Beat-Downs are OK if You Allege Bad Behavior in Worthington

On July 28, 2016, Worthington, Minnesota resident Anthony Promvongsa was pulled over by a Worthington Police sergeant after a drug task force officer had been trying to stop him using an unmarked black car with lights. As soon as Worthington Police Sergeant Tim Gaul shows up in a marked Tahoe, Promvongsa pulls over.

And this is where it gets sickening. Agent Joe Joswiak, wearing blue jeans and a black t-shirt immediately approaches, gun drawn, calling Promvongsa “mother-f**ker” and ordering him to show the agent “your f**king hands.” Joswiak pulls the door open and immediately tries to pull a seat-belted Promvongsa out of the car, and when he can’t (because of the seat-belt), he begins to strike Promvongsa with his fist and knee and elbow. During this entire time, you do not see any aggressive actions by Promvongsa.

The Worthington Chief of Police, Troy Appel, and the Drug Task Force Commander, Nate Grimmius, refused to comment, other than to note that the video was only a portion of the entire incident. Promvongsa is facing felony charges of second-degree assault, fleeing a police officer, and traffic violations.

OK, I can understand those comments. You have a pending criminal trial, and probably are looking at pending litigation. So why don’t we look at what we can see.

This is supposedly a felony stop, because Promvongsa supposedly just assaulted two officers by using his vehicle as a weapon. Felony stop procedures are uniform throughout the United States, and those procedures do not include charging up to the vehicle with your weapon drawn and then putting a beat-down on the driver. No, in a felony stop, you stay back at your own police car and order the driver to exit the vehicle and come to you, backwards. It looks like this:

This is so officers don’t put themselves at risk by charging a vehicle. The procedure isn’t new, the basic procedure has been around for at least 40 years, as shown in this old training video. But obviously, that’s not what happened in Worthington.

I’ve seen this type of reaction before. It normally comes from overly gung ho officers who don’t have the self-discipline to do the stop properly. It’s gotten officers shot and killed in the past. Sr. Corporal Mark Nix of Dallas was killed in 2007 because he charged up to the suspect’s vehicle and was shot, instead of following felony stop procedures.* The same could have happened here, but there some other things we should look at.

The dash cam video is from the sergeant’s Tahoe, and when the video starts, you can clearly hear Joswiak cursing at Promvongsa—and then all sound stops. At 2:11 in the video, while Joswiak is beating on Promvongsa, look at Sgt. Gaul. His hand is on his belt, at the body mike for the dash cam, turning it off. So the rest of the relevant part of the video is silent. The sole reason to turn off the audio at this point is to prevent the documentation of what Joswiak is saying to Promvongsa as he beats him. It is to prevent Promvongsa from being able to use the video as evidence. It is to prevent Joswiak being held accountable for police misconduct.

In Texas, a police officer doing that could be charged with Tampering with Physical Evidence,† and conceivably could be charged with Obstructing Investigation in Minnesota,‡ although I would honestly be surprised if any action were taken against Sgt. Gaul.

The Minnesota chapter of the ACLU states that the attack by Joswiak on Promvongsa was uncalled for and unprovoked. They are right. But Joswiak isn’t the only one, even though his conduct was obviously out of line. We need to look at Gaul too. He’s a supervisor, and his conduct is what enables the Joswiaks of the world to beat up on suspects. In my view, Gaul’s conduct is worse, because as long as he covers up misconduct, it will continue.


*His killer, Wesley Ruiz, is on death row for the killing.

†Texas Pen. Code, §37.09.

‡Minn. Stat. 609.495, subd. 3.

Police Don’t Care About Your Politics When Bullets are Flying

Yesterday, a socialist nut job* took a carbine and a pistol to a ballpark in Alexandria, Virginia and began to shoot Republican Congress critters who were practicing for the annual charity baseball game. That nut job shot a right-wing, anti-LGBT congressman, Rep. Steve Scales of Louisiana and three others, before he was shot and killed by responding officers.

Many of those present noted that had it not been for the actions of the three Capitol Police special agents who were present as part of Rep. Scales protective detail, it would have been a bloodbath. Two of the agents, Crystal Griner and David Bailey are both African-American. Henry Cabrera appears to be Hispanic. Griner was shot in the ankle, Bailey suffered minor injuries, and Cabrera was unhurt. Griner is also a lesbian, married to Tiffany Dyar, in a same-sex marriage opposed by Rep. Scales. All of these demographics are traditionally Democratic, not Republican.

It is clear to all that the actions of the three agents saved lives. Cabrera immediately engaged the shooter with his pistol at a distance of about 50-70 yards. Most police officers train at a maximum distance of 25 yards and shots of 70 yards are considered exceptional with a pistol, while with a carbine like the shooter had, 70-100 yard shots are a piece of cake, even with iron sights. But Cabrera was able to keep the nut job pinned down and focused on the agents instead of the Congress critters. Bailey and Griner charged out onto the field, to protect the people still out there. On witness reported hearing a female officer yelling at the shooter to drop the gun just before she got shot.

I’ve written about this before, and I will likely write about this again. Police officer’s run towards gunfire while everyone else is running away. It’s what they do. And these agents did what they needed to do to protect people who were in danger. Even when those people had political views that they may not have agreed with.

It’s not just here, either. It’s happened before. When five Dallas officers were shot and killed at a BLM march, officers put themselves between the area the shots were coming from and the citizens that they were trying to protect. They knew that their vests would not stop rifle rounds, that if shot, they would go down. But they still put themselves in-between the shooter and the public that they were protecting.

Think about it. Most cops do not like BLM, and many actively dislike it—but they still went out of their way to protect those who they disagreed with. I don’t begin to claim that I know where Griner falls on the political spectrum, other than to assume that she doesn’t agree with Rep. Scales on same-sex marriage. Yet she still moved to the sound of gunfire to protect him and others.

As for the baseball game? The first pitch was thrown out by Agent Bailey, on crutches.†


*While it is known who the nut job is, I’m not going to dignify him by using his name.

†The Democrats won, again. They’ve won eight of the last ten.

Westworth Village, Texas and Having Values for the Police – UPDATED

The Westworth Village Police Department has a very nice webpage where they outline how they deal with the public. They outline their core values, of integrity, accountability, professionalism, service, courage, and respect. These are worthy values, and exactly what police officers should do.

Unfortunately, they had an encounter that was posted on YouTube this weekend where not all of those values were displayed.

In the video, Officer R. Greer approaches David Worden, who goes by News Now Houston, and another photographer who goes by Dallas Activist. Greer asks what they are taking pictures of, and Worden answers. That’s the high point as far as professionalism gets in the encounter. Greer then tells the two that they don’t look like public photographers.

Ah, what do public photographers look like? You know, I spent over twenty years wearing a badge, and I’ve seen photographers who looked like an FBI agent from the 1950s, to a guy with a bright green mohawk haircut, and everything in between.

Greer is starting off in a confrontational manner, and it doesn’t get any better as time goes on. At about 2:25 in the video, Greer tries to tell the two that since he is answering a call about them, he has the right to demand that they identify themselves and that Worden and Dallas Activist do not have the right to refuse. He also adds that if they refuse to identify themselves that he can take them to jail.

At that point Dallas Activist tells Greer, correctly, that Greer needs to read “38.02”* which immediately and visibly pisses Greer off. Greer pops off that he doesn’t need “your law degree” – and Dallas Activist immediately shuts Greer down by pointing out that Greer has no idea if Dallas Activist has a law degree or not. Greer doesn’t like that and threatens arrest again, and when that doesn’t work, states that there are people who don’t want pictures taken in that area.

And then Greer blows up and screams “I’m not out here to get a bunch of lip from you!” Worden then tries to deescalate the contact, and Greer responds that he’ll “take it down when I’m ready to take it down.” That’s hardly the approach of a professional police officer, and it is certainly not the approach of one who is following the values of the Westworth Village PD. At this point Worden realized that the best option was to disengage, so he asked if they were being detained, and when Greer answered no, the two moved away from him.

I both called and emailed the Chief of Police, Kevin Reaves. Chief Reaves answered the email very promptly with their department’s press release, which stated that they were aware of the video, were going to look into the incident, and would address the concerns of the “posting organization.”

We should give them time to address this. I don’t know Officer Greer, and I could only evaluate him on this one incident, but he could be having a bad day and be a good officer normally. This may be something that training can take care of. Of course, it could be that Greer is just an ass who has no business on the street, too. Either way, it’s up to Chief Reaves now.

=======================================

UPDATE:

A few days ago, Chief Reaves released a statement acknowledging that Officer Greer was incorrect in his interpretation of the law on failure to identify, that the incident has been reviewed with Officer Greer, and that all personnel have received training on the matter. You really can’t ask for much more than that.


*Texas Penal Code §38.02, Failure to Identify.

Tulsa Police Sergeant Rohloff: An Example of What Officers Should Not Do

I am just amazed at the level of abuse tendered by this Tulsa Police sergeant on a citizen who is filming a police station.

First, the sergeant, Robert Rohloff, has no apparent people skills, he is rude and clearly does not like the fact that Kyle Hogan is filming the Mingo Valley sub-station. Second, while I understand the concern for safety of officers, the idea of charging a photographer with Stalking* is ludicrous and would be almost impossible to prove. Third, there appears to be a clear constitutional right to film public officials in public places.† Finally, he threatens to arrest Hogan for Obstruction if Hogan does not identify himself to the officers.

Oklahoma does not have an Official Oppression‡ statute like Texas does, nor does it apparently have a statute that provides a viable method to protect citizens against civil right violations by the police. So officers like Rohloff can only be held accountable if their police chief decides to hold them accountable.

I spoke with the media relations officer of the police department, and was advised that Chief Chuck Jordan had been made aware of the video yesterday and had ordered a review of the incident. That’s exactly what needs to be done, and we have to allow Jordan sufficient time to look into the situation. The specifics need to address whether it is appropriate for Rohloff to question Hogan’s mental stability, if it is acceptable for him to threaten Hogan with arrest for engaging in a constitutionally protected activity, and whether it is appropriate for Rohloff to make up preposterous scenarios to paint Hogan as a potential sniper with absolutely no evidence to support it.

Look, I get the need to protect officers—several of the police stations in Dallas have been shot at and they now have an officer assigned to station security at each station. I don’t have a problem with officers contacting the photographer and engaging in a voluntary conversation. It’s OK to ask for identification, but not to demand it unless the officer has reasonable suspicion.

It’s not OK to act like a thug.

I look forward to seeing what Chief Jordan is going to do here.


*Stalking in Oklahoma is a misdemeanor punishable by up to a year in jail and a $1000 fine. Okla. Stat. tit. 21, § 1173.

†As far as I can tell, there is no case on point in the Eighth Circuit. However, every circuit that has considered the issue, has found that there is a right to photograph public officials in a public place.

Texas Pen. Code § 39.03.

Wisconsin DOJ Issues First-Ever Protocol for Investigating Officer-Involved Shootings

In 2013, Wisconsin became the first state to require that an investigation into an officer-involved shooting or other fatality be conducted by an outside investigator. It also required that the investigation be submitted directly to the District Attorney, and that, if no prosecution was sought, that the report then be released to the public. Needless to say, some departments, like Milwaukee, were real happy with the idea, to the point of issuing guidelines on how the outside investigator would submit their report to the chief and the chief would decide what to release.

Now the Wisconsin Department of Justice has published guidelines that their investigators will follow when conducting such an investigation. One of the notable changes is that officers will no longer be allowed to review any video before making their statement. This has long been the case for civilian witnesses, but officers were always allowed to view the video first. It will only be allowed now if the prosecutor agrees and it is the only way that the involved officer will speak to the investigator.

Naturally, the guys at PoliceOne are up in arms about not being able to watch the video.


 

Taser: So You Never Have to Talk to the Public

You know, I was a police officer, corporal, and sergeant for over 20 years, and from time to time, I had to talk to people that were pissed off at what I was doing. The departments I worked for thought that maintaining a good rapport with the citizenry was important, so from time to time we were sent to classes and training on how to talk to people, how to deescalate confrontation, and in general, to be a Sheriff Andy to the community. Now it seems that having a Taser on your belt means that you don’t have to talk to the public at all.

Yeah, I know, it’s been awhile since I’ve been on the street, but things haven’t changed that much. Or rather, they shouldn’t have changed that much, but apparently they have in North Enid, Oklahoma. Do not confuse North Enid with Enid, which surrounds the small town on three sides. North Enid has less than 1,000 people living there, and is about 2 square miles in size.* According to PoliceOne, it has a total of three officers.

One of those officers, John Miller, is a jerk. On the first part, I’m not going to comment about the officer issuing a parking ticket,† for all I know the town has had a bunch of complaints as it appears that it is near a school or a similar structure. If so, the officer may have been told to take a hard line on enforcement–I’ve been there, directed to go write pedestrian tickets, parking tickets, all sorts of enforcement actions that are kind of feather-legged, but that are sometimes necessary. The problem is that the officer is just rude. And it’s on body cam.

The officer stops a green jeep, where the female driver has stopped to talk to a friend who was mowing his front yard. Miller stops and is going to issue a parking ticket, and the lady’s friend, Gary Duckworth, protests that she’s not parked, her car is still running.

At 1:35 in the video, Duckworth has just pointed out that the motor was running and that to be parked the motor should be off. Miller blows him off, saying “I’m not arguing with you.” Right here, a few seconds to explain that standing is also a violation could help defuse this. Instead, Miller writes out the citation, comes back and issues it to the woman.

Duckworth then asks a simple question and Miller basically goes off on Duckworth, telling him that Duckworth has been nothing but rude. Huh? Duckworth has been direct, but hasn’t come close to being rude. It’s not rude to question police officers, and believe it or not, the badge does not mean that citizens have to act subservient to officers. This is where it really starts to go downhill.

At that point, Duckworth starts to tell the officer what his position is, what he thinks that the officer should have done, and then Miller visibly and intentionally ignores Duckworth. Yeah, that’s a good move. So Duckworth tells the officer that he wants to talk to him, and that’s where Miller goes off the rails. He pulls his Taser at Duckworth, who is clearly shocked.

I was too. Duckworth was upset, but he was also not doing anything that would indicate that he was a threat, he had not bowed up, not done anything to indicate that fight or flight was kicking in, and generally was not a threat. He damn sure wasn’t a threat that would need to be Tasered.

And Duckworth sums it up perfectly:

If you think you’re justified to pull a Taser on me just because you don’t want to answer my question, that’s a bunch of crap.

The police chief, Rick Dominic, is backing Miller, and said that a police committee reviewed it and determined that what Miller did was fine. They released the video, on their Facebook page. That backfired. It went viral, all over the net. Hell, the Daily Mail in the United Kingdom even covered it. Within a day, they deleted their Facebook page because of the comments that were flooding in. Dominic said that:

My officer didn’t shoot him with the taser.

Oh, OK. Does that make it all better?

Chief, this is why we are losing the support of the public. Miller was a jerk, was rude, and obviously viewed Duckworth as a threat instead of as a citizen. There is nothing that you can say to convince me that pulling the Taser on Duckworth was justified. Absolutely nothing. I’m not expecting you to change your position, you’re locked into your story now. But I wish you would really look at what happened here, and then look at what it does to your department’s relationship with the community.


*Enid is about 50,000 population and is about 74 square miles in size.

†From what I can tell of Oklahoma law, it doesn’t matter if the vehicle is running or not, illegal parking includes both parking and standing (which is normally defined as stopped with the engine on).

Best Practices: Lufkin PD, Officer Involved Shooting

On March 1, 2017, Jose Isabel Rodriguez, Jr. was on the ground, on his back, desperately holding onto the blade of a knife with his bare hand. He already had a laceration under his eye and had been cut or stabbed in his stomach, and thought that he was going to die. Epthen Lamont Johnson was on top of Rodriguez, trying to drive the knife into his victim’s throat, when Lufkin Police officer Robert Blake Witherspoon arrived and shot Johnson in order to save Rodriguez’s life. The Lufkin Police have released both the officer’s body cam and dash cam videos.

Let’s look at what happened. This is about as clear cut as it’s going to get. You have an officer responding to a stabbing in progress call, he issues several verbal commands and moves to where he can see Johnson trying to stab Rodriguez with a knife, he fires three shots, assesses the suspect, then fires a fourth shot when it was apparent that the first three did not stop the attack.* Subsequently Johnson died at the hospital.

At Lufkin PD, their policy is to have the Texas Rangers investigate officer-involved shootings to determine if the officer should be criminally charged or not. This is what should happen, and the Rangers don’t hesitate to recommend prosecution of an officer or deputy if it is warranted. Next, the department put Witherspoon on paid leave for a week, and they reevaluate it at the end of that period. Both of these actions are perfect.

Next, and this is really impressive, the department reviewed the video footage with the mayor, city council, and three department chaplains. It’s the last part that is really interesting, and is a best practice, in my opinion. You see, Lufkin has set up a Clergy and Police Alliance (CAPA) to help with transparency and in communicating with the public.

Here, you have a white officer killing a black man, a situation rife for controversy and protests. So it helps when, within a week of the shooting, you have the CAPA president, M.E. Lyons, the pastor of the Missionary Baptist Church in Lufkin and a well-regarded leader of the black community in to view the tape. Lyons and other CAPA member then issued a statement that the shooting appeared to be justified.

The Angelina County District Attorney presented the case in front of the grand jury, which no billed the officer last week.

Other departments should look at how Lufkin handled this, and they should emulate it.


*Toxicology reports indicate that Johnson had PCP in his system. With PCP, it is not surprising that the first shots did not have an effect, PCP has a street name of horse tranquilizer.

Betty Shelby and Simple Justice

My former mean-ass editor* also wrote about Betty Shelby and the trial, from a different perspective than mine.

Scott, perhaps I should clarify. Police are taught to fear, and are taught that their safety trumps everyone else’s safety. As Lou Hayes, Jr. ** points out, police expect compliance and if they don’t get it, they force compliance. In the officer’s mind, non-compliance rises to the level of a threat, sometimes to a threat of deadly force.

It doesn’t, and it doesn’t justify shooting an unarmed man for non-compliance. Neither does DRE, EMT, diver, or trainer give Shelby greater ability to determine what was going on with Crutcher since she did not examine him, etc. I don’t doubt that she thought he was high on PCP or the like–I’m not a DRE but have formed that opinion when a guy stopped his car in a six-lane road, got out, stripped naked, and started to put on other clothes. Experience will oft-times give you a clue as to the person and their condition.

But I live in the real world, and if I’m defending a cop, then I’m going to bring all of those qualifications up, and if relevant to the suspect’s character, the fact that he has warrants, prior history of crime and drugs, etc. You would too, as would any competent defense attorney.

Here, the reason that the case was crap is simple. When your own police witnesses are hostile to you as the prosecutor, you’ve got problems. The prosecution’s witnesses helped Shelby’s case way more than they did the State. The public is still inclined to support the police, especially in a conservative state like Oklahoma, and the jury will have that bias. So they are likely to jump on any reason to acquit, and as a prosecutor, you have a responsibility not to prosecute a crap case.

When you have a case like this, you have to go outside of the local law enforcement agency, you absolutely have to have an outside agency conduct the criminal investigation. When the homicide detective points out that no Tulsa police officer has ever been charged with a homicide before, that’s a bias that should have been exposed well prior to the trial. That’s why the Oklahoma Bureau of Investigation should have been brought in to conduct the investigation.

In the meantime, the defense focuses on the fear that Shelby felt. She thought that fear was justifiable because that is what we taught her. It’s not, in my opinion, but that’s not relevant here. Shelby is going to be acquitted, and that is not from a cop’s perspective on the shooting, it’s from a lawyer’s perspective on the case presented by both the State and the defense.

It boils down to fear. The fact that police deadly-force training is based on a culture of fear is something that we need to change. Until we do, we’re going to continue to have officers kill unarmed Americans, and that’s a price we shouldn’t have to pay.

 


*Scott Greenfield, NY criminal defense lawyer and author of Simple Justice, an ABA hall of fame blawg. He also was the managing editor at Fault Lines.

**Lou Hayes, Jr., is a police supervisor and trainer, and was one of our writers at Fault Lines.

The Betty Shelby Manslaughter Trial

In September of 2016, Terrance Crutcher was shot and killed by Tulsa Police officer Betty Shelby. I wrote about it for Fault Lines, stating that based on the trial of Robert Bates, I was willing to grant some leeway and give the prosecutor’s office the benefit of the doubt. The trial started last week, and will be winding up any day now. It will be interesting.

Assistant District Attorney Kevin Grey opened with the fact that Shelby was a drug recognition expert (DRE) and believed that Crutcher was either high or mentally ill.* Grey noted that Crutcher was shot by Shelby at the same time another officer fired a Taser at him, and that Shelby broke down crying during the police interview.

Defense attorney Shannon McMurray stated that the investigation went way to fast, that Shelby did her job and that her actions were reasonable under the circumstances. McMurray noted that Shelby, in addition to being a DRE, was a member of the dive team, was an EMT, and was a trainer for the department.

The trial didn’t start out very well for the prosecution. While presenting officers as witnesses to establish his case in chief, the defense kept at the officers. One stated that he would have fired his weapon too, if he knew then what he knew now. After the shooting, Shelby said:

Why wouldn’t he listen? Why wouldn’t he follow my commands?

Officer Dean Montgomery, a member of TPD’s critical response team, said that Shelby was responding normally to a critical situation. He’s right, it is a normal response. So is crying and being upset–you’ve just shot someone, it’s emotional.

With everything else, I don’t see how the prosecution is going to win this case. You’ve got a non-responsive male reaching into a vehicle’s open window,** You’ve got other officers saying that they would shoot too.

You’ve got a homicide detective from Tulsa PD testifying that that the way District Attorney Steve Kunzweiler announced charges against Shelby made him “angry” and “disrespected.” You’ve got the defendant on the interview video saying:

I shot him in the side. I thought he was gonna kill me. I’ve never been so scared.

This was bolstered when Shelby took the stand in her own defense.

If you hesitate and delay, then you die.

and

I fired my gun at Mr. Crutcher because I was fearing for my life.

It’s hard to convict a police officer for murder or manslaughter. It’s even harder when your case is crap and likely should not have been filed to begin with.***

Closing arguments are today.


*Crutcher had PCP in his system when he was shot.

**Original media reports indicated that the window was rolled up, but that was incorrect.

***I am still of the general opinion that it is better to have a trial and let a jury decide the issues.

Jonesboro, Arkansas Officer Arrested for Road Rage–and Gets a Second Investigation

Jonesboro, Arkansas police officer Garrett Thomason was arrested by Pocahontas police officers and Randolph County deputy last week, for pointing his service side arm at another driver, Jesse Baltz, and ran Baltz off the road. Baltz, who was able to get the license plate number off of Thomason’s vehicle, called 911, and Thomason’s vehicle was located a few minutes later.

Pocahontas officer Brian Tilghman* spotted the vehicle and stopped it. On questioning, Thomason claimed that he only showed the gun to Baltz. Unfortunately, his passenger said that he had pointed the gun at Baltz.

Just as a kind of tip, when the call comes out that the gun was pointed, when the complaint says that the gun was pointed, and when someone in your own car says the same thing, you’re pretty much done. So Tilghman arrested Thomason for aggravated assault. This is where it is going somewhat off the normal procedure.

If Thomason was just a mere citizen, that’s it, the case is filed, he hires an attorney, goes to court, and so on. But since he was a police officer, there’s a different procedure. First, his own department conducted an internal, administrative review to see if he violated policy or law, and needed to be disciplined or fired. I’m good with that, it needs to be done.

The part I have an issue with is that it was reported that the State Police would investigate the incident to see if a crime was committed. What the hell? What’s wrong with the officer who arrested Thomason? He had a call about road rage, had a complaining witness, had a suspect who admitted to showing the complainant the gun, and had a witness who was presumably favorable to the suspect state that he pointed the gun at the complainant.

If there was enough to arrest on, that is all you need. Type up the prosecution report and file the case. You don’t need to have a second criminal investigation on this–and do you really think that your average Joe Citizen would get a second chance? You would be laughed out of the DA’s office if you even requested the State Police investigate the case.

Thankfully it didn’t matter here. Thomason resigned as a police officer the next day. He had not even made it a year with the department. It remains to be seen if he will be charged criminally.


*I don’t know if Brian is related to the famed Bill Tilghman of Oklahoma legend, but will note that neither officer hesitated to arrest another cop who had broken the law.