U.S. Department of Justice

Civil Rights Division

JMS:LLC:MJG:CWH:BDB DJ 207-52-4

Special Litigation Section - PHB 950 Pennsylvania Ave, NW Washington DC 20530

December 16, 2014 VIA ELECTRONIC MAIL Gail M. Lolis Deputy County Attorney H. Lee Dennison Building 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, NY 11788-0099 RE: Comments on SCPDs Updated Hate Crimes Training Curriculum Dear Ms. Lolis:

Pursuant to the Agreement Between the Suffolk County Police Department and the United States Department of Justice (Agreement), we write to provide the United States comments on the Suffolk County Police Departments (SCPD) hate crimes training materials provided in Attachment 10 to SCPDs July 2014 Compliance Report, as updated on October 14, 2014 via email. We appreciate the opportunity to provide feedback at this stage, and look forward to meeting in January to provide additional technical assistance in person. The following incorporates by reference our comments provided on September 22, 2014.

As mentioned in our initial comments, the training would benefit from a clearer distinction between hate crimes and other topics covered during this training. Currently, the order of the presentation is confusing because bias-free policing / color of law uses some of the same key terms (e.g.,bias) as the hate crimes component of the training, but deals with the separate issue of police conduct. We suggest starting the training by focusing on the hate crime statute and systematically developing the hate crime topic in full before shifting focus (ideally on a different day) to police conduct issues.

Accordingly, we suggest that the hate crime presentation contain the following components in the following order:

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(1) The definition of a hate crime under New York State law and the rationale for having such a law.

a. Define key terms see below.

b. Explain clearly that the hate crimes law does not criminalize thought or prejudice; it is a sentence-enhancing statute that increases criminal penalties for specified types of illegal conduct.

c. Explain the rationale for enhanced penalties: the harms that a hate crime inflicts on the broader society may go well beyond the usual harms associated with the predicate offense in question. For example, hate-motivated vandalism may have far-reaching implications that ordinary vandalism lacks.

(2) Adduce examples of cases that qualify as hate crimes and that illustrate key components of the New York statute: for example, how victims are chosen, and the substantial motivation based on beliefs about the list of protected groups that is required for an act to be considered a hate crime.

a. Use the current slide to explain that the statute applies to a wide array of offenses and enhances penalties.

b. Emphasize that hate crime statutes do not only protect minorities.

c. Point out the importance of high-quality police work in order to document motivation (e.g., recording verbatim language used before or during an incident).

We recommend that you provide the full statutory definition of a hate crime under New York State law. Currently, the presentation cites language from the federal statute. If the appropriate statutory language were presented early on in the slide show, the slides that followed could emphasize decision points in determining whether or not the statute applies. For example, a slide could illustrate cases in which a perpetrator intentionally selects a victim based on a belief or perception. Another slide might illustrate what it means to commit an illegal act in substantial part based on a beliefregardless of whether the belief or perception is correct.

At least one slide and possibly more should be devoted to explaining how to identify hate crimes. What indicators should officers look for when deciding whether an incident should be investigated as a hate crime? When does an incident escalate to the level of hate crime? Scenarios that could trigger group discussion would be useful here. It would be especially helpful to have a mix of scenarios that includes incidents that do not meet the threshold of crimes (e.g., name-calling), but may instead constitute hate/bias incidents.

Stress the importance of gathering and assessing evidence uniquely related to the hate crime/bias incident. The evidence should be evaluated with the entire incident in mind, and classifying hate crimes properly may require extra investigative effort. For example,

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a victim or witness may not report an incident as a hate crime because the individual may not be aware of the term hate crime and may not recognize that prejudice as a motive for unlawful conduct has special legal implications. The failure of victims or witnesses to properly identify a hate crime does not mean that a hate crime did not occur.

Describe proper reporting procedures, especially how hate crime reporting relates to the tracking system created by SCPD pursuant to Section IV(b)(i) of the Agreement. Instruct officers about how they should report incidents that fall short of meeting the requirements of the statute but nevertheless might help the SCPD anticipate and deter future conflicts.

Describe the SCPDs strategies for conducting investigations and enhancing witness cooperation. What actions should responding offers take or not take? What constitutes evidence? Stress the importance of even-handedness in hearing out all sides of a dispute and applying the law in a fair-minded manner. Also stress the importance of law enforcement officers avoiding any appearance of disdain for victims/complainants or making unfair/inappropriate assumptions about victims, including assumptions about a victims identity. One reason why hate crimes go unreported is that the victims fear the police for example, lesbian, gay, bisexual or transgender individuals may be reluctant to report incidents to police for fear that police themselves harbor negative attitudes about the victims gender expression. We suggest dividing this component into two sections, one discussing strategies for improving witness cooperation and another on policing strategies for preventing future incidents.

Describe the SCPDs strategy for preventing hate crimes. Explain how the following may aid in SCPDs ability to handle hate crimes:

o Improved data and documentation o Diversity sensitivity/understanding o Improved community relations and partnerships

The training presentation could benefit by replacing words like identity motivation with more accessible terms, like prejudice.

Although the slideshow notes report that there is not enough time to discuss the whole list of predicate offenses that may constitute a hate crime, it makes sense to pull out the most common types of hate crimes (for example, harassment and vandalism) and give examples.

Experience suggests that it takes at least two hours of explanation to ensure that participants understand what a hate crime is (and is not), how to determine whether illustrative incidents qualify as hate crime, and what steps a police department expects or requires regarding the handling of hate crimes and incidents.

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Again, thank you for the opportunity to provide our comments. If you have any questions regarding any of the documents or information that we have requested, please do not hesitate to contact either of us at the telephone numbers below. Sincerely, LORETTA E. LYNCH United States Attorney Eastern District of New York /s/Laura Coon By: /s/Michael J. Goldberger Laura Coon Michael J. Goldberger Special Counsel Chief of Civil Rights Special Litigation Section Civil Division Civil Rights Division (718) 254-6052 (202) 514-1089

Charles Hart Brian Buehler

Trial Attorneys Special Litigation Section Civil Rights Division Cc: Commissioner Edward Webber Suffolk County Police Department Christopher Love Compliance Coordinator Suffolk County Police Department