Robert Patrick
ST. LOUIS • As video cameras
begin to sweep post-Ferguson policing — and policymakers grapple with whether
to bar the public from watching the images — one such recording sits at the
heart of a new lawsuit.
It shows St. Louis police
making an arrest that would later be called abusive, and catches an apparently
surprised officer yelling, in part, “Everybody hold up. We’re red right now!”
before she abruptly shuts off the camera.
Joel Schwartz and Bevis Schock,
lawyers who filed suit Jan. 22 on behalf of Cortez Bufford, said “red” is cop
slang for a running camera. What is seen before the video stops, they claim,
supports their accusations in St. Louis Circuit Court that police lacked
probable cause and applied excessive force.
The video, which St. Louis
Mayor Francis Slay’s office had asked a private lawyer to delay releasing last
summer, shows city officers pull Bufford from a car, kick him repeatedly and
shock him with a Taser. It played a role in the dropping of charges against
Bufford.
But a lawyer for the St. Louis
Police Officers’ Association insists that the video really reflects a proper
escalation of force applied against a resisting suspect who was lucky he didn’t
get shot when he reached for a gun.
Police Chief Sam Dotson
declined to comment on the specifics of the case.
CALLS FOR SHOTS FIRED
The stop followed 911 reports
of shots fired near Lafayette Square just after 10 p.m. April 10. One caller
mentioned a silver car with big wheel rims.
Five minutes later, according
to a police report, officers Nathaniel Burkemper and Michael Binz watched as a
silver Ford Taurus made an “illegal” U-turn and “abruptly parked” in front of
1614 South 13th Street.
The video, released by
Bufford’s lawyer, shows them pull over the car. Conversations are hard to hear.
Binz searches and handcuffs the passenger as Burkemper talks through the car
window with Bufford, the driver.
Burkemper’s report says both
men in the Taurus raised their hands when asked. He wrote of smelling marijuana
and seeing “plastic baggies and a green leafy substance.”
Burkemper is heard saying, “I’m
telling you right now” and “Let’s go” to Bufford. The passenger repeatedly
urges Bufford to get out.
Bufford “became agitated,”
Burkemper wrote, refusing to give his name and reaching for a pants pocket
before the officer warned him to keep his hands in view. Bufford refused orders
to get out. Burkemper called for backup when Bufford became “increasingly
hostile.”
The report says Binz told
Burkemper he had found two bullets in the passenger’s pocket. Burkemper then
ordered Bufford out again, saying he was under arrest. Bufford unlocked his
door, but refused to exit.
The video shows Burkemper
reaching in and opening the door as backup arrives, at 10:14.11 p.m. The report
says that after Burkemper maneuvered Bufford to the ground, the suspect
struggled repeatedly and reached for his pocket.
Burkemper spotted a gun and
warned fellow officers, the report says.
The video shows officers
struggling with Bufford as one arrives and kicks at him. The report says
Officer Monroe Jenkins administered a “foot strike” to keep Bufford from
reaching his weapon.
Bufford hit and kicked several
officers, the report says, before another officer “administered a foot strike”
to the leg, and Bufford was jolted with a Taser twice. At least seven officers
participated.
He was then handcuffed, and
Binz recovered a Kel-Tec 9mm semi-automatic pistol with four rounds in the
magazine and one in the chamber. It has a capacity of 11.
At 10:15.38 p.m. on the
recording, the officers appear to be turning Bufford over without noticeable
resistance. Most of the officers are standing.
At 10:16.06 p.m., Officer Kelli
Swinton approaches Burkemper’s patrol car. There is the sound of an opening car
door, and she loudly declares: “Hold up. Hold up, y’all. Hold up. Hold up,
everybody, hold up. We’re red right now, so if you guys are worried about
cameras, just wait.”
The audio cuts out, and the
video ends eight seconds later.
In response to an open records
request, City Counselor Winston Calvert released the same video on Friday, plus
views from other dash cams.
One shows that after
Burkemper’s camera stopped, officers continued to huddle around Bufford. That
camera shuts off, too, leaving a gap of more than two minutes before Bufford is
seen on it again, stumbling and falling once as he’s taken to a police vehicle.
Other videos show unrelated scenes and both Bufford and his passenger sitting
inside vehicles.
EXCESSIVE FORCE CLAIM
Schock claims that officers
struck Bufford again after the first video ended, and that his client “got
banged up pretty good.”
Bufford’s passenger did not
respond to a reporters’ messages seeking his version.
The lawsuit says Bufford
suffered abrasions to his fingers, face, back, head, ears and neck, and
incurred medical bills of $6,439.32. It seeks unspecified damages from
Burkemper, Jenkins and two unnamed officers.
Schwartz maintains that Bufford
should not have been stopped: that the car was not logically connected to the
shots, the U-turn was legal and the driver is seen pulling to the curb using
his signal in response to police lights.
He said that getting out of the
car would have been “the right thing to do” but said Bufford was “just
exercising his rights” to refuse. Schwartz acknowledged that at 18, his client
was not old enough to legally carry the gun.
OFFICERS’ LAWYER RESPONDS
Brian Millikan, a union lawyer
for four of the officers at the scene, told the Post-Dispatch and KTVI Fox 2
the 911 calls and U-turn provided probable cause to stop the Taurus, and the
sight of marijuana was sufficient reason to remove Bufford from the car.
The lawyer said the video shows
“perfect use” of police tactics by officers who were “just moving up the chain
of the escalation-of-force policy and they deliver some very targeted, directed
strikes to his arm and leg. When that doesn’t work, they move up the ladder
again to the Taser. And the Taser ultimately is what makes the suspect comply.”
Millikan said police even could
have used lethal force after Bufford reached for a weapon; the lawyer noted
that an officer is heard calling out, “Gun!”
Millikan declined to comment on
whether it was a policy violation for an officer to turn off the video; he is
not representing Swinton. He did say he is not aware of any force used once the
recording stopped.
CHARGES FILED, DROPPED
The police report says the
passenger told officers the gun and marijuana both belonged to Bufford. An
investigation of whether the men had fired shots earlier was “inconclusive.”
Bufford was checked at a
hospital that night and deemed “fit” for jail. There’s no mention of injuries
in the report, except for a soft cast he was already wearing. Burkemper and
Binz declined treatment for abrasions.
This photo from a St. Louis
police dashcam video shows a traffic stop and arrest on April 10, 2014. Cortez
Bufford was shot with a stun gun, handcuffed and later charged with resisting
arrest and a weapons charge. Both were later dismissed by prosecutors. Bufford
filed suit against four police officers in January 2015.
Bufford was named on a felony
charge of unlawful use of a weapon and a misdemeanor of resisting arrest. Lab
results later showed just under four grams of marijuana were recovered. The
charges were dropped Aug. 26.
Schwartz said it was because
the tape contradicted the police report.
But a circuit attorney’s
spokeswoman, Susan Ryan, disputed that, saying Friday the case was dismissed
because “the action of turning off the dash cam video diminished the
evidentiary merits of the case.” She also said a review showed the officers did
not break the law, although prosecutors notified police Internal Affairs about
the video being stopped.
Either the night of the
dismissal or the next morning, Schwartz said, Jeff Rainford, Slay’s then chief
of staff, called Schwartz’s law partner and asked him to delay any release of
the video pending an Internal Affairs investigation.
Schwartz said he presumed it
was to keep from provoking Ferguson protesters. Said Schwartz: “We didn’t want
to create more unrest at the time.” He added later, “A tape like this certainly
could have made things worse.”
But Rainford angrily denied in
a call several days ago to Fox 2 that the request had anything to do with
Ferguson.
WATCHING THE COPS
Police department “special
orders” regarding dashboard cameras say that “traffic and any type of
investigative stops” and “vehicle pursuits,” among other things must be
“recorded in their entirety.” The camera should be stopped “once the assignment
or the reason for the initiation of recording is completed.”
The department has a small
number of dashboard cameras and no body cameras.
A police spokeswoman told Fox 2
that the officer who turned off the Bufford case camera “has been recommended”
for discipline, but is appealing. A lawyer for Swinton declined to comment.
Asked about making police
videos public, Chief Dotson said it should be decided case-by-case, balanced by
privacy interests of those depicted.
Millikan said that the union is
“all for releasing the video whenever it’s in compliance with the Sunshine
Law.”
Cameras promise to play a big
role in holding both the police and public accountable in their encounters. But
there are issues about protecting privacy of the people interacting with officers.
Sarah Rossi, director of
advocacy and policy for the American Civil Liberties Union of Missouri, said
she believes the in-car videos are always public by law. She is working with
state officials to forge policies balancing privacy and access to body camera
footage.
But Missouri Attorney General
Chris Koster has called for restrictions on public access to body camera
footage, warning the Legislature of “a new era of voyeurism and entertainment
television at the expense of Missourians’ privacy.” His proposal would also
make police car videos a closed record.
