Excessive Use of Force

by Loretta P. Prater

  Our first meeting with Mr. Wolfe was very helpful. There was no mention of any lawsuit. It was more of a consultation, as we were seeking some direction and an idea of what we might expect, based on Mr. Wolfe’s experience. The first advice was to arrange a second autopsy independent of Chattanooga or Hamilton County. That seemed reasonable to us, since police officials were at Leslie’s autopsy in Chattanooga and still there were lies about the condition of his body, his weight and height. Mr. Wolfe made the arrangements to transport Leslie’s body to Nashville for the second autopsy. As lay citizens, and as parents dazed by the shock of Leslie’s death, we would not have been able to accomplish that task. From that meeting, we got an idea of the monumental ordeal that we would be facing, especially in a city with such a long history of police brutality allegations without any accountability. It’s still hard for me to believe that after fifty years living in Chattanooga I had been unaware of the long history. It would be an understatement to say that we were overwhelmed at the end of that meeting. After the meeting, there was a sense of trust emerging that this man could be of help to us as we pursued justice for Leslie’s death.

  We left the meeting with an assumption that we would need some form of continuous legal advice throughout this process. We felt the precariousness of solely depending on the judicial process in seeking justice. The justice system is an abstract concept. At the micro level and at every step of the process, the living, breathing organisms responsible for justice are the individuals in charge of each unit couched within the system. These individuals hold attitudes that might be inconsistent with punishing police officers for killing an unarmed young black man, regardless of the circumstances. We needed someone within the legal community to be on our side, even if it meant employing the person for that role.

  The next glimmer of assistance came from a relative on the day of Leslie’s funeral. I received a call of sympathy and support from Janice, a cousin living in New Haven, Connecticut. During our discussion, she insisted that I needed to get in contact with attorney Emma Jones, of New Haven. Prior to calling Emma, I researched news articles that reported her situation. Malik, Emma’s twenty-one-year-old unarmed son, had been shot and killed approximately seven years prior to Leslie’s homicide.9 When I later contacted Emma, she was very understanding and compassionate. Her response to me was not as an attorney but as one grieving mother to another. More of my interaction with Emma is shared in chapter 8.

  As a university professor, my next action was to research publications dealing with matters of police brutality. I found very little that addressed helping families impacted directly by police misconduct. Most articles are more descriptive in reporting quantitative data. I found only one gem that was focused on guiding families in these matters. That helpful information was presented by the Stolen Lives Project, a joint effort of the Anthony Baez Foundation, the National Lawyers Guild, and the October 22 Coalition.10 The Anthony Baez Foundation was established in memory of the unarmed twenty-nine-year-old victim of police brutality killed on December 22, 1994, in New York.11 The National Lawyers Guild was founded in 1937 and is the oldest and most extensive network of public interest and human rights activists working within the legal system.12 Beginning in 1996, October 22 is the national day of protest chosen by the group identified as the October 22 Coalition, with the goal of stopping police brutality, repression, and the criminalization of a generation.13

  Certainly, the idea of Stolen Lives caught my attention. Through their book project, Stolen Lives has documented thousands of cases of unlawful deaths from police brutality. The significance of their effort is that, rather than just reporting numbers, there is a face to these tragedies. They tell the stories about the circumstances surrounding these deaths and recognize that victims are a part of family units. In their book publication, there is direct information to assist families. They developed the “Family First Aid Kit” to help families who have lost a loved one to police violence.14 We followed their guidelines, as best we could, and found them to be very beneficial.

  According to the coalition, the untimely death of a loved one begins the tragedy for the family. With police killings, the grief is compounded in the following ways:

  Your world is filled with confusion, as those sworn to protect you destroy your loved one.

  You are made to feel isolated, as the police force mobilizes to protect its own at the cost of the truth.

  To diminish their guilt, they publicly demonize the victim.

  Your natural support system may be unsympathetic when you turn to them for emotional or spiritual solace, as they have been influenced by the police slant that always receives most of the media attention.

  Even the strongest family’s integrity is challenged by this onslaught, and, at best, you and your family must assume a defensive posture instead of seeking the necessary closure in your grief.

  The natural search for justice shall set many tasks and obstacles before you.

  To further cope with this trauma, the October 22 Coalition suggested that families do the following:

  Develop a support system and pursue legal strategies.

  Document all related interactions and collect all pertinent records.

  Do your own investigation and present your case to the media.

  We quickly discovered that the police department mobilized to protect their own. They were steadfast in their uncooperative actions throughout the legal process. Departmental officials used every available vehicle to keep information from the family and to cover up their actions. For example, on June 15, 2004, at 3:15 p.m., Dwight and I went to the Police Services Center to ask for a use-of-force report. The person at the window informed us that they did not release these reports. I knew that statement to be untrue. I then asked for an incident report. I was told that someone would have to approve their releasing the report. A few minutes later, we were told that someone would come out and talk to us. We waited patiently, but no one ever came out. At 3:40, we were called back up to the window and handed a four-page report that was very incomplete and provided little to no information of value. That a professional, taxpayer-funded department would distribute such trash to represent a Chattanooga Police Department incident report is an embarrassment. In fact, more information had been reported in the newspaper and on television than was listed on that report. However, the report did list Leslie’s height as five feet, eleven inches and his weight as 235 pounds (not more than six feet and more than 300 pounds). The date and time listed on the report was January 2, 2004, at 19:25 (7:25 p.m.). The next date near the bottom of the report was very interesting. According to the report given to us, the incident narrative was entered on April 1, 2004, at 8:11:56 a.m., one day shy of being three months later than the original January date. I guess that was appropriate, since it was April Fool’s Day, but we were not fools. The narrative had many inaccuracies and missing details and was written in a manner that favored the police. Here is the wording of that report narrative, exactly as written:

  On Jan 2, 2004 at 1925 hours, Officer Tilley responded to 810 Central Ave and witnesses called in reporting a naked male running around acting abnormal. Officers responded to the scene and, after locating him at 810 Central Ave. approached him. The man resisted the stop and a struggle ensued. During the struggle the man lost consciousness and was transported to Erlanger where he was later pronounced dead. Major crimes and crime scene unit investigators responded and notifications were made to administration.

  Beneath the report narrative, the case status was listed as “inactive.” As far as they were concerned, they were through with the case, but we were just beginning. Prior to leaving the Police Services Center, I asked for information regarding the process for viewing the public records and personnel files of the officers involved in Leslie’s death. This was a part of conducting our own investigation, as directed by the “Family First Aid Kit.” I was told that I needed to call the o
ffice of the police chief. I called his office and told his secretary why I needed to talk with the chief. I was told that he was out of the office and that I needed to speak with another person. I called that person and got a voice message. I left a message with my name and phone number, but I never received a call. On that person’s voice recording, it stated that if the matter was dealing with internal affairs, I would have to go to the internal affairs building on Martin Luther King Boulevard. It was clear to me that I would be wasting my time to continue playing on their merry-go-round. They may have enjoyed the ride, but our family did not. This is another example of how badly the public is treated. On that day, I gave up trying to get them to provide requested information directly to me and decided to rely on an attorney to retrieve future documents, even if a court order was required. I believe that departmental staff had been told to not cooperate with the Prater family. It appeared as though there was a “shutdown” when it came to any requests from us.

  We became convinced that the police department was aggressively forming a coalition against us. It became evident that we would need to officially engage an attorney. We started with Mr. Wolfe, who soon employed attorney Amelia Roberts to add to the case. Somehow, I still felt that we needed more of a team to help us fight this uphill battle. You may have often heard the expression “You can’t fight City Hall.” Yes, you can fight City Hall, if you can find someone to represent you and if you have the physical stamina to endure the process. However, it is very difficult and unlikely that you will win, in the legal sense, if you are fighting the police department. Even if the legal dynamics are resolved to the family’s satisfaction, there is no winning. The hole in your heart can never be filled after the senseless homicide of a child.

  Throughout the years, there have been wrongful death complaints filed against the Chattanooga Police Department and accusations of police brutality. Consistently, the department and city have won. That is why I felt such a dire need for an unusually strong legal defense. To my knowledge, no Chattanooga police officer has been sentenced or made to serve one day of imprisonment resulting from killing an unarmed citizen. As cited in chapter 2, the police officer indicted for the shooting death of unarmed John Eric Henderson was not convicted.15 Rarely are officers fired in Chattanooga due to allegations of police brutality or wrongful deaths. Because of that knowledge, I believed that our family needed a team of attorneys, in addition to the two who practiced in Chattanooga.

  As with their previous wrongful death claims, the Chattanooga Police Department was handling our case as “business as usual.” After all, they had established a pattern of dealing with these matters that ended with their officers being blameless. As part of their usual process, Chief Steve Parks set up a meeting on June 29, 2004, with Dwight and me to disclose the outcome of the internal investigation. Others present and sitting with the chief and us at a long conference table included our two local attorneys, the city attorneys, a couple of the chief’s support staff, and the medical examiner. Leslie was also in the room: We carried a 12 × 14 poster of Leslie’s picture, attached to a wooden frame and handle. This picture was placed in an empty chair, near us at the table. We felt the need to personalize Leslie in those discussions, because they were about him. He was a real person and not just a faceless statistic or a name on a police report. The administrative assistant of Chief Parks was there to take minutes. I began to take my own notes, but the chief told me that would not be necessary because he would have a copy of the minutes forwarded to me. I made the mistake of trusting him. He never sent those notes to me. Therefore, I don’t recall exactly who else was there, except for an armed, unidentified person the chief invited to sit in the back of the room. I knew that he was armed because I noticed his large gun on the side of his belt. In an effort to intimidate us, I believed, he wanted to make certain that we saw that gun, because his suit coat was opened and pushed back to clearly reveal the weapon. I suppose he was there to shoot us if we made any abrupt moves.

  I felt much anxiety in awaiting the big announcement from Chief Parks about the results of the Internal Affairs investigation. In a million years, I could not have imagined the extent of his creativity in crafting such an outlandish outcome. According to Chief Parks and based on the department’s internal investigation, Leslie’s death was an accident. I asked, “What kind of an accident? Was it an automobile accident, a drowning, did Leslie’s death result from a fire, just what was the nature of the accident?” Parks’s immediate response was “They said that they didn’t intend for him to die.” When he made that statement, I quickly responded again in anger: “Anyone whose body was treated like Leslie’s was treated would surely die.” Furthermore, I challenged anyone in the room to volunteer to have their body treated in like manner as Leslie’s and see if they could survive. Of course, there were no volunteers. It is an understatement to say that we were dissatisfied with the outcome of their bogus investigation. They had investigated themselves, with the predetermined result that they were blameless. In fact, we were more outraged, because the chief ignored the reports from two medical examiners. Why employ medical examiners if their investigation and reports mean nothing? The medical professionals had determined that Leslie’s death was a homicide. How is it possible that those officers could kill Leslie and just say, “Oops,” and the department would defend those fatal actions?

  Furthermore, those officers did not even receive a reprimand identified as negative discipline, a process sanctioned in the department’s policy manual, issued on April 28, 2005, and signed by Chief Steve Parks. It stated:

  Negative discipline, on the other hand, is strictly punitive in nature and always takes the form of punishment or chastisement. Ideally, negative discipline should only be used in cases where positive discipline would obviously be inappropriate or when serious, willful violations of policy or procedure occur. Even when negative discipline is used, the department should always consider the co-application of some aspect of positive discipline, i.e. training, etc., to encourage and reinforce correct behavior.

  Although use of excessive force is listed in the manual as serious, nothing happened. If an officer is guilty of insubordination, there would more likely be action, even if it is only a letter of reprimand placed in his or her file. I still cannot understand why there was no negative discipline administered to those officers. If homicide by positional asphyxia is not serious, what would Parks consider a serious violation? The manual describes forms of negative discipline to include a written reprimand, suspension, demotion, probation, or termination. Those officers received none of that. They were given seven days of administrative leave, comparable to a week’s paid vacation, as a reward for killing an unarmed black man.

  Wrongful death accusations against the Chattanooga Police Department, without accountability, were not unusual. I should have expected that they would not champion justice for Leslie’s homicide, but I was hopeful for justice. Because the officers resumed their work assignments after their one week’s paid vacation, that nonverbal message was that Leslie’s death didn’t matter. The officers would not be disciplined. It is decisions like this that have contributed to the Black Lives Matter movement.16 Yes, people around the country are angry about these wrongful deaths. Surely the chief must have known that we would challenge his ruling, but he also knew that citizens’ complaints against the Chattanooga Police Department usually went nowhere.

  Immediately after that meeting, the chief held a prearranged press conference in a different room. We were told that we were not welcome. We complied, because we did not want to create a scene and feared for our safety and freedom. We were surrounded by a sea of police officers, were on their turf, and understood their capacity for dishonesty. As we were walking toward the building’s exit, a departmental employee passed by me and whispered, “Don’t leave.” We followed that person’s instructions, which is why we had the opportunity to have an unscheduled press conference following the one scheduled by
Chief Parks. At the conclusion of the chief’s conference, television reporters asked us if we would talk with them about the meeting’s deliberations. We would have already left the premises if it had not been for the advice of that helpful employee. Our attorney, Mr. Wolfe, joined me and Dwight outside on the lawn near the front entrance of the Police Services Center. Newspaper reporters were also there. I noticed that during our press conference, the chief had sent his public relations officer and another plainclothes officer out to spy on us. They were standing behind bushes, but we noticed them. There was no need for them to hide, because we spoke openly about our reaction, knowing that the reporters would share our comments with the public. We were recorded holding Leslie’s picture and spoke frankly that Leslie’s death was a homicide, not an accident. Despite our trust in attorneys Wolfe and Roberts, it appeared as though the local police department had little respect for local attorneys. I sensed a need for attorneys with no connection to Chattanooga, or even the state. Through a series of fortunate “miracles,” the New York law firm of Johnnie Cochran, Peter Neufeld, and Barry Scheck joined attorneys John Wolfe and Amelia Roberts as our unified team on August 4, 2004. The New York firm is now Neufeld, Scheck, and Brustin. Partner Nick Brustin, assisted by attorney Debi Cornwall, was the New York attorney with whom we mostly communicated. Former partner Johnnie Cochran died on March 29, 2005.17