Talking policy with Rep-elect Jose Batista“I think there’s a good argument to be made that the extra due process that police get – and that’s what the experts acknowledge LEOBoR is – the police get an extra layer of due process in their Bill of Rights – and my hypothesis is that the extra layer doesn’t just come out of nowhere, it’s not free – it comes at the expense of the due process rights of people like you and I, civilians.”
Published on December 1, 2020
By Greg Brailsford
Jose Batista is the Representative-elect for District 12 in Providence. In his day job he’s a lawyer in private practice, but he’s also a former public defender and the former executive director of PERA (Providence External Review Authority) the only civilian police oversight board in Rhode Island. Former, because Batista was fired by the PERA board for releasing two videos of Providence Police Officer Sergeant Joseph Hanley assaulting Rashod Gore, a Black man handcuffed on the ground. The PERA board had voted to not allow the public access to that video, based on a recommendation from the office of Attorney General Peter Neronha.
UpriseRI spoke with Batista by phone on Monday. Don’t forget to listen to Moira Walsh’s interview with Batista on the the Can We Fix It podcast, available here.
Uprise: In retrospect, do you kind of wish you’d simply passed these videos onto the press anonymously?
Jose Batista: Not anonymously, no. I’m glad I did what I did. My only regret is that I didn’t do it sooner. I never once imagined doing it anonymously because I wasn’t ashamed to do it. One thing that I hope people don’t forget is that I didn’t just wake up one day and decide to do this. I was aware of these videos for about six months. People were advocating for me to release them. It wasn’t until I thought I had exhausted every single “diplomatic” effort to do things “the right way” that I finally decided to do it, because I knew how big of thing it would be.
It was only after the Jhamal Gonsalves case and watching this movie kind of start to play again that I decided to act. I was hoping that even though we didn’t agree on the Sergeant Hanley stuff, that we would learn from it and try to do things differently the second time around with another high profile case. I saw that wasn’t happening, and it was made crystal clear to me that it wasn’t going to happen, so at that point I thought it time to bring my case to the public.
Uprise: What was the difference between the Sergeant Hanley case and the Jhamal Gonsalves case that made the Attorney General’s response so different in the way they released the videos?
Batista: Off the top of my head, the Gonsalves case was immediately public. I remember that Sunday night I was sitting in my house and on Facebook I see the videos, and there’s no putting the cat back in the bag at that point. Whereas in the Hanley case, I think the police and the entire law enforcement community had control of the video from the very beginning.
The Hanley incident happened on April 19, law enforcement officials were told about it two days later, from a civilian who happened to be recording from her apartment – and then radio silence. The public doesn’t know anything for about 30 days. So the million dollar questions here are, “What happened in those 30 days? Why were civilians not a part of it? And why, in this Gonsalves case, are we going the same route again?”
Uprise: One of the videos you released was a civilian video. How did the police take ownership of that and prevent the release of a civilian video?
Batista: I don’t know anything about who the person was that recorded that. I literally know nothing about her. But my sense of the facts is that that person called the police and gave the police the video. To the extent that they were given the video, it was part of their investigation, I guess they were the only ones who had possession of it.
That civilian could have, at any point, released it themselves.
Uprise: Just because someone turns over video to the police, that doesn’t mean the police take ownership of it. That seems problematic on first amendment grounds to me.
Batista: Same here. One of the things going on in the Hanley video is that you had a bunch of folks who had decision making authority, who were all punting to the Attorney General. They said, “We might release it, we want to release it but the Attorney General advised us not to.” There was a lot of finger pointing and decision delegating.
Uprise: It seems to me the police are quick to release video when it serves their purposes, and they are slow to release video when it cuts against their purposes.
Batista: I think that’s a good argument for having some sort of uniform practice. There’s language in APRA that says that the purpose of the law leans in favor of disclosure. When something is not clear, APRA leans towards disclosure.
Uprise: It’s also true that right now, enforcement of APRA falls to the Attorney General’s office, and the Attorney General is not neutral when it comes to law enforcement because the Attorney General is the chief law enforcement officer in the state.
Batista: I think that’s a really interesting point and a really good conversation to have. Because on the one hand the Attorney general is the ultimate law enforcement person, but, correct me if I’m wrong, a variation on the question you’re asking is, “How can the Attorney General’s office on the one hand be responsible for prosecuting all these cases and working with police departments to prosecute because the main witnesses are police officers, and also be the same individual that holds these officers accountable?”
I’m not saying it’s inherently impossible, and as I’ve said, I think the Attorney General is a good and decent man, but these are really good questions that I think we need to wrestle with.
Uprise: Was that really misdemeanor assault? It looked pretty bad to me.
Batista: My view is that there are at least a few questions that need to be asked. And that’s yet another reason why I released the video.
I completely agree. I don’t think this case was charged appropriately. At the same time, I hear the Attorney General and everybody else when they’re talking about the system and and how they try hard to do things well, but my goal is to protect the people I represent. The Hanley case is a really big deal. You’d think there would be the time taken to think and consider the charges, but it was full steam ahead, one count misdemeanor assault. Why?
Uprise: To me, Hanley’s actions are clearly over the top, and a terrible abuse of power. He was sending a message with his actions, I think.
Batista: If you listen carefully, Hanley will not get off the young man until the young man says, “Okay, okay, I give up.” Mind you, he’s already on the ground, and Hanley says, “Are you good? Are you good, tough guy, are you good?” What Hanley, in my mind, is saying is, “Listen, I will kill you, unless you acknowledge my power.”
Uprise: It felt like something out of a movie, like something that happened in East Germany, the absolute power of a police state enforcing its dominance.
Batista: And those who try to point that out are silenced. Imagine how many people are out there, who have information, who are not willing to come forward because God only knows what’s going to happen to them. And there are so many men and women working in the system, who I know are good people, yet when this kind of thing is pointed out to them I get blank stairs. It’s not about bad apples and good apples. It’s the system. We’ve got to change the system.
Uprise: Hanley’s lawyer moved to dismiss the charges of simple assault against him because of the video’s release. But dismissing this case won’t help that much when the city is sued for damages by the man he assaulted.
Batista: The city’s role in this is a really interesting one. The law department is supposed to be preventing lawsuits, and there are at least two or three things that happened during my tenure, including one that led to a federal lawsuit, they were not being honest about. For example, the gang database. How many times did we hear that the gang database doesn’t exist, as per the PCPRA, and then, lo and behold, via a public records request, we learn that there is a gang database! And even at that point it required a federal lawsuit to make it go away.
We hear we don’t have money for this, we don’t have money for that, but we shell out $50k every time a police officer has a bad day.
The Future of PERA
Uprise: In June, Attorney general Peter Neronha issued a new Use of Force Protocol. Under the updated protocol, Rhode Island law enforcement agencies are required to immediately report incidents of force to the Attorney General, who will then lead an independent review of the incident and make charging decisions where appropriate.
Since the Attorney General has interpreted the PCPRA, the enabling law that created PERA, as preventing PERA from doing an independent investigation into police misconduct until after law enforcement has concluded their investigation, this essentially prevents PERA from investigating any case of police misconduct in a timely manner.
Does the new use of force policy undermine PERA?
Batista: That’s interesting. I had not heard that perspective before. I didn’t think about it that way. You can make the argument that there’s good intentions behind the way they read the law, but it’s not just about Providence, right? Mind you, Providence is the only city in Rhode Island that has civilian oversight, but the use of force protocol is a statewide thing. The Attorney General is telling all police departments to report cases to him. Which in theory would mean that the Attorney General wants to take these cases more seriously. So my two cents: I don’t know if the revised use of force protocols are exactly about PERA, but I think the interpretation of the PCPRA is the troubling part.
I said that to the Attorney General myself. I understand that there are some things that need to be discussed and figured out but I don’t think that the default is that there’s no civilian oversight involved. I think the civilian perspective needs to be at the table and recent events have proven and underscored that.
Uprise: Early on PERA voted to keep the Providence City Solicitor as their legal counsel, even though, it seems to me, there are clear conflicts of interest. The city solicitor represents the City, the Mayor, the City Council, the Police Department and PERA. Part of the city solicitor’s job is to prevent and fight lawsuits against the city, but a well functioning PERA may make it easier for complainants to sue the City.
Batista: Though the city solicitor that worked with PERA was excellent and did a great job, I advocated for independent counsel when I presented my budget. I think PERA will eventually do that – part of the issue is funding – It was really cramped working with a $300k budget. I was trying to double it at a minimum.”
Uprise: What is the future of PERA now that they are without an executive director? For instance, we’re unlikely to see any resolution to any of their open cases in the near term.
Batista: In my mind the question is not, “What is the future of PERA?” it’s, “What is the future of the city?” Part of the reason I took this conversation to the city and to the public, even though there was a good probability that it was going to cost me my job, was to say, “This is not up to only nine people to decide, this is up to the city.” In theory, that’s where this should be to begin with, because the people elect the people who appoint the board members, but that wasn’t working. The representation we got on the PERA board, all decent men and women, is just not working. Whether it be professional bias or geographic bias, whatever.
I don’t know what this PERA board wants to do. I was bringing my conversation to the public because ultimately the owner of all of this is the people. What I was hoping to do is kind of kick start that conversation. What are we going to do as a community about the fact that this is what happened in Providence, this is how our law enforcement apparatus responded to it, and this is how our civilian oversight responded to that? The question is broader than what is PERA going to do next. It’s broader than whether or not the Sgt Hanley case gets dismissed. Bigger than any one case, or my actions at PERA, is the entire system that allows these things to happen.”
On LEOBoR (Law Enforcement Officer’s Bill of Rights)
State Senator Harold Metts (Democrat, District 6, Providence) convened a special Senate task force to consider revising the Law Enforcement Officer’s Bill of Rights (LEOBoR). Batista was part of this task force. You can read about and watch all the meetings of the task force here.
Uprise: As a result of being fired by PERA, are you no longer part of Senator Metts’ LEOBoR Task Force?
Batista: Correct. The statute or governing document was written in such a way that says the “Executive Director of PERA” which sadly, doesn’t exist right now.
Uprise: I’ve watched and written about every single meeting of the LEOBoR Task Force, and you were always a voice for doing more on a committee that seems interested, at best, in doing a soft reboot of LEOBoR. In fact, at the first meeting of the LEOBoR Task Force, you made the suggestion to “immediately repeal the entirety of LEOBoR, and spend the rest of our time figuring out how to fill in the gaps.”
Batista: I agree with your assessment of it. I wouldn’t say that I was trying to do more, necessarily, although that was probably the result – I was very careful with my language and you’ll hear me repeat this time and time again, “What is the civilian perspective on this?” Ironically, we put together this panel, in the Senate, to reform LEOBoR, and you’ve got a lot of good folks, well meaning folks, that are probably too tied to the law enforcement community. I’m not saying exclude the law enforcement community – by all means include them – but I felt very lonely on the task force sometimes.
I made this Facebook post after the first meeting and I got a lot of flak for it, which I think was unfair. I probably could have been a little more clear about what I meant. It was interpreted to mean that the only reform that I thought was good or possible was repealing it completely. And really what I meant was, “Let’s not operate from the presumption that LEOBoR is going to stay and that we’re going to tweak it.” It would be a much better use of everybody’s time if we proceeded from the point of view that there’s no LEOBoR, and what should we have at all. Because rooting your analysis in the status quo is really frustrating.
Uprise: So your idea was like, If we were to invent something like LEOBoR today, what would it look like?
Batista: It’s also like what they call in politics, “zero-based budgeting” right? A lot of times when we decide the budget we start with the numbers from last year and go from there. Whereas zero-based budgeting says, “No, let’s start from zero and justify what we need.”
Uprise: These kinds of legislative inquiries rarely result in anything big, but I was hoping for a little bit more from this one, because I thought Senator Metts might want to tap into his inner radical and do more more to blunt the efforts of Tiara Mack who was gunning for his job from the left and ultimately beat him in the last election.
Batista: I’ll tell you something. George Floyd was and continues to be such a traumatic and horrifying incident – and it really spurred reform across the country. You’ve got Colorado getting rid of qualified immunity, you got New York state making records of police misconduct public, and you got Rhode Island, with only a commission. This is a choice, and we need people who are willing to make those choices.
Uprise: I think what we’ll see coming out of the LEOBoR task force are some very weak recommendations and probably a push by some of the newer legislators to do something more meaningful in the future – but it does delay the kind of action that people think we need.
Batista: I will tell you that I’ve been working with Representative Anastasia Williams (Democrat, District 9, Providence) throughout. I know she has a bill in the House, and we’re working on improving it and filling it in with the details we need so I’m looking forward, as a newly elected Representative, in joining that conversation and hopefully get some meaningful things done.
Uprise: Last thing on the LEOBoR Task Force. You said, during the third meeting, that, “There seems to be a conflict between civilian [constitutional] rights … and what LEOBoR does, and to the extent that there is a conflict, it shouldn’t be the state law [LEOBoR] that’s ruling the day – our focus and our emphasis should be on the rights of civilians [under the constitution.]”
Batista: I think there’s a good argument to be made that the extra due process that police get – and that’s what the experts acknowledge LEOBoR is – the police get an extra layer of due process in their Bill of Rights – and my hypothesis is that the extra layer doesn’t just come out of nowhere, it’s not free – it comes at the expense of the due process rights of people like you and I, civilians.
You’re taking away our due process, that’s in the constitution, to give the police extra due process based on a state law. And the conflict that exists there is between federal law and state law, and state law should never trump federal law. But that’s exactly what’s happening. That doesn’t make sense. You can’t tell me that a state law is going to get in the way of my civil rights – but that’s exactly what’s happening.
Uprise: One of the members of the LEOBoR task force, Anthony Capezza Jr, serves as the state director and lobbyist for the International Brotherhood of Police Officers, and he said, “LEOBoR has nothing to do with the accountability. LEOBoR comes into play after the fact – after a complaint’s been made, and an officer has been charged.”
What do you make of that?
Batista: I think LEOBoR is absolutely about accountability. Or at least, it should be. But in a lot of ways, it gets in the way of accountability. Someone once made this metaphor: You telling me that LEOBoR is not about accountability, is like me trying to sue Boeing, after an airplane crash, and you telling me, I won’t get a remedy this way. The remedy is to go and see how they designed the plane, and then you’ll fix it. My response was, “Or, I can sue you, and you take it upon yourself to go fix it. Why are you sending me on this wild goose chase to go fix the problem? It’s your problem, you fix it.”
What makes this work so hard is that people believe that. You’ve got good men and women, people who trained their whole lives to be lawyers, and they’re peddling stuff that’s inconsistent with facts and civil rights. And you have to try to point out that what they are perpetuating is really racist stuff, right? You may not be a racist, but the results of your work is producing racist effects and that’s a problem.
For instance, one of the things I’ve been learning, over the past few years as a man, is what my place is as a man and how I can empower women. My responsibility is to make a seat, close my mouth, and listen and learn about the plight of women and realize that even though I don’t do anything intentionally to hurt women, I have, by happenstance, a role in that. So many folks who are unwilling to do that.
The General Assembly
Uprise: In your new role as a member of the state legislature, what kind of bills are you hoping to support, what kind of reforms are you hoping to make?
Batista: There’s a bunch, and the focus is going to be criminal justice. I think we need a champion up there, someone who’s been a public defender, somebody who’s lived in the south side. And all I have to do is state the facts. I don’t even have to get into advocacy. I could just tell my story. Talk about myself and what I’ve been through. I’m learning, little by little, that I don’t need to be some genius person to make change here. I just literally have to tell people what I’m seeing. So I’m looking forward to telling people, in terms of my colleagues and lobbyists, what’s happening in the courts for real, because I don’t the public knows about what’s happening in the courts.
Smaller things would be something like the public disclosure law we talked about, making police records public so we can learn form them. I’ve seen a couple of bills introduced, for example public defender financing, waving all court costs for people defended by the Public Defender’s office, because sadly, you have some people who get tripped up on paying costs. They’re doing everything right, relying on public transportation to get everything they need, and then they don’t make a payment, they get a warrant and then they lose their home.
I think we need to take a look at the statutes in general. I mean, disorderly conduct is honestly such a nonsense reason to arrest so many people. I think we need to refine that because it’s used as a catchall, so that if you do anything short of telling a police officer yes sir, I’ll do as you say, boom, disorderly conduct. Boom, resisting arrest.
For example, Rashad Gore. Someone who’s completely innocent of anything, he’s charged with disorderly conduct and resisting arrest. And we’ve known that little secret for far too long. When I was an intern at the Public Defender’s Office in Massachusetts, they used to call it the three-for-one special. If you mouth off to a police officer you’re going to get disorderly conduct, resisting arrest and simple assault of a police officer. We know that the police do that. We know there are so many interactions between the police and the community that end with an arrest like that and we need to do something about it.
Obviously LEOBoR, reforming it.
I’m interested in working for and pursuing a state wide PERA. We need to bring this work to every single corner of our state and we need to dedicate the resources that we need. Look at all the trouble we’re having in Providence, and we have body cams and media that covers this stuff. What do you think is happening in all the other small cities and towns?
When I was a public defender, I had thousands of cases. I had all the Woonsocket cases, I had the Pawtucket cases, the Burrillville cases, and obviously a lot of this has to do with racial justice, but let me tell you, the system is not friendlier to white people if you’re poor. I represented hundreds of white people who were just as screwed as everybody else.
And the last thing that I’ll tell you is that I’d like to immediately at least triple the budget for the Public Defender’s office. The public defender gets $12m a year. The Attorney General gets at least three times as much, maybe four times as much. And the Department of Corrections budget is $250m. We spend over 20x more to incarcerate people than to do public defender stuff. So we could easily triple the public defender’s budget.
Immediately what are people going to say? “Oh, how can you spend more money? $20m more?” But the problem is that people don’t see the cost to society for injustice. When we arrest these folks for no reason, ripping fathers and mothers out of homes, you’re making children grow up exponentially more likely to end up in the criminal justice system. So a short term investment, like tripling the the public defender’s budget, for example, would pay off a hundred times over the years.
Public defenders fight the front line battle. They are the front line soldiers against the war on drugs, mass incarceration, and how this system is generally designed to just really really hurt poor people.
Uprise: We also have the fact that the Attorney General has the full force of the law enforcement in this state, that is on his side.
Defunding the Police
Uprise: Since we’re on budgeting, what are your thoughts on the Defund the Police movement. Are police budget too big?
Batista: When I hear Defund the Police, what I hear in part is, “We don’t believe that the system can be reformed. We don’t believe that the police are capable of reform.” Sadly, police are bolstering that argument because when you propose some reforms, the police say, “No.” I’ve told them multiple times that I’m trying to make the case for why we shouldn’t Defund the Police, to try to create a space where we can have police, and every time you say No to a reform you’re only giving the defunding option more credence.
Maybe I’m an idealist and a hopeless romantic, but I think we can reform the police department. Providence sometimes does not help its own cause which is really unfortunate. So that’s what I think about defunding.
Do I think the police budget is too big? I don’t know. I’m resistant to them hiring more police. I think they’re at 420, 430 officers now, and I’ve heard calls o make it 500, as if 500 is some magic number that’s going to ensure people’s safety. I think we really need to take a look at the system and fix the system before we go about adding any more, because if you add more you’re just going to multiply the problem.”
Uprise: Many people I talk to who aren’t directly involved in the Defund the Police movement tell me that they don’t want the police to go away, they want a police force that serves them and their children the same way the police serve the white, rich, east side residents.
Batista: I think that makes sense. I saw AOC tweet over the summer about how people struggle to define what defunding the police looks like. Her argument is, we know what it looks like. It looks like the suburbs. They have a police department, but they invest more money for schools and other social services.
Uprise: In the Sergeant Hanley case, only one out of the four or five officers on the scene activated their body camera. Right now it seems that a slap on the wrist is all officers receive for violating the body camera policy, in some kind of unseen disciplinary action.
Batista: The reality is, we don’t know what the punishment is for not turning on the body camera. We would make this point sometimes to police leadership, and they would say something like, “The punishment is not public information, and you don’t know what we’re punishing them for.” We presume it’s some form of a slap on the wrist, but we don’t know. That’s point number one.
Point number two is that in my term of almost two years at PERA, there were too many cases where the body cameras simply weren’t on. For example, you have different units of the police department, and I’ve seen that some of the units, at least one of them, didn’t even pretend to wear body cameras. It seems like the more “important” or the more “dangerous” of the more whatever the work is, the less emphasis there is on compliance with the body camera policy.
In my opinion, it needs to be the opposite, right? That’s why we have them. You can’t brag about your willingness to put on body cameras if you’re not tuning them on.
Uprise: And if you can’t enforce it, either through a proper policy everyone abides or proper punishment, it shows a lack of control over your own police department.
Batista: Policing is an entire institution and that’s what we’re up against, right? It’s similar to what we talk about with the economy and corporations. Policing in this country is very much an institution. I mean, the lobbying dollars and pressure that is spent… Part of my struggle is that you hear about this Blue Lives Matter thing and I think most people in the world will tell you nobody’s in favor of violence, but at the same time there’s this really subtle process of trying to equate the life of a police officer and the life of a civilian, not taking into account that nobody chooses to be a civilian, we’re just born into the world, whereas being a police officer, that’s a profession. You can take off your uniform and go to Wallmart and nobody knows you’re a police officer, whereas you can’t do that if you’re a Black person or a brown person.
So it’s a really disingenuous conversation and it needs to stop. You can say, “Let’s protect police, Let’s make sure they don’t get hurt.” I’m all for that, but once you start equating those two things, like the All Lives Matter kind of thing, that’s where we are having a fundamentally incomplete conversation.
APRA (Access to Public Records Act)
Uprise: You’ve talked about reforming APRA (Access to Public Records Act) to allow greater access to police records of misconduct.
Batista: New York state had this initiative over the summer, within a month of George Floyd being murdered they passed a law repealing what they called 50A, a provision in their state law that was an exception to the public record requirement for public safety investigations. One of the reasons police won’t release stuff, and this is what happened in the Sergeant Hanley case, is that cases under investigation are exempted. But when is that investigation ever over? We can’t just give you this blanket reason – that’s it’s under investigation – so you can hide the facts. The investigation ends at some point, and so therefore, does your exclusion.
In a perfect world, obviously, we could repeal whatever exception we have in our APRA law, because APRA is another tool to get more transparency. APRA is a separate thing from LEOBoR, and it could be reformed to get more access to public records.
We can’t fix what we don’t know is broken. And if all the complaints of police misconduct are tucked away in a folder somewhere, nobody is ever going to be able to change it.
Money vs. Ethics
Uprise: If, when the police are sued for $50k or $100k, it came out of the police budget instead of from out of the city coffers, do you think that might change police behavior?
Batista: That’s an interesting idea. I haven’t heard that before. Another idea, that comes across as radical but actually is not, is if we do away with qualified immunity, which is this really arcane, difficult thing to describe, but it’s this idea that you need to prove that the police knew what they were doing is illegal, and that’s hard to do. And when it comes to use of force, as long as the officer can reasonably maintain that they thought they were being assaulted in some way shape or form, they are free to counter that assault in any way they want.
So if we got rid of qualified immunity, the idea is that every police officer would have to buy insurance, the same way attorneys and doctors buy insurance, officers would be individually responsible for paying out the cost of anything they do. Getting that passed would require a gigantic amount of lobbying, but these are the sorts of systemic changes that we need.
Uprise: Dealing with the issues around police brutality could save the city a lot of money.
Batista: Mind you, all we think about is the financial cost, not the actual people cost. I think about this all the time, having been born and raised in South Providence As a public defender I represented dozens of people I knew growing up. And you can’t help but wonder how many of those kids, but for our system, would be attorneys, and not defendants.”
Uprise: I should apologize. Too often these issues are expressed in purely economic terms, and I sometimes fall victim to that. When I first started this job, years ago, I bristled when the economic case became more important than the ethics of an issue. But over time I’ve learned that convincing decision makers often requires a monetary incentive because some people don’t care about the moral imperative.
Batista: Sadly, I honestly feel that the default for every policy has to be financial. That drives me nuts and I have a back and forth relationship with it myself, because you want to be persuasive, get the bill passed, but if I talk about the money, and not the moral issue, I’m sweeping the moral issue under the rug. It’s a dilemma.
Uprise: The General Assembly has brought that on themselves because every bill requires a fiscal note.
Batista: I think I read about adding a racial statement to every bill.
Uprise: I like that! There should be a racial, ethical, environmental note added to every billl, because when we only consider the financial cost, we’re going to be losing out on good policy that has enormous impacts on wellbeing.
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