Incident puts APD’s use-of-force policy back in the spotlight

In response to public outcry following the shooting death of city resident Jerry “Jai” Williams on July 2, 2016, by Asheville Police Sgt. Tyler Radford, the Asheville Police Department convened a working group to draft changes to its use-of-force policy. The resulting policy emphasizes de-escalation techniques and advises that, among other methods, officers use “verbal techniques to promote rational decision making” and avoid physical confrontation “unless absolutely necessary.”

But the effectiveness of the policy change and the officer training that accompanied it has come into question since body camera video leaked on March 1 showed former Asheville Officer Chris Hickman beating city resident Johnnie Rush after stopping him for alleged jaywalking on Aug. 25.

“Obviously, the policy didn’t necessarily work to prevent the [Rush] incident from happening,” says City Council member Julie Mayfield, who was a member of the working group that helped the department craft the new policy, “which one would hope would be the very first step.”

In general, however, Mayfield says the policy has worked to lower the total number of use-of-force incidents in the department. Specifically, she points to a report released on Feb. 27 that showed a 61 percent reduction in use of force and a 46 percent decrease in citizen complaints to the department.

James Lee, the co-chair of the Racial Justice Coalition and another member of the working group, believes the use-of-force policy was one of the reasons Hickman decided to resign rather than be fired. “It is my opinion,” says Lee, “that he already knew that he violated the policy and so, rather than getting fired, he decided to resign.”

Lee says the policy is still strong. “I think what needs to happen now is for the procedures to catch up with the policy,” he says.

Andy Hansen, an assistant professor of criminology and criminal justice at Western Carolina University, calls the department’s use-of-force policy “wonderful.”

Hansen says the policy seems to draw its language from the National Consensus Policy on Use of Force, a set of guidelines published in January 2017 that was put together by 11 leading law enforcement leadership and labor organizations. “I don’t see any holes here whatsoever,” he notes.

Following procedure

Currently, all officers must receive annual in-service training on de-escalation techniques and the department’s use-of-force policies, which include specific instructions on the use of lethal force.

On the night of the incident, Hickman told his supervisor, Sgt. Lisa Taube, that he struck Rush in the head with his Taser. Rush told Taube that Hickman had choked him, which appears to be corroborated by additional body camera video that the city released from the night of the incident. Video taken from the body camera of Luis Delgado, who was one of the first officers to respond to the incident, appears to show Hickman putting Rush in a choke hold. Choke holds and strikes above the shoulders with “instruments other than hands or fists” are actions that the department’s policy says officers must avoid unless “lethal force is reasonably believed to be necessary.”

Asheville Police Department spokesperson Christina Hallingse says all sworn officers received training on the revised use-of-force policy as well as de-escalation training before the policy was implemented in May 2017. The revision added choke holds to a section that details restrictions on the use of lethal force.

Within the law enforcement community, Hansen says, choke holds are increasingly considered to rank high on the use-of-force continuum, a visual model that rates the severity of certain actions. Some agencies, including the New York Police Department, have banned them. However, Hansen says, just because choke holds are banned doesn’t mean they won’t happen, pointing to the July 17, 2014, death of Eric Garner in New York as an example. Bystander video from Garner’s fatal interaction with police showed officers placing the New York resident in a choke hold. A medical examiner’s report later listed the choke hold as among the causes of Garner’s death.

In addition to suggesting that Hickman used a choke hold on Rush, the body camera videos published by the city of Asheville on April 2 paint a clearer pictures of the events following the run-in between Hickman and Rush, including the interaction between Rush and Taube, Hickman’s supervising officer.

Chain of command

Taube received disciplinary action and was ordered to receive remedial training for “poor performance” in connection with the incident, according to a guide posted on the city’s website to accompany the videos. Hallingse says additional information about Taube’s performance is not available in accordance with state law, which exempts personnel information from open records requirements.

A memo written by former City Manager Gary Jackson in early March, however, says that Taube was disciplined for a failure to respond to the incident quickly enough.

“… despite being told by Hickman that he struck Mr. Rush in the head with his Taser, and despite Mr. Rush saying that he was choked,” the memo says, “[the supervisor] did not immediately forward any information or complete notes of those interviews with Hickman and Rush and did not review the body camera footage that evening.”

In any use-of-force incident, a supervisor of the officer involved must respond to the scene to conduct a preliminary investigation. The investigation, according to the department’s use-of-force policy, typically involves obtaining a statement from the subject of the force and photographing all areas of contact — steps that, judging from the videos, Taube took. The officer involved in the incident fills out an internal report — called a Blue Team report — through an online performance tracking system, and the supervisor attaches the results of her investigation to the report.

According to the standard operating procedure outlined for Blue Team reports, department supervisors are responsible for reviewing the report and noting any violations of policy or procedural issues. They are also responsible for forwarding the Blue Team reports to the next level of the chain of command in a timely manner.

So how can the Asheville Police Department prevent a similar breakdown between policy and action in the future? Lee and Mayfield both point to the same simple answer: training.

“[The policy] is such a vast improvement over what we had before,” Mayfield says, “but it does have to continue to be trained on and ingrained in people so that that is the default instinct rather than the default instinct that Officer Hickman showed. And that’s just training.”