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Group ponders lawsuit over Fayetteville consent search ban

Posted January 30, 2012

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— The North Carolina Police Benevolent Association said Monday that it's considering litigation against the city of Fayetteville over a temporary freeze on police consent searches while a consultant group investigates claims of racial profiling.

John Midgette, the police group's executive director, said the moratorium is unlawful.

"(City Council) voted in direct contradiction to the rule of law," he said. 

Consent searches, which allow officers to ask a driver's permission to search a vehicle without establishing probable cause, is an important law enforcement tool, Midgette said. 

Fayetteville Police Chief Tom Bergamine has repeatedly defended the searches and denied that officers are profiling based on race. 

Whether or not the practice should be given a second look, Midgette argues, a local government simply cannot step in and overrule state law.

Midgette said he has tried to sit down with city leaders to discuss the issue, but they have refused. If they won't come to the table, Midgette said, he'll consider filing a lawsuit.

John Midgette Police, city at odds over Fayetteville consent search freeze

"We would rather talk with them in an open forum, rather than a sworn deposition," he said, adding that he's confident the group would win in court.

"We feel we are on very solid legal ground," Midgette said.

Before resorting to legal measures, Midgette said the group is working with the Attorney General to get the moratorium overturned and has filed an ethics complaint against the council.

No City Council member could be reached for comment Monday and Mayor Tony Chavonne declined to comment. 

Chavonne did say last week, however, that he supports the council's decision to freeze searches even if it's illegal.

"I personally don't mind being a legal test case if we are a legal test case for what's right," he said.

Council members voted 8-2 last week in favor of putting the searches on hold for 120 days. During the search freeze, the National Organization of Black Law Enforcement Executives will look into whether the searches are racially motivated.

The organization, which will receive $30,000 for its consultation and review, will present its findings before city leaders decide whether the practice should be reinstated.

The decision comes after an analysis of traffic stops over the past two years by The Fayetteville Observer showed that black drivers accounted for three out of every four searches.

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  • justdontgetit Feb 3, 2012

    I wonder if this "consulting firm" has done anything to earn any of that $30,000 yet? So where are the updates to this story? And by updates I dont mean the people here that think they know everything and keep bashing the Fay. PD officers but the real facts. I hope the city council is proved wrong sooner than later before this little "rule" causes someone to get by with murder or something just cause the officer couldnt say hey do you mind if I look in your car and find a gun and ski mask under the seat cause the driver was on the way to rob a restaurant and lock the people in the freezer!

  • cwmllc1952 Feb 2, 2012

    I personally have nothing to hide but would not consent to a search. BUT!! I keep up with crimes committed and if you look at the percentages by each ethnic group that answers a lot of questions as why certain groups are asked more.

  • abylelab -BT- Feb 2, 2012

    ++"50% of the population of fayetteville, account for 60% of the traffic stops and 75% of the search requests. that's just the plain stats"

    And that still does NOT prove that there was racial profiling.

    Once again, another reason for dash cam and microphone in each patrol car. It would show VERY quickly if there was profiling or if it was justified and would prevent dishonesty (on both sides) about whether or not consent was given.
    wcnc+++

    you're right, it doesn't PROVE profiling. but, then again this whole thing is part of an investigation to find one way or another. since there is enough evidence to suggest there may be a problem, they've suspended the activity.

    that is no different than when police investigate a crime. there's evidence to suggest a crime, it's investigated, and the determination leads to charges or it doesn't. it's rather logical by the city council.

  • abylelab -BT- Feb 2, 2012

    ""You do realize that police officers are citizens too? I'm not saying you in particular, but lots of people think officers are from Planet X instead of the same community as everyone else.
    thepeopleschamp""

    officers do have rights as citizens. however, they're position does NOT have rights, it has been granted "authority" to carry out the will (or more formally "execute" legislation) of the state/county/city.

  • Sherlock Feb 1, 2012

    What to worry, this group will not do anything but talk, no law suit just talk. The City has the Right to do what they want, the police work for them, if the city wanted to they could fire all of them and start over and get a force they want to work their way...

  • thepeopleschamp Jan 31, 2012

    "No, the officer has no "rights". CITEZENS have rights. The officer has a JOB, and has to follow regulations. Which regulations, are determined, by the regulating body, ie, the CITY COUNCIL." Xiaoding

    You do realize that police officers are citizens too? I'm not saying you in particular, but lots of people think officers are from Planet X instead of the same community as everyone else.

  • thepeopleschamp Jan 31, 2012

    "Are you actually saying, that the city council, the elected representatives of the people, have no right or authority, to regulate the city police, IN THEIR OWN CITY? Are you really saying that? Because, you would be WRONG. About that." Xiaoding

    Are you saying the council can make the police do anything they want? Can council tell the police to not eat or drink while on 12 hour shifts? Why not? In your world the police have to do anything, legal or not, council says. There are limitations as to what council can and can't do, and telling police to cease a legal and constitutional act is one of them.

  • noland2002 Jan 31, 2012

    I am 65 years old and have been around this world..a "consent search" is third world style of law. The BIG problem is when threats are communicated by the officer to get you to consent or suffer the consequences. Come observe how its done in Vance/Granville counties on I85 by the town police and county sheriffs. If its not racial profiling, you are blind. And it happens in daylight. Its a pathetic way to make money for their departments. If you support consent searches, remember, it could be you next...in your home..your car. Read the Constitution....better still, read some of the other laws of NC...some are really stupid...need I say more? Just because its the law, does not make it right. PS: I am WASP....Fair is fair. Do it with style...Do it ethically...Silence is Consent!!!

  • Xiaoding Jan 31, 2012

    "No, the city council does NOT determine the regulations of the police department. That is decided based on what is legal in the country/state as well as what is safe for the officer's and the public, and is still within the rights of the citizens."

    Are you actually saying, that the city council, the elected representatives of the people, have no right or authority, to regulate the city police, IN THEIR OWN CITY? Are you really saying that? Because, you would be WRONG. About that.

  • wcnc Jan 31, 2012

    "The officer has a JOB, and has to follow regulations. Which regulations, are determined, by the regulating body, ie, the CITY COUNCIL."

    No, the city council does NOT determine the regulations of the police department. That is decided based on what is legal in the country/state as well as what is safe for the officer's and the public, and is still within the rights of the citizens.

    Heaven forbid we give the power to city councils to regulate what police can and can't do! What a mess THAT would be!

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