Excessive Use of Force

by Loretta P. Prater

  Response: It did seem a bit odd.

  Question: Was there anything else you noticed about the sergeant’s actions?

  Response: After he put the white item back into the trunk, he got a defibrillator out and walked toward your son. He then turned around and put it back into the vehicle. [Comment: One doesn’t need to use a defibrillator on a dead person, further supporting statements that Leslie died at the scene.]

  Question: Did these actions seem odd?

  Response: They were unusual.

  Question: We have asked the police if there were any cars on the scene that had police cameras. We were told that they were all older vehicles and didn’t have such equipment. Can you describe the cars that you saw on the scene?

  Response: The cars I saw looked like new vehicles, including car #303.

  Question: Do you remember approximately the time frame between when you noticed my son on the ground and when the emergency vehicle arrived?

  Response: It was approximately fifteen to twenty minutes before the emergency vehicle arrived.

  The meeting with this witness further confirmed our belief that Leslie was not fighting with the police; that they could have allowed him to breathe, especially after they had handcuffed him; and that Leslie died at the scene. Once a person is handcuffed, he or she is considered in custody. When we later confronted police officials with having misled us in saying that all of the cars were older and without cameras, we were told that, yes, there was a car equipped with a camera, but there was no tape in the camera.

  The last account I will share is a summary of the deposition given by one of the four officers involved in the physical altercation with Leslie. A deposition is a written testimony taken under oath. It is a public court record, made available through the Freedom of Information Act. I will refer to him as Officer One, because he was identified as the first officer to have direct contact with Leslie and the only one to give a deposition. There were plans to depose all four, but the case was settled prior to the scheduling of the other three officers.

  Because Officer One completed a deposition, I am more aware of his personal profile than that of the others. I will share what has been documented in public files about the other three officers. All of the officers were white, except for one African American. One of the other officers was thirty-two years old and hired on March 22, 1996. He had a law enforcement background as a US Marine military police officer. The African American officer was a forty-three-year-old Chattanooga native. He had law enforcement experience with the Tennessee Department of Corrections. Previously, he had been charged with aggravated assault, after surprising a burglar. He was hired on February 2, 1998. The youngest of the four officers was twenty-three years old and also a native of Chattanooga. He was hired on July 26, 2002, with no law enforcement experience.31

  According to Officer One, the two youngest officers were friends and arrived on the scene together. They went through the police academy together and were hired by the Chattanooga Police Department on the same date. It is interesting that another white academy classmate of theirs, with no direct relationship to our case, was involved in a case in which he shot and killed an unarmed African American male. While going to get a sandwich during his lunch break, John Eric Henderson was stopped because of a malfunctioning muffler, a routine traffic stop. Officer Christopher Gaynor, a rookie police officer completing only four days of unsupervised patrol, asked Mr. Henderson to get his registration information from his glove compartment. Mr. Henderson complied but was killed anyway because the officer stated that he thought he saw a gun in the glove compartment. In addition to the registration, there was only a bottle of cologne in the glove compartment.32 One has to wonder about the quality of the training received by that cohort of cadets.

  Officer One was twenty-nine years old with no prior law enforcement experience. He joined the Chattanooga Police Department about eighteen months before Leslie’s death in January 2004. This particular officer was selected to be the first of the four directly involved in Leslie’s homicide to give a deposition. Attorney Nick Brustin, one of the New York attorneys, stated to us that he sensed that this particular officer would be most likely to tell the truth. Mr. Brustin had a lot of insight, wisdom, and experience from his involvement with some high-profile social justice cases, including the Abner Louima case in New York.33

  The summary of the deposition from Officer One was from his statements taken on February 8, 2006, at the offices of the Wilson Reporting Agency. Dwight and I traveled to Chattanooga to sit in on the deposition. Others present were our attorneys (Chattanooga and New York representatives), the Chattanooga city attorneys, and a court reporter. Although Dwight and I were allowed to sit in on the proceedings, we were strictly instructed that we could not ask any questions or make any comments. We were told to remain silent. If we did not comply, we would be asked to leave the room.

  The deposition of Officer One, the first he had ever given in his brief career, was recorded using machine shorthand and later produced in a typewritten document of 313 pages. I will only summarize excerpts from the document that are pertinent to this chapter in explaining how Leslie died, and related events of that night. In some instances, I added comments that I have put in bold print. The excerpts are in the order that the statements were given, but not necessarily in any other order, such as when certain actions occurred. In some instances, the same question was asked more than once, but in a different way. The session, led by our attorney Nick Brustin, began with general instructions to clarify the process. Also, based on a question asked by Mr. Brustin and Officer One’s response, it was clear that the officer understood that the city would pay for any damages against him if he were found liable in this case. Nick Brustin asked all of the questions.

  Officer One was a high school and community college graduate, with an associate’s degree in aviation management. He expressed that he had started to pursue a degree in electrical engineering and would like to continue that in the future. He had completed the police academy training, which was his only law enforcement credential for his current position. It was interesting that he stated that he joined the police department because he had always been interested in that, although he chose to get his two-year degree in another discipline. I wondered why he did not choose to get an associate’s degree in criminal justice, but I could not ask any questions. He admitted that his wife’s sister was married to the son of a high-ranking official in the Chattanooga Police Department. Maybe that was a factor in his joining the force. I have the impression that, within the law enforcement and justice system communities, there is an unusual amount of nepotism.

  Before joining the police force, his job experience included working in a grocery store seafood department; moving furniture for a moving company; working for an aviation company and training for airline refueling; working at the YMCA to spot for those lifting weights and signing out cardio equipment in the fitness center; and working as a student engineer for the Tennessee Valley Authority. He stated that, within the department, he is known as someone who is into physical conditioning. He was six feet, four inches, and weighed 261 pounds in 2006, which was larger in size than Leslie. At the time of Leslie’s death, he stated that he believed he weighed in the range of 240–250 pounds, which was still larger than Leslie.

  I’m addressing the matter of education, training, and work experience because lack of appropriate training is often an issue in physical interactions between police officers and the public. Also, research has reported that the more education an officer has in criminal justice courses, the less likely he or she is to resort to needless aggressive behavior when dealing with confrontation. According to researchers Rydberg and Terrill, higher education carries no influence over the probability of an arrest or search occurring in an interaction with police and suspects, but does significantly reduce the occurrence of force.34 It seems likely that reducing the occurrence of force would a
lso reduce the occurrence of death when unarmed citizens are confronted by the police.

  During the early phase of the deposition, Mr. Brustin asked a question to clarify a policy in regard to the use of Tasers. Officer One stated that Tasers were not only to be used by sergeants. His response would lead one to conclude that other officers could use Tasers as well. This was different from what police administrators said to us in a prior conversation, just another of the many contradictory statements from Chattanooga Police Department personnel.

  Following is a summary of the testimony from the deposition of Officer One while under oath. For the following items 1–32, statements in bold print represent comments I added for further clarification or as reactions to statements:

  When Leslie was taken away from the scene, he was not breathing.

  When the use-of-force report was filled out, the four officers involved were in a conference room, without anyone else present. Officer One filled out the report, after they had all discussed what they wanted to put on it. This was the first use-of-force report that he had ever filled out, although there were two other officers there with many more years of experience as police officers. Officer One admitted that he was concerned about this being his first report in a case in which a civilian had died.

  When they went to the Police Services Center to discuss and fill out the report, they knew that Leslie was dead. Before he signed the report, each of the other officers read it. After there was agreement from all, he signed the report.

  It was the understanding of Officer One that they were following departmental policy when only one use-of-force report was filled out, rather than four separate reports completed independently and without collaboration among the officers. No supervisor had told the officers that they should not meet together and no supervisor was in the room when the use-of-force report was being completed.

  Because Leslie had died, Officer One knew that there would be a full Internal Affairs investigation and that he could be seriously disciplined if the investigation outcome reported that excessive force was used. He admitted that he knew he could potentially be fired or criminally prosecuted, or both.

  Officer One admitted to using the word “nigger” in a joke and had also heard another officer using a racial epithet like “nigger.”

  Officer One admitted knowing that all of the officers involved in Leslie’s death had been exonerated, based on a memo from the deputy chief. The memo further stated that the officers were to be commended on their personal restraint and obvious compassion when dealing with the suspect. I am still unsure which of the officers’ actions were displays of compassion. Maybe it was because they did not leave Leslie’s body on the pavement for hours, as the police officers did with the body of Michael Brown in Ferguson, Missouri.35 I wish they had shown compassion by not killing him.

  Officer One admitted that no officer suffered any injury in connection with the interaction with Leslie, not even any bruises. This admission is consistent with eyewitness testimonies; statements from the medical examiner, Dr. King; and my belief that Leslie caused no harm to the officers. I believe Leslie’s movements were made in an effort to breathe.

  Officer One admitted that his father had sent an e-mail to us. I received that e-mail, which I consider to have been very nasty and was meant to cause us even more emotional pain. The e-mail labeled me as a terrible mother.

  When the first two officers arrived on the scene, Leslie was standing, not running and screaming, as some had reported in error. When Leslie was taken to the ground, the struggle occurred in one location. Leslie was taken to the ground after the two older officers arrived, with the thirty-two-year-old officer leading the charge.

  According to the police report, Leslie was handcuffed at 18:58.30 (6:58 p.m.). At the moment he was handcuffed (double-handcuffed and tight enough to cause bruising), he was considered officially in custody. Officer One stated that Leslie could not be officially in custody until he was handcuffed, although he wasn’t sure if they were planning to arrest him or just contain him until the ambulance arrived.

  At 18:57.09 Officer One called in a fight. He made the call because he was the only one with hands free, as two other officers were taking Leslie to the ground. At 18:58.37, after Leslie was handcuffed, Officer One canceled the call for anybody else en route. He felt that he didn’t need any additional assistance. At 18:59, Officer One stated that the party was in custody. My question is “Why didn’t they put Leslie on his feet at that time, or at least turn him over or turn his head to the side?”

  When Officer One was dealing with Leslie, he knew he could have charged Leslie with the misdemeanor of indecent exposure. It was clearly evident that Leslie was naked. After reports later identified Leslie as intoxicated, he could have also been guilty of the misdemeanor of public intoxication. In my opinion, these misdemeanors do not warrant a death penalty sentence.

  Officer One stated that during his twenty-six weeks of the police academy, he did not recall any training that restraints and take downs were high-risk tasks. He also admitted that, to his knowledge, there were no policies in the Chattanooga Police Department that dealt with how to handle emotionally disturbed or potentially emotionally disturbed persons.

  Nick Brustin pressed him on this training issue. Officer One stated that if someone is in an emotional state, you handcuff the person and make sure that there is no danger to the officers, the citizen, and the general public. He did admit that he had no idea of what the policy actually said.

  Attorney Brustin asked Officer One if the written policy was going to state that you restrain emotionally disturbed persons as soon as possible. The officer responded, “I told you I don’t know.”

  Officer One described Leslie as acting disoriented and said that he was naked, but he did not know if Leslie was under the influence of drugs and alcohol that might affect their interaction. He did say that Leslie told him that he was diabetic.

  Officer One stated that if there was any training or guidance on how to communicate with someone who may be emotionally disturbed, he could not remember any such training. He also stated that he did not recall any departmental policies that specifically discussed interacting with emotionally disturbed persons. I might mention that this obvious training deficiency is scary, especially considering that one in sixty-eight children is diagnosed with autism. According to the Center for Disease Control (CDC), this number is increasing.36 I’m not suggesting that Leslie was autistic, but there is a potentially tragic outcome for an individual diagnosed with autism spectrum disorder when confronted with an ill-prepared police officer. That is simply a dangerous combination. As an example, the person may be unable to cognitively process an order, such as “put up your hands.” Not obeying an officer’s command can lead to death, even for unarmed citizens.

  Officer One was unaware of any training that stated that when someone is disoriented, it is important that only one person speak to that person.

  Officer One had begun to establish rapport with Leslie and, based on directions from the officer, he and Leslie were walking toward Leslie’s car to retrieve his clothes. As they began to walk toward the car, Leslie asked for a light to see how to avoid some glass that was in the area, because he had cut his foot on some glass in the gravel. This seemed reasonable to Officer One, according to his statement. During the time of their dialogue, he had not made a decision as to whether he was going to arrest Leslie. Officer One also stated that he felt safe with Leslie.

  While Leslie and Officer One were talking with each other, there was nothing that prohibited his partner from going to Leslie’s car to secure the vehicle, since Leslie did not have his car keys on his person. This is an important point because one of the later excuses given for “taking Leslie down” was that they were afraid that he was going to get in his car and drive away. However, Officer One admitted that Leslie never said anything about driving the car.
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  While Leslie was walking toward the car voluntarily, the thirty-two-year-old officer arrived. Officer One was still assessing the situation and, as stated previously, had not made the decision to arrest Leslie. At that point, he stated that he was trying to help Leslie. Leslie was cooperating with Officer One and following his directions. Leslie was voluntarily walking with Officer One toward his car to retrieve and put on his clothes.

  Based on Officer One’s testimony, the dynamics of the situation immediately changed upon the arrival of the thirty-two-year-old officer. Without asking any questions of the first officers on the scene regarding the assessment of the situation, the first words spoken by the thirty-two-year-old officer to Leslie and from a distance were “Put your hands behind your back.” When he made that statement, Officer One understood that to mean that they were going to handcuff Leslie, although he had not decided to even arrest Leslie and Leslie was cooperating. I stress this point of cooperation because people often state that citizens should do exactly as they are told by the police. In Leslie’s situation, even when there is compliance of an unarmed citizen, death could still be the result. Leslie had been told to accompany Officer One to his car to get his clothes to put on, which he was in the process of doing. Now, this other officer was saying “Put your hands behind your back,” which was a statement in conflict with following the order of Officer One.

  Officer One admitted that up to the point when the other officer asked Leslie to put his hands behind his back, there was no specific training that Officer One had received in how to handle that situation. He did not recall having received any specific training on how to deal with someone who is disoriented, whether they were emotionally disturbed or under the influence of drugs or alcohol. Prior to the arrival of the thirty-two-year-old officer, Officer One stated that he was talking to Leslie in a calm manner to de-escalate the situation and gain compliance. That strategy was working, before the thirty-two-year-old officer, with the military background, arrived.