The charge of assaulting a police officer, which is meant to shield police from danger, also can be used as a tactic against citizens.
By Christina Davidson and Patrick Madden
Wiggling while handcuffed. Bracing one hand on the steering wheel during the arrest. Yelling at an officer.
All these actions have led to people being prosecuted for “assaulting a police officer” in Washington, D.C., where the offense is defined as including not just physical assault but also “resisting, opposing, impeding, intimidating or interfering” with law enforcement.
A five-month investigation by WAMU 88.5 News and the Investigative Reporting Workshop at American University — and co-produced by Reveal — documented and analyzed nearly 2,000 cases with charges of assaulting a police officer. The results raise concerns about the use or overuse of the charge. Some defense attorneys see troubling indicators in these numbers, alleging that the law is being used as a tactic to cover up police abuse and civil-rights violations. Police sources contend that this perspective overemphasizes troubling but rare incidents, and fails to account for the dangers police face on the job.
However, as protests and rioting have exploded across the county in response to police conduct, even Cathy Lanier, the chief of police in the nation’s capital, is urging lawmakers to revise the statute because its broad application “naturally causes tensions between police and residents.”
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A team of researchers and reporters analyzed thousands of court records from 2012 through 2014, including charging documents, case summaries and police affidavits.
The investigation found:
Ninety percent of those charged with assaulting a police officer (APO) were black, although black residents comprise only half of the city’s population.
Nearly two-thirds of those arrested for assaulting an officer weren’t charged with any other crime, raising questions about whether police had legal justification to stop the person.
About 1 in 4 people charged with a misdemeanor for assaulting a police officer required medical attention after their arrest, a higher rate than the 1 in 5 officers reporting injury from the interactions.
The District uses the charge of assaulting a police officer almost three times more than cities of comparable size, according to a 2013 FBI report and Metropolitan Police Department (MPD) numbers.
Prosecutors declined to press charges in more than 40 percent of the arrests for assaulting an officer.
Interactive map of arrest locations from the Investigative Reporting Workshop
D.C. Council member Mary Cheh proposed a crime bill two weeks ago that includes a measure to narrow the “assaulting a police officer” statute. After being briefed on the results of this investigation, Cheh felt moved to explore the possibility of emergency legislation.
“Having the benefit of the research … and given the consequences … there may be some interim step that we on the Council can do,” she said in an interview. “I could pass that reform on an emergency basis so that it could go into effect far more quickly.”
‘Criminalizes too much’
“The APO statute results in more injustice than almost any other statute that I can think about,” said John Copacino, a professor and director of the Criminal Justice Clinic at Georgetown Law School. “Police officers have a legitimate need to be protected from being assaulted, but this statute goes too far and criminalizes too much.”
Copacino says many charges of assaulting a police officer arise from typical human responses. (Christina
Animashaun/The Investigative Reporting Workshop)
Copacino said many cases arise from a typical human response to being unjustifiably stopped by an officer, yet District residents do not have the right to resist an unlawful arrest. “When [police] are clearly arresting someone for no reason, if the person resists by pulling away, by not putting his hands behind his back when the police officer grabs him to try to handcuff him, that becomes a crime in itself,” he said.
Terrell Hargraves lived through such a scenario when he had trouble moving into the handcuff position because of nerve damage in his shoulder.
On Sept. 30, 2011, two MPD patrol officers said they saw something “suspicious” in the way the 35-year-old riding in the car ahead of them looked around before his friend dropped him off “in a high crime area” on Minnesota Avenue NE. “Officers recognized this behavior as consistent with that of flight from police to evade apprehension or interrogation,” they wrote in the police affidavit.
Hargraves wanted to stop at the convenience store to buy a pack of cigarettes before a party at his grandmother’s house a block away, he said in an interview. He had taken only a few steps away from the car when he heard an approaching officer order him to the ground. Bewildered, he asked why, at which point the officer pulled out handcuffs.
Struggling to cuff Hargraves’ injured arm, the officer deployed a metal baton and began striking his legs repeatedly. A second officer arrived, and together they used “the minimum amount of force necessary” to detain their suspect, according to the affidavit. Hargraves was charged with assaulting a police officer for pulling away from the officer’s grip.
He spent nine months in jail awaiting trial because when he was arrested, he was 30 days shy of completing three years of parole for a past conviction of fleeing a police officer. He lost his job. He missed the birth of his son. A judge ultimately found him not guilty at trial.
Animashaun/The Investigative Reporting Workshop)
Read Terrell Hargraves’ StoryTerrell Hargraves was on the verge of a new life. On Sept. 30, 2011 he was only 30 days from completing three years of probation for fleeing a police officer. Soon after, his longtime girlfriend would be giving birth to their first child. And he’d just been offered a job.
“It can so disrupt your life,” Cheh, the Council member, said in a discussion of such cases. “When you go back and look at the underlying circumstances, you say, ‘Really? That’s what was involved?’ And now this person has lost a job or maybe been locked up for five months.”
A defendant arrested for assaulting an officer generally faces a monumental challenge defeating the charge, even when the judge believes the person behaved reasonably under the circumstances.
Emanual Wilson was tackled and arrested for assaulting an officer the moment he stepped out of a car during a traffic stop. The police were arresting his pregnant girlfriend for driving with a suspended license. Wilson couldn’t see what the police were doing but could hear his girlfriend yelling that she was pregnant and not to touch her.
Wilson testified that he was acting on instinct to protect his unborn child and girlfriend. Judge Harold Cushenberry agreed. At the trial, he said, “You had a normal human reaction.”
But that reaction was also technically interference, so Cushenberry had to convict Wilson of assaulting the police. The judge concluded Wilson’s trial by saying, “Good luck to you. I’m sorry this happened.”
Because the APO statute includes interference as one element under its broad umbrella, Wilson now has a criminal record with the violent connotations of “assaulting a police officer,” which can negatively impact future employment prospects, security clearances, home loans or anything that requires a criminal background check.
“The real horror about the assault on a police officer statute is that we have thousands of people in our community who are now facing lifelong consequences for what really is harmless conduct,” said Patrice Sulton, a criminal defense attorney who frequently assists the District branch of the NAACP.
“Too many things” can fit into the category of assaulting a police officer, Lanier says. (Christina
Animashaun/The Investigative Reporting Workshop)
Lanier acknowledges that problems with the law can damage police relations by sparking resentment in the communities: “The language is so broad, overly broad. That allows for too many things to fit into that category,” she said in a recent interview. “So some of what’s included in that is no physical assault at all. And for people who are being charged with assault on a police officer: There is the tension…. If you didn’t physically assault someone, to be charged with assault on a police officer wouldn’t feel fair.”
Sgt. Delroy Burton, head of the local police union, agrees with Lanier: “They need to go ahead and deconstruct and make this law easier to use so that we don’t create the impression that police officers are out there charging people for crimes they didn’t commit,” Burton said. “That’s the impression this gives, the way it’s written right now.”
On race and geography
Neighborhoods subjected to a stronger police presence inevitably have a greater frequency of interactions, which has led to an unequal distribution of arrests. A 2013 report by the Washington Lawyers’ Committee found that black people represented eight in 10 of all those arrested in the District. The WAMU-IRW investigation found an even larger disparity in cases of assaulting police officer: 90 percent of those charged from 2012 through 2014 were black.
“This should be an early warning system for the agency,” said Geoffrey P. Alpert, professor of criminology at the University of South Carolina and an expert on police violence. “It tells you something is wrong and they need to figure what is going on…. The statistics, the patterns, the practices, just don’t look right.”
Burton says the statistics on assaulting a police officer charges reflect that Washington is a “a very, very tough place to work.” (Patrick Madden/WAMU)
However, Burton, the head of the police union, doesn’t believe that the APO statistics reveal bias or discriminatory policing: “The reality is that the numbers reflect the people involved in that type of crime. It’s just that simple.”
The police department, in a statement, said the issue of racial disparity in crime statistics is complex but “researchers generally agree that simply benchmarking arrest rates against a demographic proportion is not a reliable indicator of bias.”
One place where the police presence is heavy, the economically depressed Trinidad neighborhood in Northeast D.C., also appears to have a higher prevalence of APO charges. Some residents say they are collectively viewed and treated as criminals by police.
“They think we are the bad guys, but we’re not,” said Antonio Bates, a resident of the neighborhood who had his own experience with APO charges.
Read Antonio Bates’ StoryFour cousins had walked from their grandmother’s house up to the BP gas station to buy snacks. On their way back, Marcus, 20, and Antonio, 18, were walking across a Denny’s parking lot with two younger cousins when three older men pulled up in a car.
Community tensions haven’t sparked an epidemic of attacks on law enforcement in Washington, but the rate for assaulting police officer cases runs roughly three times higher in the District than in cities of comparable size, according to an FBI report and the MPD’s own statistics.
The ACLU of the Nation’s Capital examined assaulting police officer statutes in the country’s 50 largest police jurisdictions, determining that the District “is among the broadest in country because it encompasses a range of behaviors that go beyond assault,” said Program Director Seema Sadanandan.
The District law wasn’t always unique. In the 19th and early 20th centuries, the statute more closely resembled the modern standard elsewhere — narrowly defined to punish acts of violence against police officers. But amid the onset of white flight to the suburbs and black migration from the Deep South, Congress broadened the scope in 1953 to include resisting, opposing, impeding, intimidating or interfering. Civil rights marches and anti-war protests were roiling the District in the early 1970s when the law was further amended to remove the right to resist an unlawful arrest. The number of arrests started to climb after the D.C. Council enacted a misdemeanor option in 2007. From 2012 through 2014, more than 80 percent of the APO cases were found in misdemeanor court, according to our investigation.
The definition of “police officer” has also been broadened over the years to include an array of law enforcement and other public servants, from Secret Service and U.S. National Park Service Police to emergency medical technicians and private security guards.
Bad stops turn into legitimate arrests?
During the three-year period of cases examined, nearly two-thirds of those arrested for assaulting a police officer weren’t charged with any other crimes. That statistic marked a red flag to more than a half-dozen criminal defense attorneys interviewed for this project.
“That tells you a lot: That there is no other crime being committed,” said Copacino of Georgetown. “The police, they’re probably stopping or detaining people where there is no justification for doing so, and any resistance to that becomes grounds to an arrest.”
He added that the charge can be deployed to sidestep the Fourth Amendment, which prohibits unreasonable searches and seizures: “It turns a bad stop into a legitimate arrest that [the police] can then use to justify whatever they find in the course of that stop, be it guns, drugs, knives, whatever.”
However, Burton, head of the police union, disagrees with the conclusions of defense attorneys.
“To look at some cold numbers and conclude, ‘Well, this is troubling,’ in my view, tells me they are making some type of political statement,” he said.
Lanier said cases with only an assault charge don’t necessarily indicate a problem: “Interactions with enforcement in a lot of different community environments —interactions with people with mental health issues — that can lead to a confrontation, and there’d be no other charge. That just goes to show that there are certain interactions with police that we want to limit. If it doesn’t need a police officer, we don’t want a police officer doing it.”
Burton said the number of people getting arrested for assaulting an officer reflects the reality of police work in Washington: “It’s a very, very tough place to work. You are working [around] people who … hate the police and will fight the police every chance they get. And every chance they get to injure a police officer, they will take it.”
Forty percent of those arrested for assaulting a police officer from 2012 through 2014 had those charges “no papered,” meaning that they were arrested and booked by the police but prosecutors did not formally file charges.
In a statement to WAMU, the U.S. Attorney’s Office, which prosecutes most local criminal cases in the District, said it does not pursue charges that can’t be proven beyond a reasonable doubt: “When charges are declined, this does not necessarily mean that the conduct did not take place, and that police were not justified in making an arrest, but rather that we have determined that we cannot meet the burden of proof.”
The police union chief also pushed back against the finding that more suspects arrested for misdemeanor charges of assaulting an officer require medical treatment than do the officers they reportedly assaulted. Burton points out that affidavits may mention a trip to the hospital if, for example, a diabetic is arrested without his or her insulin.
The percentage of defendants injured after their arrest varied by law enforcement agency. For MPD, which was responsible for most of the APO arrests, roughly one in four suspects needed medical attention. For others, the rate was much higher. More than 40 percent of suspects arrested by Metro Transit Police required medical attention; most of those had been pepper sprayed, according to the transit agency.
“The explanation for why MTPD’s percentage is higher than, say, MPD is likely due to the nature of transit policing,” said Metro spokeswoman Morgan Dye. “The overwhelming majority of MTPD officers patrol alone, which changes the dynamic of the interaction … An officer patrolling alone who is being assaulted needs to take immediate, decisive, lawful action to gain control of the situation for his or her safety, as well as that of the public.”
Sulton, however, has seen too many cases in which a defendant was more seriously injured than the officer: “I think it’s actually being used to cover-up excessive use of force…. When police are brutalizing people in the community, the justification that they give for those injuries is that the person either resisted arrest or reached for a weapon or assaulted that police officer.”
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Copacino agrees: “It’s not infrequent that our clients get beaten up by the police in the course of a stop, and we come out of it with a charge of APO…. Who do we believe on this stuff and where does it come from? I’ve seen too many cases to believe that it’s not initiated by the police.”
Warren Cooper is a black man and a Navy veteran with nearly 20 years of service and experience as a military police officer. But on July 15, 2013, his experience and credibility mattered little when two police officers viewed him as a threat. The officers were responding to Cooper’s 911 call for help retrieving possessions from an ex-girlfriend. The woman denied having anything to the officers, so Cooper asked that they all go talk to her together.
“Next thing I know one of the officers takes me … and he slams me up against the wall,” Cooper says. “And I am like, ‘Whoa, Whoa,’ so I throw my hands up immediately to let him know that I am not resisting.” According to the police affidavit, Cooper “squared his shoulders and took a fighting stance with both fists up to his face (as a boxer would).”
One shot him with pepper spray: “My face felt like I was in burning coals,” Cooper said in an interview. “My eyes were feeling like they wanted to cook themselves in their eyelids.” The two officers dragged a blinded Cooper outside and threw him to the ground: “He was on top of me, beating me, punching me, and she was … beating me with [a baton] all over my body.”
Cooper spent a week in the hospital hooked up to intravenous antibiotics after his entire leg swelled from an aggressive infection in a cut from the baton.
A security camera at his ex-girlfriend’s apartment building recorded the encounter, although Cooper has never seen the footage because prosecutors dismissed his APO case before trial, and his civil suit was settled out of court. In the terms of the deal, the District admitted no wrongdoing. Read about another case in which a resident, Marilu Hernandez-Romero, settled an excessive force lawsuit against MPD after facing an APO charge herself:
Animashaun/The Investigative Reporting Workshop)
Read Marilu Hernandez-Romero’s StoryMarilu Hernandez-Romero worked the dinner shift the night before Thanksgiving 2012. After closing down the restaurant at around 1:30 am, a group of co-workers and patrons, including her sister, Yessenia, decided to go dancing at Sabor Latino Bar and Grill in Columbia Heights.
Lanier, the police chief, monitors quarterly trend reports covering allegations of excessive force and civil lawsuits, and says she hasn’t seen any evidence that her officers are using the assaulting a police officer statute to cover up incidents of excessive force.
Asked about civil lawsuits in general against MPD, and the appearance of one officer in multiple lawsuits, Lanier says that when an officer makes an arrest, the odds of civil litigation go up dramatically.
“If they are the most productive officers and they are handling 10 times more calls for service each shift than their counterparts, they are obviously going to have more arrests and obviously have more confrontations,” she said.
Lanier says the department has an early warning system designed to track individual officers and identify problematic behavior, which can lead to a supervisory review and possible re-training.
Additional training would improve individual misbehavior, but matters of community relations run much bigger than one officer.
As a former police officer and current adviser on best practices, Ron Hampton favors a community policing approach, and uses his own 23 years of experience as an MPD officer to illustrate its benefits. When he was an officer in the District, Hampton policed his own neighborhood. He says that gave him “a vested interest” in both the security and well-being of others in his neighborhood, which helped him develop a mutual bond of trust with an expansive network of local contacts.
“I knew people in the community, and they knew me,” he said. “I didn’t operate from a fear base. I operated from the standpoint of being a member of the community but just happened to be a police officer.”
These days, police officers tend to live in the suburbs, in part because living well in the city can be prohibitively expensive. But MPD could face significant challenges recruiting personnel from neighborhoods that would benefit most from community policing because high arrest rates diminish the pool of potential candidates with clean records.
The police could have had an ideal recruit in William Kenley — until he was arrested for assaulting a police officer. Kenley grew up in Northeast D.C. aspiring to become a police officer. He pursued a criminology degree at the University of the District of Columbia and is employed as a correctional officer.
A fellow correctional officer was coming by to pick him up on June 20, 2013, when police stopped him in front of Kenley’s house. Kenley started filming with his phone when the officers got rough with his friend. The last few frames of the short video show an officer charging toward him.
Kenley said the officer hit the phone out of his hand and knocked him to the ground. Ten or more minutes later, an officer put him in handcuffs, arresting him for allegedly ordering his dog to attack the officers.
But the officers had initially failed to turn over to prosecutors a witness statement that contradicted the police version of events. The case against Kenley was dismissed before trial.
Beating the charges doesn’t mean Kenley escaped the experience unscathed. Because of the arrest, he was suspended from his corrections job for three months without pay. And he no longer dreams of joining the MPD. Even if he still had that ambition, he believes the arrest would make him an unattractive candidate.
“I went to school to become a police officer. I worked hard to get here. I am an African-American male. It’s hard growing up in the inner-city and staying out of trouble. My mama raised me right,” he said. “It feels like I lost what I worked my entire life for.”
Read William Kenley’s StoryWilliam Kenley was at his home in Brentwood waiting for a ride from his friend, a fellow corrections officer. Looking out his window, William saw police seemed to have pulled over his friend. He went outside to see what was happening.
Contributing: David Donald, Christina Animashaun, Mariam Baksh, Meldon Jones, Ly Le, Amber Liu, Pietro Lombardi and Miranda Alyse Strong