Bob, Katherine, Eric, Let’s Talk Rockwood (Update)

It’s no secret to anyone who knows me that I’m a big fan of the show “Howell & Yarbrough” on NewsTalk 98.7 here in Knoxville.  They’ve been kind enough to give me a chance to appear on their show a couple of times to discuss issues regarding a number of legal matters, my favorite being Representative Andy Holt’s pissing contest with Knoxville’s Chief of Police over red light traffic tickets.  In a world where journalistic integrity is falling short, Bob and Katherine are two that actually get what news is like.

Today, Katherine brought up the body cam footage of Rockwood, Tennessee Officer Chris Kennedy pepper spraying former Roane State Basketball player Xavier Howard.  As can happen, the discussion of this “use of force” spiraled into a full blown discussion over whether Xavier Howard actually “complied” with officer demands, whether using pepper spray in a situation like this was appropriate, and where the line is drawn when law enforcement officers escalate the use of force.  Sometimes I’d call in for a discussion on the merits of a case like this.  Today, I wanted to listen and hear what the community had to say.

First of all, it’s imperative you understand the First Rule of Policing before you get anywhere else in discussing situations like this.  That rule is simple: “get home in time for dinner.”  As Fault Lines Managing Editor Scott Greenfield repeatedly points out, this seems trivial to those who don’t wear a badge, but it’s the first thing that a cop thinks about before strapping on his or her service belt.  No amount of money from a pension, no gold shield, nothing makes up for the loss of a husband, son, father, mother, daughter, or wife.  That’s why force escalates so quickly in situations like this.

Second, police are increasingly trained to view interactions with civilians through the lens of “warrior vs. enemy combatant” instead of the “protect and serve” approach to community policing.  For further reading, please see Radley Balko’s seminal work Rise of the Warrior Cop. Posts at Fault Lines are littered with issues concerning escalation of force.  Do check out Greg Prickett’s work when you have a moment, especially his analyses of cop shootings.

And there’s the “just comply and you won’t get hurt” argument.  That argument holds absolutely no weight among members of the defense bar.  It certainly didn’t help Charles Kinsey, who laid on the ground, hands up, explaining to cops he was attempting to help one of his special needs patients from a weapon “discharging” into Kinsey’s leg.  Compliance doesn’t always equal walking away with your life or liberty intact.

Now that we’re past all that, let’s take a look at the video.

First, Officer Kennedy responds once Harris opens the door with “Where’s he at?  I heard him in there, where’s he at?” while shining a high intensity flashlight in her eyes.  When she attempts to tell Officer Kennedy the two were just having an argument, he responds with “I heard y’all fighting.”  That’s when Howard enters the frame, hands up, denying he’s touched Harris.  The two attempt to assure Officer Kennedy there’s no reason for cop intervention, but he insists “We got called here…we’re going to figure this out.”

Shortly after Howard asks “You want to search me?” he turns his back to the officer and drops his hands.  Kennedy then responds with “Get your hands away from that knife!”  Howard protests he didn’t see a knife, but Kennedy assures Howard it’s there and then orders him to come forward.

At the 3 minute mark Kennedy orders Harris in an elevated tone to “get over there” and radios “Sarge, step it up.”  His tone of voice escalates heavily as he yells at Harris and Howard.

Pepper spray is deployed around the 3:17 mark in the video, when Howard places his hands in front of his face, allegedly shielding his eyes from the flashlight Officer Kennedy continues to use.  Kennedy justifies deploying pepper spray by telling Howard he shouldn’t have come at him, when it’s clear there was no forward motion towards Kennedy.

Around 3:30 you can hear Kennedy say “I sprayed him, Sarge,” and another officer runs in while Howard is on his knees to cuff the former Roane State Community College player.  Howard’s coughs and pleas for help are ignored as the cops lead him out of the apartment.  Howard says around the 4:19 mark that he can’t see. By 4:35 Howard is begging for something to wipe his face off.  The cops respond “not right now.”  By 5:30 Howard is complaining he can’t breathe, and Kennedy responds with “You’re breathing.  You’re talking.”

Around the six minute mark Howard loses his cool, refers to the collar as “bullshit” and continues to call Kennedy a liar for the repeated assertions Howard charged at the officer.  By 6:54 Kennedy is justifying his actions to other officers on scene, saying “He wouldn’t comply with my commands, he kept coming at me.”  It’s almost as if Kennedy is framing the narrative for his eventual after-action report, even though the body camera tells otherwise.

By eight minutes, Howard’s face still hasn’t been cleaned off.  He’s not told the reason for his arrest.  Kennedy simply replies to repeated requests of why Howard’s arrested with “I’m going to figure this whole thing out.” Howard’s left in the car, potentially suffering from a severe allergic reaction to the pepper spray, while Kennedy discusses the events with “Sarge.”  Every statement is refuted by the body cam footage, especially the “I told him to step back but he wouldn’t.” (The command was “Stay right there,” which Howard lawfully obeyed)

Was the use of force necessary in this situation?  I’m not a cop, nor have I stayed at a Holiday Inn Express recently, but I’m going to land on the side of “no” here.  Everything Officer Kennedy did from start to finish was indicative of a “warrior cop” mentality, one trained to view Howard as an enemy rather than a person who needed to be investigated.  And the pepper spray, despite many listeners’ comments about how it’s “not that big of a deal,” wasn’t justified in use.  The entire matter stinks from beginning to end.

Bob, Katherine, Eric, if you’re reading this, I’m going to run the incident by Greg Prickett, Fault Lines’ ex-cop turned lawyer, to see if he’s got different eyes on this, but right now I’m calling this definitely a use of excessive force.  Katherine was right to question this, and kudos to her for bringing this to the audience’s attention.


I reached out to Greg Prickett and asked him to review the body cam footage from Officer Kennedy.  He’s an absolute treasure trove of information when it comes to reviewing officer-related shoots, and getting his analysis on this was worth the extra effort.  Here’s his response.

Jesus, where do you find these? That’s major f’ed up. I did not see any reason for the officer to spray Howard, and there damn sure wasn’t an arrestable offense that I saw. What are you going to arrest him for? You are forcing your way into the apartment, which is arguably legal if checking on the welfare of the parties. Of course, here you have both sides telling you to go away, everything is fine.
Then, after you tell him to move away from a knife that I never saw, you spray him because he’s not kowtowing to your insane demands? Howard never charged the officer. Then the sergeant kept saying to arrest him for domestic violence without any complainant or evidence of DV that I can see. Unless the state allows arrest for speech only (and not threatening speech, which there wasn’t any evidence of either), it’s a BS charge without a scintilla of evidence to support it.
Both the officer and the sergeant should be fired and charged criminally for violating Howard’s rights.


Dr. Joe’s Gun Control Fallacy

Today on the Howell & Yarbrough show, a frenzied discussion broke over this New York Times op-ed musing on why the death of Zaevion Dobson hadn’t sparked more gun control legislation.  Numerous points came up from the callers, all with interesting and varied viewpoints.  Regardless of my personal position on gun control, I enjoyed hearing all of the perspectives until a caller named “Dr. Joe” posed the following suggestion.  If you’re caught with a gun in the commission of a crime, you automatically get a mandatory thirty year sentence with no parole or hope for early release.  It was a bad call with terrible legal consequences, and I’m going to outline in detail just why.

From a linguistic perspective, before we begin a constructive analysis of the proposal by “Dr. Joe,” I want all of you to see a framework present in the Paper of Record’s op-ed.  A tragedy strikes, usually one involving a gun.  The public experiences initial sadness and then outrage.  Eventually, someone will take the tragedy if it involves gun violence and ask why more isn’t done to regulate guns in America.  Most tellingly, there’s usually no solutions presented absent an outright removal and ban of all guns in the United States.

Now the issue with the mandatory minimum of thirty years for possession of a gun during commission of a crime.  First, there’s already a law in place for that in most states, and even at the Federal level.  Changing the law to mandate a thirty year sentence takes the existing legal framework and places it in the realm of absurdity.

As an example, under “Dr. Joe’s” hypothetical, if an unloaded gun were in the car of a party allegedly robbing a convenience store, and that person were caught, a conviction would result in thirty years, without parole.  The gun may have been in the car for perfectly legal reasons.  Maybe the alleged perpetrator just bought the gun from a local firearms dealer before going down the rabbit hole of committing a criminal offense and knocking over a convenience store.  Since there’s evidence out there prosecutors start by charging with the most serious offense, and negotiate down from there, a thirty year sentence sounds fantastic to the layperson and those DAs seeking reelection on a “tough on crime” platform.  In reality, all this does is create more problems for the judiciary and overcrowd overflowing prisons.

A mandatory thirty year sentence if convicted ties the judiciary’s hands when sentencing rolls around. We’ve seen how this plays out with crack cocaine, and the “ten times stronger, therefore ten times the penalty” response when mandatory minimum sentencing guidelines forced jurists’ hands to sentence a person with rock cocaine to ten years when a person with the powder variety would get one.  It took decades to reverse this and inject sense into the now “Advisory” guidelines through education and continued pushing from the bar that now those who are charged with the possession or sale of crack don’t get an added “bump” to their sentence because of a misperception in the public’s eye over how the drug works.

And the added requirement of thirty years without parole will take an already crowded jail population and just make that situation even worse. Prisons are struggling to find beds for those copping pleas or found guilty in court. The prison industry is so large it’s currently facing a highly disparate prisoner to bed ratio. If you don’t allow for early release conditions then you’re contributing to the problem.

Another factor largely ignored by those who are seeking a “tough on crime” solution like the one Dr. Joe posed is the propensity of police to arrest first and ask questions later. We’ve done a great job ignoring those who “get the ride” by passing them off as filthy dirty criminals. Attitudes change drastically when you’re the person in front of the judge. If “Dr. Joe” found himself in a spot where he got arrested over a dime bag of pot and had a sentence enhancement for merely having a newly purchased gun in his car at the time of the setup, I’d wager his tune would change quickly.

Gun violence is a problem in our country. There’s no easy solution to this, and co opting the death of a teen who sacrificed his life for another doesn’t need to be used as a taking point to further one’s political agenda. Here it happened, though, and it’s worth noting and calling to attention this saddening event before other deaths are co opted for political gain.