standards over clear legal rules governing police. In Scott v. Harris (2007), for example, the Court ruled in favor of police officers who, during a high-speed chase, rammed a suspects car off the road and caused him serious injury.

Yet, rather than evaluating this case under the fairly clear rule laid out in Garner Garner, after all, was a case about when police can use potentially deadly force against a fleeing suspect Scott arguably abandoned Garners approach altogether. While the fleeing motorists attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, Justice Antonin Scalia wrote for the Court, in the end we must still slosh our way through the factbound morass of reasonableness.

Whether or not Scotts actions constituted application of deadly force, Scalia added, all that matters is whether Scotts actions were reasonable.

As one federal judge wrote just a few months after Scott was decided, under the Scott decision, there is no Garner bright-line test. There is only a vague reasonableness test.

One major problem with this approach is that it gives virtually no guidance to police departments when they draft their own policies guiding the use of force, and it can lead individual officers to guess what kind of behavior is acceptable if they are in a situation that might require force. As Harmon, the UVA professor, writes, the Supreme Courts current framework does not answer adequately the most basic questions about police uses of force: when a police officer may use force against a citizen, how much force he may use, and what kinds of force are permissible.

Again, its unlikely that a more rules-based approach, like the one the Court took in Garner, could have saved George Floyds life. Chauvin appears to have shown such extraordinary disregard for his departments policies that even his own police chief testified against him at his murder trial.

But clear rules can and do save lives. According to Tennenbaums study of Garner, that decision reduced the total number of police homicides by approximately sixty homicides a year.

Thats 60 people a year who would have died if the Court hadnt given clear guidance to police officers.

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Supreme Court: The flaw in the Courts policing decisions thats killing people - Vox.com

On April 8th, President Joe Biden gave a speech to announce several executive orders on guns as well as to promote future legislation. During this speech he said, no amendment to the Constitution is absolute; you cant yell fire in a crowded theater. In a sense, he is correct; none of the amendments in the Constitution are absolute. Free speech does not protect inciting riots, free religion does not protect sacrificing people, requiring a warrant to search a home does not apply to emergencies. There are plenty of restrictions on guns that already exist and have been upheld in court.

The problem with this argument is just because a right is not unlimited, that doesnt mean the right doesnt matter at all. For example, the tired clich you cant yell fire in a crowded theater is from the Supreme Court case Schenck v United States (1919) which was not about yelling fire, rather it was about encouraging people to resist the draft during World War I. This case was later overturned by Brandenburg v Ohio and established that for speech to be outside the scope of the First Amendment, the speech must be likely to promote imminent lawless action, with likely and imminent being the key words. You can encourage people to resist the draft, you can encourage genocide, you cannot incite a riot. The United States has more freedom of speech than any other country in the world, and it is because exceptions to free speech are very few and far between. Rights matter.

In 2018, two people were driving down Interstate 94 near Jamestown, N.D. A sheriff pulled them over because they were driving too carefully; it was suspicious they were driving 2 mph below the speed limit. They had 500 pounds of marijuana in the car and the judge threw out the case because the sheriff violated their Fourth Amendment right against searches and seizures. The sheriff had no legitimate reason to pull over the car. Rights matter.

Rights not being absolute is no excuse to piss on the Constitution and pass whatever law you think might make the country safer.Restrictions on guns fall into three categories: who can own guns, where people can carry guns, and what types of guns people can own.

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The Supreme Court in DC v Heller conceded that the Second Amendment was not absolute and explicitly did not address the first two categories, but they did talk about what types of guns people can own. At the bare minimum, an individual (unconnected to any militia) has a right to own a basic pistol. The court also shut down the argument that the right only applied to 18th century muskets; they called it frivolous. The types of guns that are protected are those that are in common use. For certain guns to be outside the scope of the Second Amendment, they must be both dangerous (meaning relative to other guns, not in general) and unusual. The AR-15 is the best-selling rifle platform in the country; half of all rifles sold today are AR variants; they are not unusual. Furthermore, ARs are not substantially more dangerous than other guns. They fire a weak varmint round (granted more powerful than pistols) at the same rate of fire as most other guns: 1 shot per trigger pull.

They are not military weapons, they are not machine guns, they are not designed to kill as many people as possible. The only reason people single out the AR-15 for banning is because it looks menacing. My evidence of this claim is that proposed assault weapon bans target menacing-looking cosmetic features, not the mechanical function of guns.

Tony Bender wrote a letter Can we talk about guns? and he repeated the same arguments that just because rights arent unlimited, everything is fair game. His very condescending argument is just more of the same bad-faith drivel that gun owners are used to listening to while our rights are chipped away. Maybe if he stopped straw-manning people would talk to him. Its my experience that gun owners love talking about guns when theyre not being insulted.

William Smith lives in Fargo.

This column does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

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Letter: 'Yelling fire in a crowded theater' - INFORUM

DETROIT A Michigan man is suing the Detroit Police Department in federal court after he was wrongfully arrested and jailed for shoplifting.

Robert Williams, a Black man, was arrested at his home in a Detroit suburb in front of his wife and two young daughters after a police officer called him at work and told him to turn himself in, but didnt say what for, according to a video produced by the American Civil Liberties Union. Williams thought the call was a prank. He was arrested later that day.

Williams experience was the first case of wrongful arrest due to facial recognition technology to come to light in the United States, according to reports.

I came home from work and was arrested in my driveway in front of my wife and daughters, who watched in tears, because a computer made an error, Williams said in a statement. This never should have happened, and I want to make sure that this painful experience never happens to anyone else.

The lawsuit states that Williams Fourth Amendment rights were violated and his wrongful arrest is in violation of the Michigan Elliott-Larsen Civil Rights Act. It seeks damages and policy changes to stop the use of facial recognition technology by the DPD. Williams is represented by the University of Michigan Law Schools Civil Rights Litigation Initiative (CRLI), the American Civil Liberties Union (ACLU) and the ACLU of Michigan.

Weve repeatedly urged the Detroit Police Department to abandon its use of this dangerous technology, but it insists on using it anyhow, said Phil Mayor, senior staff attorney for the ACLU of Michigan. Justice requires that DPD and its officers be held accountable.

Williams was arrested in January 2020 for a 2018 theft of five watches, worth $3,800, from a Shinola store in Detroit, according to an article from The New York Times that broke the story in June.

DPD officers tried to identify the shoplifter by feeding a blurry image from the stores surveillance video through facial recognition technology, which matched the image with Williams and led to his arrest, the release said.

Williams was held for 30 hours in the Detroit Detention Center where he was forced to sleep on a cement floor due to overcrowding, according to the release.

The lawsuit cites studies that show facial recognition technology is faulty when it comes to identifying Black people especially in cases, like this one, when the photo is grainy, the lighting is poor and the suspect is not looking at the camera, the release said.

The technology is racially biased, flawed and easily leads to false arrests of innocent people, just like our client, said Jeremy Shur, a student attorney with CRLI.

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Michigan man sues police for wrongful arrest based on facial recognition technology - MLive.com

HUNTINGTON The city of Huntington recently issued a cease-and-desist order to a business on 4th Avenue.

The city said Pops Lounge, located at 1110 4th Ave., was advertised as an illegal bar. The Huntington Police Department became aware of the bar through social media posts.

A news release from the city said the lessee of the property had repeatedly and unsuccessfully attempted to get a business license to operate a bar on the property.

During the past 18 months, the City of Huntington has experienced several episodes wherein illegal bars have opened unexpectedly, and violent criminal activity has ensued, the release said.

In addition to issuing the cease-and-desist order, the release said the city will follow with that action with the securing of the necessary warrant or warrants to conduct a raid on the premises should an illegal bar open.

Tracy Phillips, the owner of Pops Lounge, said he applied for a city business license but it was ultimately denied. Phillips, a Black man, said he believes he was denied a license to open because of racism within the city. He said he tried to get a city license for about seven months, originally to put his second business, Spudz Potatoes, at 1110 4th Ave. and then later for Pops Lounge.

Phillips held private family events at Pops Lounge because he didnt want the place to stay empty, he said.

I do feel like there is a serious racism problem in this city as far as when Blacks try to open up businesses, Phillips said.

Phillips told The Herald-Dispatch he plans to seek legal action, but does not have a lawyer yet. He now plans to open Pops Lounge as a gourmet hot dog business and attempt to obtain a liquor license in the future for that restaurant.

If Mr. Phillips wants to make those allegations (of racism) in court, we will successfully defend ourselves, City Communications Director Bryan Chambers said.

Phillips moved Spudz Potatoes to a different location, 941 4th Ave. It is currently open for business. Chambers said Spudz Potatoes was issued a business license and certificate of occupancy last week.

City attorney Scott Damron said Friday that he has not heard personally from Phillips or anyone else with Pops Lounge. He said Phillips was denied a license for a bar because he is disqualified from obtaining a liquor license in West Virginia. Because of privacy, Damron said the city cannot disclose a disqualifying reason.

We informed him that if he was able to obtain (a West Virginia Alcohol Beverage Control Administration) license from the state of West Virginia, we would issue a business license to him for a bar, Damron said.

He added that it was the citys understanding that Phillips would not qualify in the future for an ABCA license, thus he would not be eligible for a city license to operate a bar.

Damron said the Huntington Police Department had not visited Pops Lounge while it was in operation. He said, upon information and belief, the lounge was in illegal operation once or a few times and HPD was made aware of operations after the fact.

Phillips said police visited Pops Lounge five or six times.

Damron said that if the city finds future attempts of illegal business operations in general, We will find out about it and shut it down.

The cease-and-desist order comes as two possible ordinances relating to illegal business operations have been discussed at Huntington City Council meetings.

At Mondays meeting, council voted to amend one of the ordinances, which relates to inspections after a business license has been issued. As amended, the ordinance says the director of the Division of Finance will notify the mayor or the mayors designee within a week of issuing a business license. Within a month, the mayor or the designee may inspect the business to determine whether the business is being conducted in a manner consistent with the licensing information and in a lawful manner. Periodic inspections would be allowed to follow.

Because the ordinance was amended in a 6-5 vote, it will have a second reading at the next City Council meeting April 26.

The council also discussed another ordinance Monday relating to adult game rooms. The ordinance provides definitions for what businesses are adult game rooms and requirements that they must meet in order to operate within the city, such as getting licenses from the city and the ABCA to serve alcohol. This ordinance will have a second reading at the next City Council meeting.

The American Civil Liberties Union of West Virginia sent Damron a letter via email regarding the amendment Monday during the City Council meeting. According to a copy of the letter, the ACLU-WV had concerns with the proposed ordinance going against Fourth Amendment rights in the U.S. Constitution. The ordinance did not provide a mechanism for business owners to contest a government search.

It is not a legitimate government interest to blanketly permit warrantless searches of businesses, said the ACLU letter, which was signed by Legal Director Loree Stark. Law enforcement have a venue by which they may do that in a way that is constitutionally compliant: establishing cause sufficient to procure a warrant.

We dont agree with their reading of the ordinance, Damron said Friday.

He said the city did send a response to the ACLU. Stark did not return a request for comment Friday.

The ordinances are needed, Damron said, because they apply to an issue over the last 18 months. The city has previously said that some businesses have attempted to obtain a business license but operate illegally.

McKenna Horsley is a reporter for The Herald-Dispatch. Follow her on Twitter @mckennahorsley.

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City sends cease-and-desist order to downtown bar - Huntington Herald Dispatch

A man who was wrongfully arrested based on facial recognition technology is suing the City of Detroits police department.

The lawsuit has been filed by the University of Michigan Law Schools Civil Rights Litigation Initiative (CRLI) and the American Civil Liberties Union (ACLU) on behalf of Robert Williams.

The lawsuit says Williams experience was the first case of wrongful arrest due to facial recognition technology to come to light in the United States.

The police department has blamed poor investigative work rather than the technology.

Detroit police arrested Williams at his home in January 2020 after examining security footage from a shoplifting incident which took place in 2018, when several expensive watches were allegedly stolen. Facial recognition technology was used on a grainy image from the video, and the system flagged Williams as a potential match based on an expired drivers licence photo.

The image was used in a picture line-up that was shown to a security guard. The guard, who hadnt actually witnessed the shoplifting incident and had only viewed the surveillance video, picked Williams out and the police department obtained an arrest warrant.

Williams, who had been driving home from work outside of Detroit when the shoplifting incident took place, spent 30 hours in a detention centre. The case was later dropped.

The lawsuit claims Williams Fourth Amendment rights were violated and that his arrest violated the Michigan Elliott-Larsen Civil Rights Act.

Williams is Black and the case reinforces concerns about the accuracy and potential bias in facial recognition systems, especially in instances where image quality and lighting are poor and the suspect is not looking at the camera.

A 2019 studyby the National Institute of Standards and Technology (NIST) found that face recognition algorithms misidentified African-American and Asian faces up to 100 times more frequently than white faces.

Several US cities have now banned facial recognition technology in light of these concerns and others, including Portland which prohibited its use by private companies as well as internal departments. Many police agencies, though, still use face recognition systems.

We know that facial recognition technology threatens everyones privacy by turning everybody into a suspect, saidPhil Mayor, senior staff attorney for the ACLU of Michigan.Weve repeatedly urged the Detroit Police Department to abandon its use of this dangerous technology, but it insists on using it anyhow.Justice requires that DPD and its officers be held accountable.

The lawsuit seeks undisclosed damages and policy changes on facial recognition technology.

Lawrence T. Garcia, City of Detroit Corporation Counsel, told Cities Today: As the police chief has explained, the arrest was the result of shoddy investigation not faulty technology. The arrest took place before the pandemic, and in the time since, the Detroit Police Department has conducted an internal investigation and has sustained misconduct charges relative to several members of the department. New protocols have been put in place by DPD to prevent similar issues from occurring.

The Law Department will seek to achieve resolution of Mr. Williams claims on terms that are fair to him and the City, he added.

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Detroit sued over facial recognition arrest error - Cities Today