WHAT IS MISCONDUCT?

Any intentional physical strength, energy, or show of force exerted or used on or against a person is considered use of force. Rochester Police officers have specific guidelines around when the use of force is permitted, and what type of force can be used. Use of force issues are of significant public concern due to their potential to cause severe harm, including death, bodily injury, and mental trauma. 

An officer’s use of force that exceeds what is reasonably necessary can be police misconduct. Examples of force include: 

• Choking 

• Hitting  

• Hitting someone with a patrol car  

• Kicking  

• Kneeling 

• Pushing 

• “Pain compliance tactics”  

• Spitting  

• Use of Taser, pepper spray, baton, bean bags, rubber bullets, or gun   

Relevant Rules: 

NY Penal Law § 120 (Assault)  

Criminal laws are broken when physical injury is caused to another person without justification.  

RPD General Order 335 §II (A) Subject Resistance Report:  

Members may use only that level of physical force necessary in the performance of their duties within the limits established by Article 35 of the New York State Penal Law and consistent with the training and policies of the Rochester Police Department (RPD). Appropriateness of force used is dependent on the “totality of the circumstances” at the moment the force is used. 

RPD General Order 337 §III (C) Use of Force: 

Members are only authorized to use force that is objectively reasonable, necessary, and proportional, under the totality of the circumstances, in order to effect a lawful purpose, including to ensure the safety of a Member or third person, stop an attack, make an arrest, control a person evading a Member’s lawful commands, or prevent escape 

RPD General Order 338 §IV (A)(1) Juvenile Use of Force: 

If force against a juvenile becomes necessary, Members should use only the level of force that is necessary and proportional to the threat 

RPD General Order 340 §III (A)(1) Use of Deadly Force:  

Members are justified in removing firearms from holsters and/or gun mounts and pointing the firearm if the member reasonably believes: 

1. That a person or a situation poses or may pose an immediate threat of death or serious physical injury either to themselves or another person.

RPD General Order 680 §II (D) Protests and Mass Demonstrations: 

If it becomes necessary for a member to use force during a protest response, that force must be reasonable, necessary, and proportionate, within the scope of the policies and procedures of the Rochester Police Department, and in accordance with this G.O. and G.O. 337. 

An officer who commits a wrongful arrest uses their legal authority to restrain or detain somebody without a legal reason, such as an arrest warrant, or the existence of “probable cause.” Probable cause is defined as the reasonable belief that a person has committed a crime. An arrest cannot be made without probable cause.  

Whether or not an arrest is wrongful depends on what the arresting officers knew, reasonably believed, or reasonably should have known at the time of the arrest. Officers must have evidence of a crime before placing someone under arrest – If they only find evidence of a crime after the person was arrested, the arrest may still have been wrongful, since there was not sufficient evidence for the arrest at the time it was made.  

Relevant Rules: 

18 USC § 242: It is a federal crime for an officer to deprive someone of rights and privileges that are guaranteed by the Constitution or other United States laws. 

RPD Rules and Regulations 2.15 Arrests: 

Members shall make arrests in full compliance and conformity with all laws and Department procedures 

RPD General Order 585 §II (B) Arrests: 

It is the policy of the Rochester Police Department (RPD) that no person will be arrested without reasonable cause to believe that an offense has been committed. Authority to arrest is strictly limited to those situations where the Criminal Procedure Law (CPL) of the State of New York authorizes an arrest 

RPD General Order 680 §III (E)(3) Protests and Mass Demonstrations: 

If crowd dispersal is necessary, supervisors will utilize the following in order: Upon authorization of the Incident Commander, and only if crowd dispersal is required due to life threatening conditions, use physical attempts to move the crowd and/or effect arrests. Note: Mass arrests will not occur unless authorized by the Chief of Police. 

The search of a person or property requires legal justification, such as a warrant. If there is no warrant, reasonable suspicion of a crime will only justify a brief pat-down of a person and/or a search of the  area around a person where they might be able to grab something. These limited searches are for officer safety and must only be aimed at finding weapons. A full search for contraband is only justified if there is probable cause that the person committed a crime. Property can be confiscated if there is reason to suspect that it is evidence relating to a crime.  “Exigent circumstances” may justify a warrantless search to either prevent harm to an individual or to prevent the destruction of evidence. An officer can search you if you give your consent. You have the right to say “no” to any request an officer makes to search you.   

Relevant Rules: 

United States Constitution Amendment 4:  

This gives people the right to be free from unreasonable search and seizures.  

RPD General Order 415 §III (D) Searches/Seizures: 

Members will not conduct a warrantless search unless it meets the legal criteria for an exception to the search warrant rule.  

RPD Training Bulletin §3 L-04-02 Street Stops: 

A pat frisk for weapons is permissible. (Does not allow for removing items from the person that would not be considered weapons)  

RPD Training Bulletin L-05-97: Police Initiated Encounters with Citizens

1. The first level can be called a Request for Information. This type of citizen
contact is one step above a casual conversation and is further described by the following factors: 

• There is an objective, credible reason for the request. 

• There need not be an indication of a crime. 

• Request may be for identity, destination, purpose for presence and if the individual is carrying something that would appear to be unusual to a trained police officer, the police officer may ask about the object. 

• The individual may refuse to answer and leave. 

Information obtained at this level may authorize actions at a higher level if appropriate factors are established. (This may include the development of probable cause.)
 

2. The second level is referred to as A Common Law Right of Inquiry. The many factors are the same as in level 1 (above), the most significant difference is in the reason for the inquiry.

• There must be a founded suspicion that criminal activity is afoot. 

• Questions focusing on the individual that are more accusatory and/or incriminating than in level one, may be asked. 

• Questions relating to ownership of an item may be asked. 

• You may request permission to search. 

• The individual may refuse the search. 

• The individual may refuse to answer. 

• The individual may leave. 

Information obtained at this level may authorize actions at a higher level. (This may include establishing probable cause).
 

3. The third level is that of reasonable suspicion. At this level your suspicion must focus on the person.

• You must have reasonable suspicion that the person has been, is now, or is about to be involved in the commission of an offense. The following facts are examples which may be used to develop reasonable suspicion and must be articulable: 

                – The time of the incident 

                – The location of the incident 

                – Actions which a police officer knows from experience to be consistent with criminal activity. 

                – Flight by the individual (Caution: flight alone is not enough to justify a stop or pursuit and does not constitute reasonable suspicion)

• The person may be pursued, forcibly stopped, and detained for a short time until probable cause is established. (The detainment may be for the purpose of briefly transporting the individual for a show-up). 

• A pat-down for weapons is permissible at this level for your safety. Reasonable suspicion does not justify a full search for contraband or evidence even if it is felt during the pat-down. Only items that could be used to harm you are considered weapons. (This does not include soft, spongy bags, vials, etc.) 

NOTE: New York State has taken a more restrictive view than the United States Supreme Court in this area and has held that “plain touch” does not apply here. Therefore, the “plain touch” doctrine, announced by the United States Supreme Court in Minnesota v. Dickerson, does not apply in New York State. 

Information obtained at this level may establish probable cause. 

4. The fourth level involves the arrest and search of an individual for contraband or evidence of criminal activity. A police officer needs probable cause to take such action. Probable cause requires information sufficient to support a reasonable belief that an offense has been or is being committed by the suspect. Under these circumstances, the search of the suspect should be conducted after the suspect is arrested.

Discrimination involves the illegal targeting or unfair treatment of individuals by officers based on Constitutionally protected characteristics such as race, color, creed, religion, national origin, gender, sexual orientation, gender identity, age, disability, or marital status, leading to exclusion or disadvantage. Discrimination may constitute the violation of a person’s civil rights. Bias includes any use of policing authority that is not neutral, for any reason. 

Relevant Rules: 

United Stated Constitution, Fourteenth Amendment, Equal Protection Clause 

NYS Constitution Article 1 Section 11:  

Officers cannot discriminate based on race, color, creed or religion. 

RPD Rules and Regulations 4.4(b) Personal Associations:  

Employees shall not associate with any person or organization that advocates hate, prejudice, or oppression of any racial, ethnic, religious, LGBTQIA+ group, or which disseminates defamatory material 

RPD Rules and Regulations 4.25 Harassment: 

Harassment based on age, marital status, handicap, disability, race, creed, color, religion, national or ethnic origin, sex, sexual preference, gender identity, or any other personal characteristic is prohibited.  

RPD Rules and Regulations 2.11 Attitude and Impartiality: 

Employees must exhibit and maintain an impartial attitude toward complainants, violators, witnesses, suspects, or any other person 

RPD General Order 333 §II (A) Employee Harassment and Discrimination: 

No employee of the Rochester Police Department (RPD) will engage in discrimination or unwelcome or offensive, sexually oriented or otherwise intimidating conduct including, but not limited to, unwelcome references to another’s age, race, creed, color, national origin, gender, sexual orientation, disability, marital status, or other personal ideologies or idiosyncrasies which has the purpose or effect of interfering with another’s work performance or creates a hostile environment 

RPD General Order 502 §IV (B) Equitable Policing:  

All vehicle and individual stops, investigative detentions, arrests, search and seizures (to include asset forfeiture procedures) by members of the RPD will be based on a standard of reasonable suspicion, probable cause, or as otherwise required by the U.S Constitution and the New York State Constitution. Members must be able to articulate specific facts, circumstances, and conclusions which provide objective, credible evidence to support probable cause or reasonable suspicion for a stop, investigative detention, or arrest. 

This refers to the actions and procedures undertaken by police officers during protests, parades, festivals, and other public gatherings. These activities are matters of significant public concern because they can affect large groups of people and involve the exercise of fundamental democratic rights protected by the First Amendment of the U.S. Constitution and Article 1 §§ 8-9 of the New York State Constitution. Police response must focus on protecting these rights while ensuring public safety. Police actions during such events are governed by strict protocols, emphasizing de-escalation, non-interference, and use of force only when absolutely necessary. 

Relevant Rules: 

RPD General Order (“GO”) 680 §II (C) Protests and Mass Demonstrations Response:  

The initial response to protest activity shall be to observe, and to not take action unless it is deemed to be necessary to ensure public safety. 

RPD General Order 337 §V (J)(3) Use of Force: 

The patrol rifle will not be deployed or used in situations involving a civil demonstration, protest, or crowd control unless exigent circumstances exist involving a threat from firearms, explosives, or other dangerous weapons. Members will make every effort not to have rifles displayed during peaceful protest events and must adhere to all Special Teams policies and procedures relating to rifle deployments. 

RPD General Order 601 §II (D) All Hazard Plan:  

In a civil demonstration, protest, or disorder situation, the SWAT Team will not be used (including SWAT Vehicles, weapons, equipment, and uniforms) without authorization of the Chief of Police or the Chief’s designee, unless exigent circumstances involving a threat from firearms, explosives, other dangerous weapons or instruments, or thrown projectiles exists, requiring an immediate response. NOTE: The SWAT Team may be activated and deployed to a staging area as part of an approved operational plan involving a civil demonstration, protest, or disorder situation. In such cases, actual operational deployment or use of the SWAT Team must be in accordance with this policy. 

RPD General Order 680 §II (D) Protests and Mass Demonstrations:  

If it becomes necessary for a member to use force during a protest response, that force must be reasonable, necessary, and proportionate, within the scope of the policies and procedures of the Rochester Police Department, and in accordance with this G.O. and G.O. 337. 

RPD General Order 680 §III (E)(3) Protests and Mass Demonstrations: 

If crowd dispersal is necessary, supervisors will utilize the following in order: Upon authorization of the Incident Commander, and only if crowd dispersal is required due to life threatening conditions, use physical attempts to move the crowd and/or effect arrests. NOTE: Mass arrests will not occur unless authorized by the Chief of Police. 

Actions by police that are harmful and serve no legitimate law enforcement purpose constitute abuse of authority. This includes using their policing powers for personal or unprofessional purposes or engaging in sexual misconduct. Such conduct may constitute a crime under the New York Penal Law and violate RPD policy. 

There are no RPD rules that directly address officers as perpetrators of domestic violence and/or sexual misconduct. However, those actions can constitute criminal activity contained in the New York State Penal Law, including Harassment, Assault, Stalking, Coercion, Forcible Touching, and Sexual Abuse.  

Relevant Rules: 

RPD General Order 333 Employee Harassment Discrimination:  

Officers are prohibited from harassing or discriminating against another employee of the Department.  

RPD Rules and Regulations 3.2 Conducting Private Business or Association on Duty:  

Employees shall not utilize their on-duty time to the pursuit of any private business, private enterprise, or personal association 

RPD Rules and Regulations 3.3 Use of Badge or Position for Personal Gain: 

Employees shall not use or attempt to use their official position, badge, or credentials for any personal gain 

RPD Rules and Regulations 4.12(a) Political Activity: 

Employees shall not, directly or indirectly, use or threaten to use their power or authority in the aid of or against any political party, organization, association, or candidate. 

RPD Rules and Regulations 4.25 Harassment:  

Harassment based on age, marital status, handicap, disability, race, creed, color, religion, national or ethnic origin, sex, sexual preference, gender identity, or any other personal characteristic is prohibited. 

Allegations of falsification include officers making factually inaccurate statements, either verbally or in writing, either intentionally or accidentally, as well as tampering with evidence. Officers must be truthful at all times. They also have an obligation not to leave out important information when creating reports or discussing incidents they were involved in.  

Relevant Rules: 

RPD Rules and Regulations 4.6 Truthfulness: 

Employees are required to be truthful in speech and writing, whether or not under oath. 

RPD Rules and Regulations 5.1(a) Altering Delaying or Falsifying Reports:  

Employees shall not steal, alter, falsify, tamper with, withdraw or request that any other person do the same to any report, letter, request, or other communication that is being forwarded through the chain of command. The removal of any record, card, report, letter, document, or other official file from the Department or the permitting of inspection of same, except by process of law or as directed by the Chief of Police or a superior, is prohibited. Additionally, the obtaining/duplicating or attempted obtaining or duplicating of any information from Department files, sources or reports other than that to which one is properly entitled in accordance with one’s duties/assignments is prohibited. This shall not apply to the correction of errors 

RPD Rules and Regulations 5.1(c) Altering Delaying or Falsifying Reports 

Employees shall not falsely make or submit any type of official report or knowingly enter or cause to be entered any inaccurate, false, or improper information on the records of the Department. 

Discourtesy refers to verbal and non-verbal communication by officers which is characterized by harsh, profane, insolent, or intentionally insulting language. 

Relevant Rules: 

New York Penal Law § 240.26 (Harassment in the Second Degree): 

Repeatedly committing acts that serve no real purpose other than to intentionally alarm or seriously annoy another person is against the law.  

RPD Rules and Regulations (“RR”) 4.2(a) Courtesy: 

Employees shall be courteous, civil, and tactful in the performance of their duties 

RPD Rules and Regulations 4.2(b) Courtesy: 

No member shall not express or otherwise manifest any prejudice concerning age, marital status, handicap, disability, race, creed, color, religion, national or ethnic origin, sex, sexual preference, or other personal characteristics 

RPD Rules and Regulations 4.2(c) Courtesy: 

Employees shall not use harsh, profane, insolent, or intentionally insulting language toward any person 

RPD Rules and Regulations 2.11 Attitude and Impartiality: 

Employees must exhibit and maintain an impartial attitude toward complainants, violators, witnesses, suspects, or any other person 

Complaints and investigations regarding an officer’s failure to act may involve failure to respond to a call for help, an officer’s failure to identify themselves upon request, or failure to intervene when there is a duty to do so, such as when a person in custody requires medical attention. They may also involve failure to follow an internal policy, such as failure to use their body worn camera or other designated equipment.  

Relevant Rules: 

Rochester Police Department Body Worn Camera Manual  

1. Recording Requirements and Restrictions
2. Members assigned a BWC will activate it and record all activities, and all contact with persons, in the course of performing police duties as soon as it is safe and practical to do so, as set forth in this Manual.
3. Members will activate and record with the BWC preferably upon being dispatched and prior to exiting their police vehicle, or prior to commencing any activity if on foot patrol, as set forth below.
4. Members will immediately activate the BWC when required unless it is not safe and practical, i.e., the member cannot immediately activate the BWC due to an imminent threat to the member’s safety, physical resistance, flight, or other factors rendering immediate activation impractical. In such cases, the member will activate the BWC as soon as possible. 
5. Mandatory BWC Recordings. Members assigned a BWC will activate it and record all activities, and contact with persons, in the course of performing or when present at any enforcement activity, or upon direction of a supervisor. There are no exceptions to the requirement to record mandatory events. 

“Enforcement activities” are:  

1. arrests and prisoner transports (including issuance of appearance tickets and mental hygiene arrests);  

1. pursuits (pursuit driving as defined by G.O. 530, Pursuit Driving, and foot pursuits);  

1. detentions/stops of persons and vehicles;  

1. force.  

RPD Rules and Regulations (“RR”) 2.2(a) Identification of a Sworn Officers: 

Officers shall respectfully furnish their name and badge number to any person requesting that information when they are on duty or presenting themselves as police officers. 

RPD Rules and Regulations 2.13 Assistance to Citizens:  

Employees shall render all possible police service to any citizen seeking information or assistance. 

RPD Rules and Regulations 2.14 Medical Attention for Ill Persons: 

Employees shall ensure that any injured or ill person is given the opportunity for medical attention 

RPD Rules and Regulations 2.23(d) Performance of Duties: 

Nonfeasance is prohibited   

RPD General Order 105 §III(C) Patrol Section and Beat Boundary:  

Members will respond to and perform police functions at any location as directed by the dispatcher or competent authority regardless of section or beat assignment. 

RPD General Order 336 §II (A) Duty to Intervene: 

All Members have an affirmative duty to intervene to prevent or stop any member from using unreasonable force or otherwise acting contrary to law or RPD policy. 

Some allegations of police misconduct are not easily categorized. The Police Accountability Board has trained investigators and attorneys who will exhaustively review all rules governing police activity any time a complaint is made to the PAB to ensure that any potential violations of policy are investigated.  

Relevant Rules: 

RPD Rules and Regulations  4.8(a) Discussing Evidence:  

Employees shall not discuss any evidence arising out of a criminal investigation or civil proceeding with the media or any other person outside of the RPD without the knowledge and permission of a supervisor or any established authority 

RPD Rules and Regulations 5.6(b) Actions Against Employees: 

Employees, upon receipt of a notice of claim or lawsuit, arising out of their employment, shall note on the document(s) served the time, date, location and how or by whom served and shall immediately forward the original to Professional Standards Section. Failure to forward immediately may result in their own liability for the action   

RPD General Order 450 §II (D) Property Evidence/Property Control: 

Employees will assume responsibility for all property coming into their possession as part of their official duties. This responsibility will continue until the property is transferred pursuant to the requirements of this Order. As soon as possible, but not later than the end of their current tour of duty, employees will deliver or cause to be delivered, all evidence and any found, confiscated, or recovered property coming into their possession, to the custody of the PCO, or when closed, to the Property Clerk’s after hours storage room, as outlined in this directive 

RPD General Order 517 §II (A) Americans with Disabilities Act: 

It is the policy of the Rochester Police Department (RPD) to ensure that a consistently high level of police service is provided to all members of the community, including persons with disabilities. This level of service will involve first responder recognition of the nature and characteristics of various disabilities, and appropriate physical and emotional support to people with disabilities who seek to access police services or who come into contact with the police.