PARC's Matthew Barge Talks to Wichita Eagle about Use of Force Issues

By Tim Potter, Wichita Ealge (Nov. 21, 2017)

When the Barber County undersheriff fired a beanbag that killed an unarmed man, he went against national recommendations for use of the “less lethal” weapon.

According to an attorney’s preliminary investigation on how the shooting unfolded and based on the guidelines, the undersheriff fired the beanbag round too close to the man and hit him in the chest – a part of the body he was supposed to avoid if he meant to avoid a fatal wound.

In interviews, The Eagle has gathered a detailed account of the shooting by the attorney for Kristina Myers, the wife of the man killed, 42-year-old Steven Myers. Lawyer Michael Kuckelman shared notes he took when he was allowed to view and listen to body-camera video and audio from the scene of the Oct. 6 shooting in Sun City, a town of 53 northwest of Medicine Lodge. The recordings come from body cameras worn by a deputy and the sheriff.

Officials have not released the video.

The recordings show Undersheriff Virgil “Dusty” Brewer fired the beanbag round from a shotgun from less than 10 feet into Myers’ chest, Kuckelman said. The round hit just below the left nipple. Kuckelman said he bases the distance on what he saw in the video, what he saw at the scene and what he learned from an eyewitness.

According to guidelines in a 2009 report by Los Angeles-based Police Assessment Resource Center, the beanbag shot was too close and hit the wrong spot if it was intended not to be fatal. The report said that “beanbag rounds present a risk of death or serious physical injury at less than 10 feet when fired at the chest, head, neck, and groin.” The report put the “optimal distance for a beanbag” at between 21 and 50 feet.

Beanbag rounds, designed to be less lethal than normal law enforcement weapons, are not intended for “up-close encounters,” said Matthew Barge, a police practices expert and executive director of the center’s New York City office.

“You want to avoid center mass” when aiming, Barge said Monday.

Law enforcement agencies usually limit the use of a beanbag – a small fabric pillow filled with lead pellets and usually fired from a 12-gauge shotgun – to specially trained officers or supervisors, Barge said. That’s partly because beanbag shotgun use differs from handgun use, in which officers are trained to fire at the “center mass.”

The Barber County Sheriff’s Office has no written policy on beanbag use, Kuckelman said. It’s not clear whether Brewer had training in firing beanbags, he said.

Sheriff Lonnie Small couldn’t be reached for comment Monday.

The Wichita Police Department has a seven-page policy on use of less-lethal weapons.

“The body’s upper center mass … should be avoided, unless lethal force is the intent. … At less than 7 yards (21 feet) the risk of serious injury or death is greatly increased,” the policy says.

Beanbags must be used “with the utmost judicious consideration,” it says.

Shooting recordings

According to Kuckelman, 911 received a call at 6:26 p.m. and dispatched the first deputy less than a minute later.

The first deputy on scene, Deputy Mark Suchy, arrived at 7:07 at Buster’s Saloon in Sun City – about 41 minutes after the 911 call about a disturbance involving Myers. The Kansas Bureau of Investigation said the caller reported that Myers had been threatening people with a gun outside the bar.

Myers had worked in oil fields and was a ranch hand. He had had been drinking that day at Buster’s, Kuckelman said. Besides being a husband, he was a father of three children, ages 1, 9 and 11.

Myers ended up in a neighbor’s shed down the street from the restaurant and bar. Myers had already put a shotgun away at his home, where the gun was found hours after the shooting during a search, Kuckelman said.

Myers was obeying commands when he was shot, Kuckelman said Monday. “He had just responded to a sheriff’s command to come out the shed.”

Kuckelman has filed a motion in Barber County District Court seeking copies of law enforcement video and audio recordings of the shooting. A hearing on that has been set for Dec. 1.

Last week, the attorney said in a news release: “I have viewed the video, and what I saw was disturbing. Every resident of Kansas should be calling for this video’s release. The video captures an extreme violation of a man’s civil rights and a shocking use of excessive force.”

In interviews with The Eagle, Kuckelman said the audio began with Sheriff Small shouting, “Steven, come out of that shed.” The sheriff, Undersheriff Brewer and Deputy Suchy and a K9 dog were in the kitchen of a small house on Main Street.

Small gave the command through a screen door in the kitchen, toward the shed 15 to 20 feet away, Kuckelman said.

‘Mind-boggling’

After Myers stepped out of the shed, the sheriff turned with the K9 dog and walked toward the front door – away from Myers.

It doesn’t make sense for the sheriff – as the supervisor – to leave just as the incident is unfolding and reaching a key stage, Kuckelman said. “That’s mind-boggling – you’re in charge,” he said. Also, the dog was being led away when the animal could have been used to help subdue Myers if needed, Kuckelman said.

According to Kuckelman, about eight seconds elapsed as deputies gave inconsistent commands to Myers.

Two people shouted commands: one excited voice saying, “On the ground!” another exclaiming, “Hands up!” Then: “On the ground!” All in quick succession.

“And then the gun goes off,” Kuckelman said. “It all goes very rapidly.”

Right before the shot, the video shows Myers’ left arm extended out in front of him. “He clearly no longer had the shotgun,” Kuckelman said. The other hand, his right, isn’t visible in the video.

No one ever yelled out that Myers had a weapon, he said.

It was toward the end of the day. But the sun still illuminated the back yard, and Myers could be seen clearly and closely by the undersheriff who fired, Kuckelman said.

‘You can’t’ then ‘boom’

Just before Myers suffered the fatal shot, he blurted out. “Damn it … You can’t…”

Deputy Suchy’s body camera didn’t capture the view of Brewer firing the gun. Later, the video shows someone taking the shotgun used to shoot Myers.

When Brewer fired, he had moved from the kitchen to just outside the screen door and was definitely less than 10 feet from Myers, Kuckelman said.

Under a policy like the Wichita Police Department has, Brewer should have realized he was too close to fire a less-lethal shot, the attorney said.

The shotgun went “boom.”

Myers yelled “Ow!” as the blast hit.

He pivoted, collapsed to his hands and knees, then went face down, the video shows.

His blood began pooling on the dirt.

On the ground, Myers didn’t move as Brewer put handcuffs on him.

At that point, the resident said, “God damn, that was a little drastic wasn’t it!”

Brewer rolled Myers, still in handcuffs, onto his back.

“He’s obviously dying,” Kuckelman said. “You can hear the air escaping from his lungs.” Blood covered the front of his T-shirt.

‘Pretty damn close’

The undersheriff left as two relatively new deputies did CPR on Myers, Kuckelman said. One deputy held gauze on the wound while the other did chest compressions.

After the sheriff put the dog in the patrol car, he went to the back yard, were Deputy Suchy told him: “Lonnie, he ain’t got a pulse.”

According to the audio, Suchy said it was difficult to do CPR because the wound was near where he needed to place his hand.

The coroner pronounced Myers dead at the scene at 8:08 p.m.

After the coroner saw the wound, Kuckelman heard him say: “That’s from a beanbag? Straight-on shot. Holy shit. Was pretty damn close.”

Deputy Suchy then noted some of the evidence: “Clear cartridge by the porch.”

During more discussion, an EMT asked whether Myers had a gun and Suchy answered, “No,” Kuckelman said.

According to the Kuckelman’s notes from the audio, as the coroner asked questions, Sheriff Small told Suchy, “Don’t tell him everything.”

About two minutes later, the sheriff told told Suchy to stop recording, Kuckelman said. And the recording ended.

http://www.kansas.com/news/local/crime/article185785463.html

Government Technology Magazine Reports on Cleveland Reforms

The move comes as part of a settlement the city reached with the U.S. Department of Justice. Officials hope to have all 1,400 officers trained on the computer system by the end of the year.

Government Technology (Sep. 28, 2017)

(TNS) -- CLEVELAND, Ohio -- The city of Cleveland on Wednesday announced that it began a gradual roll out of a computer program that allows police officers to file reports with computers from the field.

The field-based reporting program was mandated in a settlement, known as a consent decree, the city reached with the Justice Department to reform the Cleveland police department. The city said in a news release that it has trained 120 officers, and that the goal is to have all 1,400 officers trained on it by the end of the year.

Greg White, the city's consent decree coordinator, said the program will allow officers to file reports from anywhere, be it in a district station or in the field. The city has 357 patrol cars and the city is still in the process of installing computers into all of them, White said. The city will be installing the computers in 35 cars that officers will continue to use, as well as in between 50 and 60 patrol cars the city intends to purchase to replace old cars, White said.

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When asked for an exact number of cars the city is slated to replace, White said he did not know. City spokesman Dan Williams refused to provide an answer when asked Thursday morning.

The news release said the training and use of the computers began in early September. Mayor Frank Jackson's administration did not announce the program until Wednesday, while the mayor is in the midst of a bitter campaign against Councilman Zack Reed for a November general election.

In recent weeks, the mayor has highlighted a series of initiatives he and others say will fight crime in the city, as Reed has made the city's rise in homicides and his criticisms of Jackson's response to them a cornerstone of his campaign against the three-term incumbent.

In a Facebook Live video the city posted to announce the project roll out, city Information Technology Director Larry Jones said a group put together a "communications schedule" as the project came together, which included plans for announcements like the one made Wednesday.

Using computers to type up police reports while on scene has been touted as a way to free up time for officers to spend more time patrolling and interacting with residents. City officers for years have had to go back to their district stations to type up and file reports.

In the Facebook Live video, Jones said "platoon B" -- the officers that work the afternoon shift -- is now training and using the computers. Day shift officers will start training and using the computers next month, and in December the night shift officers will follow, Jones said.

Police Chief Calvin Williams, also featured in the video, said that "now the officers can take that report in the field and actually enter it in the car computer as they're going about their normal day and their other duties."

White also said the new program will allow the chief to track crime statistics throughout the city.

The lack of updated technology for officers to use was one of many issues the Justice Department pointed out in a December 2014 report, which followed an 18-month investigation.

The Justice Department said the city has historically not provided enough money to update the equipment and resources for officers. Ultimately, the city's failure to upgrade its technology contributed to the pattern of officers using excessive force on suspects and residents, the Justice Department wrote.

The city agreed to address its equipment and resource needs in the settlement, known as a consent decree.

The city is required to draft an equipment and resource study and submit it to the monitoring team. However, the monitoring team has consistently sent the city back to re-draft it and said the city has not provided enough details.

Cleveland has historically lagged behind other major cities in the technology it uses to fight crime and support its officers. The monitoring team wrote in a June 2016 court filing that the city "does not yet benefit from many of the basic technological innovations associated with contemporary, urban policing."

In the video, neither Jones nor Williams mention the consent decree, though a quote from the mayor contained in the news release mentions it.

Instead, both Williams and the mayor's office news release said that Issue 32, which increased the municipal tax rate for those who work in the city, helped pay for the new computers. The city has pointed to Issue 32, which raises about $80 million more annually in tax revenue, as giving it the ability to buy new patrol cars and ambulances.

This story has been updated to reflect the correct number of patrol cars in which the city intends to install computer systems.

http://www.govtech.com/public-safety/Cleveland-Police-Launch-In-Field-Reporting-Program.html

Cleveland Police Plan to Cut Citizen Complaint Backlog in Half by End of the Year

By Nick Castele, NPR Cleveland (Sep. 7, 2017)

Cleveland police have agreed to cut in half a backlog of citizen complaint cases by the end of the year. The monitor overseeing the city’s consent decree laid out a schedule of deadlines in a federal court filing last week.

The monitoring team in June said that Cleveland is moving too slowly in finishing years-old investigations of complaints against officers.

The city hired more investigators. Now the Office of Professional Standards has a goal: complete all remaining 136 cases from 2014 and 2015 by the end of this year, reducing the backlog by about 50 percent. The office also aims to finish half of the cases filed this year.

The agreement also says investigators will make audio recordings of all interviews with officers, witnesses and those who file complaints.

“We agreed that we would file this with the court to give the judge some idea of what the process was going to look like, and we’ll see going into the end of the year where we’re at,” said Greg White, who manages consent decree compliance for the city. “Hopefully we’ll accomplish what’s in this document and more.”

The city, the monitor and the Justice Department will receive progress reports every other week. 

“While the scope of progress that OPS must make to comply with the Consent Decree is more substantial than the milestones outlined here,” monitor Matthew Barge wrote in the court filing, “the milestones are intended to provide specific, measurable guideposts to assist OPS in meeting existing requirements.”

http://www.ideastream.org/news/cleveland-police-plan-to-cut-citizen-complaint-backlog-in-half-by-end-of-the-year

Seattle Police Monitor Files Tenth Systemic Assessment on Stops, Search, and Seizure

The Seattle Police Monitor's Tenth Systemic Assessment evaluated SPD's progress in the areas of stops, search, and seizure.  

The assessment finds that SPD and its officers are complying with the legal and policy requirements related to stops, searches, and seizures. The number of stops and detentions of individuals that are not supported by sufficient legal justification is exceedingly small. Importantly, an individual’s odds of being a subject of a “bad” stop do not depend on that individual’s race. This means that, regardless of who a subject is, the Department is complying with the requirements of law and SPD policy in a vast majority of instances.

Similarly, officers by and large are conducting frisks of a stopped subject when they have the appropriate legal justification – not as a matter of course. A subject’s race does not materially change the odds of being subjected to a “bad” frisk, i.e. a frisk that was conducted without the necessary and appropriate legal foundation. Thus, at least with respect to the application of the Fourth Amendment by officers across numerous, individual incidents, SPD is complying with the requirements of law, policy, and the Consent Decree in a relatively race-neutral manner. Put differently, the legality of SPD’s stops and frisks do not vary by race.

The report finds that, because SPD’s officers have the appropriate legal and policy justification for stops and frisks in a vast majority of instances, the Department is in initial compliance with Consent Decree paragraphs 138 through 144 addressing stops and detentions.

Likewise, informed both by prior monitoring of bias-free policing training and the fact that most SPD stops appear to not be subjecting people of some races to more legally impermissible stops, at least with respect to the Fourth Amendment, the Monitor finds that SPD is initial compliance with paragraphs 145 through 152 addressing the creation of the bias-free policing policy, officer training, and supervisory responsibilities.

Nevertheless, the Monitoring Team discovered that the racial disparity with respect to who is stopped and who is frisked in Seattle cannot be easily explained in terms of underlying societal or social disparities in crime, demographics, or socioeconomic factors manifesting in neighborhood or geographic trends. Even after incorporating those factors, an individual’s race alone helps to predict the likelihood of being stopped and the likelihood of being frisked by an SPD officer. Additional study by the Department and others to determine the underlying causes of the disparity and how such disparities might best be addressed will be necessary.

Read the full report here.

Nashville NPR Talks to PARC's Matthew Barge About Civilian Oversight

Nashville Public Radio talked with PARC's Matthew Barge about civilian oversight.  Following the February shooting of a man at the hands of a Nashville police officer, community demands are mounting to create a civilian review board. It would oversee and arbitrate complaints leveled against the Nashville police. A coalition of grassroots activists is beginning to draft a plan, and council members are weighing their support.

Read and listen to the full story here.

With Police Reform's Future in Jeopardy, Seattle Proves Its Positive Impact on Use-of-Force

Governing (Apr. 7, 2017)

Five years after the U.S. Justice Department found Seattle police officers too often resorted to excessive force, the federal monitor overseeing court-ordered reforms issued a glowing report Thursday concluding the department has carried out a dramatic turnaround.

As a result, Bobb found the department to be in substantial compliance -- formally known as initial compliance -- with core provisions of a 2012 consent decree that required the city to adopt new policies and training to address excessive force.Crediting Mayor Ed Murray, Police Chief Kathleen O'Toole and, most of all, the Seattle Police Department's men and women, the monitor, Merrick Bobb, found overall use of force is down and, when officers do use it, it is largely handled in a reasonable way consistent with department policies.

"The significance and importance of this finding cannot be understated, as this report makes clear," Bobb wrote in the 102-page assessment. "It represents a singular and foundational milestone on SPD's road to full and effective compliance -- and represents Seattle crystallizing into a model of policing for the 21st century."

Moreover, use of force has dropped even as officer injuries have not gone up and crime, by most measures, has not increased, Bobb and his monitoring team write in the report.

O'Toole shared the results in a departmentwide email Monday afternoon, saying, "In short, the Monitor's assessment confirms the data that SPD reported on earlier this year: of the hundreds of thousands of unique incidents to which SPD officers respond every year, only a small fraction of one percent result in any use of force."

The report, which has been in the works for some time, comes days after U.S. Attorney General Jeff Sessions ordered Justice Department officials to conduct a review of reform agreements with more than a dozen police agencies nationwide to determine whether they, among other things, undermine officer safety and crime fighting.

While the order could undercut newer agreements reached under the civil-rights emphasis during the Obama administration, officials have said it is unlikely to affect Seattle's pact because it is under the firm control of a federal judge.

The judge, James Robart, has shown an unwavering commitment to Seattle's consent decree, even declaring "black lives matter" during a court hearing, and earlier this year halted the Trump administration's first travel ban.

In a statement Tuesday, Murray said, "Our progress under the Consent Decree cannot be undone by empty bureaucratic threats. Our police department is well into the process of reform and will continue this work. We are too far along for President Trump to pull us away from justice."

O'Toole, in her email, said the monitor's "remarkable results are not the result of de-policing, as some have charged, nor do they correlate to an increase in crime, as some predicted would occur."

Rather, dispatch data show the productivity of officers on 911 calls or active patrols is increasing and that crime is down by 10 percent over last year, her email said.

At the same time, the rate of injuries to officers has not increased, the chief added.

"In other words, this reduction in the use of force cannot be attributed to anything other than what can now be statistically shown: officers in the field are de-escalating volatile situations with regularity and skill, putting in practice the training that has established Seattle as a national leader in policing reform," O'Toole wrote.

Bobb's report is the most significant so far in a series of ongoing assessments he has been conducting on the department's progress.

"This positive assessment is a credit to the men and women of SPD, from line officers to command staff. They have embraced reform, made it their own, and fundamentally changed what is happening on the streets of Seattle," Annette L. Hayes, U.S. Attorney for the Western District of Washington, said in a statement.

The report, for the first time, examines how officers are using force under new policies and training. Previously, Bobb has found the department to be in initial compliance with other parts of the consent decree, including procedures for crisis intervention, identifying problem officers and investigating and reviewing use of force.

Robart has suggested the department could be found in full compliance with the consent decree next year, but Bobb must complete key reviews regarding discriminatory policing and how people are stopped and detained.

Bobb's report notes that just a few years ago, force often went unreported or, when documented, it was "on paper stuffed, unreviewed, in file cabinets." If investigated, inquiries were typically incomplete or inadequate, the report says.

But with the department now reporting and examining use of force "as never before," it can be analyzed by quantity and quality, Bobb concludes.

Citing data and case samples over a 28-month period, the monitor found overall use of force dropped both across time under the consent decree and when compared to the period that led to the Justice Department's findings in 2011.

In contrast to the 2011 numbers, there has been what appears to be a net decrease of 743 incidents -- a 60 percent drop -- in the use of moderate and high-level use of force. Of 2,385 incidents, 39, or 1.6 percent, stemmed from the most serious type of force, including 15 officer-involved shootings.

The report also notes the use of batons has dramatically declined, as has the use of Tasers.

While the lowest levels of force generally grew over time, the monitoring team surmised that is at least partly due to better reporting that didn't occur before the consent decree and less use of higher-level force.

"Even with expanded or increased reporting, the use of force is an unusual event," the report says.

Of officers who used force, about one-third were involved in one incident and the vast majority of the remaining officers in one to three incidents, Bobb found.

The monitor found some racial disparity in the use of force, but no statistically significant difference in the type or severity. Officers are more likely to point their gun at minorities but are more likely to go "hands-on" with whites, according to the report. The firearm issue deserves more study by the department and others, the report says.

Bobb attributes the overall statistical decrease in the frequency and type of force to the fundamental changes in the use of de-escalation and crisis-intervention techniques, in contrast to the 2011 Justice Department finding that officers would escalate even minor offenses, particularly with people in crisis.

Injuries to officers were flat or went down slightly, prompting the monitoring team to conclude the "decreased use of force has not placed officers at any higher risk or made officers less able or willing to use force to defend themselves from threats or harm."

During the most recent half of the study period, officers used force consistent with policy 99.27 percent of the time, the report found.

Many issues identified in the Justice Department investigation have been eliminated or substantially so, it says, with none touching on prohibitions on using force against people who solely engage in verbal confrontations with officers.

In every case where the monitoring team believed officers acted outside policy, the department's Force Review Board independently reached the same conclusion, Bobb found.

"As this report ... makes clear, police officers in Seattle are frequently tasked with addressing individuals and situations that the rest of the social service fabric has failed, left out, or left behind," Bobb writes. "Their ability to innovate, change approaches, and change the course of the Department while addressing these fundamental duties is commended."

Seattle City Councilmember M. Lorena González, who chairs the council committee that oversees police matters, said in a statement: "Today's report proves the efficacy and importance of consent decrees."

Councilmember Tim Burgess, a leader on police reform who hailed the report as "great news," said in a statement: "Changing culture is slow-going and hard work, but our city's efforts are bearing real, positive results. The officers who are on the street every day deserve all the credit."

http://www.governing.com/topics/public-justice-safety/tns-seattle-police-reforms.html

Seattle PD Reaches Initial Compliance With Use of Force Reforms

In a comprehensive assessment of use of force within the Seattle Police Department filed with the Hon. James Robart of the Western District of Washington today, 

PARC's Seattle Monitoring Team finds that overall use of force by the SPD is down – both across time under the Consent Decree and compared to the time period studied by the original DOJ investigation. Overall, use of force has gone down even as officer injuries have not gone up and crime, by most measures, has not increased. At the same time, the force that SPD officers do use is reasonable, necessary, proportional, and consistent with the Department’s use of force policy more than 99 percent of the time.

Because officers are using less force overall, without negatively impacting officer safety or public safety, and are using force consistent with law and SPD policy in those increasingly infrequent instances when force is deployed, Monitor Merrick Bobb finds that SPD is in initial compliance with Paragraphs 69 to 90 of the Consent Decree.

Read the full report here.