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'Excessive force' often a matter of perception

Friday, November 13, 2009 | 12:01 a.m. CST; updated 3:59 p.m. CST, Monday, December 7, 2009

*CLARIFICATION* An earlier version of this article was unclear about the contents of Giles' video.

COLUMBIA — Police have a tough and, at times, thankless job.

They often arrive on the scene knowing only a sliver of the story. They are forced to quickly assess the situation and make decisions that take into consideration the safety of not only those involved in an incident, but also uninvolved bystanders and  themselves as well.

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Then comes paperwork. At the Columbia Police Department, if the officer used force, his or her actions will be investigated by the department's Professional Standards Unit. And, once the media catch wind of it, there's the court of public opinion.

Former MU basketball player Willie Smith, who said police used excessive force in his arrest earlier this year, said he recognizes the precarious nature of the department's work.

"I know they have a tough job out there," Smith said.

Smith filed one of 17 complaints of excessive force received by the department since the beginning of this year. At least two of them were filed by black men with clean records who ended up facing charges of resisting arrest after an arrest by a white officer.

From June 1 to Nov. 1, six complaints of excessive force were filed — two of them by black men.

After internal investigations, the department said that the actions of its officers were appropriate in all complaints.

These situations are not unique to Columbia. On July 16, Harvard professor Henry Louis Gates was arrested at his home in Cambridge, Mass., when he could not prove he lived there. After an altercation with police, Gates was arrested on suspicion of disorderly conduct. The incident became a cause celebre, prompting outcry from community leaders across the country and even President Barack Obama, who said police acted "stupidly."

In Columbia, data collected by the Police Department indicate that the nearly 11 percent of Columbia residents who are black are arrested more than the city's white residents, who make up more than 81 percent of the population, according to U.S. Census Bureau estimates from 2006.

In 2008, black people made up 49.9 percent of all arrests in Columbia that were reported to the Missouri State Highway Patrol for the FBI's Uniform Crime Report, according to a report released by the Columbia Police Department in March.

In addition, 57 percent of those who faced charges of resisting arrest from 2000 to the beginning of October were black, compared with 42 percent who were white or Latino. (The Uniform Crime Reports gathered by the state count Latinos and persons of Middle Eastern descent as white people, which the Columbia Police Department does as well.)

On the other side of the equation are the department's 155 employees: 10 are black and four are listed as "other," which includes Latinos and Asians. Among the "others" is Columbia Police Chief Ken Burton, whose mother is Hispanic.

That means that more than 90 percent of the department is white.

The facts raise questions with no easy answers. What causes interactions between officers and citizens to escalate and become violent? And why do accounts of these incidents from police and those they arrest sometimes differ so greatly?

When is force 'excessive'?

Smith, who owns a janitorial service called Magic Services Inc., was arrested March 9 on suspicion of obstructing justice and resisting arrest. He and his nephew were cleaning Bella Salon on John Garry Drive when a burglar alarm at the neighboring Smokin' Chicks Restaurant was triggered.

When police arrived at the scene, Smith and his nephew were sitting in their car. Officer Robert Fox approached and told the men to place their hands on the dashboard.

Smith said four officers had already surrounded the car with guns drawn, according to a previous Missourian report.

According to a probable cause statement, which is the police account of the incident, Smith kept his hands folded under his armpits, leading the officers to believe he had a weapon. After repeated commands, Fox told Smith to exit the vehicle, and Smith cussed him out.

That's the police version. Smith denies using profanity.

After Smith had exited the car, the officer used pepper spray on him and, according to Smith's account of the incident, pushed his head into the side of his car.

"He came so hard at me and crossed the line," Smith said.

Smith filed a complaint with the department three days later and pleaded not guilty to two charges in court. On Sept. 25, he pleaded guilty to disturbing the peace because he said it would cost too much to keep paying a lawyer.

Police said in May that an audio recording of Smith's arrest was the key piece of evidence it needed to determine that the officer's use of force was not excessive.

But on the audio files obtained by the Missourian, which the Professional Standards Unit used in its investigation in addition to interviews with officers on the scene, little is heard of the actual arrest. There is no recording of what happened before Smith was pepper sprayed.

Officers were faced with an even more tangled situation last year when a student resource officer at Hickman High School broke up a fight between several students, an incident that was recorded on a cell phone and posted on YouTube.

On Oct. 15, 2008, Officer Mark Brotemarkle threw Hickman sophomore Diamond Thrower to the ground and handcuffed her. Thrower was not involved in the fight but had been trying to break it up.

Brotemarkle took some time off after the incident but was back at Hickman five days later. Thrower's mother and Ray Magruder, her mentor, each filed complaints against the officer, as did the parents of two other students who were not involved in the fight. The department found Brotemarkle's actions appropriate.

The most recent well-publicized incident in which complaints were filed against officers for their use of force occurred Aug. 1. Columbia resident Carl Alan Giles, 27, was arrested on suspicion of public urination and resisting arrest in an alley behind the old Cafe Berlin.

Once again, accounts of the situation differ greatly.

Officer Jared Fielding, the first to respond to the call, said he observed Giles urinating in the alley.

Giles said he was not urinating in the alley, but that he was "adjusting" himself.

The two sides agree Giles never became violent during the arrest. But after repeated commands by Fielding for Giles to "stand back" from his vehicle went unheeded, Fielding tried to slap handcuffs on Giles and used pepper spray to get Giles to comply.

Giles, who said he had never been pepper-sprayed, said he still couldn't see when backup arrived a few minutes later and fired a Taser at him.

Better 'customer service'

The way bystanders reacted* to what police later said was appropriate force was well-documented in a video recorded by Giles' sister.

"Will you look at my brother?" Daniel Giles, Carl Giles' younger brother, shouted at police on the scene. "He did nothing, and they have to drag him off the ground."

For its part, the department works to ensure that officers are trained to defuse situations with their words and to use force only when it is appropriate.

As any officer will tell you, it's easier said than done.

"We're not always dealing with people when they're at their best," Public Information Officer Jessie Haden said.

Haden, who spent more than four years working patrol, said officers routinely deal with intoxicated, belligerent or uncooperative citizens.

"Talking to someone who is drunk, for instance, can go from compliance to them wanting to hit you on the head," she said.

Police Sgt. Mike Hestir, who has been with the department for 20 years and trains officers on verbal de-escalation, said officers are trained in "verbal judo." It focuses on seeking verbal compliance from civilians while preventing violent outcomes.

Hestir said that when an officer approaches, it is an "unpleasant" situation for any citizen, even for a traffic stop. Belligerence, he said, officers can handle.

"You would be shocked at the insults and baseless accusations that are hurled at us on a daily basis," Hestir said. But when citizens become verbally or physically threatening, officers will be more inclined to get physical in response.

"It's a behavior-based business," Hestir said. "It's really based on the cues and the clues that the citizen gives."

Hestir said it's not in the best interest of officers to get physical with the people they arrest. First, there's the possibility that the officer will get hurt. Hestir said he suffered three herniated disks in his spine after a fight with a suspect. The injury still gives him pain.

Second, there's the possibility of disciplinary action by the department as well as public scrutiny.

"We're already getting mud thrown at us," he said. "If you're a knucklehead police officer, we're going to want to get rid of you."

Hestir said that since Burton took the reins in April, the department has been geared toward better communication with Columbia residents and "better customer service."

"I think it's a good path to go down," Hestir said. "I think it’s a good change and something our community deserves."

'The scales of justice are not balanced...'

Hestir said that because Columbia is an ethnically diverse community for its size, officers work to be respectful to other cultures without "sacrificing the safety of everyone around."

Smith makes an obvious effort to avoid saying that his arrest had anything to do with the color of his skin. He points out that white people are mistreated by police officers, too. The prejudice in the justice system, he said, is against people on the lower rungs of the economic ladder.

“I feel the scales of justice are not balanced when it comes to low-income people,” Smith said.

But the fact that Smith, a minority, claimed the police used excessive force in his arrest is not an “atypical” scenario, said MU law professor Rodney Uphoff, a former defense lawyer who specializes in criminal justice.

“We know there are cases where excessive force has been used, and sometimes there’s just no justification for it," Uphoff said. “The police were angry, or the police thought the defendant had an attitude or, unfortunately, there are some police officers who aren’t as even-handed as they ought to be.”

Uphoff emphasized that most officers are good at what they do and that it’s “silly” to assume that all police officers are racists. But, he added, “It would be naive to say there weren’t any in Columbia.” 

But disparities in justice transcend just a few local, isolated incidents, Uphoff said.

“Race shouldn’t matter in our justice system,” Uphoff said. “But unfortunately it does.”

Racial profiling by police is nothing new in the U.S., but there is debate about whether it's deliberate or subconscious.

In the department’s March racial profiling report, which was submitted to the Missouri Attorney General’s office, Deputy Chief Tom Dresner wrote that a disparity in the rates of arrests for white people and black people is a “chicken and egg” problem.

“What we really as a community detest, including inside your police department, is the thought that our officers spot a driver of a car, and from their visual determination of that person’s race, seek to make a criminal case against that person for no other reason,” Dresner wrote. “However, what if good police work is taking place but it mimics ‘racial profiling?’”

Some research indicates that well-intentioned people, even trained police officers, can succumb to socially shared stereotypes.

Stephanie Merritt, a psychology professor at the University of Missouri-St. Louis, said in an e-mail that some research has indicated that overcoming a stereotypical association of black people with crime is a “cognitively demanding process.”

“Modern prejudices can be subtle and may affect well-intentioned people, even when those individuals have no desire to express prejudice,” Merritt said.

Merritt cited a study released by Brian Keith Payne at Washington State University in 2001 in which participants were shown images of either a gun or a hand tool, and in between those images were pictures of either a white person’s face or a black person’s face.  

She said the participants were quicker to identify guns, or misidentify hand tools as guns, if the images were preceded by a black person’s face.

In the study, none of the participants were black.

“These and other studies suggest that it is possible that stereotypes of African-Americans could lead people to interpret the behavior of an African-American suspect as more aggressive than they would interpret identical behavior performed by a Caucasian suspect,” Merritt said.

Policing the police

In an August interview with the Missourian, Columbia lawyer David Tyson Smith — no relation to Willie Smith — said police could sometimes be “combative and rude,” and that is what sometimes sets people off. He said Willie Smith’s case was no exception.

“I think they were being a little overly aggressive,” said David Tyson Smith, who represented Willie Smith. “Willie was minding his own business, working on his business at a business, and you run into an overzealous police officer.”

David Tyson Smith said altercations with police sometimes occur when officers are “disrespectful” to members of the community.

“I think the key is courtesy and respect and not provocation," he said.

Despite his arrest, Willie Smith said he continues to support the department, though he takes issue with the way it “self-corrected” and cleared itself of any wrongdoing after he filed a complaint.

“Everybody makes a mistake except the Columbia Police Department,” Willie Smith said.

Willie Smith said the establishment of the Citizens Police Review Board, which was recommended this year by a Citizen Oversight Committee formed by Mayor Darwin Hindman, should improve the police department's transparency.

David Tyson Smith, who also served on the Citizen Oversight Committee, said Willie Smith’s story helped persuade city leaders to vote for the establishment of the review board.

On Nov. 3, the Columbia City Council and the Columbia Human Rights Commission chose the nine members that will make up the board from a pool of 49 applicants. Officials expect the board to be up and running early next year, but no concrete time frame has been established.

The city created the board to give residents like Willie Smith a chance for further appeal if police clear themselves of wrongdoing amid accusations of misconduct. It is intended to increase the accountability of the department by reviewing its procedures and submitting annual reports to the council. The board will hold meetings for citizens to express their concerns about the department.

Presumably, this could offer a better sounding board for Columbia residents if they find themselves in a predicament like Willie Smith's.

But this group of ordinary citizens — appointed by elected leaders essentially as an advisory body — might find it difficult to bring about meaningful changes in police policy on behalf of Columbia residents, especially without the power to subpoena officers.

Research has indicated that a citizen review board's power to subpoena witnesses and documents is crucial to make it more than just a ceremonial group of political appointments.

When the Citizen Oversight Committee was formed, it published several studies on citizen review boards on its Web site. One study, published by the FBI, states that review boards formed by a municipal ordinance are required to hold public hearings, which can hinder efficiency.

A study published by the American Civil Liberties Union found that the ability to subpoena is required, and without this ability to compel police departments, boards are unable to complete their missions.

Regardless of whether the new board will have the power to take the department to task if it feels the department has mistreated a citizen, it is charged with making police more accountable and trustworthy to those they serve.

Kenneth Novak, chair of the Department of Criminal Justice and Criminology at the University of Missouri-Kansas City, said the fact that it can make recommendations about the department to Columbia's city manager means the board is "not completely symbolic."

"It provides a very valid outlet for citizens to provide meaningful complaints about police," Novak said.

Novak said the board's complaint process could also be helpful for citizens who desire to take civil action against the department because filing a complaint with the board would show that a complainant has taken additional steps to fight his or her case. 

Novak said the board could also be useful in filtering out citizens' complaints that prove to be "frivolous" or unfounded.

Burton has acknowledged that the purpose of Columbia's citizen review board is just that: review, not enforcement. But he said he is behind the idea because of the level of citizen support behind it.

"We're going to do what we can to make it work," he said.

He has taken steps to make good on this claim. Recently, Burton attended a conference held by the National Association for Civilian Oversight of Law Enforcement to gather information on what other cities have done to allow civilian oversight.

Some cities, including Washington and San Francisco, have mediation programs within their citizen review boards in which a citizen who filed a complaint with an officer is able to meet with that officer with an intermediary present to discuss the incident.

But Burton said it wouldn't be proper for him to make any recommendations for the board at this point. He said that he is scheduled to meet with the board for the first time on Nov. 16.

While mediation generally only reconciles about 10 percent of complaints received by a department, he said it could have been useful in dealing with the incident involving Willie Smith by opening the lines of communication between Smith and his arresting officer.

Maybe better communication between citizens and the officers sworn to protect them is all Columbia needs to prevent another incident like the one Smith faced.

Smith certainly thinks so. “This could have gone away in two seconds if the officer had let me talk," he said.

 

Missourian reporter Cheston McGuire contributed to this report.

 

 


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