At­tor­neys weigh in on of­fi­cer driv­ing through protesters

They say driver of Rich­mond po­lice SUV could be charged with crim­i­nal as­sault

Richmond Times-Dispatch - - FRONT PAGE - BY ALI ROCKETT

Her body shak­ing, her eyes wide and wet, Sierra Shoo­smith sat on a curb at the in­ter­sec­tion of North Allen and Mon­u­ment av­enues Satur­day night.

She was try­ing to make sense of what she had just seen: A Rich­mond po­lice of­fi­cer had driven a marked SUV through gath­ered protesters.

No one ap­peared se­ri­ously in­jured, but Shoo­smith didn’t know that. She was in shock, ac­cord­ing to a field medic who treated her at the scene.

“They’re sup­posed to pro­tect us,” she said, her voice shak­ing nearly as much as her body. “I don’t know; my whole world­view just kind of rolled up­side down in that mo­ment.”

An­other protester, whom she didn’t know, rubbed Shoo­smith’s shoul­der and said: “This is it. This is why we’re

here.”

Shoo­smith was among thou­sands of demon­stra­tors who had been march­ing, at that point on Satur­day night, for 16 straight nights in Rich­mond protests sparked by the killing of Ge­orge Floyd by Min­neapo­lis po­lice. Protests con­tin­ued Sun­day and Mon­day nights, fur­ther fu­eled by in­ci­dents with Rich­mond po­lice.

Shoo­smith said po­lice bru­tal­ity was some­thing she un­ques­tion­ably op­posed, but had never seen in per­son un­til Satur­day.

“Like I know it’s real, but see­ing it in front of your face is to­tally dif­fer­ent,” she said.

Rich­mond po­lice said the of­fi­cer who was driv­ing the SUV “was re­port­edly as­saulted through an open win­dow” and that protesters had trapped the ve­hi­cle and dam­aged it. The depart­ment said some of the protesters in­volved could face crim­i­nal charges.

But el­e­ments of the depart­ment’s time­line ap­peared to con­flict with videos of the in­ci­dent posted to so­cial me­dia, as well as the ac­counts of two Rich­mond Times­Dis­patch re­porters who wit­nessed the in­ci­dent. Po­lice did not re­spond to de­tailed ques­tions from the Rich­mond Times­Dis­patch about the in­ci­dent on ei­ther Sun­day or Mon­day.

Two prom­i­nent de­fense at­tor­neys and the ACLU of Vir­ginia’s le­gal di­rec­tor crit­i­cized the of­fi­cer’s ac­tions, say­ing that driv­ing through the protesters con­sti­tutes use of deadly force and could amount to crim­i­nal as­sault.

Steven D. Ben­jamin and Betty Layne DesPortes, law part­ners who have each served as ex­perts in their field on var­i­ous boards, ac­knowl­edged that they didn’t have all the facts of the in­ci­dent, but had re­viewed the so­cial me­dia videos pro­vided by po­lice in a news re­lease.

“We have seen no re­ported ac­count, in­clud­ing the state­ment of the RPD, that jus­ti­fies what we saw in the videos we’ve re­viewed,” they said in a joint state­ment.

“The depart­ment is wrong that it can use deadly force where of­fi­cers’ lives are not threat­ened,” they added. “A civil­ian do­ing the same thing would have been charged with some de­gree of crim­i­nal as­sault, and the felony of leav­ing the scene. The depart­ment is han­dling this in the least trans­par­ent and most ag­gra­vat­ing way pos­si­ble. It con­tin­ues to frus­trate jus­tice, and it has failed to pro­tect the con­sti­tu­tional right to protest. The depart­ment has used un­war­ranted force, and now even threat­ens charges re­lated to this in­ci­dent, thus dis­cour­ag­ing any wit­ness state­ments or com­plaints.”

In a tweet, the ACLU of Vir­ginia said: “There’s no jus­ti­fied rea­son that this is nec­es­sary. Of­fi­cers can no longer hide be­hind the lie that they’re serv­ing & pro­tect­ing. We’re call­ing for an in­ves­ti­ga­tion to hold the of­fi­cers in­volved ac­count­able.” In a let­ter sent Mon­day to the Rich­mond mayor, po­lice chief and com­mon­wealth’s at­tor­ney, the ACLU said it was yet an­other ex­am­ple of the “es­ca­la­tion of vi­o­lence against protesters over the past two weeks.”

Eden Heil­man, the or­ga­ni­za­tion’s le­gal di­rec­tor, said the in­ci­dent “looks like use of ex­ces­sive force.”

“This ab­so­lutely has to be in­ves­ti­gated, prefer­ably by an in­de­pen­dent pros­e­cu­tor, and I would think that this would be some­thing where both dis­ci­plinary ac­tion as well as crim­i­nal charges should be on the ta­ble,” Heil­man said.

On Sun­day morn­ing, Rich­mond Mayor Le­var

Stoney tweeted that he has asked the city’s top pros­e­cu­tor, Co­lette McEachin, to in­ves­ti­gate what hap­pened, along with other re­cent in­ci­dents. He also asked the that the Rich­mond Po­lice Depart­ment place the of­fi­cer who was driv­ing on leave, but it’s un­clear whether po­lice did so.

Twice last week, area po­lice ar­rested two men af­ter sim­i­lar run-ins with protesters.

Early Friday, Rich­mond po­lice de­tained sev­eral peo­ple equipped with as­sault-style ri­fles, hand­guns, am­mu­ni­tion and body ar­mor af­ter con­fronting protesters at the Robert E. Lee statue on Mon­u­ment Av­enue — the same lo­ca­tion where the po­lice of­fi­cer drove through protesters the next night.

About 12:55 a.m. Friday, of­fi­cers in the area of the Lee cir­cle saw sev­eral pickup trucks ap­proach a group that had dis­mounted their bi­cy­cles in the traf­fic lanes, po­lice said.

“Words were ex­changed be­tween the in­di­vid­u­als and the driv­ers of the pickup trucks,” po­lice spokes­woman Amy Vu wrote in an email. “One pickup truck sped off and then an­other pickup truck ran over a bi­cy­cle while flee­ing the area.”

Of­fi­cers stopped three separate trucks in con­nec­tion with the in­ci­dent. One man was ar­rested and charged with pos­sess­ing a firearm as a felon.

On June 7, a Hanover County man who claimed ties to the Ku Klux Klan was ac­cused of driv­ing a truck through protesters on Lake­side Av­enue in Hen­rico County, near Vale Street. Au­thor­i­ties said Harry H. Rogers reck­lessly drove onto the me­dian to get to the march, revved his en­gine at march­ing protesters and drove through the crowd, run­ning over one man’s foot and caus­ing a women to jump on the hood of his truck to avoid be­ing hit.

Rogers, 36, has been charged with at­tempted ma­li­cious wound­ing, felony van­dal­ism, and as­sault and bat­tery. He is be­ing held with­out bail.

In all three of the in­ci­dents, cy­clists were block­ing traf­fic from reach­ing marchers on foot. On Satur­day, the po­lice ve­hi­cle had slowly moved for­ward to the block­ade of bi­cy­clists, who had been block­ing the in­ter­sec­tion at the Lee statue for hours.

“In­ten­tion­ally strik­ing a per­son with a ve­hi­cle is rou­tinely charged as a crim­i­nal as­sault, even when the driver’s ac­tions are a re­sponse to be­ing blocked by a pedes­trian or cy­clist,” Ben­jamin wrote in an email. “The only de­fense is that the use of that de­gree of force was rea­son­ably nec­es­sary for self­de­fense. While Vir­ginia law spec­i­fies cer­tain in­stances when emer­gency ve­hi­cles be­ing op­er­ated un­der emer­gency con­di­tions and us­ing emer­gency lights and a siren may dis­re­gard cer­tain traf­fic reg­u­la­tions, none of those ex­cep­tions per­mit emer­gency ve­hi­cles to strike pedes­tri­ans or cy­clists.”

The po­lice SUV had its blue flash­ing lights on ini­tially, but they were switched off and a flood­light turned on be­fore the en­counter. No siren was used, and of­fi­cers could not be heard giv­ing in­struc­tions to protesters.

DesPortes wrote in an email that the 4th Cir­cuit Court of Ap­peals “has re­peat­edly held that ‘a ve­hi­cle driven di­rectly at a law en­force­ment of­fi­cer con­sti­tutes a deadly weapon.’ The same prin­ci­ple should ap­ply when an of­fi­cer drives a ve­hi­cle di­rectly at a per­son — it is the use of deadly force.”

Heil­man, with the ACLU, said un­even ap­pli­ca­tions of law are why po­lice re­forms have come to be such a ral­ly­ing cry for protests across the coun­try.

“It is eas­ier for a per­son to be held crim­i­nally re­spon­si­ble for in­jur­ing a po­lice of­fi­cer than it is vice versa,” she said. “The cul­ture for a very long time has been all around the coun­try that po­lice of­fi­cers, for bet­ter or for worse, have been largely im­mune from li­a­bil­ity or cul­pa­bil­ity crim­i­nally for cer­tain con­duct. As that shifts, it will be in­ter­est­ing to see how po­lice de­part­ments re­spond.

“Why is it OK for one par­tic­u­lar group of so­ci­ety, the po­lice, to do some sort of be­hav­ior that it’s not OK for other peo­ple to do?” she added. “Cer­tainly what we’re see­ing across the coun­try, in some ju­ris­dic­tions, is that po­lice of­fi­cers are start­ing to be held crim­i­nally re­spon­si­ble for con­duct, which pre­vi­ously they weren’t.”

In New York, two Buf­falo po­lice of­fi­cers were charged with as­sault for push­ing a 75-year-old man dur­ing protests, ac­cord­ing to The New York Times.

“Nor­mally that prob­a­bly wouldn’t have risen to the level of crim­i­nal ar­rest.

But it is now,” Heil­man said. “All of this should be a wake-up call. Both to in­di­vid­ual of­fi­cers, as well as de­part­ments about how they are train­ing their of­fi­cers. As there is more ac­count­abil­ity and in­creased trans­parency and bet­ter pol­icy, then all of that will re­sult in bet­ter train­ing and that would trickle down.”

Mera Carle, a medic who has been of­fer­ing sup­port to protesters nearly ev­ery night since the protests be­gan, said Satur­day wasn’t the first time she had seen ve­hi­cles “weaponized ... against us” by po­lice.

On May 30, the se­cond night of un­rest in Rich­mond, Carle said she watched po­lice drive SUVs onto the me­di­ans of Mon­u­ment Av­enue sev­eral times as hun­dreds of peo­ple marched there. She caught the se­cond oc­cur­rence on video.

“I made up my mind af­ter the first time it hap­pened that film­ing would be as im­por­tant as the im­me­di­ate first aid,” she said. “No one was run over, but peo­ple were hit. I was mes­saged on so­cial me­dia by some­one say­ing I saved their life.”

Carle es­ti­mated that she has used $400 to $500 in first aid sup­plies since the protests be­gan. Most treat­ments have been for tear gas, but oth­ers in­clude sprains from run­ning from po­lice and panic at­tacks. She said the rush­ing ve­hi­cles trig­gered flash­backs to the deadly Unite the Right in Char­lottesvill­e in 2017.

“You can see it in their eyes,” Carle said. “These po­lice tac­tics looked iden­ti­cal to what was used to re­sult in the mur­der of Heather Heyer.”

Alex Fields Jr. was found guilty of first-de­gree mur­der and hate crimes af­ter he drove into the Char­lottesvill­e crowd, killing Heyer. He was sentenced to life in pri­son, plus 419 years.

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