ACLU forum highlights police repression and brutality

asheville | copwatch | feature Monday October 08, 2007 22:58 by micah

Police Chief Bill Hogan and Sheriff Van Duncan

FROM THE NEWSWIRE: On September 27, the WNC-ACLU held a heated panel discussion at UNCA entitled “Your Right to Dissent”. Asheville City Police Chief Bill Hogan and Buncombe County Sheriff Van Duncan were both on the panel, along with representatives from local government, the academic and activist communities, and the ACLU. But rather than a discussion about dissent with this diverse panel, the audience took this rare opportunity to drill the two cops with some tough questions, leaving little opportunity for the rest of the panelists to input at all.

As the night progressed, the two cops were forced to respond to questions and criticisms about police brutality and harassment of black communities, abuse of Constitutional rights to dissent, and the feasibility of implementing a Citizen Review Board for the police. With roughly 170 people present, the forum lasted almost an hour longer than it was intended to.

Click here to stream or download unedited audio from the entire night, recorded on Making Progress, a radio show on WPVM.

“Less-Than-Lethal” Weapons

City Council candidate and member of the Citizen's Awareness Coalition (see Citizens scheme to combat local law enforcement's attack on dissent) William Meredith said, “I've seen the prevailing use of [less-than-lethal] weapons as behavior modification tools. They're being really over-applied in a way that I think officers have become way too complacent with the moniker 'less-than-lethal', so that they're more encouraged to use this in an inappropriate manner.” He then asked, “What are you going to do locally to ensure that less-than-lethal weapons are treated every bit as seriously as using a lethal weapon?”

Chief Hogan responded: “If anybody is ever in a case where they're arrested and force is applied to them and they feel that it was unwarranted, or excessive, please come in. We have a Professional Standards Unit that conducts investigations based on citizen's complaints, and I will tell you we have Professional Standards that investigates cases based on supervisor's complaints.” He went on to say, “If we find any indication of any abuse, there's disciplinary action. There's often retraining for the whole department.”

Sheriff Duncan elaborated on the use of tasers: “When we look at use of force in law enforcement, and that's a good bit of my background as a trainer, [we weigh the use of force by] the amount of control that it gives the officer versus the amount of injury that might be sustained. And that's the reason that you've seen such an extensive use of tasers by law enforcement, because it gives you a tremendous amount of control with very, very little probability of injury.”

However, a November, 2004 Amnesty International report on the misuse of tasers refutes Duncan’s claims that taser use results in “very, very little probability of injury” stating that: “Since 2001, more than 70 people are reported to have died in the USA and Canada after being struck by M26 or X26 tasers, with the numbers rising each year.” A November, 2006 article in AlterNet entitled Death by Taser: The Killer Alternative to Guns cites that number as being 200 deaths.

Duncan then went on to say that he himself has been tased, and every officer that gets certified to use a taser has been shot by a taser. He also said, “It's extremely painful. You can't fight through it. It allows the officer to bring that suspect or person under control. But the good thing about it is when it's over, the pain stops.” He didn't mention that one side-effect of taser use is severe nausea, sometimes causing the victim to vomit.

Later on in the night, another member of the Citizen's Awareness Coalition took out photographs of a taser victim with large burns on his body and said that Asheville police officers “took the cap off the taser gun, handcuffed the guy faced down, and tased him.” He brought the photographs to the front of the room for Hogan to look at. “This is ridiculous. These pictures are ridiculous. And he was taken to the police department, taken to jail. He couldn't have stopped off at a store and got burnt by acid. He couldn't of went home and laid himself on a hot plate.” Hogan denied that the injuries were caused by a taser.

Police Harassment of Black Communities

The same man also said, “Can you define what a good cop is on a bad day, and what a bad cop is? You know, I don't understand. Because if I have a bad day, I go to jail. And plus, with me being African American, I get beat down.” He continued, “I feel threatened every day that I go up South French Broad. If a cop's coming down the street and turns around, speeds in behind me because they want to pull me over, I'm gonna call 911! I ain't doing nothing. My seatbelt is fastened. I'm doing 20 or 30 miles per hour. I'm not feeling protected by the police department. I'm feeling threatened, every time I go out.”

He went on to say: “African Americans in the city of Asheville are becoming outlawed in the city. We're becoming... it's hard to say what we're becoming because we're non-existent anymore. Every time one of your officers see us, we're a statistic. It doesn't matter. Chief Hogan, you might not know it, but you might do know it too, but these things are happening. Officers are doing police brutality. I've seen it done, and I see it every day, in these areas. When does it become resisting arrest when you're flat down on your face with your hands behind your back? How is that resisting arrest? And when they take you to jail there's nothing said because you're beat up to a pulp. I don't understand that. And when we do come to see you, please see us! Don't put us on hold.”

A black woman started her question with, “Chief Hogan, I'm glad to meet you because we've been trying to get in contact with you since May.” She went on to describe a situation where her son was brutally arrested by Asheville police officers. “Three times they came, humiliated his girlfriend, he had witnesses each time. They used violent force, came in through the garage, came in through a sliding glass door...broke the doors in, went in through his house, cut up his furniture.” The most recent time the police came in, the woman said her son had two friends over. “One young man said, 'Give me your badge number. Give me your name.'" She said the cop then "took his knees and went in that young man's face. The other one asked and he took his knee and put it in his back, and the other one said, 'You afraid of me now?'”

The last question of the night was asked by a young black man. “I do feel the brother over here, about how you all hang out in these neighborhoods and harass the people, because I live in one of these neighborhoods, in Shiloh. We were having a graduation party. We had permits. We had officers sitting all around the community center, and we felt like we were oppressed, and is it not possible that we get some sort of freedom and equal protection as well?”

Hogan responded: “We have an emerging gang problem here, folks, and I don't know if you've heard anything about it, but it's the most frightening thing that this city is confronting today. We have youth that are shooting one another in turf wars in neighborhoods. And yes, we create a presence in there. But we don't want to oppress you, or anybody. I'd be glad to sit down with you and look into the circumstances.”

The Southeast Convergence for Climate Action

“My name is Randal Pfleger,” one man said. “I suspect that Bill Hogan and Van Duncan may know that already. I was one of the organizers for the Southeast Convergence for Climate Action.”

He said that the four days he was at the Convergence, “we had helicopters surveilling us” (see Activists Mobilize and Protest Amidst Overwhelming Police Presence). He went on to ask a slew of questions: “Was there a planned police raid during the morning hours of Monday, August 13th? We know there was a multi-agency police operation that included the North Carolina State Patrol, Buncombe County, Henderson County, Transylvania County, and Asheville City. Who coordinated this operation? Was the FBI, Department of Homeland Security, or Joint Terrorism Task Force involved? Why was one activist's car illegally impounded? Why was I followed from the convergence site by two North Carolina State Patrol cars? Why did that car sit on my block for 45 minutes? Why did that car follow me again for another half an hour while I drove around this town? Why did a simple act of nonviolent civil disobedience draw the SWAT team, in full riot gear, dozens of police, police dogs, and the threats of tasers? Who oversaw the security operations of Progress Energy's Skyland plant? Were those police on duty? Is there continuing surveillance on us?”

Sheriff Duncan answered first: “I was the person that was responsible for organizing that. That planned protest, and what we believed was going to take place, was going to take place in Buncombe County, so it actually fell on my shoulders.”

He continued, “Some of the things that were being proposed at that site that caused us concern, that we felt like we needed to have a response in place, was climbing training, civil disobedience, things with the objective of being arrested... Some of the things that the FBI had information about were plans to lob chains into the transformer station to shut down Progress Energy, to shut down their plant.”

As a participant in the Southeast Convergence for Climate Action, and the action at Bank of America on August 13, I never heard of the alleged plan to “lob chains into the transformer station.”

He then began to explain why there was such a severe police response to the Convergence: “What happens is if you shut down that power plant, you affect a lot of folks. And you can actually -- I mean, when you think about 90-some-odd degrees weather, and you shut down the power grid, you're talking about a severe disruption that's probably going to cause loss of life. It has in other places when that large a power grid shuts down.”

He didn't mention that blockading a power plant for a day will almost certainly leave the power grid intact. In fact, Earth First! and Rising Tide North America blockaded a different coal-fired power plant in the Carbo, Virginia in 2006, with no effect at all to the power grid (see Resisting King Coal: Rising Tide’s First Direct Action in North America).
Duncan continued: “We had those people in place to make sure that if you came to protest in a public place that you were allowed to do so, but if you filed 200 folks in there we had to be able to make sure that we didn't allow you access into Progress Energy, which would have been a violation of law and I think it concerned the people in this audience.” One person in the back of the room clapped loudly.

Duncan then said that the massive police effort “was a coordinated response between us, the Asheville City Police Department, the State Bureau of Investigation, the FBI, the Transylvania County Sheriff's Department, and the Henderson County Sheriff's Department, and the Highway Patrol. I may have mentioned them. That was their helicopter and it was there to find out what we were dealing, so we could protect the majority of the citizens in Buncombe County and far outside of Buncombe County that would be affected by that power grid.”

Chief Hogan talked more about the action that happened, not at Progress Energy, but at Bank of America in downtown Asheville (see Activists Blockade Bank of America in Downtown Asheville). But first he said: “We were already in place, obviously to respond, and we had folks in the crowd control equipment and gear, which is protective equipment for the, because of the threat of your own web page that lead us all to believe that you may actually attack the power plant and take the power down here all the way to the North Carolina border that borders up with Tennessee.”

Hogan spoke about the how his officers treated the protesters: “I don't know how many of you saw the Asheville Tribune picture. I mean, the young man getting arrested was grinning from ear to ear. There was no harm, no hurt. They went into the bank, chained themselves together, and refused to leave.”

He neglected to mention the pain-compliance holds that were used on the non-violent protesters (see comment from the organizers). And although police did not use tasers, they threatened to. “But you know what the other outcome is for us? Two of my officers were hurt ‘cause these folks wouldn't stand up and walk out. So I've got an officer now, who's at the end of his career, who's got a torn rotator cuff, is probably facing surgery. And I've got a female officer who, through dragging, or physically lifting this person up and carrying them out of there, twisted and injured their arms.”

Although they didn't answer most of Pfleger's questions, when he asked one more time if they have ongoing surveillance on the organizers of the convergence Duncan responded with: “I can tell you that we don't, as an agency. I can't speak for other agencies. You can imply what you want to imply. We don't.” Hogan did not respond.

At Bank of America that day, several people went inside the bank and some of them locked themselves together. Local media was called, and they photographed and videotaped crowds of people outside of the bank holding banners and signs. Many people were dressed in polar bear and canary costumes. If there was a plan to “attack” a power plant, as Hogan worded it, or to “shut down the power grid,” as Duncan worded it, there would be no need for costumes and banners. Hogan and Duncan, with the support of state and federal police, vastly overreacted and overstated the threat, trying to make nonviolent community activists look like terrorists bent on killing old people that rely on their air conditioning.

Progress Energy's Skyland power plant, however, is responsible for 43 deaths every year due to its air pollution, according to research done by Clear the Air (see Clear the Air for more information on methodology and sources).

Other Issues

At the beginning of Steward David's question, he said, “I happen to be old enough to remember when the whole country was a free speech zone,” to thunderous applause. David is a director with Carolina Animal Action. Addressed to Hogan, he said: “We asked you to please educate the police force on the ordinance. It's a very short ordinance, as we discussed tonight. It's a very clear ordinance. And I've written you recently and with all due respect, you haven't answered. [...] I really shouldn't have to carry an ordinance around with me and read it to the police officers, but I do it all the time. And I've been threatened with arrest by officers, and I'm really tired of being treated like a criminal.”

A man named Steve Rasmussen said: “My question for Sheriff Duncan is, you recently organized a group called BCAT, Buncombe County Anti-Crime Task Force, and you've been going around to different municipalities getting funding for it and describing it as a replacement for MEG, the old Metropolitan Enforcement Group, which used surveillance and informants to conduct drug busts of dealers and so forth.”

He then described a situation where BCAT was involved in arresting an AB Tech student who said he bought a grenade launcher on his MySpace page. He continued, “And there was no involvement with narcotics or any of that. Some people would have argued that he was within his Second Amendment rights. Be that as it may, what I'm concerned about is this is a secret police force. And I know that in the past you've expressed some resistance to the kind of civilian oversight that you've been pushing for in Asheville, and yet how can we be assured that a police force like that won't suffer a little mission drift and start doing like similar police forces in other cities, for instance like New York, where they've infiltrated anti-war groups and spied on them to find out what their protest plans are. Without civilian oversight, how can we even know what the actual mission of this force is?”

Duncan responded: “The Buncombe County Anti-Crime Task Force, and the reason it's not referred to as a narcotics division, but an anti-crime division, is because they do some things that may involve surveillance or covert operations that they have the ability and the technical expertise to do.” About oversight, he said, “Because BCAT is made up of different municipalities and a state agency, there is really more oversight in that then there was before with MEG.” He did not mention anything about mission drift.

Citizen Review Board

Naomi Archer, an Asheville activists who is part of an organization that “tracks the criminalization of dissent,” asked the two cops, “Are you prepared to create a civilian review panel that has broad community participation? And not just business leaders, but also members of the community that are not beholden to the status quo, and that also has independent subpoena and investigative power? Because folks around the country where other civilian panels exist, if there's no independent power, there's a whitewash, and we've seen that over and over again. And I guess I'd also ask [City Councilor Robin Cape] if she'd be an advocate for that within the City Council?”

Hogan responded: “I'm not personally opposed to looking at it, but I'm going to tell you, there's a lot of state law that restricts what a civilian review board can do. First of all, as I understand it, it takes special legislation to allow Asheville to have that kind of scrutiny, and from what I've seen of the past legislation that's in a few cities now in North Carolina, it's not as broad as you expressed it to be or would want it to be.”

He continued, “But I'm standing here telling you, you can rest assured that I hold people accountable. You can rest assured that I have ended folks careers in this business because they stepped over the line, they shouldn't be a part of this organization, or shouldn't be part of this career.”

Robin Cape responded as well: “I don't know enough yet. I'll just be honest with you, I don't know enough of the models, the best practices, that are moving forward, but I'd really like to look into it. I would like us to study it... I can't make an answer on anything that I haven't looked at and studied. I know Dwight is going to Chicago next week and I know that he's gonna look at one of the communities up there that's been really successful with theirs. He's gonna bring back information. We need to really look into this, and see how we do this. And yes, I will be an advocate for us doing it.”

“I don't know if you all realize how restrictive it is to be a City Councilor or Commissioner in the state of North Carolina,” Cape continued. “Basically, we can't do anything that the legislators don't let us do. It's frustrating, the list of things we can't do. When we want to have something done, we need to have legislative approval to do it, which means we have to get every member of our delegation to the state and all the Council members to agree to go to the legislation and ask for special dispensation to do something. So to say, 'Can we just change the charter?', it's not that easy. And as you know the last time I attempted to change a charter it wasn't so successful. So there's a lot more action that it takes to do something than to say, 'Why doesn't the city of Asheville do this?'”

Copwatching

Barry Summers, a host of the community radio show Making Progress on WPVM, asked Bob Oast, the Asheville City Attorney who was on the panel, of his “understanding of the current law regarding citizens videotaping or photographing police officers in the exercise of their duties.” He also asked Hogan and Duncan what their opinion of citizens documenting cops is.

Oast responded: “If it's an open, public event, you're free to use your camera. If the photographic activity interferes with an officer in the performance of his or her duty, then that is a problem of a different kind. It's one of these things where we don't care if you bring a camera.”

Duncan said he doesn't care if people use cameras to watch them either. “As far as videotaping, we have no problem with videotaping. It is your right to videotape as long as something going along with the videotape doesn't cause a disruption or a threat to public safety.”

Hogan agreed. He also added, “Some people complain about how at certain events, we video. And I'll tell you why we do that. Because I've had cases where folks have claimed certain things have happened, and I get a sanitized, edited version of the police action, but I don't get all the tape leading up to what precipitated the officers taking that action.”

Frank Goldsmith, the ACLU lawyer on the panel, contributed: “The courts have ruled, both the state and federal courts, it's not resisting arrest to question why you're being arrested, to remonstrate with the officer -- to argue -- if you do it in an orderly manner, and the courts make that clear. It has to be in an orderly manner; you can't use fighting words; you can't create a disturbance; but you certainly have the right to be heard. You don't have to submissively accept whatever's coming, if you think it should be challenged.”

In answering another question, Hogan presented one way to use evidence gathered by videotaping or photographing police: “Go to the State Bureau of Investigation and they will conduct an investigation if it's warranted, or you can take it to the FBI. If you think there's a civil rights violation, where [a local officer] violates someone's civil rights by excessive force, the FBI is there for you. And all I can promise you is that I'll give my full cooperation in any investigation that they want to conduct.” Although the FBI has a dirty history of murdering and torturing civil rights activists in the 60s and 70s, it's still possible that a state or federal investigation of local police can help force accountability on them.

Conclusion

I'm glad that Chief Hogan and Sheriff Duncan agreed to be a part of this panel. Hopefully they will agree to go before the public in similar ways again. But until there's actual citizen oversight and grassroots copwatching of local law enforcement agencies, where the community forces accountability on them, these problems will undoubtedly continue.

Roughly 170 people were in attendance

Moderator Mark Gibney, UNCA professor Dwight Mullen, ACLU attorney Frank Goldsmith, City Attorney Robert Oast, Councilor Robin Cape, Police Chief Bill Hogan, Sherrif Van Duncan, Kati Ketz with SDS, and local community activist Clare Hanrahan