U.S. Commission on Civil Rights

Coping with Police Misconduct in West Virginia: Citizen Involvement in Officer Disciplinary Procedures

Chapter 2

Police Misconduct An Ongoing Problem and the Disciplinary Procedures to Address It

Incidents of police misconduct continue unabated in West Virginia, prompting advocates to call for improvements in existing procedures for handling citizen complaints against officers. This section describes police brutality and misconduct in West Virginia, the current procedures for dealing with the problem, and finally the difficulties that arise within these present procedures, including the inadequate disposition of previous complaints levied against West Virginia police officers.

At the outset, it is important to bear in mind that law enforcement officers are charged with the challenging duty of preserving order and protecting citizens. At times, this responsibility finds them involved in extremely unpredictable and often dangerous situations in which they risk serious injury to their lives so that other citizens may be safe. West Virginia State Police Chief Howard E. Hill Jr. aptly notes that law enforcement officers place their lives on the line every single day and deal with the dregs of society that others avoid. . . . Many officers are injured or killed trying to protect the public. [1] In order to minimize harm to others and to themselves, law enforcement officers must exercise critical and quick judgment, often when the circumstances are volatile and potentially deadly. Clearly, law enforcement officers perform a public service that is not easy to carry out. 

To assist law enforcement officers in diffusing situations, apprehending alleged criminals, and protecting themselves and others, officers are legally entitled to use appropriate means, including force.[2] In discussing police misconduct, this report acknowledges not only the legal grant of such authority, but also the trying circumstances that law enforcement officers find themselves in, which necessitate use of force. Moreover, this report emphasizes one of the fundamental principles enunciated in the Commission's seminal publication, Revisiting Who Is Guarding the Guardians, namely that the adverse actions of some officers are not representative of all law enforcement professionals. [3] Accordingly, there should be no doubt that a vast majority of law enforcement officers in [West Virginia] are hard working, conscientious people [4] and that improper use of force is the exception, not the norm, in West Virginia.

That said, it is neither the purpose nor intent of this report to denigrate the duties of the law enforcement community in West Virginia, to suggest that the performance of these duties is easy or unworthy of respect from the public, to belittle those improvements that have been made in law enforcement training or protocol, or to insinuate that there is not a good-faith commitment on the part of the police to make such improvements.[5] However, this report does highlight the existence of police misconduct in West Virginia despite reform efforts, and offers ways in which the remaining problems may be minimized.[6] It is designed to assist the law enforcement community and ultimately those who benefit from their protection.

The Ongoing Problem

State commentators on the subject of police misconduct noted in early 2000 that accusations against state police officers in West Virginia appeared to be escalating. [7] In Charleston, a formal complaint procedure was established because of the apparent rise in citizen complaints of police misconduct.[8] The continuing prevalence of misconduct could indicate that current disciplinary procedures are ineffective.

Statistics on the disposition of complaints against officers raise questions of whether allegations are investigated adequately and officers found guilty of misconduct are appropriately disciplined. State law mandates that the state police investigate every complaint from rudeness to alleged use of excessive force by state troopers.[9] Thus we know that although the number of complaints against state troopers decreased 13 percent from 1995 to 1998, the number of complaints filed in 1998 (343) is still significant, and only six involving excessive force and 10 involving abuse of authority in dealing with the public were sustained.[10] In Charleston, in the first 11 months of 1998, 24 allegations of excessive force used by Charleston police officers were made. Only seven resulted in investigations, and of these only three charges were sustained.[11] By contrast, in the first six months of 2000, the Charleston Police Department used force ( displaying their firearm, using their hands to get someone to submit to handcuffs, spraying pepper spray or using a baton ) 122 times, and not once did any internal investigation reveal any wrongdoing.[12]

During the three-year period of 2000 2002, total complaints filed against the state police ranged from 345 to 360 annually.[13] Instances of police misconduct, then, have not been deterred by existing disciplinary measures. To be sure, over 30 percent of all complaints filed in 2000 2002 were sustained,[14] which should give the impression that the police readily, if not aggressively, police themselves (see table 1). Closer inspection, however, reveals the disciplinary action taken by police in sustained cases is often a slap on the wrist. As shown in table 2, of the sustained complaints filed in 2000 2002, in 46 percent of the cases, either a letter of reprimand was sent or no further action was taken.[15] In fact, sending a letter of reprimand was the most common disciplinary action in each of these three years.[16]

Understanding the need to deter police brutality requires us to look beyond a statistical analysis and grasp what is involved in each individual instance of police brutality. The following examples, presented in chronological order, are by no means exhaustive, but are representative of the seriousness of police brutality committed by West Virginia law enforcement personnel:

• In 1997, James Minghini was beaten in front of his sister and mother by state police officers during an arrest after a car chase. A former state trooper, Michael Durst, who arrived on the scene, said that the victim was on the ground moaning after being beaten and was pepper-sprayed while handcuffed. Durst stated that trooper abuses committed against low-income residents are common in the Eastern Panhandle (Martinsburg area), where the Minghini incident took place.[17]

• In September 1997, a man sued the state police after receiving permanent neurological damage, and a skull fracture and broken bones after being clubbed by three officers. [18]

• In September 1998, Robert Ellison, a 20-year-old man was paralyzed during his arrest by Bluefield police officers. Ellison had his neck broken and was dragged 130 feet despite his cries that he was hurt. [19] For several months after the incident, Ellison could only breathe with the assistance of a ventilator.[20] (A more detailed description of this case is provided in chapter 3).

• In October 1999, Neal Rose was beaten by allegedly drunken officers after [Rose] complained about noise coming from a retirement party troopers were having for a fellow officer. [21] The beating left Rose with three broken ribs, a punctured lung, a broken finger, a black eye, and multiple back bruises. [22] During the incident, Rose's pregnant girlfriend was pushed to the floor;[23] and Rose's 11-year-old niece was present.[24] One of the officers threatened to kill the unarmed Rose[25] (he was told that his dead, decomposing body [would be found] in the river ).[26] The county prosecutor noted that there was no indication of any resistance being offered by Rose during the incident.[27] Rose also alleged that he was handcuffed to a chair in the middle of the floor . . . beaten, humiliated, and violently assaulted [28] after being transported to the state police barracks.[29]

• In November 2001, 21-year-old Jason Smith was pepper-sprayed and beaten so badly by two Chapmanville police officers that his mother said, It didn't even look like him. [30]

• In April 2003, a police sergeant was indicted after he allegedly rammed the pickup truck [of Kevin Tinger, the 20-year-old driver] and fired a bullet into the truck, splattering metal fragments into the young driver. . . . [T]he officer went far outside his city jurisdiction and entered Tinger s home, where he drew his gun on family members. [31] Another indictment returned by a grand jury charged the officer with attempting to commit voluntary manslaughter, three counts of wanton endangerment, three counts of kidnapping, one count of burglary and one misdemeanor count of destruction of property. [32]

Current Disciplinary Procedures

Former State Police Superintendent Gary Edgell claims the system works. [33] However, the Advisory Committee wonders whether the complaints of police misconduct indicate that the existing system produces questionable disciplinary outcomes and is an ineffective deterrent. State statutes and code of state rules outline disciplinary actions for law enforcement officials.

This section examines the separate systems of discipline for state police, municipal officers, corrections officers, and deputy sheriffs.

State Police Officers

The Professional Standards Section, an internal unit within the state police, handles allegations of police misconduct committed by state police officers.[34] Its powers are limited it does not have subpoena power and can only conduct investigations in a limited fashion. The complaint procedure begins when an officer in charge (OIC) assigns an investigator to conduct an internal inquiry into the complaint. The investigator will compile and assess the evidence and recommend disciplinary action to the OIC, who then makes his own recommendation to the superintendent of police, who makes the final disciplinary determination. In response to this determination, the accused officer may present a defense at a pre-deprivation hearing. The disciplinary action may be appealed through a grievance procedure that is presided over by an administrative law judge.

Disciplinary offenses are categorized into three groups depending on severity that is, ones that are less severe, those that are more severe, and those that are of a serious nature in which the first occurrence would warrant the superintendent to discharge the officer.[35] Group III offenses include using unnecessary force during an arrest/custody produce or committing conduct unbecoming an officer.[36]

Group III offenses that are categorized as more severe would warrant the superintendent to discharge an officer. An officer may be discharged for, among other things, threatening employees, engaging in dishonest or immoral conduct, disobeying an officer, accepting bribes, or using unnecessary force during an arrest/custody procedure. An officer may also be discharged for committing multiple offenses during a given time period.

Municipal Police Officers, Deputy Sheriffs, and Corrections Officers

Under West Virginia law, each county is required to have a civil service system governing testing, hiring, and discipline of county employees. Individual cities in West Virginia, depending on their size, also may have a separate civil service commission for city employees.[37]

A just cause standard is in place for disciplining civil service employees, who include municipal police officers, deputy sheriffs, and corrections officers.[38] In various West Virginia Supreme Court decisions, just cause is defined as a substantial cause, which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interest of the public. [39] West Virginia law and state supreme court decisions provide examples of conduct for which police officers can be disciplined and removed. Offending conduct includes using excessive foul language,[40] excessive force while making an arrest,[41] drinking alcohol while on duty,[42] unexcused absences,[43] sexually harassing witnesses,[44] engaging in political activity,[45] among others.

Municipal Police Officers. Civil service commissions at the municipal level are generally a fairly loose board of law enforcement officers charged with investigative duties and final disciplinary authority for citizen complaints if disciplinary action is contemplated by the removing police officer.[46] After notice is given to an officer accused of misconduct, he will be given a hearing before a hearing board, which, like the civil service commission, has subpoena power and can administer oaths. The primary duties of the hearing board are to compile evidence and recommend disciplinary action (if needed) to the civil service commission.[47]

Following the recommendation of the hearing board, a hearing will be granted before the civil service commission, if the officer requests one. If a hearing is granted, the removing officer has the burden of justifying the disciplinary action. Officers can be dismissed for just cause or engaging in political activity (see above).[48] If the removing officer fails to meet his burden, the accused officer will be reinstated; the removing officer has an immediate right of appeal to the circuit court. If the removing officer does meet his burden and the charge is sustained, the accused officer can appeal to the circuit court. Absent appeal, the commission's decision is final.

Deputy Sheriffs. Deputy sheriffs are persons appointed by a sheriff as his deputies whose primary law enforcement duties are patrolling highways, performing police functions, making arrests, and safeguarding prisoners.[49] Deputy sheriffs are subject to their own civil service commission, composed of three commissioners who have subpoena power, and can compel production of documents and administer oaths.[50] The disciplinary procedure is somewhat simpler than the procedures for municipal officers, as accused officers (wishing to appeal an adverse decision) proceed directly to a hearing before the civil service commission. At the hearing, the removing sheriff has the burden to justify his disciplinary actions. If the sheriff fails in this justification, the accused will be reinstated; the removing sheriff has the right of appeal to the circuit court. If the sheriff meets his burden and the charge is sustained, the accused can appeal to the circuit court.

Corrections Officers. In counties with a population of at least 25,000, corrections officers (persons appointed by a sheriff to operate and manage a county jail)[51] are also subject to a separate civil service commission. The commission has five members and subpoena power, and can compel production of documents and administer oaths.[52] Almost indistinguishable from the procedure for deputy sheriffs, the complaint procedure requires the accused corrections officer to be given written notice of the grounds, after which the officer may request a public hearing before the civil service commission, in which the sheriff has the burden to justify her actions.[53] If the sheriff fails to meet her burden, the corrections officer is reinstated; and the sheriff can appeal to the circuit court. If the charge is sustained, the corrections officer can appeal to the circuit court.[54]

Difficulties Caused by Current Disciplinary Procedures

Financial Impact

Police brutality claims not only draw precious financial resources away from the police force to defray litigation costs or pay out generous settlements to aggrieved citizens, but also burden taxpayers and jeopardize other government services.

According to press accounts, a considerable amount of money has been spent on litigation and settlements. For example, the state police paid $60,000 to settle the Minghini case,[55] while the city of Charleston spent $90,000 to fight and $20,000 to settle a case brought by a 76-year-old woman who was pepper-sprayed by police.[56] The city also incurred a cost of $50,000 from a case arising out of the beating of a suspect by two city police officers. [57] Disciplinary action was taken, including dismissal, against the officers.[58] Robert Ellison was awarded $1 million in a settlement reached with the city of Bluefield,[59] while Neal Rose settled with the state for $1 million as well.[60]

From 1994 to 2001, the state police had a liability loss of $7.8 million due to wrongful arrests or settlement of police brutality cases.[61] State Police Superintendent Hill believes liability losses have diminished under the current police administration due to education and training of law enforcement officers, citing approximately $700,000 in payouts for 2001, $88,000 in 2002, and $44,000 in 2003.[62]

These significant and fairly frequent costs have a two-pronged effect. First, the state police is forced to trim its own budget. Superintendent Hill responded to the need to cut costs by saying, We'll just have to figure out where we're going to pull from. [63] In light of the costs of settlements and the adverse impact they have on police resources, Delegate Larry Faircloth noted, If anyone questions why the legislature can't do more for the state police, they should look at the amount of money being spent to settle lawsuits and pay legal bills. [64]

Second, in large part because of a series of police brutality lawsuits filed against troopers, the state police's insurance premium soared from $1.7 million for fiscal year 2001 to $3.35 million for fiscal year 2002.[65] The funds for these premiums come from taxpayers wallets. [66] The state's Board of Risk and Insurance Management (BRIM), which insures state agencies, other governmental units and nonprofit agencies, [67] has a $1 million cap on claims filed against law enforcement agencies.[68] If there is a jury award exceeding this cap, [o]fficers are personally liable for the difference. [69] Individual citizens and officers themselves stand to take a substantial financial hit because of police actions. According to news accounts, many cases have been settled:

• A secretary assigned to the Hinton State Police detachment sued the state police in 2000 alleging a supervisor made sexual advances toward her. The state awarded her $95,000 in a settlement. In addition to the settlement, BRIM incurred $12,199 in investigative expenses.

• BRIM settled for $1 million a case for the family of a women shot and killed in 1999 by her former boyfriend, a state trooper. Reports indicated BRIM spent $34,491 handling the case.

• An unidentified Raleigh County woman sued state police troopers assigned to the West Virginia Turnpike in 1999. She alleged that a state trooper and two other men who were not troopers had sex with her in a park when she was too drunk to give consent. BRIM settled the lawsuit for $75,000. Expenses were $25,144.16, including attorneys fees.

• Following the death of her daughter, a mother filed a lawsuit against the state police in 1997 claiming her daughter died as the result of a car chase by a state trooper. The family was awarded $775,000. Expenses were $23,697.

• James Minghini, whose lawsuit alleged troopers beat him (see above), settled for $60,000. BRIM spent $454,519 handling the case.

• Neal Rose of Welch was awarded $1 million after alleging that a state trooper and others broke down his apartment door and beat him. BRIM spent $31,958 to handle the case. (The trooper resigned in October 1999 and was convicted on both federal and state charges in the incident.)

• BRIM awarded a Logan resident $40,000 who alleged a trooper battered him in 1998. Expenses were $36,435.

• A Kanawha County man received a settlement of $1 million because testimony by a former state police chemist led to his conviction in the murder of his neighbor. The state supreme court questioned the chemist's testimony in several cases. BRIM's expenses were $8,006.[70]

The former state police superintendent has claimed that settlements have been an economic decision, [71] meaning the payment is not an admission of guilt but a means to save the state from further litigating trials or from an adverse judgment. Robert Fisher, deputy director and claims manager of BRIM, disagrees. BRIM does not simply settle cases because a settlement would be cheaper than taking a case to trial; doing so might encourage frivolous lawsuits.[72] As settlements are ultimately paid by taxpayer money, Fisher stressed that this money should be used wisely.[73]

Even so, the fact that this amount of money has to be paid in the first place not only demonstrates the existence of a police brutality problem, but also the misallocation of resources that could be going toward, among other things, training, recruitment efforts, and technological development, and which directly affects the pocketbooks of citizens and the efficacy of other government programs.

Layers of Bureaucracy

Citizens who have been subject to excessive force are not satisfied with the current procedures, and neither are those in charge of the officers. Indeed, police chiefs have been outspoken against the current system because they believe their authority becomes diminished and subject to the advisement of other individuals not as intimately aware of police practices and the difficulties of the officers jobs in certain high-pressure situations.

To illustrate, former Charleston Police Chief Jerry Riffe wanted to fire a patrolman for using excessive force, but under the procedures in place for municipal police officers, the patrolman's fate rested in the hands of a civil service commission not his own. Chief Riffe explained, I don t think it should be in the hands of peers fellow officers to make that decision. . . . It should be with me. . . . When layers of bureaucracy are added, it makes the job of police chief that much harder. [74] Echoing these sentiments, current Charleston Police Chief Jerry Pauley noted he

cannot even issue a reprimand to an officer without having the case heard by a [review board] and them agreeing with the reprimand. . . . [T]he disciplinary decisions should be made by me, the chief, not the officer s peers. In prior law the hearing review board made a recommendation to the chief and it was the chief who had the final decision. I have been trying to work with different groups to get the state law changed.[75]

Similarly, Senator Jack Buckalew, a former state police superintendent, believed that a civil service commission is an extra layer that shouldn't be there. . . . Having another layer just muddies the water. [76]

Inadequate Disposition of Complaints of Police Brutality

The persistence of police brutality complaints suggests the existing procedures may be insufficient to deter police misconduct. As noted above, the number of complaints filed from 1998 to 2002 remained relatively constant, despite that senior police officers claim the current disciplinary system is working properly.[77] In many cases, officers are not given harsh disciplinary sanctions. The following are instances where advocates have questioned the adequacy of disciplinary action imposed:

• The state police settled the excessive force lawsuit filed by James Minghini; however, the internal investigation determined that the force used to subdue Minghini was appropriate. [78]

• In one of the most widely reported instances of police brutality, the beating of Neal Rose, one officer resigned, only one was fired; yet several others were demoted for reasons unrelated to the incident.[79]

• An internal investigation did not find any wrongdoing in an incident that left a Martinsburg man with permanent neurological damage, a skull fracture, and broken bones after being clubbed by police officers.[80]

• In the case of Robert Ellison, the 20-year-old who was paralyzed after an arrest in Bluefield, an internal investigation found no wrongdoing by the officers. [81] The incident prompted an investigation by the FBI and later review by the U.S. Department of Justice's Civil Rights Division.[82]

• Allegations of arresting citizens without cause [and] racist tendencies, among other things, led the U.S. Department of Justice to investigate Charleston's Street Crimes Unit, despite that an internal investigation by the Charleston Police Department found no wrongdoing.[83]

In each of these incidents, one would expect the officers involved to be disciplined in proportion to the degree of the transgression and the severity of the injuries that ultimately resulted. The internal investigations, however, found no grounds for disciplining the officers in these cases.

While these examples should highlight the inadequacy of internal disposition of complaints, the inference should not be made that officers should always be disciplined when force is used or where citizen injury follows. For example, two officers were found to be justified in shooting a man after they were shot at first.[84] These results derive from an intuitive sentiment as to when and to what extent an officer may use force, as the officers applied deadly force in clear defense of their lives.