imported post
Snipped from: http://newsgroups.derkeiler.com/Archive/Talk/talk.politics.guns/2007-12/msg00418.html
This is pretty long, but I found it echos what off-duty officers experience compared to what non-officers in most states face when a defensive shooting is investigated. --Pointman
Hours after Officer Phyllis Clinkscales fatally shot a young man trying to steal her car, Chicago police investigators and commanders ruled the shooting justified, and have stood by that conclusion even as she gave differing accounts of what happened the night she shot 17-year-old Robert Washington in June 2000. They stood by her even though all four of the gunshot wounds were on the back right side of Washington's head and neck, including a "muzzle imprint" that suggested the gun barrel had been pressed against his skin. They stood by her even after the department's civilian oversight agency found her account didn't square with the autopsy on Washington and initially recommended she be fired.
The ruling that cleared Clinkscales stood unquestioned for several years -- until inquiries from the Chicago Tribune prompted the Cook County state's attorney's office to open an investigation into Washington's death. "We saw the results of the autopsy. That piqued our interest," said John Gorman, chief spokesman for the office, which reviewed the shooting shortly after it occurred and took no action. "We're going to look at all aspects of it. What was said, what the evidence was, what our decision was, why our decision was made."
The shooting of Washington underscores questions about how thoroughly authorities investigate officers' off-duty conduct. One of the most striking examples of this: In some cases where officers might have been under the influence of alcohol during a shooting, officials leading those investigations delayed administering Breathalyzer tests for hours.
In the case of Clinkscales, records and interviews indicate, investigators didn't administer one at all, although she was returning from a wedding reception at a tavern at 3 a.m. when she shot Washington.
Instead of treating off-duty shootings as matters deserving rigorous inquiry, a Tribune investigation found that Chicago police officials have viewed the shootings as administrative issues and treated officers with deference. In some of those off-duty cases, the officers were drinking at bars and nightclubs. Some were in traffic disputes. Others were quarreling over women or fighting in the street.
About one quarter of [Chicago] police shootings each year occur while officers are off duty, out of uniform and often engaged in nothing that resembles police work, according to an eight-month Tribune investigation of police shootings of civilians over the past decade. Yet those officers rarely face serious punishment. Off-duty Chicago police officers were involved in 11 of 45 shootings of civilians in 2006, the last year for which complete statistics are available. In 2005, 11 of 39 shootings involved off-duty officers, according to figures provided by the Police Department and its civilian arm, the Office of Professional Standards, or OPS.
"Even when it was clearly apparent that what [an officer] did was wrong, they still got all the protections as if they were [an on-duty] policeman and were doing police work," said Thomas Smith, a former FBI agent who was the chief investigator for OPS from 1998 to early 2002. "They look for the littlest thing to try to show he was really doing police work."
Detective Francisco Roman, who shot and wounded a man during an off-duty incident in 1997, rejected that assertion. "You don't catch a break," he said in an interview. "They treated me like they were supposed to." Roman's case, however, shows what happens when detectives realize they are dealing with a colleague and not a regular citizen.
The shooting took place at 3:30 a.m. as Roman, clad in a T-shirt and jeans, was driving back to his Pilsen home from a Halloween party. He stopped his car to confront a group of men who he said had stepped in front of his car at a street corner near his home. Roman said he fired his weapon after the men brandished a beer bottle and a knife, though neither object was found. The men told investigators they merely were standing at the corner when Roman approached them.
The first patrolmen who responded to the shooting handcuffed Roman and put him in the back of a squad car. But when officers on the scene realized he was a policeman, they removed the handcuffs and released him from custody, according to Roman's testimony in the criminal trial of the man he shot. The city later paid the man $625,000 to settle the lawsuit.
Basic steps often ignored
Even when Chicago officers are off the clock and out of uniform, they are obligated to respond to emergencies. For that reason, off-duty officers are allowed to carry their gun and badge. At the same time, off-duty officers must abide by a simple department regulation: If they are going to drink alcohol, they cannot carry their gun. In cases where off-duty officers are suspected of drinking, a Breathalyzer test could determine whether they were drinking and how much. Yet when off-duty officers shoot civilians in and around bars or after attending parties, investigators in Chicago often fail to take that basic step.
Police in some cities, such as Milwaukee, are ordered to submit a urine sample to test for drugs after a shooting. If two supervisors suspect the officer was under the influence of alcohol, the officer also must take a Breathalyzer. "If you're in a bar with a gun, you're going to be tested -- and quick," said John Balcerzak, the president of the Milwaukee police union.
After an incident last year in which an unarmed man was shot and killed by officers working undercover in a strip club, New York City police began testing officers for alcohol after all shootings of civilians.
In Chicago, even when testing is done, police sometimes wait so long that the results are compromised. Smith said he complained to commanders at shooting scenes that they often delayed tests for hours, allowing the officer's blood-alcohol level to fall within the legal limit. In one 2003 case, where an off-duty officer shot into a crowd of people, killing a man during an attempted carjacking outside a River North bar, detectives did not give the officer a breath test until more than 5 hours after the 3:30 a.m. shooting, police records indicate.
Officials at OPS eventually began to use chemists to try to determine officers' blood-alcohol level at the time of a shooting by extrapolating backward. It was, Smith said, a way to combat the lengths he believed police investigators would go to protect their own.
OPS sought such an expert after off-duty Officer Darrell Carrothers shot Javon Boyd in November 2000 outside Rodney's Cocktail Lounge, a popular sports bar at Michigan Avenue and East 71st Street. As the bar closed and everyone left, Carrothers approached a woman outside the bar, according to police reports. Her friends objected and confronted Carrothers, sparking a fight. The officer said he was attacked by several men and beaten. Someone, he said, yelled, "Kill the [expletive]."
Boyd, he said, pointed a gun at him. So, Carrothers told investigators, he pulled his gun and fired three times at Boyd, wounding him with one shot to the back of the right thigh.
Boyd, 23 at the time, offered a different account to investigators. He said Carrothers was beating on his friend so he jumped in to try to break up the fight. When he saw Carrothers reach for a gun he tried to punch him, though he was not sure his punch landed. Then, he told investigators, he ran. Carrothers "just started shooting," Boyd said. "He didn't say nothing, just started shooting."
Boyd denied he had a gun, and police never found one. He said he did not know at the time that Carrothers was a police officer. Carrothers declined to comment for this story.
It was not until 10 a.m., about seven hours after the shooting, that Carrothers, who told police that he had had 1 1/2 shots of cognac, was given a breath test. The result: Carrothers' blood-alcohol level was 0.02, far below the legal limit for driving of 0.08, according to the reports. OPS asked a state toxicologist to calculate Carrothers' blood-alcohol level at the time the shooting occurred. The chemist estimated it was at least 0.11 and possibly as high as 0.15, according to lab reports.
Carrothers was cleared by the police roundtable -- a swift, preliminary meeting of commanders and detectives -- hours after the shooting. But an OPS investigation later sided with Boyd. The investigative report states that the "preponderance of evidence" backed his contention that he was unarmed and not a threat to Carrothers when Carrothers shot him. Further, it said, evidence indicated that Boyd was shot while running away or on the ground.
Smith said he recommended that Carrothers be fired. Although Callie Baird, then the head of OPS, agreed with the finding that he shot an unarmed man without justification, she recommended Carrothers get a 30-day suspension, according to her December 2001 memo to the police superintendent. Baird declined to comment for this story. OPS has since changed its name to the Independent Police Review Authority; Baird is now a Cook County judge.
Boyd sued the city and Carrothers, who left the Police Department. At the trial, a Law Department attorney sought to distance the city from the officer. J. Ernest Mincy noted that Carrothers was off duty and his actions had nothing to do with police work. "Ladies and gentlemen, nobody is criticizing Darrell Carrothers for being afraid," Mincy said, "but saving your own skin is not police work." Carrothers' attorney, James Thompson, urged the jury to find for the officer, saying his account of the shooting was more credible and that he had no choice but to defend himself. "The only two things that Darrell Carrothers had out there that night was his badge and his handgun," Thompson said. "And he was justified, ladies and gentlemen, in defending himself from the attack."
The jury ruled in Carrothers' favor. Boyd appealed, but the Illinois Appellate Court affirmed the court's judgment in denying Boyd a new civil trial. Authorities charged Boyd with misdemeanor battery shortly after the shooting, but the allegations were dropped when Carrothers failed to show for a court hearing.
Autopsy casts doubt on officer
On a Sunday morning in June 2000, Dr. Mitra Kalelkar of the Cook County medical examiner's office began her autopsy on the body of 17-year-old Robert Washington. But even before she finished, a police roundtable had cleared the officer who shot him. Kalelkar's findings would cast doubt on the account of the shooting given by Officer Phyllis Clinkscales. But it took months before the autopsy was used to question her version of the shooting.
She was off duty early that Sunday morning when she pulled up in her Cadillac outside her mother's home in the Englewood neighborhood after attending a wedding reception with her sister and brother-in-law. There is no dispute that Washington jumped in her car and tried to steal it. Clinkscales, 48 at the time, told investigators that Washington pulled a gun on her. She said she shot him as she stood outside the driver's side of the car and he turned toward her from the driver's seat, pointing his gun at her. According to police and OPS records, she said she told Washington she was a police officer and ordered him to put his gun down, but he refused. So she fired her gun.
The autopsy, though, showed that all of the bullets entered the back of Washington's head and neck. Kalelkar told an OPS investigator at the autopsy that one of Washington's wounds was marked by powder and soot. This indicated the mark was made "from loose contact" with his head. Another wound left a "muzzle imprint," the records show. All four of the wounds were on the back right side of Washington's head and neck. In Clinkscales' account, that side would have been turned away from her as she fired.
One of the witnesses to the shooting told investigators that after gunshots woke her, she looked out her window and saw a woman holding a handgun. The neighbor said she heard the woman say: "Let the [expletive] die."
The documents reviewed by the Tribune showed no indication that the detectives who initially investigated the case ever pressed Clinkscales over these inconsistencies or other important details. Clinkscales, for instance, said Washington entered her car on the passenger side and scooted over into the driver's seat. Evidence photos, though, show the armrest between the front seats down with a tall beverage cup and a water bottle standing in it undisturbed.
James Lukas was the OPS investigator who interviewed Kalelkar. Though plaintiffs' attorneys had criticized him in other investigations for failing to ask tough questions, Lukas challenged Clinkscales on nearly every aspect of her account -- from how far away she was from Washington when she shot him to whether she cursed him after she shot him. Noting Clinkscales wrote in one report that she was 5 to 10 feet from Washington when she shot him but told Lukas she was 1 to 2 feet away when she fired, Lukas asked, "Which account is accurate?" "They're both accurate," said Clinkscales, according to a transcript of the interview. "But at the time I wrote the original report, I might have been more accurate."
Noting that autopsy reports and morgue photos indicated Clinkscales had put her gun to the back of Washington's head before she fired, Lukas asked, "How do you explain the nature of these wounds if you deny that you had placed your gun against Mr. Washington and fired?"
"I am not a pathologist," she replied. "I can only explain to you what happened to the best of my recollection."
Police brass reject call for discipline
About two weeks after Lukas questioned Clinkscales, OPS investigators filed their conclusions with Baird in April 2001. They made clear Clinkscales' account was at odds with the evidence and suggested she shot Washington after he was no longer a threat to her. "The preponderance of evidence indicates that the driver's door was already closed and Mr. Washington was facing forward and attempting to start the car's engine when Officer Clinkscales began firing," Lukas and two supervisors wrote in a memo, a copy of which was reviewed by the Tribune.
In July of that year, according to another memo the Tribune reviewed, Baird approved seeking Clinkscales' firing. Baird found the shooting unjustified and determined that Clinkscales had filed a false report when she denied that she had put her gun to Washington's head, causing the contact wounds. But less than six months later, the move to dismiss Clinkscales came under fire. First, Baird revised her recommendation to a 30-day suspension. Around the same time, the general counsel to Supt. Terry Hillard asked Baird to reduce the punishment recommendation from firing to the suspension. In a memo to Baird, also reviewed by the Tribune, the police counsel said the city Law Department reviewed the shooting -- though it is unclear why -- and determined there was "no evidence to dispute" Clinkscales' account.
A series of commanders then reviewed the case in a process called command channel review. Each filed memos that sided with Clinkscales and suggested her inconsistent account of the shooting was an inevitable product of a traumatic incident. "Only a mechanical robot could endure such a disturbing experience and provide an exact duplicate response to every detail when being questioned at different intervals, not to mention nine months later," then chief of patrol James Mauer wrote in July 2002, according to his memo. Mauer, now chief of security for the city's Department of Aviation, declined comment.
Nearly a year after Mauer's memo, a new head of OPS, Lori Lightfoot, revised the agency's findings, writing that the allegation that Clinkscales shot Washington without justification should not be sustained. But an OPS memo shows that Lightfoot upheld the recommendation that the officer be suspended for 30 days for filing inconsistent reports on the shooting. She declined to comment. Public records do not show whether Clinkscales was ever disciplined. Reached at her home, she declined to comment as well.
Kalelkar said in an interview that she never was aware of Clinkscales' version of the shooting -- and how it did not square with the autopsy -- until she was contacted by the Tribune. The deputy medical examiner said that although it was possible Clinkscales' first shot at Washington was from some distance, the officer's claims that she had not put her gun to his head simply were "not true."
In deciding to open an investigation into Washington's death, the state's attorney's office is considering whether Clinkscales committed a crime. "If people come to us with more information on a case, we look at it," said Gorman, the office's chief spokesman. "We don't close the door on it."
The office hasn't charged a Chicago police officer in a shooting since 1998.
You can't rape the willing. 