APD use of force policy needs reform

The failure of the Graham standard

Sam Starks

 As a black male, I cannot ignore the blatant hypocrisy and self-righteousness of those criticizing the charges against the two Atlanta police officers that are responsible for the death of Rayshard Brooks. Such criticism rings hollow in the face of ongoing protests against racist police practices and the systematic denial of due process and equal protection that blacks experience daily from the police and the criminal justice system.  

While Atlanta may be the cradle of the civil rights movement, that history and distinction is not reflected in the policing practices of Atlanta’s Police Department. Police use of excessive, unnecessary, and unreasonable force in Atlanta is systematic and has been ignored and tolerated by city leaders far too long.

Atlanta has nearly two thousand police officers, most of whom are honest and law abiding. The problem, however, is that many good officers fail to report or intervene to stop bad officers from abusing citizens, which contributes to a culture of police corruption known as the “blue wall of silence.” This culture of silence and corruption within the APD allows police brutality to flourish. That is why reforming the APD will require not only policy changes, but also changes in police culture, new training for rank and file officers, and a chief of police that is committed to reform.

Despite significant diversity within the ranks of APD, in Atlanta and elsewhere, police brutality is not limited to white officers abusing black citizens. Consider the incident involving Messiah Young and Taniyah Pilgrim, two black college students, who after their car windows were smashed out by the police, were forcibly removed from the car, shot with stun guns, and then arrested. The police encounter with Young and Pilgrim was triggered when officers observed Young inside the car appearing to shoot video of an officer’s encounter with a protester. Two black officers were the primary aggressors during this encounter and were fired, while a total of six officers have been criminally charged.

Police brutality is caused by many factors that shape and influence the culture and values of police departments, including flawed recruitment and hiring practices, inadequate and improper training, failure to supervise and discipline, implicit and explicit racial and class biases, fear and incompetence, and the belief that fighting crime is a war on people. Police brutality comes at the hands of officers representing all persuasions, and affects people of all races, ages, and genders, although poor and minority communities receive a disproportionate share of the abuse.

In theory, Atlanta has an internal affairs division known as the Office of Professional Standards (OPS), and also a community-staffed Atlanta Citizen Review Board (ACRB) that are both tasked with investigating police brutality and misconduct. In reality, the OPS rubber-stamps most use-of-force incidents in favor of the officer, either exonerating the officer or ruling that there is insufficient evidence to either prove or disprove an allegation of excessive force. The ACRB takes charges of excessive force more seriously, but has no power to discipline or terminate an officer, even when their investigations determine that an officer has used excessive force.

The Cochran Firm in Atlanta (where Starks is a senior attorney — Ed.) is involved in current and ongoing investigations into the use of force policies and practices of APD. Through these investigations, we have discovered clear and overwhelming evidence that APD is deliberately indifferent towards police brutality, which is reflected in APD’s hiring, training, and failing to discipline officers. Atlanta’s indifference towards police misconduct is the cause and driving force behind widespread and systemic police brutality.

A review of use-of-force documentation, internal affairs records from APD, and records from the ACRB reveal that police abuse and misconduct committed by APD officers rarely results in discipline, termination, retraining, or compensation for victims. In fact, the ease and regularity in which use of force by APD officers is condoned and ratified further emboldens bad officers.

Reforming use-of-force policies is not a panacea. Atlanta police officers routinely ignore APD’s existing “Use of Force” policy, which is designed to prevent excessive and unreasonable force. Specifically, APD is failing to properly report use-of-force incidents, failing to conduct the appropriate chain of command review of use-of-force incidents, and failing to conduct a comprehensive analysis of use-of-force reports, in violation of its existing “Use of Force” policy.

The Cochran Firm has a long history of representing victims of police brutality, including the representation of the family of Kathryn Johnston, an elderly black woman, who in 2006 was shot and killed by undercover APD officers during the botched execution of a no-knock warrant at her home. During this incident, plainclothes APD officers kicked in Ms. Johnston’s door and fired 39 times, hitting her five times. Currently, the firm represents numerous individuals in cases against the city involving excessive force and misconduct relating to unlawful shootings, beatings, and vehicle pursuits.

Demetric Favors, a black male, was 23 years old when he was shot by former APD officer Emanuel Thompson on October 10, 2015. Favors was a passenger in a vehicle being driven out of the parking lot at Magic City, a downtown Atlanta strip club. Officer Thompson shot into the vehicle five times, injuring Favors. Thompson, who is black, reported that he fired into the vehicle because Magic City security reported to him that a theft had occurred inside the club, and directed him to stop the vehicle, because they believed the suspects were inside the vehicle. Thompson admitted he was not adequately trained on the circumstances that justify shooting into a moving vehicle. Thompson was indicted for his illegal use of force, pled guilty, and received a sentence of probation.

DERAVIS CAINE ROGERS: At his aunt’s in 2015. Photo credit: Deravis Thomas

 Deravis Caine Rogers, a black male, was 23 years old when he was shot and killed in his car by former APD officer James Rolfe Burns. On June 22, 2016, Burns responded to assist an off-duty officer that was patrolling an apartment complex, and reported that he saw a suspicious person breaking into vehicles. As Burns, a white officer, was driving into the complex, he observed Rogers driving in his direction. Despite having no knowledge or information that Rogers was the subject of the earlier call — or had committed any crimes — Burns decided to stop Rogers. He turned on his blue lights and chirped his siren, and then jumped out of his patrol car and immediately fired his weapon into Rogers’ car, striking him in the head and killing him.

APD determined that Burns had no justification for the use of deadly force, because he had no information that Rogers was the suspect that prompted the call for officer assistance, and Rogers did not pose a significant threat or serious injury to Burns or the public. The investigation into this incident revealed no evidence that Rogers committed any crimes. Prior to this incident, Burns had been investigated for excessive force on six different occasions in his two years with APD. Burns was indicted for the murder of Rogers, and his trial is pending.

Antraveious Payne, a black male, was 15 years old when he was brutally beaten by former APD officer Matthew Johns on September 16, 2016. Payne was a passenger riding with other teenagers in a stolen vehicle that was being pursued by the police. At the end of the pursuit, dashcam video shows Payne immediately getting out of the vehicle and dropping face down on the ground in submission. Johns is seen on video running over to Payne, but rather than simply handcuffing and arresting him, Johns erupts into a fit of rage and begins beating and kicking Payne in the face, neck, and shoulder area of his body. Payne was beaten so severely by Johns that he required medical treatment for a concussion. After this incident, it was revealed that Johns, a military veteran that had served two combat tours, was diagnosed with post traumatic stress disorder (PTSD). Johns was indicted and pled guilty to aggravated assault, making false statements and violation of his oath of office.  He received a 20-year sentence.

ANTRAVEIOUS PAYNE: In the hospital, Sept. 16, 2016, after being arrested for riding in a stolen car. Photos from the office of the Fulton County District Attorney criminal file

Noel Hall, a 46-year-old white male, traveled to Atlanta from North Carolina with his family to attend a motocross event on February 25, 2017. While Hall was driving downtown with his wife and children in his van, former APD Sergeant Matheiu Cadeau, working off-duty directing traffic, shot into Hall’s van because he believed Hall disobeyed his instructions.  The bullet entered Hall’s arm and exited through his chest.  Three years earlier, APD’s command recommended to former Chief of Police George Turner that Cadeau be terminated, but Turner overruled their recommendation. Cadeau remained on the force, and in 2015 he was sued along with the city for using excessive force on two white Buckhead citizens, resulting in a $150,000 settlement. Following the Hall shooting, Cadeau was finally terminated by the city. He was indicted for shooting Hall, pled guilty, and received a sentence of probation.

In most jurisdictions, including Atlanta, the standard for whether an officer has used appropriate force requires a determination of whether the force used was “objectively reasonable.”  Derived from a 1989 Supreme Court decision in Graham v. Connor, this is the prevailing standard throughout the country regarding use of force.  Despite being out of touch with the current realities of policing, this standard remains good law, and establishes a legal baseline, or minimum standard, that must be satisfied to justify an officer’s use of force.

The Graham standard is praised by law enforcement for its deference to the judgment and perceptions of the police, yet rightly criticized for its “legalization” of excessive force. While on its face, the Graham standard may seem appropriate, its application allows police officers to excuse and justify excessive force based solely on the officer’s “reasonable” belief that force was required.

Atlanta’s “Use of Force” policy, APD.SOP.3010, adopts the Graham “objectively reasonable” standard, without providing any greater clarification or restrictions on the appropriate use of force. In essence, Atlanta permits its police officers to generally use force where “that force is reasonable and necessary” to accomplish a legitimate law enforcement purpose. Atlanta also allows an officer to “use deadly force to apprehend a suspected felon” if the officer “reasonably believes” deadly force is justified, either to protect life or serious bodily injury, or to prevent the escape of a suspect who poses a danger of serious physical injury to any person.

One problem with the Graham standard, and thus Atlanta’s standard, is that it’s not truly “objective” because it dictates that an officer’s use of force be viewed from the “perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight.” This means the perspective and norms of the community are not relevant, according to Graham, and officers will be forgiven for any mistakes of fact — such as thinking a suspect had a gun, or reached for gun, when in fact there was no gun.  In addition, this standard is based on an unrealistic assumption that all officers are monolithic and share the same background, judgment, sensibilities, and training. The fundamental problem with Graham is that “reasonable” use of force is viewed solely from the perspective of the officer, his fellow officers, and his command, all of whom are predisposed to give the benefit of the doubt to the officer that has used force.

Another problem with the Graham standard is that it dictates that an officer’s use of force must be assessed “without regard to the officer’s underlying intent or motivation.” This limitation allows no consideration of whether an officer is using force as a means of retaliation, intimidation, or as punishment for fleeing or resisting arrest. Under Graham, it is also impermissible to consider an officer’s racial or cultural biases in assessing an officer’s judgment or perception regarding the need to use force. No wonder Graham has been successfully used in many high-profile cases to exonerate officers from criminal charges alleging excessive force.

It is time for Atlanta to modernize and strengthen its procedures regarding use of deadly force: firing a firearm at a suspect; firing a firearm into or at a vehicle; striking a suspect in the head or neck with a weapon; applying direct pressure to a person’s neck in the form of a chokehold; and techniques that compress the blood vessels in the neck to inhibit or restrict blood flow to the carotid arteries.

Atlanta should amend its “Use of Force” policy to provide that deadly force may be used only when “necessary” to prevent death or great bodily harm, and only after other law enforcement techniques, including less lethal methods of force, have been used and proven ineffective. In other words, the use of deadly force should be allowed only as a last resort to prevent an imminent threat of death or great bodily harm. Atlanta should also require that non-deadly force be used only after de-escalation techniques have been used to reduce or prevent the need for force, and if force is required, the force must be proportional to the threat presented.

Like every major city in this country, Atlanta is not immune to police brutality or from the systemic racism that exists within its criminal justice system. While there are many institutional reforms that are needed to address the impact of systemic racism and inequality on the Black community, Atlanta’s mayor and city council have the responsibility and authority to immediately reform its use-of-force policies and improve training on use of force. — CL —

Sam Starks is a graduate of Duke University School of Law. He is a former staff attorney for The Washington Post and Public Defender Service in Washington, D.C. Starks relocated to Atlanta in 1999 where he began practicing as a personal injury and civil rights lawyer. He is currently a senior attorney with the Cochran Firm Atlanta where his practice includes representing victims of police brutality.