WHAT IS MISCONDUCT?

1. This occurs when an officer uses words to harm the person they are speaking to. Verbal abuse or harassment may consist of shouting, insulting, intimidating, threatening, shaming, demeaning, or using derogatory language. This may include, but is not limited to: 
    

• Making sarcastic comments about the person 
• Making a joke at the expense of others 
• Racial slurs 
• Violent language directed at the victim 

• Sexual language directed at the victim 
• Name calling  

Example 

Officer Doe arrests Jane, a transgender woman. Officer Doe threatens to arrest Jane and house her with men, using slurs and calling Jane a “he-she.” This is also an example of discrimination. 

Law 

New York Penal Law § 240.26 (Harassment in the second): Repeatedly committing acts that serve no real purpose other than to intentionally alarm or seriously annoy another person. 

RPD Rule 

4.2: Officers must be courteous and civil while performing their duties. They cannot use profane or intentionally insulting language towards any person. This includes comments insulting a person’s age, marital status, handicap, disability, race, creed, color, religion, national or ethnic origin, sex, sexual orientation, or other personal characteristics. 

4.25: Harassing someone based on age, marital status, handicap, disability, race, creed, color, religion, national or ethnic origin, sex, sexual orientation, gender identity, or any other personal characteristic 

1. An officer who commits this type of misconduct fails or refuses to perform a duty or responsibility required of their position in a reasonable or appropriate manner. This may include but is not limited to: 
    

• Failing to respond to a dispatch call 
• Failing to render aid 
• Sleeping on duty 
• Drinking on duty 

Example 

A shop owner calls the police for a break in of his shop. A window was broken and $2,000 worth of merchandise stolen. The police never showed up to the crime scene.  

Law 

NY Civil Service Law §95: Requires officers to act properly while carrying out their duties  

RPD Rule 

2.4: Officers must report for duty, including on dispatcher notification  

2.13: Officers must give all possible police service to members of the public who seek their service 

2.23: Officers cannot neglect their duty, commit a wrongdoing, or refuse to perform an act that is required of them 

General Order 335: Officers must immediately arrange for medical treatment if the person is visibly injured, complains of injury, requests medical attention, or if a taser or pepper spray was used 

General Order 336: Officers are required to intervene when another officer is using excessive force. 

General Order 442(II)(B): officers can use strategies of mediation, referral to community resources, or physical separation for domestic disputes, but not as a substitute for appropriate criminal proceedings when there is a domestic offense 

1. When an officer uses force that exceeds what is reasonably necessary while conducting an arrest, a search, or a vehicle stop. This may include but is not limited to: 
    

• Hitting 
• Kicking 

• Kneeling on the victim 
• Choking 
• Spitting 
• Use of taser, pepper spray, baton or gun  
• Hitting someone with a patrol car 

Example 

Officers are conducting an arrest on a civilian. The civilian resists and the officers wrestle him to the ground. The officers are eventually able to get him handcuffed. While the suspect is on the ground and handcuffed, the officers kick him and hit him with their batons. The force used prior to the placement of handcuffs was likely necessary to arrest the civilian, but the force used after the civilian was handcuffed is excessive. 

Law 

NY Pen. § 120.10, .05, & .00 (Assault in the 1st, 2nd, 3rd): These laws cover one person causing physical injury to another. The injury can be done with a deadly weapon or dangerous instrument. The main difference in the three degrees is the level of intent required. 

RPD Rule 

General Order 336: Officers are required to intervene when another officer is using excessive force. 

General Order 337 Use of Force: Officers are expected to carry out their duties and act with the highest regard for the preservation of human life and the safety of all people involved. This rule covers the use of a taser, pepper spray, baton, gun, and the officer’s own body such as their hands and feet 

General Order 338 Juvenile Use of Force: Officers are required to use de-escalation techniques with children. Officers are prohibited from using chemicals (pepper spray, pepperballs, etc), impact weapons (batons), and tasers when interacting with children. Officers are prohibited from handcuffing children under the age of 12, unless the child is a danger to themselves or others. 

General Order 340 Deadly Force: Officers are only allowed to use deadly force when the officer reasonably2 believes that it is necessary to prevent deadly force against the officer or another person. This general order also outlines the proper use of officer weapons – firearms, beanbag guns, pepperballs, tasers, etc. 

General Order 341 Chokehold: Officers are prohibited from using chokeholds, lateral vascular neck restraints and/or carotid restraints, strangleholds or otherwise impeding the normal breathing and blood circulation (including by blocking a subject’s nose or mouth), except in extreme circumstances where deadly physical force is authorized. 

1. Domestic violence is a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner. Abuse can be physical, sexual, emotional, financial or psychological.  

This includes any behaviors that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame or injure someone. Domestic abuse can happen to anyone, of any race, age, sexual orientation, religion, or gender. It can occur among couples who are married, living together or dating. Domestic violence affects people of all socioeconomic backgrounds and education levels.  

In order to discipline an officer for domestic violence, the victim must have a relationship with the officer. Sexual misconduct victims, however, can be anyone, regardless of their relationship with the officer.  

Examples 

A male officer arrests a female. When patting down the woman for weapons, the officer spends a significant amount of time on her breasts and buttocks.  

A woman has been arrested and handcuffed by a male officer. After he puts the suspect in the patrol car, he tells the woman he will let her go if she performs a sexual act on him. The woman complies.  

Law 

There are a wide variety of laws that apply to sexual misconduct and domestic violence. These crimes can be prosecuted hundreds of different ways. For the sake of being brief, these laws will not be defined, but a brief sample is provided. These types of crimes can be prosecuted under New York CPL 530.11 (Procedures for Family Offense Matters) and New York Family Court Act 812 as:  

• Harassment 

• Aggravated Harassment 
• Assault 
• Reckless Endangerment: acting with disregard for the value of human life, acting without caring that it might harm someone 
• Menacing: doing something that puts another in fear of immediate danger, threatening physical harm 
• Stalking: repeated, seemingly obsessive, unwanted behavior towards another person 

• Sexual Misconduct: engaging in a sex act with someone without their consent 
• Forcible Touching: intentionally touching sexual or intimate parts of another without their permission and for no reason, or for sexual gratification 
• Criminal Mischief 
• Criminal Obstruction of Breathing or Blood Circulation: causing another person to stop breathing, or obstructing their ability to breathe 
• Strangulation: causing another person to stop breathing, or obstructing their ability to breathe, and doing so causes the victim physical injury 

• Grand Larceny: obtaining property that does not belong to you with the intent to keep it from the rightful owner 
• Coercion; using threats to force a person to act or refrain from acting in a manner against that person’s will 
• Unlawful Dissemination or Publication of an Intimate Image 

RPD Rule 

There are no RPD rules that directly address officers as perpetrators of domestic violence and/or sexual misconduct. 

General Order 333 Employee Harassment Discrimination: Officers are prohibited from harassing or discriminating against another employee of the Department. 

General Order 442 Domestic Disputes/Offenses, Family Offenses/Orders of Protection: This order outlines procedures for officers to follow when responding to domestic disputes or other family offenses.  

1. An officer who discriminates treats a person unfairly based on his or her membership in a class, group, or category such as, race, ethnicity, sexuality, gender expression, religion, or disability. This also includes a person’s immigration status. Officers cannot ask about a person’s immigration status. 

Example 

An officer stops two men as they exit a store. One man is white and the other is black. The officer accuses the black man of stealing from the store. There is no evidence that anything from the store was stolen. The officer proceeds to search the black man. He does not search the white man. When the men protest the illegal search, the officer uses a racial slur to address the black man. 

Law 

Fourteenth Amendment Equal Protection Clause: Officers must police neutrally. They cannot make distinctions between people for reasons that are irrelevant to policing. 

NYS Constitution Article 1 Section 11: Officers cannot discriminate based on race, color, creed or religion. 

RPD Rule 

4.2: Officers must be courteous and civil while performing their duties. They cannot use profane or intentionally insulting language towards any person. This includes comments insulting a person’s age, marital status, handicap, disability, race, creed, color, religion, national or ethnic origin, sex, sexual orientation, or other personal characteristics. 

4.4: Officers cannot associate with people or organizations that promote prejudice, hate, or oppression of any racial, ethnic, or religious group. 

4.25: Harassing someone based on age, marital status, handicap, disability, race, creed, color, religion, national or ethnic origin, sex, sexual orientation, gender identity, or any other personal characteristic 

General Order 502 Equitable Policing: Officers may engage in “criminal profiling,” but not “bias-based profiling.” Criminal profiling is an investigative method of identifying suspicious people and bias-based profiling is a method of identifying suspicious people solely based on a common trait (race, ethnicity, gender expression, English proficiency, etc). Rochester is a sanctuary city and RPD officers cannot engage in police activities for the sole purpose of enforcing federal immigration laws.  

1. An officer who commits a false arrest uses their legal authority to restrain or detain somebody without a lawful reason. Lawful reasons for arrest are probable cause, a valid warrant, or consent. Probable cause is defined as the reasonable belief that a person has committed a crime. 
    
   Example 

An officer pulls a driver over for not wearing a seatbelt. During the traffic stop, the officer turns his attention to the passenger, who is of Mexican descent. Although the passenger is wearing a seatbelt and committing no violations, the officer arrests him and brings him to the station. The man was not charged with a crime and was allowed to leave an hour later. This is also an example of discrimination. 

Law 

18 USC § 242: Officers cannot deprive someone of their rights and privileges that are guaranteed by the Constitution or other United States laws. 

RPD Rule 

2.15: Officers shall make arrests in full compliance and conformity with all laws and Department procedures. 

General Order 585: This document describes arrest procedures, generally. Importantly, officers cannot ask about a person’s immigration status. 

1. Officers must be truthful at all times. This means they cannot make up information, change information, or even leave out information. This may occur in many different ways, including but not limited to: 
    

• Police reports (arrest, incident, investigation, etc) 
• Affidavits (Written statements)  

• Lying on the stand 

Example 

A civilian is arrested for stealing a pack of gum from the corner store. Later, when he gets a copy of the arrest report, he finds that it wrongly states he also took money from the cash register. 

Law 

NY Pen. §175.05 & .10 (Falsifying business records) Making or causing a false entry into a business record, altering erasing, deleting a true entry of a business record, omits a true entry in a business record 

NY Pen. §215.50(4) (Criminal contempt): Refusing to be sworn as a witness or refusing to answer questions once sworn as a witness 

NY Pen. §210.10 & .15 (Perjury): Swearing falsely while under oath, written or oral 

RPD Rule 

1.1: Officers must follow laws, both federal and state 

4.6: Officers are required to be truthful, in speech and writing, whether or not under oath 

5.1: Officers cannot steal, alter, falsify, tamper with, withdraw, or request that another employee do the same to any report, letter, request, or other communication. Officers cannot make any report that contains false, inaccurate, or otherwise improper information. 

1. There are different types of searches. An officer can search a person’s body, search objects under a person’s possession, such as a purse or car, and can search homes or other buildings. Under the Fourth Amendment to the U.S. Constitution, officers cannot conduct unreasonable searches. An unreasonable search occurs when an officer conducts a search without a warrant or probable cause3 that a crime was committed. Officers can also conduct searches under “exigent circumstances,” where they reasonably believe that the search is necessary to either prevent harm to an individual or to prevent the destruction of evidence.  

A stop and frisk is a less intrusive type of search and therefore requires a lower standard of proof than probable cause. An officer only needs reasonable suspicion4 to support the stop and frisk of an individual. A frisk is a brief pat down of an individual and is typically conducted to determine if the individual has a weapon.   

An officer cannot exceed the scope of the search.  

Finally, an officer can search you if you give your consent. You have the right to say no to this request. 

Example 

An officer stops an individual on the street to inquire about a robbery that recently happened in the area. To ensure the officer’s safety, he conducts a frisk to check if the individual has a dangerous weapon. During the pat down, the officer does not feel any weapons, yet he digs into the individual’s coat pocket where he finds a small bag of cocaine. This is unreasonable because digging in someone’s coat pocket is not required to determine if the person has a weapon – it goes beyond the scope of the search. 

Law 

United States Constitution Amendment 4: This gives people the right to be free from unreasonable search and seizures. 

RPD Rule 

General Order 415 Searches: This order describes in great detail legal standards for different types of searches. 

1. There is not a specific law related to police officer’s use of drugs or alcohol, and there are few department rules. Officers cannot use or purchase alcohol while in uniform, even if off duty. Officers also cannot drink to an extreme level of intoxication. 

Example 

An officer is driving home at the end of his shift. His wife has asked him to bring home a bottle of wine for dinner. While off the clock but still in uniform, he stops at the liquor store and purchases wine the wine. 

RPD Rule 

4.20: Officers cannot purchase or drink alcoholic beverages while on duty or in uniform (even if off duty). When an officer does drink alcohol, even off duty, he cannot drink to the extent that he becomes unfit for duty. Officers cannot be under the influence of drugs or alcohol while on duty. 

4.23: Officers cannot use or possess any non-subscribed controlled substance. If controlled substances are prescribed, officers cannot abuse those substances. 

For the sake of space and clarity, we have only included 10 of the RPD’s rules and policies.  If you or anyone you know believe they may have been a victim of police misconduct, please contact the Rochester Police Accountability Board at RocPAB.org or 585-557-2494. 

Sources: 

• https://buffalonews.com/news/local/more-than-225-western-new-york-cops-have-been-suspended-or-fired-since-2017/article_df9ea974-b4ed-11ec-b99e-67d1bd5a42a9.html 
• https://data.cpdp.co/data/b4rlmG/ 
• https://www.usatoday.com/in-depth/news/investigations/2019/04/24/usa-today-revealing-misconduct-records-police-cops/3223984002/ 

• https://rocny-my.sharepoint.com/:w:/g/personal/keran_mattu_cityofrochester_gov/EbgdktHNGkJLkC00GXDBMoUBYAhs-uD-p-UAXs_zIbodug?email=Erin.Barry%40CityofRochester.Gov&e=kKoU11