OF­FI­CER

The Beaufort Gazette (Sunday) - - Opinion -

crim­i­nal de­fense at­tor­ney from Charleston rep­re­sent­ing Kirk­man dur­ing the FBI’s probe, de­clined to com­ment and said Kirk­man wouldn’t be mak­ing any pub­lic state­ments.

The du­el­ing civil law­suit and crim­i­nal in­ves­ti­ga­tion both stem from Kirk­man’s ar­rest of Bluffton res­i­dent Ted El­lis for mi­nor li­cense and reg­is­tra­tion vi­o­la­tions in Au­gust 2017. Po­lice doc­u­ments show the of­fi­cer claimed El­lis was re­sist­ing a search. Video of the in­ci­dent, ob­tained by the news­pa­pers, show El­lis raised his voice and swore but al­lowed him­self to be hand­cuffed and led to a po­lice car.

There, af­ter a ver­bal al­ter­ca­tion, Kirk­man reached around El­lis’ an­kles and pulled them back­ward, caus­ing the hand­cuffed 6-foot-4-inch El­lis to thrust for­ward and slam his chin against the pay­ment. He sus­tained last­ing neu­ro­log­i­cal dam­age, bro­ken teeth and lac­er­a­tions to his face, ac­cord­ing to his lawyers.

Kirk­man kept El­lis pinned to the pave­ment in a grow­ing pool of blood for al­most nine minutes, ac­cord­ing to the video.

In civil fil­ings, Bluffton and its of­fi­cers have de­nied wrong­do­ing, say­ing that El­lis failed to re­spond to com­mands, act­ing “hos­tile, ver­bally abu­sive and phys­i­cally threat­en­ing” dur­ing the traf­fic stop.

An in­ter­nal Bluffton po­lice re­view found Kirk­man “used a rea­son­able amount of force nec­es­sary to con­duct a proper search of El­lis,” and he faced no dis­ci­plinary ac­tion. The re­view faulted two other of­fi­cers on the scene for fail­ing to “pre­vent Ted El­lis from hurt­ing him­self.”

The on­go­ing law­suit has re­vealed de­vel­op­ments in the fed­eral crim­i­nal in­ves­ti­ga­tion and shed light on the ar­rest through ex­pert tes­ti­mony from wit­nesses in the case, which has moved slowly through the court sys­tem over the past year.

CRIM­I­NAL IN­VES­TI­GA­TION SPILLS OVER TO CIVIL CASE

The FBI’s crim­i­nal in­ves­ti­ga­tion into Kirk­man’s use of force, first re­ported by the news­pa­pers in Au­gust, may de­lay the law­suit El­lis and his wife Teresa filed against Kirk­man, the two other of­fi­cers on the scene and the Bluffton Po­lice De­part­ment in 2019.

A lawyer rep­re­sent­ing the de­fen­dants filed a mo­tion to stay the case “in light of an on-go­ing and par­al­lel crim­i­nal in­ves­ti­ga­tion” that be­gan in June 2020, ac­cord­ing to a fed­eral court doc­u­ment dated Sept. 30.

Kirk­man, the court doc­u­ments warn, could face a fed­eral in­dict­ment for his ac­tions.

The doc­u­ments filed by the de­fense ap­pear to cite “cur­rent events sur­round­ing the is­sues of racial ten­sions and law en­force­ment” as a mo­ti­vat­ing fac­tor be­hind the FBI’s in­ves­ti­ga­tion, also ref­er­enc­ing con­tin­ued “re­port­ing by lo­cal me­dia out­lets.”

A let­ter filed in the civil case from Kirk­man’s crim­i­nal de­fense at­tor­ney, Lofton, says U.S. at­tor­neys ad­vised Lofton that a pros­e­cu­to­rial de­ci­sion on the crim­i­nal case wouldn’t be reached un­til late 2020 or early 2021.

Of­fi­cers are rarely charged un­der fed­eral “color of law” statute, which al­lows pros­e­cu­tion of civil rights vi­o­la­tions by pub­lic of­fi­cials act­ing in their of­fi­cial ca­pac­ity, ac­cord­ing to a re­cent Syra­cuse Univer­sity report.

Lofton’s let­ter says Kirk­man won’t pro­vide state­ments or sit for a

A COM­PRE­HEN­SIVE REPORT BY A NA­TION­ALLY RENOWNED EX­PERT ON PO­LICE USE OF FORCE PRE­PARED AS PART OF EL­LIS’ CIVIL LAW­SUIT FOUND KIRK­MAN’S AC­TIONS ‘UN­REA­SON­ABLE, EX­CES­SIVE AND CON­TRARY TO GEN­ER­ALLY AC­CEPTED PO­LICE PRAC­TICES.’

de­po­si­tion for the civil case. The de­fense’s mo­tion to stay that case ar­gues the of­fi­cers can­not par­tic­i­pate in the civil lit­i­ga­tion while also safe­guard­ing their 5th Amend­ment right against self­in­crim­i­na­tion in the par­al­lel crim­i­nal pro­ceed­ings.

Other civil fil­ings of­fer a brief glimpse into the on­go­ing fed­eral in­ves­ti­ga­tion. (A spokesper­son for the FBI pre­vi­ously de­clined to con­firm its ex­is­tence to the news­pa­pers.)

The two other of­fi­cers who as­sisted Kirk­man dur­ing El­lis’ ar­rest, Am­ber Swine­hamer and Lind­sey Gib­son, both no longer em­ployed by the Bluffton Po­lice De­part­ment, have not been ex­cluded from the in­ves­ti­ga­tion, an af­fi­davit by their lawyer in the civil case shows. Fed­eral prose­cu­tors have in­ter­viewed each of the two of­fi­cers, ac­cord­ing to Lofton’s let­ter.

Derek Shoe­make, a spokesper­son for the U.S. At­tor­ney’s Of­fice, de­clined to con­firm the ex­is­tence of the in­ves­ti­ga­tion or the par­tic­i­pa­tion of his of­fice.

NA­TIONAL PO­LICE USE OF FORCE EX­PERT FINDS USE OF FORCE “EX­CES­SIVE”

A com­pre­hen­sive report by a na­tion­ally renowned ex­pert on po­lice use of force pre­pared as part of El­lis’ civil law­suit found Kirk­man’s ac­tions “un­rea­son­able, ex­ces­sive and con­trary to gen­er­ally ac­cepted po­lice prac­tices” and said Kirk­man’s de­scrip­tion of the ar­rest con­tra­dicted video ev­i­dence.

Univer­sity of South Carolina law pro­fes­sor Seth Stoughton was em­ployed by El­lis’ lawyers to pre­pare the 29-page report, filed in fed­eral court on Sept. 28. (Stoughton was in­ter­viewed for the news­pa­pers’ first ar­ti­cle on the ar­rest but has de­clined to com­ment since he agreed to serve as a paid ex­pert wit­ness.)

The de­fense has also em­ployed an ex­pert wit­ness on polic­ing, whose report has not yet been filed pub­licly.

Stoughton’s analysis high­lighted dis­crep­an­cies be­tween Kirk­man’s report on the ar­rest and footage cap­tured by body-worn and squad car cam­eras, in­clud­ing Kirk­man’s as­ser­tion that he grabbed El­lis around the waist rather than be­low the knees and his ac­count of El­lis’s al­leged re­sis­tance to a search.

“While it is clear that Mr. El­lis was ver­bally re­sist­ing, the avail­able in­for­ma­tion is am­bigu­ous with re­gard to whether he was phys­i­cally re­sist­ing or pre­sented a le­git­i­mate threat to Ofc. Kirk­man’s abil­ity to con­duct a search,” Stoughton wrote.

He also took is­sue with the sever­ity of the force Kirk­man em­ployed. Putting a “hand­cuffed in­di­vid­ual into an un­con­trolled for­ward fall is highly likely to re­sult in the sub­ject’s face or head strik­ing the ground,” the report said.

“Such an im­pact is likely to risk death or se­ri­ous phys­i­cal in­jury,” it con­tin­ued.

Stoughton cites as of yet undis­closed med­i­cal records show­ing El­lis suf­fered frac­tures in his jaw, a head in­jury, a cer­vi­cal sprain and den­tal in­juries.

Of­fi­cer Kirk­man’s report claims a doc­tor said El­lis suf­fered only a cut on his face.

The report ref­er­ences only “a small lac­er­a­tion on his chin,” which re­ceived “a small amount of stitches.”

AM­BER SWINE­HAMER BODY CAM Bluffton Po­lice De­part­ment

The body cam of Bluffton Po­lice Of­fi­cer Am­ber Swine­hamer on Aug. 3, 2017, shows the mo­ments be­fore fel­low of­fi­cer Cody Kirk­man, right, picks up and drops Bluffton res­i­dent Teddy El­lis on the pave­ment af­ter an Au­to­matic Li­cense Plate Reader alerted Kirk­man that El­lis’ ve­hi­cle reg­is­tra­tion was sus­pended.

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