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HomeMy WebLinkAbout05-13-2003 Public Reports POLICE CITIZENS REVIEW BOARD A Board of the City of Iowa City 410 East Washington Street Iowa City IA 52240-1826 (319)356-5041 TO: City Council · ~-, · Complainant Stephen Atkins, City Manager R. J. Winkelhake, Chief of Police Officer(s) involved in complaint FROM: Police Citizens Review Board ..... RE: Investigation of PCRB Complaint #02-01 DATE: April 9, 2003 This is the Report of the Police Citizens Review Board's (the "Board") review of the investigation of Complaint PCRB #02-01 (the "Complaint"). BOARD'S RESPONSIBILITY Under the City Code of the City of Iowa City, Section 8-8-7B(2), the Board's job is to review the Police Chief's Report ("Report") of his investigation of a complaint. The City Code requires the Board to apply a "reasonable basis" standard of review to the Report and to "give deference" to the report "because of the Police Chief's professional expertise. Section 8-8-7B(2). While the City Code directs the Board to make "findings of fact," it also requires that the Board recommend that the Police Chief reverse or modify his findings only if these findings are "unsupported by substantial evidence," are "unreasonable, arbitrary or capricious" or are" contrary to a Police Department policy or practice or any Federal, State or Local Law." Sections 8-8-7B(2) a, b, and c. BOARD'S PROCEDURE The Complaint was received at the Office of the City Clerk on June 5, 2002. As required by Section 8-8-5 of the City code the Complaint was referred to the Police Chief for investigation. The Chief's Report was due September 2, 2002. Four additional extensions were granted and the Chief's Report was filed on January 17, 2003. A summation of the interview with the Complainant was attached to the Chief's report. PCRB #02-01 Page 1 The Board voted to review the Complaint in accordance with Section 8-8-7B(1)(a), which means the Board will review the Complaint on the record with no additional investigation. The following documents were included with the Chief's Report: ICPD Incident Report, ICPD Incident Narrative (Officer), Charges filed against complaintant and ICPD Use of Force Report, Voluntary Statement from witness, Transcribed interviews with complainant_ and several witnesses, summaries of phone interviews with witnesses, and a S~mary/timeline of contacts with witnesses. The Board met to consider the report on the following dates: ~::' January 21, 2003; March 4, 2003; March 11, 2003; March 24, 2003; and April ~12003! FINDINGS OF FACT On June 5, 2002 a complaint was filed regarding an incident that occurred in March 2002, in a Dubuque Street bar. The incident resulted in The Complainant's arrest for Public Intoxication, Theft in the 5th Degree and Interference with Official Acts. He also sustained a nasal fracture, lacerations on the right side of his nose and facial abrasions during the arrest and detention process. The Complainant asserted that while on his way to the bathroom he was seized from behind and handcuffed by Officer A. The officer accused him of stealing his flashlight which the Complainant denies doing. The Complainant was quickly escorted out of the bar and placed facing the bar's exterior wall next to a brick column. The Complainant alleged that Officer A swore at him saying, "You dumb fuck, what were you thinking, you fucking idiot, trying to steal from a cop." The officer denied this, acknowledging that he might have used the word "hell." The Complainant stated that he did not physically resist the arrest but did attempt to get Officer A to explain why he was being arrested. Officer A indicated that the Complainant twisted, turned his head and straightened his legs so that a wrist lock was necessary to move him from the building. Officer A further stated that the Complainant continued to resist control, verbally challenging the officer to fight and threatening to run. Officer A stated "He turned his head and shoulder to face me, pushing against me numerous times as I held him against the corner. He kicked his feet back hitting my legs as he continually threatened and backed into me. As I felt the situation continue to escalate and felt the defendant continue to resist me, I took him from the corner and placed him on the ground. He hit his face on the ground as Iplaced him face down to stop him from continuing to resist." According to the Complainant, "The next thing happened so fast that all I remember is opening my eyes in a daze on the ground with blood pouring out of my face." He states that he was told by a number of his friends that Officer A had grabbed him by the head and slammed his face into the building. Since the incident occurred late in the evening there were numerous witnesses. Two officers, B and C, were interviewed and provided compelled statements. A bar employee and a young man arrested by Officer B were the only witnesses other than the officers who were not friends or acquaintances of the Complainant. Both of these individuals observed the Complainant being taken to the ground, but perceived it in different ways - one more consistent with the officer's version, the other of the Complainant's. Attempts were made by the Iowa City PCRB #02-01 Page 2 Police Department to interview all identified witnesses. A total of 24 were contacted. According to the Chief's Report a majority of the witnesses observed only part of the interaction between the officer and the Complainant, eight witnesses did not provide insight into the allegations and five witnesses were unable to be interviewed or refused to be interviewed. Information obtained from the interviews was quite varied, often lacking detail and sometimes contradictory. Some of the information that weighed in the Board's conclusion we re: (1) The admission of the Complainant that he had consumed eight or nine beers and a 'Jack and Coke.' (2) Witnesses were inconsistent in regard to the officer's use of profanity and their descriptions of the Complainant and Officer A's demeanor (calm and reasonable vs. shouting and angry). (3) A number of the witnesses agreed that the Complainant offered verbal resistance to Officer A. (4) A number of witnesses reported that the Complainant seemed to be attempting to get away from Officer A, pushing, shuffling his feet, trying to turn around. Officer B reported hearing Officer A say, "Quit resisting." The bar employee also noted the Complainants efforts to escape and threats to run. (5) A number of witnesses reported that Officer A appeared to be attempting to hold the Complainant against the wall, noting variously that, ... he had his arm against his back or neck, ... his hand against his head, .... was pushing the Complainant. (6) No witness reported seeing the Complainant strike or kick Officer A. (7) No witness stated that they observed the officer slamming the Complainant's head against the wall. Many reported not observing the blood until the Complainant was taken to the ground. (8) There was considerable variation in reports regarding when and how the Complainant was directed to the ground. One witness reported it occurred in the bar, others indicated that the Complainant was first put on his knees and then pushed or nudged to the ground. Time-lapses also between knees and ground varied from 10-15 seconds to a couple of minutes. (9) The elapsed time between the Complainant being removed fr0riq the bar and then taken to the ground appears to be relatively short CONCLUSION Allel~ation # 1 Discourteous Behavior On Duty This allegation is based on the Complainant stating the officer began his initial contact saying, "You dumb fuck, what were you thinking? You fucking idiot - trying to steal from a cop." No witness indicates hearing these words. Some witnesses state that Officer A appeared to be angry, one states she believed she heard Officer A use profanity. The officer PCRB #02-01 Page 3 indicated he may have used the word "hell." There is insufficient evidence to challenge the conclusion reached by the Chief. The Board find the Chief's conclusion that Officer A acted appropriately is supported by substantiated evidence and is not unreasonable, arbitrary or capricious. Allegation # 1 is NOT SUSTAINED. Alle~ation #2 Failure To Provide For The Safety And Protection of An Arrested person An arresting officer is responsible for the safety and protection of an arrested person. There is no question that the Complainant was under arrest and in the custody of Officer A when his injury occurred. Further, there appears to be no question that the injury was a result of the officer's action, although there is disagreement among witnesses as to the specifics of the action. Officer A states, ~'He hit his face on the ground as I placed him face down to stop him from continuing to resist." At issue is whether the injury occurred because of indifference, neglect or malice, or whether it was the unavoidable consequence of the necessity of controlling a resisting victim. Witness accounts because of their variability and lack of specificity are of little utility. Officer B who was close at hand writing a citation observed resistance on the part of the Complainant but did not observe him being placed on the ground. The Chief's Report states, "in (sic) effort to better control the Complainant, Officer A decided to place the Complainant on the ground. The Complainant was handcuffed and from a standing position, Officer A used the Complainant's momentum from pushing back in his direction to turn the Complainant to the right and place him on the ground. The Complainant's hands were handcuffed behind him and there was nothing to break his fall. The Complainant's nose struck the sidewalk, where he sustained the injury. There were four other descriptions from various witnesses as to how this injury was sustained." The scenario in which Officer A takes the Complainant to the ground from a standing position appears to be the most likely scenario and is supported by a number of witnesses. The Board believes the preponderance of evidence is consistent with Officer A's contention that the complaintant was resisting control. It is not clear, however, from Officer A's account whether or not the Complainant's resistance was such that Officer A was unable to control the Complainant's desent to the ground sufficiently to prevent his face from slamming into the sidewalk. The Board finds the Chief's conclusion, "that the injury was not sustained as a result of Officer A failing to provide for the safety and protection of the Complainant was," is supported by substantial evidence and is not, unreasonable, arbitrary or capricious. Allegation #2 of the Complainant is NOT SUSTAINED. Allegation #3 Excessive Use Of Force The Complainant's allegation was based on information provided to him by friends and~ acquaintances who were identified as witnesses by the Complainant. The C0mlcl~inant stated the witnesses informed him that Officer A- grabbed him by the ba~k of thi~ head and PCRB #02-01 Page 4 slammed it against the exterior wall of the bar, causing his injury. The Complainant had no independent memory of this occurring. None of the witnesses indicated that they saw Officer A shove the Complainant's head against the wall. The investigation by the Iowa City Police Department determined that the Complainant's injuries occurred when he was placed on the ground. Photographs were provided by the Complainant taken by his father the day after the arrest that show blood spots on the pillar outside the bar showing the possibility of the injury being sustained before the victim was placed on the ground. The Chief's Report states that, "a subsequent interview with Officer C determined that after the Complainant had sustained the injury Officer C took control of the Complainant and placed him against or near the wall to loosen or adjust the handcuffs. This is likely where the blood on the wall come from." A peace officer who has an arrested person in custody is justified in using reasonable force to prevent the escape of the arrested person from custody. The Chief's Report states, "Officer A's use of force involved verbal commands, handcuffing, directing motion, restricting movement and redirecting the Complainant from the standing handcuffed position to placing the Complainant on the ground in a prone position Officer A's decision to place the Complainant on the ground was based on actions of the Complainant and motivated by an attempt to establish better control of the Complainant. It is my conclusion the given the circumstances, Officer A's actions were reasonable and justified and that he was acting within the guideline of the policies and procedures of the Iowa City Police Department. The Board finds the Chief's conclusion that Officer A acted "appropriately is supported by substantial evidence and is not unreasonable, arbitrary or capricious." Allegation #3 of the Complainant is NOT SUSTAINED. Comment Ordinance #01-3976 requires the Board to give deference to the Police C.~.ePs o~:.City Manager's Report because of the Police ChieFs and City Manager's profeff§~onal ~'i~pertise. The Board may recommend that the Police Chief or City Manager reverse their finding only if: (a) the findings are not supported by substantial evidence, (b) the findings are unreasonable, arbitrary or capricious, or (c) the findings are contrary to a Police Department policy or practice or federal, state or local law. In the current case the Board concluded they must sustain the Chief's conclusion regarding allegation #2, but felt some uneasiness in doing so. The uneasiness stems from the "substantial evidence" requirement. In the current case there is no disagreement regarding whether or not the complainant was in the custody of the officer or whether the injuries resulted from the officer's actions. At issue is whether the injury was inevitable or whether it could have been prevented without jeopardizing the Officer A's control over the subject. There is not a great deal of information that bears on this issue. There is, the Board believes, a preponderance of evidence to support the contention that the Complainant offered resistance to Officer A of a verbal and physical nature. PCRB #02-01 Page 5 Was this resistance sufficient to require the complainant to be placed on the ground to retain control? The decision of Officer A was "yes, it was necessary." This decision is supported by the Chief's Report. Was the resistance sufficiently strong that Officer A could not have guided the Complainant to the ground without causing injury? Officer B did not appear to fed that the resistance was great enough to require his assistance nor did Officer A request it. The Board believes that there is no information in the Chief's Report that bears directly on this question. The Complainant was handcuffed with his hands behind the back making it obvious that if he were taken, placed or directed to the ground face forward without some support he would have a high probability of injury. The Board is required to rely on the Chief's expertise unless there is a lack of substantial evidence to support his conclusion. The Board feels substantial evidence is lacking that the injury to the complainant was beyond Officer A's control, but the Board also feels that there is insufficient evidence that the injury was the result of indifference, negligence or malice. Hence, the Board's conclusion that the allegation #2 was not sustained. The Board is concerned that when arrested individuals are substantially unable to protect themselves (as when handcuffed with their arms behind them) officers be sensitized to the possibility that this vulnerability could result in serious injury when efforts to control the subject are implemented. The Board recommends this topic be addressed in training if it is not already being done. PCRB #02-01 Page 6 POLICE CITIZENS REVIEW BOARD A Board of the City of Iowa City 410 East Washington Street Iowa City IA 52240-1826 (319)356-5041 TO: City Council Complainant ~ ' Stephen Atkins, City Manager ~: ~ ' ~ _ R. J. Winkelhake, Chief of Police __ '! Officer(s) involved in complaint '~ ' . FROM: Police Citizens Review Board : :: ~: r:? ' RE: Investigation of PCRB Complaint #02-02 -~- DATE: April 9, 2003 This is the Report of the Police Citizens Review Board's (the "Board") review of the investigation of Complaint PCRB #02-01 (the "Complaint"). Board's Responsibility Under the City Code of the City of Iowa City, Section 8-8-7B(2), the Board's job is to review the Police Chief's Report ("Report") of his investigation of a complaint. The City Code requires the Board to apply a "reasonable basis" standard of review to the Report and to "give deference" to the report "because of the Police Chief's professional expertise. Section 8-8-7B(2). While the City Code directs the Board to make "findings of fact," it also requires that the Board recommend that the Police Chief reverse or modify his findings only if these findings are "unsupported by substantial evidence," are "unreasonable, arbitrary or capricious" or are" contrary to a Police Department policy or practice or any Federal, State or Local Law." Sections 8-8-7B(2) a, b, and c. Board's Procedure The Complaint was received at the Office of the City Clerk on 15 July 2002. As required by Section 8-8-5 of the City Code, the Complaint was referred to the Chief of Police for investigation. The Chief's Report was due on 14 October 2002. Two additional extensions were granted and the Chief's Report was flied on 3 February 2003. PCRB #02-02 Page 1 The Board voted to review the Complaint in accordance with Section 8-6-7B(1)(a), on the record with no additional investigation and 8-8-7B(1)(e), performance by board of its own additional investigation. The Board met to consider the Report on the following dates: 4 March 20(~3; 11 _March 2003; 9 April 2003. Findinqs of Fact · Officers A and B were checking identifications at a Washington Street bar in July 2002. Officer B took one underage person outside to issue a PAULA citation. Officer A found 7 of 6 persons at another table were underage and escorted those 7 persons from the building to issue PAULA citations. On the way out of the building he stopped in the entryway to talk to the proprietor. The Complainant entered into the conversation and voluntarily informed them that he had purchased a drink for an underage person. Officer A and the proprietor told him this was an offense, and that he was interrupting their conversation. The Complainant continued to interrupt and then was taken outside with the 8 underage persons. While PAULA citations were being written, the Complainant continued to interrupt the proceedings and to interfere with verbal abuse and threats. After some of the 8 PAULA citations were issued and those persons released, the Complainant was arrested for providing alcohol to a minor, and for public intoxication. A pre-arrest breath test of the Complainant indicated a blood alcohol level of .169. The Complainant was handcuffed by Officer A or B, and told to sit down on a nearby bench. He stood up several times saying that he was more comfortable standing, and that the handcuffs were too tight. One time Officer B put his hand on the Complainant's chest to ensure that he sat down. Officer C arrived to transport the Complainant to jail, checked the handcuffs, and according to the Complainant he removed the original handcuffs and replaced them with another set which fit more comfortably. The Complainant then was transported to jail, where he made no complaint about his wrists during admission procedures. The Complainant asserted that later that morning he noticed evidence of injury to his left wrist and that his girl friend photographed the injured area. No photographs of this injury have been submitted to the ICPD or PCRB. The Complainant refused a chemical test, and subsequently pleaded guilty to the charges of public intoxication and supplying alcohol to persons under the legal age. ICPD investigation included interviews with the Complainant, the bar proprietor, and 4 of the underage persons cited for PAULA that morning· Other than the Complainant, the other persons interviewed made no adverse comments about the officers behavior or officers treatment to any of them. A salient point in this case is the length of time between the original handcuffing of the Complainant, and the adjustment and re- handcuffing. The Complainant stated during his interview that this span of time probably was 3 to 5 minutes. One underage drinker estimated the time span to be 2 minutes. Another underage drinker estimated the time span to be 5 or 6 minutes, but she left the scene to use the bathroom in another bar so she may not have an had an accurate idea of the time. Another underage drinker said maybe 5, maybe 5-10 minutes. The fourth PCRB #02-02 Page 2 underage drinker who was interviewed left the scene immediately after receiving her PAULA citation and did not mention the handcuffing at all. This latter interview was with a person who was NOT at the table with the Complainant. Conclusion Allegation # 1: Rude and disrespectful behavior on the part of the officer involved. All of the persons interviewed with the exception of the Complainant maintained that the officers involved with the incident were courteous to them, but that they used raised voices to get the Complainant to be quiet, step away from the citation writing, and sit down. The Board finds the Chief's conclusion that the officers acted appropriately is supported by substantial evidence and is not unreasonable, arbitrary, or capricious. Allegation # 1 is NOT SUSTAINED. Allegation # 2: Officers used unreasonable or unnecessary force to ~ain the Complainant's compliance, and handcuffed his wrists so tightly as to cause inju .ry. The length of time when the first handcuffs were on the Complainant's wrists varies from 2 to 10 minutes, depending on witness interviews. The Complainant made no mention of injury during jail processing, and no photographs of injury to his left wrist have been presented to the ICPD or PCRB. The Board finds the Chief's conclusion that the officers acted appropriately is supported by substantial evidence and is not unreasonable, arbitrary, or capricious. Allegation # 2 is NOT SUSTAINED. Allegation # 3: Rude and disrespectful behavior towards the bar proprietor on the part of the officer involved. No such allegation was made by the bar proprietor during the interview with her. She says one officer spoke to her in a fairly loud voice, and she thought he was angry with her. She says that she met with that officer later and resolved the situation between them. The Board finds the Chief's conclusion that the officers acted appropriately is supported by substantial evidence and is not unreasonable, arbitrary, or capricious. Allegation # 3 is NOT SUSTAINED. COMM~.N? None. ~ PCRB #02-02 Page 3