Force violations by Durham police are rare, department says

mschultz@newsobserver.comMarch 18, 2013 

NICKERSON1.NE.012413.TI

Stephanie Nickerson, a Chapel Hill woman who is at the center of a police brutality claim in Durham, gets a hug at a Jan. 24 rally from Nia Wilson (wearing a hat) while Rev. Curtis Gatewood with the NAACP, left, shakes a hand of Daryl Atkinson, right, attorney representing Nickerson. They had just learned that the Durham County district attorney's office had dropped charges against her.

TAKAAKI IWABU — tiwabu@newsobserver.com Buy Photo

— Durham police officers violated the department’s use-of-force policy five times last year, including in at least two cases in which officers used more force than necessary, according to the Police Department.

Last month, police announced that an internal investigation had found an officer had used excessive force when he arrested a Chapel Hill woman at a house party last October.

Lawyers for the woman, Stephanie Nickerson, said she suffered a broken nose, a busted lip and other bruises.

The officer, Cpl. B.D. Schnee, a department employee since 2001, resigned from the force.

Police officers are required to file a report whenever they use more than the typical force needed to restrain or handcuff someone.

This includes but is not limited to any time an officer or other person is injured, or whenever a weapon is used, police dog deployed, or firearm pointed at someone or discharged on or off duty.

After the announcement in the Nickerson case, The News and Observer/The Durham News made public records requests of the Durham, Chapel Hill and Raleigh police departments to see how often officers used force and how often the force was ruled excessive.

• The Durham Police Department, with 514 authorized officer positions, said its Professional Standards Division reviewed 136 use-of-force incidents in 2012.

In five of those incidents, officers were found to have violated the department’s use-of-force policy.

Violations and corresponding discipline ranged in severity. In at least two incidents, the department found excessive force, Chief Jose Lopez said. In another an officer failed to file a report, itself a violation, he said.

He said he could not describe the other two violations but does not think either involved excessive force.

A sixth case remains unresolved.

The department reviewed 179 use-of-force cases in 2011 and 136 cases in 2010, and found no violations in any of those cases, according to Durham police.

• The Chapel Hill Police Department, with 120 authorized positions, reviewed 73 use-of-force incidents in 2012 and found no violations, Chapel Hill police spokesman Lt. Kevin Gunter said.

In addition, the department reviewed 88 use-of-force incidents in 2011 and 94 incidents in 2010 and found no violations in those years either, Gunter said.

• The Raleigh Police Department, with 777 sworn positions, had 379 use-of-force incidents in 2012, 350 in 2011 and 305 in 2010.

It has a case pending from last year and had one violation of department policy each in 2011 and 2010. Raleigh police spokesman Jim Sughrue declined to describe the 2011 violation and said the 2010 violation came out of a use-of force investigation but did not involve an actual force violation.

Police stressed that officers use force in a very small fraction of arrests and that they take it seriously.

In Chapel Hill, for example, last year’s 73 use-of-force incidents occurred amid 1,678 arrests.

And officers understand the force at their disposal, said Lopez.

To deploy a Taser, “you have to be tased; you have to know what it feels like,” he said.

“Same thing with internal affairs investigators. They don’t carry a Taser until they’ve been tased. It’s the same with (pepper) spray.”

In interviews, Lopez and Durham police spokesman Lt. Brian Reitz said the department is bound by employee privacy rules when releasing information.

In the Nickerson case, Reitz said the department got permission from city officials before releasing its findings and did so only because of “the need to clarify” information her supporters were putting out in public protests.

Nickerson, whose charges of resisting arrest and assaulting an officer were dropped, has not spoken publicly since her arrest.

In the other incident last year in which the Professional Standards Division found excessive force, Lopez said the officer committed an offensive restraining movement “with no true purpose.” The person being restrained was not injured, he said.

But the chief said he could not discuss the other violations or what discipline resulted in any of the cases, from letters of reprimand to termination.

Even describing incidents, without the officer’s name, could identify the officer to the community and his or her coworkers, he said.

The department investigates all use-of-force incidents, whether generated by an officer’s report or a resident’s complaint, Lopez emphasized.

“Quite frankly, in the majority of complaints we get, the officer had the right to use the force that was used,” he said.

Questions of transparency

Alex Charns, an attorney who has successfully represented clients in force complaints, said police should provide more information so the public can better judge when an officer used more force than necessary.

“Without knowing the amount of force used, without knowing the positions of both parties, without knowing the extent of injuries, there’s no way to know whether the Durham Police Department’s use of force is reasonable,” he said.

Officers have a range of force available to them, according to department policy:

• Officer presence

• Verbal commands

• Soft empty hands (which police agencies define as placed contact to guide, restrain or handcuff)

• Aerosol weapon and/or Electronic Impulse Device (such as pepper spray and Tasers)

• Hard empty hands (which police agencies define as punching or striking)

• Impact weapons

• Deadly force

Without descriptions of incidents, Charns said those outside the review process can’t determine if officers acted appropriately. “It’s ‘Trust me,’ and it doesn’t have to be,” he said. “It can be much more transparent without violating anyone’s privacy rights.”

The review process

In Durham , once an officer uses force, policy requires reporting it. A supervisor interviews and takes pictures of the person and sends the case to internal affairs.

The unit can accept the report or investigate it further.

If a supervisor makes an initial finding that the force may not have been justified the case can also get fast-tracked to one of the five internal affairs investigators, Lopez said.

The strict department policy and patrol car cameras and audio equipment safeguard against violations, the chief said.

“Those get reviewed automatically,” he said.

“We had one case, a man was tasered. Our video showed him attacking the officer,” Lopez said. “Quite clearly the officer was within his rights to use the Taser.”

It’s not just police surveillance equipment watching officers. Today, with cellphone cameras anyone can record police actions.

“The public watches us 24/7 now,” said Reitz. “You’d be hard pressed to find an agency that’s more responsive than ours.”

Schultz: 919-932-2003

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