Can MPD fairly police its officers?
Internal investigators used in excessive force cases
Can the Memphis Police Department fairly investigate allegations of excessive force against its own officers?
It’s a years-old question that has taken on new relevance after recent protests in Memphis over the George Floyd killing. Video cameras caught Memphis Police Department officers in two notable interactions with female protesters in May: In one video, an officer with a riot shield appears to knock down a woman; in a video taken on another night, officers appear to tackle another woman.
After publication of the videos,
Memphis Mayor Jim Strickland told MPD Director Michael Rallings to investigate. The MPD said this week that internal investigations related to these matters are ongoing.
So what do these internal investigations look like? The Commercial Appeal recently reviewed public records that offer clues: summaries of 18 excessive force investigations completed in 2019.
The files show internal investigators usually conducted interviews, reviewed video and other evidence, then cleared the officers.
In two cases, internal investigators found officers had violated excessive force rules. In 16 cases, investigators cleared officers of excessive force. In some of those cases, though, officers were found guilty of violating other rules, often related to completing paperwork.
It was unclear how many officers faced suspension or termination. None of the 2019 investigations reviewed by The CA was referred to the district attorney’s office for possible prosecution.
The documents were originally made
public after a request by the University of Memphis Institute for Public Service Reporting, an entity led by Marc Perrusquia, a former reporter for The Commercial Appeal.
The Commercial Appeal reviewed only the written summaries of the investigative files. Other material, such as video, was not available.
Can the police investigate themselves?
Hunter Demster, a local activist, said he’s filed one MPD complaint on his own and assisted in several others and believes the internal investigation process is fundamentally flawed. “In a general sense, I do not trust the police policing the police,” he said. “I think for transparency and accountability purposes, it has to be a third party doing these investigations to keep it impartial.”
Law enforcement authorities in Memphis and Shelby County turn over cases of fatal officer-involved shootings to the Tennessee Bureau of Investigation. At the moment, though, no such outside investigative agency looks into nonfatal officer-involved shootings unless the police agency makes such a request. Nor does any outside agency review lower-level complaints of police excessive force.
The local Civilian Law Enforcement Review Board was meant to give people another outlet to resolve complaints against police. But the board lacks subpoena power, nor does it have the power to impose binding decisions on the police department, said John Marek, an attorney and former board member.
Instead, the board writes letters about excessive force cases and other cases of police misconduct to Rallings, the police director.
In every case, Rallings has replied with a letter rejecting the board’s recommendations, according to letters posted on the board’s website.
“It requires a police director that will work with us . ... It’s still just for show until we change the power dynamic,” Marek said.
MPD representatives didn’t respond to a request to comment on the criticism by press time.
‘Pepper foam’ in the face
Internal MPD investigators concluded officers went too far in the case of a man named Drew Thomas. Thomas was sprayed with a painful chemical agent four times while in handcuffs inside a police car on Jan. 10, 2019.
The incident began when police were called to a Shell gas station at 2400 Airways, not far from the airport, according to an arrest affidavit.
Thomas has a mental illness and had been barred from the property, police have said.
On this day, police said Thomas had vandalized the gas station, throwing items on the floor and breaking shelves and a sign.
He was arrested and put in a police car. Inside, he began kicking the squad car doors, and an officer used a chemical irritant, the affidavit says. It’s “pepper foam,” which flies out of a can in a foam and sticks to a person’s face.
Officer William Skelton sprayed the foam at Thomas while he was in the back of the car four times, the investigation concluded. In an interview with investigators, Skelton said he fired that many times because he was trying to spray the suspect in the face and he kept moving away.
MPD reviewed the case internally and discovered problems, according to an investigation summary.
Investigators watched the officers’ body camera footage and found Skelton repeatedly cursed at Thomas during the incident, at one point calling him “you worthless piece of incestuous (expletive).”
MPD rules prohibit the use of chemical irritants against suspects who are handcuffed, unless the person is posing an imminent threat, the investigative report says. The rules also prohibit the use of chemical agents against people who have merely destroyed property.
In this case, investigators concluded there was no justification for using the chemical on the handcuffed man.
MPD policy also requires officers to help people they have sprayed by offering fresh air and cool water to flush out the eyes.
Here, officers stood by and let the man suffer, the report says.
“During your interview you stated that you were angry and did not feel that the suspect deserved to have the windows rolled down,” the internal investigative report says of Skelton.
Skelton didn’t roll down the windows in the squad car until a lieutenant arrived and did so after five minutes, 55 seconds. In addition, Skelton and the other officers did not give the man water, the investigative report said.
Two other officers, Johnathan Sharman and Johnathan Halteman, didn’t help either, the report says.
“On the body worn camera footage of Officer Sharman, Drew Thomas can be heard screaming for air, help or water nine times prior to the ambulance arrival on the scene,” the report says. “At 19:01 on his (body camera) footage, Officer Sharman is drinking water from a bottle as Drew Thomas can be heard screaming for help in the background. Officer Skelton commented that Drew Thomas asked him to roll the windows down and Officer Sharman said ‘make that (expletive) burn.’ “
At one point, Skelton grabbed his own body camera, turned it around and addressed it, according to the report, saying, “I foamed the (expletive) out of him. I’ll tell the camera I foamed the (expletive) out of him. I told him I was going to foam the (expletive) out of him.”
Officer Adam Bittick was accused of presenting paperwork that made the vandalism look worse so that the suspect would face a longer sentence.
Felony vandalism involves damage over $1,000 — less than that is a misdemeanor.
“The first thing Officer Bittick said when he entered the business was ‘He did at least $1,000 in damage, right?’ “the report says. “Officer Bittick made comments to the clerk that he was going to lock him (Drew Thomas) up for felony vandalism so hopefully he will be kept longer.
“The affidavit of complaint valued the damage to the business to be $1,005, which was significantly higher than the actual damage. The damage to the squad car was valued at $1,100.”
In reality, the damage to the store was about $300 and there was no damage to the squad car, the internal investigation concluded.
The report blamed Bittick for writing the erroneous report and Lt. Alexander Mcgowan for signing off on it.
Skelton faced internal charges for excessive force / unnecessary force, for lack of compliance with weapons regulations and for personal conduct. Skelton resigned from the department before any suspension was imposed.
Bittick faced internal charges for violating rules on completing official reports and on truthfulness. However, the truthfulness charge was dropped after a hearing, and he received a three-day suspension.
Charges were sustained against Mcgowan for compliance with regulations related to supervisory duties. In a disciplinary hearing, he said, “It was an oversight I should have caught,” according to a transcript. He received a threeday suspension.
Sharman and Halteman faced internal charges for compliance with regulations related to weapons, but those charges were dismissed after a hearing. Sharman and Halteman received oral counseling for violating the department’s rules on courtesy due to them cursing at the suspect during the incident.
Reached by phone, Bittick said he could speak with the news media only if a police department supervisor approved the interview. MPD did not respond to a request to interview him.
Mcgowan declined to comment Tuesday.
Sharman didn’t return phone messages. Efforts to locate phone numbers for Skelton and Halteman were unsuccessful.
Thomas, the man who was arrested, eventually pleaded guilty to misdemeanor vandalism of $1,000 or less and aggravated criminal trespass, according to court records. He’d been in jail for 150 days and was sentenced to time served.
Another 2019 case in which excessive force charges were sustained involved a man with mental illness who punched an officer — the officer punched the man back several times. An internal investigator initially ruled the excessive force case was sustained, but after a hearing, the internal charge against the officer was dropped, according to records.
Criminal prosecutions of officers for excessive force are rare
Deborah Godwin, an attorney who often represents police officers in legal and disciplinary proceedings on behalf of the Memphis Police Association, says in her experience, the MPD’S internal investigators don’t hesitate to bring internal charges against officers who have violated excessive force rules.
But she said referrals of police misconduct to the prosecutor’s office are rare and usually involve allegations of officer-involved theft or other crimes.
Godwin said she recalls just one prosecution of a police excessive force case, that of former officer Bridges Mcrae.
Mcrae was prosecuted for the February 2008 beating of Duanna Johnson, a transgender woman. Mcrae eventually pleaded guilty to federal charges related to the beating as well as to tax evasion. He received a two-year sentence.
Godwin said the widespread use of cameras has changed use-of-force investigations.
“I mean today with body cams and the police, the car cams, most incidents are going to be caught on video. And my advice to frankly, to anybody, these days is expect any of your actions to be caught by some camera somewhere, by surveillance and to act accordingly. So I think there are more checks and balances, more avenues for accountability, that are better now than perhaps there were in the past.”
A more typical case: Charges not sustained
In most excessive force cases in 2019, MPD’S internal investigation found no wrongdoing by the officer. For instance, a woman filed a complaint against an officer saying that he used excessive force during an October traffic stop and injured her shoulder and wrist.
A review of the available video concluded the complaint was baseless and that officer had treated the driver gently while detaining her.
In other cases, police officers used force, but internal investigators ruled it was justified. For instance, Eddie Settles said two police officers, Leployer Franklin and Bittick — one of the officers mentioned in the pepper foam case — hit him while serving a violent crimes warrant and broke his nose.
Internal investigators reviewed body camera video and concluded the officers did punch Settles but that the force was justified because the man was trying to fight officers and was going for a loaded handgun that was nearby.