Part One of a Three-Part Series:
1. The Police
Checks and Balances: How well does KPD police its own officers?
2. The Community
Equal Protection: Can KPD overcome the doubts of Knoxville’s black community?
3. The Arbitrator
Citizen Review: Does Knoxville’s Police Advisory Review Committee hold KPD accountable?
At Knoxville Police Department headquarters, about 50 officers scrunch behind desks or lounge along the wall in an overheated room. It’s a few minutes before 10 p.m., and the night shift is about to start. With two or three exceptions, they are white men with close-shaven hair, sipping coffee or Mountain Dew. Like churchgoers, they compete for seats at the back as they joke quietly before roll call.
An officer reads a Bible passage from the book of Jeremiah, the part when God has turned against Jerusalem for sacrificing its children to idols.
“I will punish you for everything you’ve done, says the Lord,” the young officer reads. “I will set fire to your forest and it will burn up everything around you.”
The men rise and set out to pursue justice.
But whose justice, what kind, and whether it’s the same justice for everyone are questions that loom large for many Americans at the moment, especially black Americans. Knoxville is no exception.
This year, national outrage about police shootings of unarmed blacks in Ferguson, Mo., New York, Charleston, and other cities led to the creation of a Knoxville Black Lives Matter chapter and packed local public meetings examining the relationship between police and the black community.
Also in 2015, the Knoxville Police Department and the city faced lawsuits over police brutality related to the shooting death of a fleeing man and the alleged beating of a Hispanic man, several officers have been accused of racial profiling in efforts to make drug arrests, dashcam recordings of altercations with police (including the K-9 mauling of a suspect) have been missing at trial, and a judge has said KPD needs to provide more training on citizens’ rights.
“As a result of what is going on in the nation, there is a mistrust of law enforcement,” says Rev. John Butler, president of the Knoxville NAACP chapter. “When you start having summits on what to do when stopped by police,” as Knoxville Community Step-Up did a few months ago, “obviously there is a concern—some would say a healthy fear—that I could do everything right and still get shot, and it be ruled appropriate. The potential is really there.”
And the black community in Knoxville has less political clout to respond than in many Southern cities. In 2010, just 17 percent of Knoxville residents were black, according to the census. There is only one black person serving on City Council and Knox County Commission, respectively. In the police department, only three of 98 police officers ranked sergeant or higher are black.
Andre Canty, a local Black Lives Matter organizer, says KPD needs to be more open about how it responds when officers behave badly.
“When the public knows about that, there’s a lot more room for trust and transparency,” he says. “Is the punishment severity the same if I do a crime and a cop does?” He argues that officers who commit crimes should face prosecution. Are cops who show bias or who abuse suspects held accountable by the Knoxville Police Department?
The Mercury examined the personnel files of more than 20 officers who have either recently been the subject of lawsuits related to use of force, had repeated misbehavior problems or high-profile errors, or who have been flagged for recurring problems by the department itself. In these officers’ cases, reprimands, “counseling forms,” and even suspensions often appear to have had little to no effect on officers’ annual reviews, pay raises, or promotions. The department itself investigates potential criminal allegations against its officers, even in cases that involve deadly use of force or shooting deaths.
Although more than 100 officers have been flagged in the 14 years since an early intervention system was instituted to nip problem behaviors in the bud, only one of those officers has actually been enrolled in the correctional part of the program. In all other cases, supervisors decided the officers’ activities weren’t a problem.
KPD faces lawsuits related to use of force in two separate July 2014 incidents. One involves the shooting death of a white man, Ronald Carden, after he wrestled with officer David Gerlach and then ran. The lawsuit, filed by Carden’s son, accuses Knoxville Police Chief David Rausch and the city of “failing to adequately respond to and investigate complaints of officer misconduct” as well as having a practice of exonerating officers accused of misconduct, “allowing officers to use excessive and/or unreasonable force without fear of discipline” and creating an atmosphere where “illegal and unconstitutional behavior is condoned, tolerated or approved.”
Another lawsuit involves the alleged beating of an unarmed Mexican brick layer, Ernesto Rodriguez, when he failed to cooperate with being handcuffed.
A review of the personnel files of officers involved in both these incidents shows mostly stellar records, but the cases are still making their way through court, with Rodriguez’s jury trial set for March.
While these situations might lead to questions about police leadership, community activists and watchdogs tend to praise Rausch, who came up through the department and took its helm in 2011. Earlier this month, an internal affairs investigation (of, among other officers, Rausch himself) concluded with a press conference to announce discipline against four officers for issues related to security side-jobs. (Rausch was exonerated.) In 2013, Rausch came down hard and publicly on police officers involved in the beating of a homeless man in custody.
“I think my record stands pretty strong in the way I have handled situations,” Rausch said at an FBI-sponsored forum about race and law enforcement this fall. “I think our community has confidence in the system and the way that it works.”
Rausch is making some policy changes aimed at recruiting more responsible officers, reducing the use of force, and more accurately identifying problem officers early. But with KPD solely conducting investigations of its own officers, questions still linger about accountability, checks and balances, and conflicts of interest, as investigators are tasked with casting a critical eye on the conduct of colleagues who are, in some cases, friends.
Beating a Homeless Man: The Aftermath
In February 2013, a white, homeless, mentally ill man named Michael Allen Mallicoat was being arrested for public drunkenness when he struggled with two female police officers as they tried to handcuff him. When other officers arrived as backup, some of them beat and stomped him in the street while he was hog-tied. The subsequent investigation, punishment, and in some cases rehabilitation of the officers is a revealing case study of how KPD handles police brutality.
Three officers quit under investigation and pleaded guilty to charges of misdemeanor assault and felony official oppression, serving one-year sentences on probation. None of them will be able to work in law enforcement again.
Personnel records show two other officers, Richard Derrick White and Nicholas Ferro, dropped to their knees on the hog-tied prisoner’s back, and White purposely turned off his body microphone. (The previous year, White had been investigated for unnecessary use of force after a complaint. KPD found the complaint was unfounded, based on dashcam footage.) The two female officers, Haley Starr and Cynthia Demarcus, lied to cover for their fellow officers. The women had originally apprehended Mallicoat, so his safety as their prisoner was their responsibility. [Ed. Note: Through the KPD communications officer, the Mercury offered to speak with all currently-serving KPD officers mentioned in this story to include their perspective, but received no response.]
All four officers were suspended for various lengths of time (White the least), and Demarcus was demoted. She has since been promoted back to her previous rank.
Three supervisors who reviewed those use-of-force reports were reprimanded for overlooking a damning dashcam video during the initial follow-up investigation, which was taken over by Internal Affairs within a few days. Those supervisors were Sgt. John Shelton, Lt. Brad Anders (a Knox County Commissioner), and Capt. Eve Thomas, who had been in charge of the East District for just one month at the time.
“What’s important on that case is we did deal with the supervisors,” Rausch says.
Officers who were suspended underwent remedial training before returning to their regular duty assignments after their suspensions. Anders, one of the supervisors who got in trouble for failing to thoroughly investigate the Mallicoat beating, was allowed to determine when White was ready to return to his regular job.
A year and a half later, Thomas was appointed to run the Internal Affairs investigation unit.
Rausch called her error “an isolated incident” after a 21-year “spotless and impressive career.”
He adds, “I haven’t had an unblemished career. I’ve had reprimands.” (His personnel file indicates he was once reprimanded for backing into another car.) “Should I never have become police chief? The key is you have problems, and you fix them.”
White and Ferro have had mixed records since.
Ferro was suspended again eight months later in connection with a high-speed pursuit. This spring, he was nominated for Officer of the Month for his role in catching an armed robber. As one of the few KPD officers fluent in Spanish, he often translates for other officers even after his duty hours.
White received high marks for customer service on his 2013 review, despite the beating. Last year he was shot twice while pursuing a man who had allegedly beaten up and shot at his ex-girlfriend. White and partner Thomas Turner returned fire and killed the suspect as the man was reaching for a second gun. Afterward White, who was probably saved from death in the encounter by his bulletproof vest, received a KPD Medal of Valor and Purple Heart. This year he earned an honorable mention in the TOP COPS Awards from the National Association of Police Organizations. He was promoted this summer.
But White, who has an associate degree in civil engineering, acknowledged when he first applied to KPD that he had been allowed to quit a previous job (at Walmart) rather than be fired, and he was rejected by the Maryville and Alcoa police departments.
White was the number-one user of force in the KPD during 2014, according to internal reports. He was flagged by the department’s early warning system for two years straight. He is one of several officers whose dashcam recordings have been missing after disputed arrests of black suspects.
“When those top 10’s come out (of officers who use force), and White was working for me—it hits you in the face,” says Thomas, who remained White’s captain until she took the Internal Affairs job this spring.
After the Mallicoat beating, Thomas says she reviewed the full video and audio recordings every time White used force. “He’s very good at verbal skills,” she says. “He can de-escalate a situation,” talking sports with people he’s just arrested as he takes them to jail.
“The community likes him,” Thomas says, recalling him foot racing with East Knoxville teenagers. “I left him there. But we did watch him.”
White’s July 2015 review states that he is “consistently involved in high-risk activities but uses due regard and sound judgment when executing his duties during these types of encounters in the field.”
Poor behavior or breaches of departmental policy appear to have little effect on officers’ annual reviews, and have no effect on pay raises.
For example, during the review period that ended this June, Officer Zackery Herman received two counseling forms (for failing to appear in court and causing an accident) and two oral reprimands (for rear-ending someone in his squad car and failing to confiscate evidence in a timely way), yet still received an above-average score on his annual review.
Behaviors such as failing to report the use of force to a supervisor, wrecking a police cruiser, not recording encounters with suspects, and repeatedly blowing off grand jury subpoenas earn only a “counseling” form or an oral reprimand—basically, a slap on the wrist.
Until the last year, KPD didn’t even keep track of counseling forms. That changed because Internal Affairs officers realized new supervisors might not otherwise know when they are dealing with a repeat offender, Thomas says.
Rausch says he has no control over officer pay, except when it comes to lost pay during a disciplinary suspension. Annual pay increases are determined by the city’s Civil Service Department based on years of service, education and similar factors.
That can produce some odd results. After Ferro was suspended for his involvement in the Mallicoat beating, he received a 2.5 percent raise. He got the same the next year, after another suspension, and in 2015, when his productivity was deemed “exceptional” and he was nominated for Officer of the Month.
Rausch says the department offered performance pay for a while, but stopped around the end of the administration of former Mayor Bill Haslam, who is now governor.
“We never got to a place where we said it was a fair system, so it just went away,” Rausch says.
However, Rausch says discipline does come into play when deciding promotions, training opportunities, and plum assignments. It could affect whether an officer works a day or night shift, as well as who serves on special teams like bomb technicians or bike cops.
But personnel files show discipline sometimes has little bearing on these decisions. Ty Compton, who was one of the officers who pled guilty in the Mallicoat beating, caused three car accidents in his cruiser over 15 months; the worst discipline he received was an oral reprimand. His next review was still good, and he was able to join the K-9 unit.
Receiving one written and two oral reprimands in 2012 led to Officer Brian Headrick to be flagged by the department’s early warning program—and, also, promoted. In fact, he was promoted four times in 10 years, despite reviews citing repeated problems with dependability and an unusually consistent string of reprimands. In 2006, he was suspended without pay for three days after an Internal Affairs investigation found he had made harassing phone calls to a woman, drained the air from the tires of all the vehicles in her driveway, and threatened to use his police power against her. (He was not charged with any crimes as a result.)
On the other hand, some years Headrick was a squad leader for arrests and received commendations. He was promoted again in July.
Butler with the NAACP suggests that perhaps the Police Advisory Review Committee, a group of citizens appointed by the mayor to track complaints about police, should extend its reach to look at promotions within the department. He is concerned that officers involved in racial profiling, unnecessary use of force, and other destructive behaviors could be moved into leadership positions.
“If you’re promoted and you determine a subordinate is behaving badly, you may find no problem with it, because ‘It’s not worse than what I’ve done,’” Butler says.
Rosa Mar, who serves on the Police Advisory Review Committee, says she is concerned about the police “code of silence.”
“There is a brotherhood,” she says. “We want to make sure police understand they really are there to uphold the law, and that includes dealing with one of their own.”
The department created a “Professional Excellence Program” in 2002 to identify behavior patterns that might lead to problems. Officers are automatically flagged when they face a certain number of misconduct complaints or disciplinary actions, or when they cross a threshold for the number of car chases or times they use force, quarterly or annually. According to data provided by Internal Affairs, the number who make the list each year has dropped, from 21 on the 2007 annual report to just three or four a year during the past three years. The department continues to use this system for officer accountability even though Chief Rausch admits it’s arbitrary and flawed.
A group of at least three supervisors evaluates each flagged officer to determine whether he or she needs additional training, supervision, discipline, or a new assignment, among other options.
Almost always, the answer is no. Supervisors determine that the officer’s behavior was isolated or justified. Often, supervisors use what appear to be cut-and-paste stock explanations saying the situations were “isolated incidents” involving “a levelheaded officer who takes prudent action.”
“There are times you have really hard-working, good officers who are going to be flagged,” Rausch says. “It could mean this is a hard-charging officer working… in a high-incident area.”
The system has flagged officers 108 times since 2007. Yet only one officer has ever actually been “enrolled” in the program as a result, Thomas says. The officer, Andrew Gyorfi, used force four times in three months and was suspended after two Internal Affairs investigations that found he had violated policy related to courtesy (twice), treatment of prisoners, knowledge of laws, and failing to report using force. He resigned a few months after he was enrolled and reassigned.
Even officers who are flagged two or three times in a row, like White and his partner Thomas Turner, aren’t enrolled. Officer Joel Ascencio was flagged two years in a row after he used force nine times in 2012 and was the subject of citizen complaints about rudeness and racial profiling, both of which KPD determined were unfounded. In 2013, Ascencio used force six times, received a counseling form for not having his microphone on while he did so, and received a written reprimand after pushing a suspect from a doorway into a parking lot. He resigned in 2014 before an Internal Affairs case for insubordination could be opened as his supervisor had requested, Thomas says.
Thomas says the department doesn’t regard use of force as a problem in itself, although she acknowledged, “It shocks the conscience.” Its significance lies in whether an officer is using force inappropriately and being disciplined, she says.
Some officers flagged by the early warning system are also squad leaders in arrests. In reviews, Ascencio was named MADD DUI Officer of the year in 2013; his supervisor called him “a model of productivity and consistency” and “quite simply among the very hardest workers in this department.” Thomas Turner is praised for “exceptional” productivity and won the department’s Medal of Merit for heroism in 2014, the year he was flagged. Officer Joseph Whitehead led his squad for arrests and DUI arrests and was the community liaison for Lincoln Park when he was flagged in 2012.
So do high-performers simply have more citizen contacts, increasing the likelihood of complaints and violent confrontations? Or do they get a pass from superiors (or the benefit of the doubt) when their behavior is questioned?
The answer is neither, Rausch says.
“If we see an officer that’s going off the reservation, we address that. I think the culture here is that people know what’s acceptable,” Rausch says. “The question is, are they keeping the community safe? Not just arrests, but when we make contacts, are they positive?”
There’s another way arrests aren’t always a good indicator of productivity: If they don’t stand up in court, they don’t get criminals off the street.
Yet there seem to be few repercussions for KPD officers who don’t do their part in getting convictions. For example, when Headrick failed to show up for grand jury subpoenas three times in six months, all he received was an oral reprimand. Investigator Michael Washam faced no discipline after misplacing key recordings in the double-murder trial of Norman Eugene Clark, which ended in a hung jury this summer.
Rausch says officers “are prideful” and will take it to heart when they make mistakes that jeopardize cases. “We want to win every case. But we’re human, so human frailty comes into that,” Rausch says.
Rausch says the early intervention program is flawed because it was not scientifically designed: KPD chose random numbers to use as warning flags. Now the department, along with the Los Angeles County Sheriff’s Department, is working through the University of Chicago to develop better criteria, he says. Data scientists are working backward from records of police officers who were fired, arrested, or disciplined for poor behavior to find out what they have in common. This will provide better indicators of when early intervention is needed. Rausch says the department will probably start using the new criteria next year.
Use of Force
Rausch is considering gradually increasing the education requirements for new officers, now that the Tennessee Promise program eliminates financial barriers by paying for two years of community or technical college. He says some agencies making this change are seeing better applicants without a drop in minority recruitment. He envisions starting with a 30-credit-hour requirement with no specific degree or certification.
Studies show this kind of change could significantly reduce the use of force by officers. A report early this year by Capt. Kenny Miller on behalf of KPD Internal Affairs recommended a five-year goal of requiring an associate degree, specifically because officers with at least some college coursework are less likely to use force than those with only a high school degree. The report also called for offering incentives to officers who obtain associate or master’s degrees.
A 2010 study by Jason Rydberg, published in Police Quarterly, found that officers with no education beyond high school used force in 12 percent more cases than those with some higher education.
Miller’s report noted that KPD set a positive record in 2014: Officers resorted to force fewer times than in any previous year, 130 times. This continues a positive trend, since 2013 was the department’s second-lowest year ever for use of force.
The Internal Affairs report stated that the improvement might be due to the increase in officers with four-year degrees. They made up 47 percent of the department in 2014.
“In 2006, when force usage was at an all time high (316 incidents), the department had 101 officers with a four-year degree,” the report states. “In eight short years the department expanded that number to 193 officers. In essence, force usage dropped by 59% in 8 years, while the number of 4-year degrees increased by 91%.”
KPD use of force has dropped significantly since 1998, when community outrage peaked after four men—three of them black—died within seven months as a result of confrontations with police.
Today, Rausch ticks off the stats: About 250 patrol officers answer 300,000 calls for service a year, writing 80,000 tickets and making 11,000 arrests—all while using force just 1 percent of the time.
“That’s pretty impressive,” he says. “That explains the skill set of our officers.”
Nonetheless, police brutality remains high on the public radar. There is little agreement about who is primarily to blame for violent confrontations. In fact, there isn’t even agreement on what to call them: Inside the department, use of force is called “response to resistance”—putting the responsibility squarely on the shoulders of the suspect. (And indeed, when a suspect fights or otherwise endangers the safety of an officer or bystanders, the law is clear that the officer has every right to use force.)
KPD requires officers to immediately report every time they use force, from an open-handed shove to shooting a suspect.
Unlike use of force in general, KPD officer-involved shootings do not seem to be following a clear downward trend. However, the numbers are small and vary so little that they might be statistically insignificant. In 2014, there were five officer-involved shootings, up from two in 2013 and three in 2012.
A 2014 report by KPD Internal Affairs noted that just 13 officers were involved in 47 percent of all use of force incidents that year. White topped the list with seven incidents, followed by Brian Mullane, Turner, and Herman with six each.
“These figures by themselves provide no indication of improper conduct,” the report states. “Conversely, it is equally important to point out that four officers (25%) on the same list from 2012 were forced to leave the department for serious policy infractions in 2013.”
Of the officers who made the department’s top-10 list for use of force in 2013, one resigned under investigation (Ascencio), a second was suspended for causing a car wreck, and a third resigned in April before a pre-disciplinary hearing. An Internal Affairs investigation had concluded this officer, Woody Bingham, had broken the law and behaved with “conduct unbecoming an officer” after he hit a decoration in a club parking lot while driving away drunk. He was arrested by Knox County Sheriff’s deputies, but charges were dropped before Bingham’s discipline was decided, Thomas says, adding that he probably would have faced firing or suspension for the type of violations sustained against him.
The upshot is that the department has found some correlation between frequent use of force and other problem behaviors.
The Police Academy attempts to weed out cadets who can’t keep their cool by putting them under stress to see how they react, said chief firearms training instructor Sgt. Shane Watson at a recent PARC meeting. He explained how officers are trained in when to use force—and when to stop.
“It’s hard to teach a young officer to turn off those emotions,” he said, “because being attacked is a very personal thing.”
His presentation prompted so many questions that Deputy Chief Nate Allen said the department needs to hold a forum exclusively about the use of force.
PARC Executive Director Avice Reid says that when PARC was first founded, many complaints dealt with excessive force. Now those are rare, and the most common complaints deal with rudeness, she says.
“I think officers are not as quick to use force,” she says. “I think it has a lot to do with the culture in the department, training officers to use less forceful means.”
PARC received two complaints related to unnecessary force and one complaint related to police brutality from the beginning of 2015 to the end of September, according to PARC’s quarterly report. In 2014, there were four unnecessary force complaints and none were labeled “police brutality” on PARC’s annual report.
Rausch says he has been pushing the department to open up more about parts of its work when it can.
But earlier this year, Rausch and his department seemed to be setting a new course toward hiding how decisions are made and how officers do their jobs. Rausch and other members of the E-911 Committee discussed a controversial police radio contract outside of public meetings (with Sheriff Jimmy “J.J.” Jones as well as Mayor Madeline Rogero), in violation of the state’s Open Meetings laws. Rogero and Rausch said they didn’t realize this was a violation, but they took responsibility for their actions.
A few months later, the News Sentinel revealed that the police department had begun withholding public access to police dashboard camera videos in an apparent policy change that was not approved by Rogero (or, it appears, by Rausch). The idea was quickly abandoned.
This month, the department announced publicly that it was disciplining four officers in connection with “secondary employment” work that took K-9 dogs out of state. An internal affairs investigation launched in response to a complaint by several officers in April concluded that the department needed clearer policies and oversight when it comes to officers moonlighting in security jobs. Many jobs were being done without required approvals, confiscated drugs were not documented and certain supervisors were charging scheduling fees deemed questionable. As a result, KPD is creating a command-level position to approve and track these jobs.
The complaint was initially about two supervisors—one of whom was Chief Rausch. While still a leiutenant, he was one of the officers who began the practice of charging scheduling fees.
Despite defending this as standard practice in a press conference last week, Rausch announced that the department will now ban it.
The Internal Affairs Unit found that Rausch severed relationships with outside employers when he became chief, as KPD policy requires, and has since had no role in assigning officers to outside jobs. (Rausch’s entire personnel file, dating back to 1992, is full of perfect reviews and descriptions like “poster boy” and “overachiever,” and his ethics in particular were singled out for praise.)
As chief, Rausch normally would have the final say in assigning discipline. Because he was the subject of the complaint, however, Thomas says she ran the investigation through the city law department and met with Rogero to review the case first. “I’m the only Internal Affairs investigator I’ve ever met, even at national conferences, who’s had to interview their chief,” Thomas says.
Rausch points out that he is responsible to the mayor, who appoints him. Before her recent re-election and again at a press conference about the recent internal affairs investigation, Rogero clearly stated her confidence in Rausch.
Rausch is highly visible in the community. He attends events from East Knoxville back-to-school bashes to Save Our Sons Committee meetings aimed at reducing the number of young black men in jail. Andre Canty with Black Lives Matter, who serves with Rausch on the committee, says the chief’s work there has built his credentials as an ally to poor blacks.
When residents attending the FBI-sponsored forum complained its panel included only white men, Rausch acknowledged that he could have sent a black deputy chief. But as the person with ultimate responsibility for his department, he thought he should show up himself. (This also highlighted the absence of Sheriff Jones and his decision to send, not even a deputy, but a lawyer in his place.)
PARC’s Reid says Rausch works with her closely on addressing citizen complaints.
“Things where years ago they might have said, ‘(That officer) is just having a bad day,’ now they take seriously,” Reid says.
When people approach him with complaints in public meetings, Rausch is respectful and checks out anything specific. But he’s going to tell it like he sees it. He insists his officers do a wonderful job that is approved in most of the community. “The majority of things I hear are positive,” Rausch says. His officers go beyond what’s expected to help people, like buying groceries for residents or fixing their electric wheelchairs, he says.
But they also do what is expected. On the night shift, they drain their coffee or Mountain Dew and strike out into the dark, hurrying to anonymous calls about gunshots. They seek, and dispense, justice as they understand it. And as they have been taught.
KPD’s Problems With Dashcam Technology.
S. Heather Duncan has won numerous awards for her feature writing and coverage of the environment, government, education, business and local history during her 15-year reporting career. Originally from Western North Carolina, Heather has worked for Radio Free Europe, the Institute for War and Peace Reporting in London, and several daily newspapers. Heather spent almost a dozen years at The Telegraph in Macon, Ga., where she spent most of her time covering the environment or writing project-investigations that provoked changes such as new laws related to day care and the protection of environmentally-sensitive lands. You can reach Heather at email@example.com
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