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.

**UPDATE**

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.

 

Cathars, Cops, And Personal Reflection

Over at Fault Lines, David Meyer Lindenberg recently posted an incredibly well-written piece called “The Persecution of Cathars and Cops.”  It’s an excellent reminder of how history has a tendency to repeat itself, and made me stop and examine some of the statements I’ve made concerning police misconduct in the past.  Am I really anti-cop, and is the message I send one against law enforcement, working in the trenches as an attorney?  While at times I’ve definitely taken what could be perceived as an anti-cop stance, I think it’s safe to answer that question as “no.”

First off, you’d be hard pressed to find a criminal defense attorney that hates cops.  No one hates cops, unless you’re an idiot.  What we hate is the continued culture of thuggish brutality, the warrior mindset embraced by those who should view us as part of the community, and the continual lack of accountability that seems to justify every single jack-booted reaction.  We work tirelessly to make sure those without a badge have just as much of a voice in the process that ostensibly flags everyone as “innocent until proven guilty.”

Another major issue is the public’s continued embrace of the cop as the “guardian and protector” of the community, automatically granting those with a shield a special status as an “authority figure” whose every demand must be obeyed on pain of death.  If someone doesn’t wrestle their son to the door for cops to arrest, they’re obstructing justice.  If you don’t take two steps to the left with your hands raised, you’re not complying with the law and deserve a good pepper spraying.  The continued shoulder-shrugging of those who say “Just comply and you won’t get hurt” is infuriating to those of us with our eyes open.

Yet we do have a voice, and there is a debate currently going on in our modern society over the role of police and their continued use of force in situations that otherwise might warrant a different approach.  The temptation is to pile on the negative side, and continually roll our eyes at every cop who claim they were in fear for their lives when they shoot a young black man in a heartbeat.  It’s something that leads the public down the path of “police are no longer deserving of our respect.”  That’s a scary place to be, especially when the cops are the ones out there every day ostensibly ensuring our streets are safe.

So where does this fit in with David’s post?  It’s easy to escape to our own realms that allow us unfettered access to confirmation bias.  With every “anti-cop” article or post you read on the Internet, it’s more likely to enforce your belief in that worldview.,  With every “Blue Lives Matter” statement you endorse the more pro-police you’re going to become.  Either way, it’s terrible, as David points out, to endorse a solution that’s “clear, simple, and wrong.”

So where does this fit in with me and my own ideas on how the police/misconduct angles work?  I think it’s best to say my views are more nuanced than originally seen.  I’ve spoken with family in law enforcement, and they can’t believe guys like Tyrel “The Tennessee Imbecile” Lorenz still have a job.  I know cops who’ve exercised incredible amounts of discretion on the job; some even going as far as driving publicly intoxicated folks home and getting them in the house. That doesn’t mean I can’t boost the signal of those who take the public’s trust and abuse it.

And I’ll continue to fight the good fight, and I’ll keep telling the cops that are out their doing their jobs the right way that I respect them for actually being the good ones.  That’s the only intellectually responsible thing to do.