Prior
to trial, JSO said it found no reason to investigate officers' conduct
By
Topher Sanders
Germaine
DuBose recounts his arrest in 2004 by the Jacksonville Sheriff's Office. Dubose
fought back with the assistance of Fallis and Slama and in a jury trial DuBose
was awarded $372,860 for his false arrest and battery by JSO officers.
Jacksonville
police said they stopped a Northside man in 2004 for illegally tinted windows.
They ultimately charged him with fleeing and eluding and resisting arrest
without violence.
Germaine
L. Dubose’s attorney said his client, now 40, should have never been stopped by
police at all and suffered two ruptured vertebrae during his arrest.
“The
crime is really DWB,” said Thomas Fallis, who along with Robert Slama is
representing Dubose. “Driving while black.”
The
Jacksonville Sheriff’s Office reviewed Dubose’s arrest and determined “an
investigation was not warranted.”
That’s
not unusual considering only one in 20 of about 3,600 complaints filed with the
agency during the past six years resulted in a finding of a violation of rules
or regulations.
Those
results prompt attorneys and community groups to say the sheriff’s office needs
a citizen board to review complaints and police shootings.
At
issue is whether the sheriff’s department adequately investigates complaints
against its officers. Based on the Dubose case and internal affairs statistics,
critics say, it doesn’t. One community advocate says citizens don’t have a
voice and are forced to accept the sheriff office’s decision.
But
Sheriff John Rutherford, who declined an interview request for this story, said
in a statement that citizen boards are not fact-finding or bound by law. He
said the boards do little but politicize the process.
Additionally,
Rutherford’s statement said, civil courts can provide a remedy for “aggrieved
citizens.”
While
a city attorney said the officers were justified in the arrest, Dubose took his
case to the courts.
Last
month, a jury decided that two Jacksonville sheriff’s officers falsely arrested
and battered Dubose during his July 2004 arrest. The jury awarded him about
$370,000 — more than he asked for and also more than the law allows him to
receive.
“This
proves, as we argued in trial, that we need some kind of civilian oversight,”
Fallis said. “You need some kind of civilian oversight otherwise it’s out of
control.”
Local
political leaders are split on the value of a formal citizen review process,
but the majority of sheriff candidates said they are open to some formal
citizen involvement.
From
2008 to 2013, 3,684 citizen complaints were filed with the sheriff’s
department. Those complaints can range from allegations of officer rudeness to
excessive use of force.
In
that period the sheriff’s office determined there was a violation of agency
rules or regulations in about 5 percent — or 182 — of the complaints.
“That
seems significantly low,” said Opio Sokoni, president of the local branch of
the Southern Christian Leadership Conference. “There’s no way that if you’ve
got 3,600 complaints coming from our citizens, that only 180 of those would be
considered legitimate.”
He
said the numbers were so rare he likened the sheriff’s department finding a
violation of rules or regulations based a citizen complaint to a unicorn
sighting.
THE
JURY SPEAKS
Dubose,
40, who said he is not related to the three Dubose brothers tried for the 2006
killing of DreShawna Davis, was arrested after he was stopped near the
intersection of Canal Street and Broadway Avenue for what police said were
illegally tinted windows.
“You
don’t come out showing your guns for window tint,” Fallis said. “That’s what
they did. They just pounced on him.”
As
Dubose stopped, a passenger in his car ran from the vehicle.
Attorneys
Slama and Fallis said the police prejudicially stopped Dubose because they
assumed a young black male driving a 1998 Lincoln Continental on the Northside
likely is doing something illegal.
One
of the first questions police asked Dubose after he was arrested, Fallis said,
was how could he afford such a nice car.
Rutherford
declined comment on the case because the Office of General Counsel has said it
will appeal the matter.
Jon
Philips, with the general counsel’s office, said the jury’s verdict was
“mystifying.”
“We
believe that the evidence showed that the officers had probable cause to stop
and arrest Mr. Dubose, and that is a complete defense to false arrest,” he
said.
Dubose
said the officers pointed their weapons at him, handled him roughly, threw him
to the ground and put an unnecessary amount of body weight on his back and neck
for which he has sustained permanent injuries.
The
jury awarded Dubose $372,860 for personal injuries and the false arrest, but
because of state law, Dubose’s award is capped at $100,000.
The
sheriff’s office said it has no public records related to the Dubose complaint
because the records have been destroyed. It’s not clear when the records were
destroyed, but the sheriff’s office is allowed by law to purge complaint
records within a year when the case is not sustained, unfounded or the officer
is exonerated.
However,
the sheriff’s office does maintain electronic records, called a concise office
history, listing information about complaints, discipline and vehicle accidents
for every officer.
Mark
A. Flores and Frederick M. Fillingham, the arresting officers, have 14 citizen
complaints combined in their records since 2001, according to their concise
officer histories. Twelve of the citizen complaints were against Flores, the
other two were against Fillingham. The complaints range from excessive force to
rudeness.
None
of the complaints against the officers was sustained.
NO
INVESTIGATION
Dubose’s
attorneys said they routinely file complaints prior to filing a lawsuit, but
Slama said that they were never notified that the complaint was not being
investigated. However, they said they were told by the city’s lawyers that an
August 3, 2004, complaint of unnecessary force that appears on both the
officers’ records was the Dubose incident.
When
the Times-Union asked for an interview with Rutherford, the paper noted that
the sheriff’s office had determined the Dubose case didn’t need to be
investigated.
Lauri-Ellen
Smith, special assistant to Rutherford, said in an email to the Times-Union:
“This is not the same as a determination that the case didn’t need to be
investigated, as you assert. It is a determination that this specific
allegation should be addressed via the legal process, not the IA [internal
affairs] process.”
Slama
disagreed with Smith, saying the internal affairs process is more than suited
to evaluate a case like Dubose because the question is whether the force was
reasonable and necessary under the circumstances.
The
concise history reports for the officers who arrested Dubose identify the
August 3, 2004, complaint’s disposition as “Information-Letter Sent.”
The
sheriff’s purge schedule defines “Information-Letter Sent” as “a review by
Internal Affairs shows that an investigation was not warranted. The complainant
was sent a letter advising of this. No discipline or formal counseling is
imposed on the officer.”
In
most complaints against Fillingham and Flores, the sheriff’s office determined
“that an investigation was not warranted.”
Six-hundred-thirteen
citizen complaints were filed with the sheriff’s department in 2013, according
to sheriff reports. The sheriff’s office determined there was a violation of
rules or regulations in 26 of those complaints or about 4 percent of the
complaints filed.
The
sheriff’s office has an internal affairs office to receive complaints against
officers. Plus, the office has a Response to Resistance Board that reviews
police-involved shootings.
The
Times-Union has asked for all materials, including audio and video interviews,
for the police involved shootings review boards that occurred in 2013.
The
sheriff’s office said there are nine files related to 10 police shooting review
boards from 2013. The estimate for providing public records in those files is
$2,243 or about $71 an hour at 31 1/2 hours to pull, review and redact the
material.
That
$250 a file cost does not include photocopy fees or any potential redactions
from the audio or video files. The sheriff’s office is continuing to review if
it can reduce the number of hours.
The
public isn’t allowed in the review board meetings since they are held behind
closed doors after the Fraternal Order of Police won a lawsuit in 2010 against
Rutherford to close the proceedings.
The
Times-Union also asked the department for all internal affairs files completed
in March and April. The sheriff’s office estimated it would cost $83 per file
for the 11 cases concluded in the two months.
CITIZEN
REVIEW?
Community
groups like MAD DADS and the local branch of the Southern Christian Leadership
Conference agree the Dubose case is an example why the system needs citizen
input.
“You
had a jury look at everything and believed that this guy was wronged. Now if
you have police officers that said not even an investigation was warranted, you
have a major problem there,” said Sokoni, head of the local branch of the
Southern Christian Leadership Conference.
A
citizen group would build trust with the community, Sokoni and Fallis said.
Rutherford,
who opposed a push for a citizen group in 2009 amid a rise in police shootings,
stood firm last week.
“The
same people who do not trust the criminal justice and legal systems, which are
bound by evidence, fact, and state law, will not trust a civilian review
system,” Rutherford said in his statement.
Sokoni
said the sheriff’s department’s determination in the Dubose case calls into
question the agency’s internal review practices. He would like to see a board
with investigative and subpoena powers.
Political
leaders offered mixed opinions on whether a formal citizen perspective was
needed in the sheriff’s complaint or police shooting review process.
Mayor
Alvin Brown stressed that the sheriff is an elected official and citizens can
directly voice any of their concerns to the sheriff directly. Incoming City
Council President Clay Yarborough said there were still too many questions
around review panels.
“It
would concern me to defer to a citizen review panel because there is no
requirement for the panel to be held to laws, policies, evidence, etc.,” he
wrote in an email.
Current
City Council President Bill Gulliford said he could see both sides of the
issue. But in regards to the police shooting review board, he said a middle
ground could be the appointment of citizens to the current Response to
Resistance board.
“They
may be pledged to secrecy on specific issues but could certainly convey
publicly their perception as to whether or not the process is fair,” he said.
“I think it gives you some credibility with the public at least.”
Of
the seven candidates running to succeed Rutherford, four are open to some
citizen involvement at least after the review process.
Sheriff’s
candidates Tony Cummings and Jay Farhat each said they are open to some
formalized citizen involvement, but they would want citizens to be objective
and receive training. Both candidates said they wouldn’t want the citizen group
to disrupt current investigative and legal processes. They used words like
“advisory” and “recommendations” to describe the limited scope they’d want the
group to have.
Candidate
Mark Kerrin also was open to a citizen review group and said he would be
willing to discuss the group’s exact powers. “If you do things right,” he said,
“you don’t have to worry about someone looking over your shoulder.”
Candidate
Mike Williams sent a short email saying law enforcement review of shootings is
more effective than citizen review. But Williams said transparency about the
process and outcomes is key to making the community comfortable.
Candidate
Jimmy Holderfield also responded by email stating that the civil courts are the
ultimate citizen review board.
The
creation of some sort of citizen group to advise the sheriff’s department is a
key point of Ken Jefferson’s campaign.
He
said the citizen group wouldn’t have any decision making power, but the group
would have access to internal affairs and police shooting reports without
having to make a public records request or pay for the documents. He said the
body could review those documents and make recommendations to the department on
policy or systemic concerns.
“I
think this is a start where we bring in people to help us better our
practices,” he said.
Candidate
Rob Schoonover did not reply to calls or emails for comment.
POLICE
FOUND NOTHING ILLEGAL
Officer
Flores’ arrest report stated that Dubose did not come to an immediate stop
after the officer turned on his lights and sirens. Dubose traveled another two
and half blocks or a quarter mile, including at least one turn onto another
street, before stopping.
Dubose
said he didn’t initially realize the police were attempting to stop him.
As
Dubose slowed, a passenger in Dubose’s car got out of the car and ran from the
vehicle.
Police
approached the car with their guns drawn and said Dubose was yelling and
flailing about. Dubose said he had his hands up and was asking what he had done
to prompt the traffic stop and guns.
DuBose
said Fillingham opened the car door and pulled him from the car while cursing
at him. Fillingham slammed him against the car twice, Dubose said. Fillingham
and or Flores then slammed him on the ground while simultaneously driving their
bodies into his back, he said.
“That
wasn’t no cop then,” Dubose said. “That was just a guy wanting to pound on me.”
Fillingham
said during his deposition that he didn’t know what possible weapons Dubose
could have had in his car. He said he handled Dubose the way he did because
Dubose wasn’t complying with his commands and to ensure his and Flores’ safety.
The
officers searched Dubose’s car seven times and found nothing illegal, Dubose
said, but then conferred with each other and told Dubose he was being charged
with fleeing and eluding.
Fallis
and Dubose’s other attorney, Robert Slama, said tinted windows are a civil
infraction, not a criminal infraction, and the city’s lawyers produced no
evidence at trial showing DuBose’s windows were illegally tinted.
Had
a white male been driving a similar car with darkly tinted windows in Ortega,
he wouldn’t have been treated the way Dubose was, Fallis said.
Fallingham,
however, said in his deposition that he would have treated a white female the
same way he treated Dubose given the same facts.
The
city offered Dubose $500 to settle the case. The city raised that offer to
$1,500 right before the trial started in April.
The
jury ultimately awarded about $100,000 more than Dubose asked for.
Doing
exactly what Dubose did, going to the civil courts, is what Rutherford said was
available to any citizens unhappy with the department’s processes.
“The
bottom line is: high functioning processes such as the homicide unit; the State
Attorney; the Response to Resistance Board; and the Internal Affairs unit, all
rely on evidence, fact and law,” his statement said. “It should not be
compromised by the personal agendas of citizens appointed by another
politician.”
The
State Attorney’s Office also investigates police shootings, Rutherford said.
Donald
Foy, president of MAD DADS, said citizens shouldn’t have to rely on the civil
courts to be heard during the process.
“Right
now, the community doesn’t have a voice,” Foy said. “It’s just whatever they
say goes. And that’s it.”