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Two minutes that divided a community, part two
By Stuart R. Wahlin
The following is the second part of a series (see part one in the June 23-29 issue) detailing the findings of a report commissioned by the City of Rockford from Independent Monitoring & Assessment (IAM), an Oakland, Calif.-based consulting firm whose principals, Kelli Evans and Christy Lopez, are civil rights attorneys with backgrounds in cases of alleged police abuse.
Rockford City Council retained IAM at a rate of $280 per hour, for a total now exceeding $60,000, to conduct an assessment of the officer-involved shooting of 24-year-old Mark Anthony Barmore, an unarmed African-American, on Aug. 24, 2009, by white police officers Oda Poole and Stanton North.
Barmore was being sought by police after allegedly threatening to slash a woman’s throat the previous night. He was also wanted on a warrant, and officers were advised he may be armed.
Barmore was spotted by North and Poole outside of Kingdom Authority International Ministries, also known as House of Grace Church, 518 N. Court St., at which time he reportedly tried to elude officers by entering the building and hiding in a small room in the basement, where daycare staff and children were present.
While police attempted to take the suspect into custody, Barmore allegedly struggled with Poole for the officer’s service weapon. Approximately two minutes after being identified outside the church, Barmore lay fatally shot by both officers in the basement.
The report was, in large part, sought in response to an outcry from the African-American community for an independent investigation. Meantime, two civil lawsuits have been filed against the city and the Rockford Police Department (RPD) in federal court as a result of the shooting.
The local police union, however, questions the objectivity of the consultants, as well as the determinations contained in their report, which was released to the public June 15.
Conflicting witness statements
Forensic evidence, according to the IAM report, supports the accounts of a struggle for Poole’s weapon, but some witness accounts appear to conflict with the finding.
“In a statement provided a few hours after the shooting, the daycare teacher in the basement at the time of the shooting stated that she ‘heard some struggling going on behind me,’” the report noted. “In a later statement to the ISP [Illinois State Police], [the teacher] stated that she is certain that she did not hear a struggle.
“Other than possibly the children in the basement, the only apparent civilian witness to Officer Poole’s shooting of Barmore said in the written statement she gave to RPD the day of the incident that she saw Barmore come out of the boiler room with his hands up and saw one officer shoot Barmore from about four feet away,” the reports said of a statement by Marissa Brown, the 17-year-old daughter of House of Grace pastors Melvin and Shelia Brown. “The witness states she then stepped out of the doorway and heard two or three additional gun shots after that. This formal statement is consistent with the information she gave to an officer while still on-scene, moments after the shooting. Later media reports quote this witness as stating that ‘[t]he officer shined his flashlight into the boiler room and told him to come out. He came out real slow with his hands up and his head down, and they shot him. He fell over into the sink. He tried to get back up, and they shot him again. A heavy-set officer was the one who was shooting him while he was on the ground.’ The witness’ initial statement to police is at odds with Officer North’s and Poole’s version of events in some respects, and consistent with their version of events in other respects.”
Brown’s statement to police the day of the shooting indicated that she had retreated from the doorway before the final “two or three” gunshots were fired.
“This witness’ later reported statements to the media are significantly different than her initial statements to police and are not supported by the forensic evidence,” the IAM report noted.
“Many of the witnesses to this incident refused to provide statements to RPD or ISP after the day of the incident, and RPD has been asked by an attorney representing several witnesses not to contact them,” the assessment added.
Although the report appears to discount comments alleging Barmore tried to surrender peacefully, IAM consultants did find fault with the decisions of officers leading up to the shooting, indicating their actions put officers and civilians at “increased risk of serious harm” and conflicted with RPD training and tactics.
‘Entry into the church’
“It appears that each officer was acting independently, with no coordination or communication with each other,” the report indicates. “There is no evidence that officers made an attempt to contain Barmore in the church or considered doing so. Officers did not establish a perimeter, summon back-up, evacuate the church, inquire about the number of potential occupants in the church, or ask about the layout of the building or basement, including the location of entries and exits.”
IAM’s determination added: “In our view, officers violated fundamental tactics and placed themselves at a dangerous disadvantage from the moment they entered the church. Rapid gathering of readily available information and coordination should be routine in such encounters.”
The assessment acknowledged that neither North nor Poole had been interviewed as part of IAM’s review, but that previous statements provided to RPD had been consulted.
“When writing these statements, the officers had the opportunity to consult with independent legal counsel, their union representatives and legal counsel, and anyone else, including each other,” the report said of the statements provided days after the shooting. “The officers provided little additional information to the Illinois State Police investigators, with one officer stating he could not recall anything about the incident beyond what was in his written statement.”
‘Attempt to Immediately Remove Barmore from the Boiler Room/Failure to Evacuate Children and Day Care Workers’
The report also questions the officers’ attempts to immediately apprehend Barmore, who was contained in the closet, or boiler room, with only one way in or out. The report suggests the basement should have been evacuated before any such attempt was made.
“There is no evidence that Officers North and Poole were concerned that there might be another exit from the boiler room beside the door they were covering,” the IAM assessment stated. “The fact that they were told the room was a ‘closet’ further makes reasonable their belief that there was only one means of exit from the room.
“When Barmore fled to the boiler room and refused to surrender to police, he was in effect barricading himself. RPD policy defines a ‘barricaded person’ as, ‘[a]n armed or potentially armed person, having control of any location, whether fortified or not, who is refusing to comply with police demands for surrender,’” the report noted. “Like most professional policing agencies, RPD has a number of policies that directly speak to such situations, and has provided training to officers on these policies. RPD General Order 40.14 provides, among other things, that: ‘[o]fficers may want to avoid confrontation with people or hazardous situations in favor of isolation and containment until supervisor, trained tactical or special response and units arrive.’
“There is no evidence that there was any exigency requiring immediate removal of Barmore from the boiler room,” Evans and Lopez asserted. “Instead, the facts known to the officers, alongside their training, required that the officers, upon learning that Barmore had barricaded himself inside the boiler room, take steps to ensure their own safety and the safety of others in the room before attempting to remove Barmore from the boiler room. This is particularly true here where the officers had reason to believe that Barmore might be armed with a knife or other weapon and where they knew there were many children in the room.”
The reportedly stressed staff and children should have been evacuated before any further action was taken to bring Barmore into custody.
“We found it striking that none of the documentation related to the investigation of this incident references the pertinent fact that there is a clearly marked exit leading directly outside of the church from the basement next to where the children and their teachers were huddled during this incident,” the report stated. “The existence of this exit means that the officers had the ability to have the teachers evacuate the children rapidly and safely from the basement via an exit that did not pass in front of the boiler room door.
“Instead the officers chose to engage in a course of conduct that was extremely risky for themselves and these civilians,” Evans and Lopez determined. “Sound tactics and training required that officers evacuate the children and teachers and then call and wait for the arrival of back up before attempting to extract a potentially armed barricaded suspect.”
Responding to this assessment, Police Chief Chet Epperson acknowledged: “That was definitely a concern that I had after the review. Hence, there is an internal investigation.”
Mayor Larry Morrissey (I) concurred.
“It was a concern to me when I saw that we had children in a basement of a church, and we had an unarmed suspect who was barricaded,” Morrissey said, stressing again that the city had voluntarily commissioned the report. “There was aspects of our policies that were violated, in our opinion, which comports with the opinions presented by the consultants in the report.”
The report added: “Sound tactics and training do not support the assertion that officers had to extract Barmore from the boiler room because of potential danger to the children if he were not immediately apprehended. Professional police practices, consistent with RPD training and policy, have long recognized that a mobile suspect is generally a greater threat than a contained one.”
Evans and Lopez added the officers had “nearly perfect containment” of the suspect, but that the threat was “needlessly escalated” by attempts to extract Barmore without first evacuating civilians and waiting for backup.
‘Decision to Close the Distance on a Potentially Armed Suspect’
“The consequences of the officers’ immediate attempt to remove Barmore from the boiler room were exacerbated by the tactics Officer Poole used in attempting the removal,” the report states of the incident once officers gained access to the room into which Barmore had fled.
“Officer North employed proper tactics in ensuring a safer distance between himself and a potentially armed suspect in a darkened room by stepping back,” it was noted. Poole, however, reportedly advanced on Barmore.
According to a statement by North: “Officer Poole reached his left arm out, either to push [Barmore] back or grab onto him. As Officer Poole had hold of his shirt, I recall the suspect using his right hand, grabbing onto Officers (sic) Poole’s left wrist area. As this happened, Officer Poole and Barmore were in the doorway. I was still about 2-3 feet to the left rear of Officer Poole. I saw that Officer Poole had his pistol leveled, close to his own chest, in a close quarters combat style hold. Instantly, Barmore reached outward with his left hand, and grabbed the barrel of Officer Poole’s pistol.”
According to the report, Poole’s account is consistent in that it suggests he did not maintain a safe distance from the suspect.
The report determined: “Pushing or grabbing an armed resisting suspect is a bad tactic. Doing so while holding a gun in one hand compounds the tactical error. The greater the distance between officers and suspects, the more time officers have to react to a suspect’s actions. … There is no evidence, including in the statements by Officers North and Poole, providing a legitimate rationale for Officer Poole’s decision to employ this high-risk tactic in these circumstances. …This close confrontation allowed Barmore the opportunity to take hold of Officer Poole’s firearm. Once Barmore was able to take hold of Officer Poole’s weapon, the decision to use deadly force was consistent with RPD policy.”
‘Additional Tactical/Policy Concerns’
Other issues cited in the report include a “lack of intermediate weapons,” such as use of non-lethal pepper spray and expandable batons, both of which are mandatory equipment per RPD policy. Both officers reportedly had pepper spray at the time of the incident, but only Poole was equipped with a baton.
“It is not possible to know for certain whether the use of an intermediate weapon would have been feasible during this incident,” the report acknowledged. “The facts indicate that it may have been. Officer North may have been able to use a baton to assist Officer Poole during his struggle with Barmore, if he had it available.”
The report also noted that neither officer was wearing a protective vest.
“RPD policy ‘strongly encourage[s]’ that sworn personnel assigned to field patrol or special unit duties wear their protective vest during their shift but does not require it,” the report states. “Sworn personnel assigned to field patrol or special units are required to have a protective vest ‘readily available,’ i.e. ‘accessible for immediate use by the officer in the field.’ Sworn personnel participating in ‘pre-planned high-risk tactical situation[s],’ which includes ‘high-risk felony warrant arrests,’ are required to wear a protective vest.”
The report noted, “Officer Poole had previously been counseled by a supervisor about not wearing his protective vest.”
As noted in part one of this series, an unnamed third officer is also the subject of a complaint signed by Chief Epperson, which led to an internal investigation. Presumably, as suggested by the report, which alleges a “lack of active supervisory involvement” during the incident, the third officer is likely a supervisor.
“Once the supervisor became aware that Barmore had been seen in the area he supervised, the supervisor should have directed officers to ensure that the area was efficiently and effectively searched, and should have instructed officers on what to do if Barmore was found,” Evans and Lopez asserted. “We are aware that there was a very short time period between the time when Officers North and Poole reported Barmore fleeing from them and the time they used deadly force against him. Nonetheless, this time period appears sufficient to have allowed the officers’ supervisor to provide direction and perhaps slowed down the officers. We were unable to detect any supervisory participation in the events leading up to the shooting or any explanation why there was no supervisory involvement.”
According to the report, however, the larger problem may be systemic.
“RPD’s supervisory and shift structure makes it difficult to provide consistent supervision,” it states. “According to RPD personnel, during a typical week, officers may be supervised by a different supervisor each work day, and thus may have as many as five different supervisors in a week. This makes it difficult to establish a close supervisory relationship and would seem to make consistency in supervision and performance evaluation virtually impossible.”
Responding, Morrissey said: “That’s exactly why we’re moving towards geographic-based policing. That’s why we’ve looked at making sure we have a strong connection between the people in our community, the areas where they live, and the management system we have in place to make sure that whatever we have on paper in terms of a policy, practice and procedure is being aligned with our training and our management on a daily basis.”
Asked what responsibility he takes for the apparent lack of coordination leading up to the shooting, Epperson responded, “I’m chief of police, and I take full responsibility for the entire department.”
Other supervisory issues noted in the report included “misdirection of officers by dispatch.” According to IAM’s review of dispatch recordings, additional officers were sent to the wrong location, because the dispatcher allegedly did not hear North and Poole state that they were at the House of Grace. Although the report could not definitively conclude that this affected the outcome, it noted, “However, in general the consequences of directing officers to the wrong location are potentially disastrous for officers and civilians.”
Mayor Morrissey was quick to note the dispatch center is not managed by the Police Department, but is instead manned by fire personnel.
Additional concerns and recommendations
Although the report acknowledged the department responded appropriately after the shooting, IAM pointed to a number of areas with room for improvement when investigating use-of-force incidents.
The report recommended establishment of an official “deadly force roll out,” consisting of representatives from various agencies.
“The intent of a multi-disciplinary roll out is to help ensure that evidence is properly preserved and collected during the first critical minutes and hours after the use of deadly force; and to facilitate investigative objectivity and neutrality from the outset,” the report explained.
Although North and Poole were separated for walkthroughs of the scene after the shooting, the report noted, “However, much of the benefit of this immediate separation and walk-through was severely compromised because the officers’ written statements regarding the incident were not provided to RPD until days after the shooting, and neither officer was interviewed until months after the incident, and then only briefly. …The lack of a prompt interview also diminishes the perception of reliability and credibility of later statements and interviews.”
The report also asserted that the walkthroughs should have been videotaped, and that photographs should have been taken of North and Poole at the scene. The report also suggested that witness statements should have been recorded, rather than simply written down.
“According to RPD, it does not record interviews unless it is a suspect interview in a murder investigation, in which case the recording is required under state law,” the report indicated. “Professional policing standards require that all statements in officer-involved shooting cases be recorded. …Recordings also help disprove allegations of unprofessionalism, coercion or dishonesty in an agency’s description of witness accounts.”
IAM also suggested that witness interviews were not as thorough as they could have been, which became a problem when some refused to be re-interviewed later.
The report also identified a lack of scene diagrams and photographs, as well as shortcomings in evidence collection practices, and described the city’s Use-of-Force Review Board, composed of police officers, as “ineffective.”
Additionally, the report stated: “RPD’s system of complaint intake and investigation is inadequate. Countless individuals, including witnesses to the incident and family members of the decedent, have made clear allegations the officers in this incident committed misconduct. Yet RPD’s complaint intake and investigation system, as currently structured, does not authorize an administrative investigation based on those complaints.”
The report, along with its recommendations, serves as the guide for the internal, administrative review, according to city officials. Once the investigation is complete, Epperson will decide whether the officers will be disciplined, and to what extent. The results are expected to be made public within weeks.
Early warning too late?
The report acknowledged the department’s recent creation of the Personnel Early Warning System (EWS), in an “attempt to identify, evaluate and assist Department employees, sworn and civilians, who appear to exhibit signs of performance and/or stress related problems requiring intervention.” However, the report indicated, the system “does not contain any data of events or incidents occurring before November 2008.”
Both North and Poole were involved in use-of-deadly-force incidents prior to the Barmore shooting.
“First, the system does not include uses of physical force such as punching, kicking, kneeing, or other physical force, unless it results in injuries requiring treatment at a medical facility,” the report stated, noting that all uses of force should be reported, monitored and investigated, depending on severity. “Departmental supervisors should be alerted if officers are engaging in any type of force at unusual rates, compared to officers working similar assignments, or in circumstances that should have been handled without resorting to force. By not including all uses of force in the system, the EWS may be giving supervisors and managers a skewed and incomplete perspective on officer conduct resulting in missed opportunities to remediate any problems promptly.”
Evans and Lopez added, “We do not know whether this is a systemic problem but were concerned that the Barmore shooting did not appear on EWS reports for Officers North and Poole despite the fact that the reports were produced nearly two months after the shooting had occurred.”
Consultants in crosshairs of police union
Terrence Peterson, president of the Police Benevolent & Protective Association Unit 6, provided to The Rock River Times a document being prepared by the union that brings into question the findings of Evans and Lopez.
The document refers to a June 7 brief titled “Disorderly (mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests,” penned by Lopez, published by the American Constitution Society for Law and Policy.
The union alleges Lopez is “currently marketing [the] article selling services to local municipalities,” and that she and Evans have allegedly created for themselves a lucrative industry targeting alleged police misconduct.
The union also argues that neither consultant has tactical training in law enforcement, despite their numerous judgments regarding “sound tactics.”
“The attorneys padded their bills by meeting with the mayor and ‘ministers and other community members active in Rockford,’ and observing the community mediation,” the union document notes. “These people have no relevant information to give in determining the lawfulness of Stan North and Oda Poole’s conduct.”
Referring to remediation proposed by IAM in the report, including possible termination of the officers, the union also questioned what authority the consultants have to decide what, if any, disciplinary action is appropriate.
Union representatives are also suspicious of language in the IAM report.
“Why did the attorneys insert this sentence into their report: ‘Church members and officials were encouraging [Barmore] to stay out of trouble and become involved in a boxing group the church was soon to begin,’” the union response wondered. “This information is absolutely irrelevant to the events that led to Barmore’s shooting and the inclusion of this information reveals bias on the part of the attorneys.”
The day after the IAM report was released to the public, the union alleges, Lopez and Evans told police sergeants that Barmore was the person primarily responsible for the shooting. The union, however, feels this aspect was downplayed in the report.
“When they heard this, the sergeants challenged the attorneys about why they did not put that in the report,” the document states. “Their response was that it was beyond the purpose of the report. In response to follow-up reaction, they said it’s in the report in that they stated the shooting was justified.”
The document also alleges a “Pro-Brown bias is revealed by authors when they credit [Sheila Brown’s] concern of the safety of the children and credit the truthfulness of her statement.”
Furthermore, the union views IAM’s conclusion that North and Poole violated policy and training, and that they used poor tactics, putting themselves and others at risk, as “unsupported by the facts and speculative.”
From the June 30-July 6, 2010 issue