Recorded accounts on arrest of 2 differ

Review finds some inconsistencies

This frame grab from a police video shows Faulkner County deputies making an arrest after a high-speed chase in May 2015.
This frame grab from a police video shows Faulkner County deputies making an arrest after a high-speed chase in May 2015.

CONWAY -- Sirens blared, speeds reached 125 mph, shouts of "Shots fired! Shots fired!" came over the police radio.

As police chases go, this one was especially dangerous.

Bullets fired from the passenger side of the white Mustang struck two sheriff's deputies' cars. The pursuit led deputies onto the wrong side of Interstate 40 and finally into Conway, where the Mustang broke down in a residential neighborhood.

It was Monday, May 4, 2015, 27 seconds after midnight. Hours earlier, Faulkner County Sheriff's Deputy Eugene Watlington had received a call from the Conway Police Department's narcotics unit advising that Christopher Cummings, a man well-known to area police, was in Mayflower.

Deputies and Conway police had been looking for Cummings, 29, who was described in a Conway officer's report as someone who "would not be afraid to shoot someone."

Nicknamed "Lil Man," Cummings was wanted on a parole violation and was a suspect in an April shooting at a Conway apartment complex. Watlington said he had information that Cummings had a sawed-off shotgun and multiple handguns. Once before, Cummings had led police on a traffic pursuit.

This time, a Mayflower police officer -- who had lost his job at the sheriff's office in 2013 -- joined the chase and used his body camera to videotape the arrest of the Mustang's driver, Harvey Martin III, 46. That video, turned in to authorities by Mayflower officer Dalton Elliott, shows Watlington kicking Martin even though Watlington isn't assisting in the arrest. Other deputies are shown punching Martin.

The Arkansas Democrat-Gazette reviewed documents and previously unreleased tape recordings of internal-investigation interviews that the sheriff's office conducted in the case. The tapes were obtained under the Arkansas Freedom of Information Act. The interviews were conducted with 14 deputies who went to the scene that night.

The newspaper's review found some conflicting accounts of what happened. Among inconsistencies are whether one officer joked about the suspects' injuries and whether officers kicked Cummings, whose arrest was not caught on camera.

The video of Martin's arrest has led to an internal excessive-force review, one deputy's dismissal and an ongoing investigation by the U.S. Justice Department's Civil Rights Division, the FBI and the U.S. attorney's office.

The state ultimately dropped charges against Martin after learning that Cummings had forced him at gunpoint to flee from police, according to the prosecutor's office.

The investigations come at a time when police nationwide are facing intensified scrutiny about their use of force. But unlike publicized cases in recent years involving white officers arresting black suspects, Cummings and Martin are white, and neither was seriously injured. Both were treated at a hospital emergency room and released to the sheriff's office the same day.

Emotions about the pursuit ran high in Conway.

Police chases with bullets flying are relatively rare, according to John O'Donnell, a former New York City police officer, former prosecutor, and now a professor of law and police studies at the John Jay College of Criminal Justice at City University of New York.

"No matter how prepared the police are, when they are actually confronted with deadly force being used against [them, it] is pretty alarming and ... is certainly a real concern that officers are hyped up at the conclusion of these events," O'Donnell said in an email interview.

"Many departments instruct supervisors to monitor these [situations] and to promptly arrive at the conclusion to ensure cooler heads prevail, but it is easier said than when you have this mix of the unknown, shots fired and extraordinary resistance to being apprehended," he said.

"It is a volatile concoction indeed."

TOUGH TO PROSECUTE

Federal civil-rights cases can be tough to prosecute, even when there has been a serious injury.

"Even assuming there is wholly gratuitous violence, that is not enough" to make a case, O'Donnell said. "There has to be proof the cops intended to deprive the 'victims' of their civil rights.

"Opening a federal investigation is much more common than actually pursuing a case. But there can be variations based on the federal district and a variety of factors, including [whether this is] a perceived 'outlaw department.'"

In Alabama, for instance, a federal judge granted a motion last month to acquit a Madison, Ala., police officer in a civil-rights case after the defendant's two previous trials ended in hung juries, The Associated Press reported.

According to the article, federal prosecutors failed to prove beyond a reasonable doubt that officer Eric Parker had willfully violated the rights of Sureshbhai Patel, 58, when he slammed Patel to the ground during a suspicious-person investigation, U.S. District Judge Madeline Haikala ruled. Patel, who was not armed and had been in the United States only a few days, suffered a spinal injury, the AP wrote.

The judge said willfulness hinges on a defendant acting with specific intent to deprive someone of a federal right, and intent is based on open defiance or reckless disregard.

Further, Garrity warnings are often given to public employees during internal investigations. They prevent prosecutors from using information gained in internal investigations against the employee in a criminal proceeding. Exceptions are for perjury or obstruction-of-justice charges.

Such interviews can be used against employees when it comes to departmental, noncriminal charges, however, and refusal to give the interviews can result in workers' dismissal.

That may explain why deputies involved in the May 4 arrests in Conway agreed to internal-investigation interviews but cited their Fifth Amendment rights and refused to give interviews in a criminal investigation by the sheriff's office.

Further, a July 21 letter from the FBI advising then-Sheriff Andy Shock of the federal investigations asked that any officer statements taken under Garrity warnings be turned over but marked accordingly and placed in a sealed envelope to protect their confidentiality.

14 deputies interviewed

For the Faulkner County internal investigation, sheriff's Sgt. Sam Keller interviewed 14 deputies who participated in the pursuit, arrests or both. The recorded interviews reflect varied accounts of how deputies reacted to the events that night and to the internal investigation that followed.

Depending on who was talking, there was either no kicking by officers or a lot of kicking that night.

"I know Eugene [Watlington] was standing back over here, steadily kicking [Martin] ... kicking him with the boot ... that brown cowboy boot," Deputy Chris Myers told Keller. "I was scared the boot was going to hit me in the face."

Myers recalled someone walking up to the area where officers were trying to arrest Martin.

"I don't know who came in there," he said. "It was like, 'You shoot at my damn brother ... you shoot at my brothers, you're going to ...' I don't know who that came from."

Deputy Martin "Sonny" Clifford said he delivered a closed-fist strike to Martin's back.

"He was flaying, moving all over the place," said Clifford, who is no longer a deputy. "I made sure not to strike anywhere around the kidneys because I know that can cause damage."

"I've been doing this a long time," Clifford said of the arrest. "I've seen a lot worse incidents, and I've seen not so bad. There wasn't anything that went on that night that didn't happen because" of the suspects' actions. "From where I was sitting, we used the minimal amount of force necessary to get him into custody. And as soon as the cuffs went on, it was over.

"I don't understand all of this. I mean, I haven't seen this video that's supposedly so damning on us, but we did what we did because he did what he did."

ARREST ACCOUNTS

Deputy Chad Davis said it was his second night on patrol and he didn't know everyone's names yet.

In his interview, he said he joined Deputy Billy Don Kenney in trying to arrest Cummings, who had fallen down and was "refusing to" show deputies his hands. Someone later found a gun on the ground where he had been, according to accounts.

"Did you ever see any officers -- city, county -- kicking Mr. Cummings with their feet?" Keller asked.

"Yes, I mean ... everybody was," Davis said. "There were so many officers there doing anything we could do" to get Cummings "to give us his hands. ... He was not complying."

Kenney said he "didn't see any kicking going on whatsoever."

Deputy Darrel Freeman recalled struggling with a "combative" Martin to get his hands.

"We don't know if he's got a gun," Freeman said. "I started hitting him with my elbow and whatever in the back, trying to get him to release that arm.

"I've been shot at. I'm mad. I'm trying to get him in custody."

Still, Freeman said, "I might have hit him with my knee or something, but I know I didn't kick him."

Freeman said he heard other officers discussing how the suspects' booking photos would look.

"They were saying that Harvey Martin looked a lot worse than Cummings did," Freeman said.

Deputy Andrew Dixon said he noticed that Deputy Jake Moss was limping after arresting Cummings and asked Moss what happened.

"He did advise me that he kicked Christopher Cummings. ... He indicated he kicked him somewhere in the shoulders up, possibly in the head," Dixon said.

Moss told Keller that he did not kick Cummings but slid into him feet first after Cummings fell onto a concrete surface while running away.

As Moss and others were walking back later toward the patrol cars, Moss said, Conway police officer T.G. Cooper came up to him and said, 'You need to get your guys under control.'

"I kind of took offense," Moss told Keller. "It seemed to me like we had the situation under control."

Moss recalled the comment about the booking photos being made during a conversation he had with Watlington.

"Did he say it to you or you say it to him?" Keller asked.

"I don't remember," Moss replied.

LOOKING AT CAMERAS

Sheriff Matt Rice said that before the Cummings case, the department had been looking at acquiring cameras for patrol cars' dashboards that could be removed and worn by an officer.

Rice was chief deputy until September, when he moved into the sheriff's job after Shock was named to the state Parole Board.

Rice said last week that the department is "going to try" to put cameras in all of the county's marked patrol cars and civil-service vehicles. The cost would be "upwards of $45,000."

The department already has software that can be used, he said.

"I want to get this done before I leave," said Rice, whose term expires at the end of this year.

O'Donnell, the law professor, said he expects to see more stories about allegations that police officers abused their authority.

"We have more than 17,000 police departments, and some are pretty poorly run," O'Donnell said. "The truth is that in a nation such as ours, the number of highly publicized videos that depict clearly improper or unlawful uses of force is pretty low."

He also noted that cameras don't come without problems.

"One of the questions about the cameras is whether [they] will deter the police from rightdoing as well as wrongdoing," O'Donnell said. "Will they pull back as the possibility that they can be excoriated, demonized or even criminalized as a result of something captured on video?"

State Desk on 02/07/2016

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