Court filing reveals how Graham police graded themselves after pepper-spraying march

Law enforcement in the small town of Graham ignited national outrage in 2020 when officers used pepper spray on a get-out-the-vote march that included children as young as 3. Video of a disabled woman seizing violently went viral.

A report recently made public through a civil rights lawsuit provides a glimpse of how local police evaluated their own performance shortly after the event.

They concluded they did nothing major wrong.

“The plan for this event was well prepared and adhered to throughout the event,” the after-action report states.

“In reference to the force used by all officers, there was no indication that either physical force or chemical agents were used excessively. All officers actions were in compliance with Graham Police Department Policy 17 Use of Force and applicable state law.”

The report makes no mention of the children at the march, several of whom vomited in reaction to the chemicals. Though there have been no large studies of the effects of pepper spray on children, some physicians have warned that the chemicals can have long-term effects.

Graham police used pepper fog, directed at the ground, in three waves that day. Sheriff’s deputies also deployed pepper vapor. The first use was aimed at moving march participants out of Graham’s Main Street following a moment of silence for George Floyd, who was killed by Minneapolis police.

Not everyone could hear the officers’ directions, including some parents on the sidewalk with their kids. The crowd responded with a mix of defiance and confusion. Police commands did not include a warning about pepper spray.

The News & Observer asked two professors who study policing at mass demonstrations to review Graham’s after-action report.

Both said the absence of any discussion about children was a signal that Graham police had not seriously grappled with what happened or with the community reaction.

“If children were pepper sprayed and that did not get addressed in the after action report, then something is wrong with that report,” said Edward Maguire, a professor of criminology and criminal justice at Arizona State University who has written a guidebook on policing demonstrations.

After-action reports “are supposed to review all relevant parts of an incident so that the department can learn from past mistakes and improve its performance,” said John Noakes, a professor of sociology, anthropology and criminal justice at Arcadia University in Pennsylvania.

“Even if unintentional, an agency should want to review how the children were exposed to pepper spray and how their practices and procedures might be improved to prevent it from happening in the future. Unless they just do not want to talk about it or create a record of it occurring.”

The best after-action reports, the professors said, involve extensive community feedback, both during the information-gathering phase and upon completion. After an especially high-profile incident, departments will often hire an outside consultant to do an independent review.

Raleigh, for example, paid consultants $105,545 to compile an after-action report following May 2020 protests in the city. The report was posted to the city’s website. Charlotte did the same following protests there in 2016.

But Graham did not initiate an open review or hire an outside consultant. Three march participants who expected an invitation from the chief told The News & Observer they never got one.

The report was completed about two weeks after officers used chemical irritants to force marchers out of the road, said Tony Biller, an attorney Graham hired to handle matters related to the march. Though a police spokesman pledged to release the report, The N&O’s requests for the document remain unfulfilled.

Graham Police “does not publish or otherwise publicly distribute its AARs. Those are internal reviews,” Biller said. He did not respond to a question asking what exempted the 2020 report from the state’s public records law.

After-action reports can be a tool for building community trust, said Damon Williams, president of the board of the North Carolina Association of Chiefs of Police, who said the reports generally reflect law enforcement leaders’ desire to do the right thing.

“Most of them become public,” he said. “They’re not secret documents.”

Changes intended to foster trust

Even before the pepper spray incident, relations between law enforcement in Alamance County and local Black and Latino residents were strained.

The county has a particularly bloody history of racial injustice. And at the time of the march, Graham and Alamance County were facing scrutiny from civil rights groups for their aggressive tactics against people who sought to protest Floyd’s murder and other instances of police violence, as well as the Confederate monument that sits in front of the town’s historic courthouse.

In a written statement to The News & Observer, Biller emphasized the steps Graham Police have taken since the march to the polls to improve public trust.

Chief Mary K. Cole coordinated community meetings, launched a series of community surveys and began organizing a citizen’s advisory committee to advise her on issues including police-community relations, Biller said.

The department also initiated quarterly de-escalation training and secured funds to hire six officers focused on community policing, he said.

On top of those changes, Graham’s insurer, the North Carolina League of the Municipalities, conducted a risk assessment. It found no need for changes to Graham’s policies and practices related to public demonstrations, Biller said. Because the city did not have a copy of the report, he could not provide it, Biller said.

Many of the lessons Graham police leaders identified in their after-action report related to communication.

• “The agency needs to create a standard proclamation with a warning to disperse for officers to follow. This warning needs to include a warning that chemicals will be utilized to disperse everyone if needed and not just a threat of arrest.”

• “The agency needs to put out the expectations to the event participants and not just assume that the event organizer is going to inform the participants.”

• “When officers are on the street they need to make sure that they maintain their professionalism at all times.”

Body camera footage that The News & Observer obtained independently after the event showed officers appearing to celebrate the use of pepper fog.

In one clip, an officer approaches Rodney King, then a sergeant and now Graham’s assistant chief, to congratulate him for being the first to deploy it. “I knew you’d spray first, I knew it,” the officer said. “I love it. I love it.” King laughed, and the two officers exchanged a fist bump.

Graham fought the public release of bodycam footage. After a Superior Court judge ordered it to turn over the video to a coalition of news organizations including The News & Observer, Graham appealed the case and the judge agreed to put the release on hold. That case is pending.

Graham considers buying an LRAD

One of the recommendations in Graham’s after-action report was to explore using or buying a Long-Range Acoustic Device, also known as an LRAD, a sound cannon or “the voice of God.”

The equipment, which looks like a speaker mounted to a vehicle, was originally developed for the U.S. military, but it has since grown popular with police departments. Charlotte, Greensboro and Raleigh are among the departments that have one.

LRADs can make police commands more easily heard, said Maguire, the Arizona State professor. But if used improperly, the equipment can cause permanent hearing damage.

“As with any technology, you need to construct appropriate policies around use,” he said. LRADs come in a variety of sizes, with some models able to broadcast messages to large crowds over 10 blocks away.

A federal appeals court ruled in 2018 in a case involving Black Lives Matter protesters in New York that LRADs are potentially an instrument of excessive force. The NYPD used the device’s “area denial” tone, a series of piercing beeps that left some protesters with enduring health effects.

Dejuana Bigelow, a march participant who now co-chairs neighboring Burlington’s Community Police Advisory Team, was dismayed that Graham was considering the device.

“They need to just go ahead and say their directions and give folks time to actually hear them,” said Bigelow, who was among the marchers who settled a lawsuit with Graham and Alamance County. “They didn’t give the crowd time to actually disperse.”

Another civil rights lawsuit against Graham and Alamance County is ongoing.

Biller said Friday that the department currently has no plans to buy an LRAD.

Clarification: This story was revised to clarify attorney Tony Biller’s response to a question. Biller said the Graham Police Department’s after-action reports are “internal” documents that are not “publicly” distributed. The News & Observer asked what language in North Carolina’s public records law exempted the 2020 report from public release.

This story was originally published April 4, 2022 at 11:55 AM.