Editor’s note: This is the second part of a four-part series. Read the first part here.
Correction: An earlier version of this post stated that Sean Groubert was fired and charged after the video of the Levar Jones shooting was released to the public. In fact, the video was released afterwards.
The emergence of video, whether it’s dash-cam video, security camera video or footage shot with a cellphone, has dramatically altered the power dynamic in police-citizen interactions. In South Carolina, the shootings of Walter Scott and Levar Jones resonated across the state because of powerful video that contradicted police accounts of the incidents and demonstrated to most viewers that the shootings of both men were clearly unjustified.
The sudden widespread availability of video of these and other disputed incidents has also raised questions about the checks that are supposed to hold abusive police officers accountable. In South Carolina, video has shown that local prosecutors can be too quick to believe the police narrative about an incident. The Levar Jones case is a good example. South Carolina state trooper Sean Groubert pulled Jones over on Sept. 4, 2014, for not wearing his seatbelt. In the dash-cam video, Groubert asks Jones for identification. When Jones then reaches into his truck to obtain his license, Groubert opens fire, shooting Jones four times. According to both reports and sources inside the state who were familiar with the case, Solicitor Dan Johnson initially said the shooting was “clean.” (Johnson, who is black, worked for the Richland County Sheriff’s Department for eight years before he was elected solicitor.) But the damning video resulted in Groubert’s dismissal from the South Carolina Highway Patrol and eventual guilty plea to a felony charge of aggravated assault and battery.
Video can also demonstrate the futility of the South Carolina Law Enforcement Division (SLED), the state police agency that investigates most officer-involved shootings. Critics say it isn’t necessarily the conclusions SLED investigators draw that are problematic, it’s that they often neglect to pursue inconsistencies between video and officer statements. Worse, each time a new video demonstrates one more of these problems, the state’s law enforcement officials seem to tighten their grip on how and when video gets released to the public — or attempt to prevent it from being released at all.
The raid that took the life of Ernest Russell, Jr. is a good example. In October 2011, several officers from a multi-jurisdictional anti-drug task force conducted a no-knock raid on the Darlington home of the 54-year-old. According to the search warrant affidavit filed by Sgt. Clyde Sheppard of the Darlington Police Department, a confidential informant had obtained audio and video recordings of “illegal gambleing [sic] and betting on sports games” inside Russell’s home. Assuming those allegations were true, under South Carolina law, the no-knock raid was over what would have amounted to misdemeanor charges. It ended with Russell lying dead on the floor of his living room.
According to his statement to SLED investigators, Darlington Sheriff’s Office deputy Benjamin Weatherford identified himself as a police officer at least seven times upon entering Russell’s home. Weatherford claimed he told Russell to put his hands up another five times, and instructed Russell to drop his gun at least four times. Between commands, Weatherford also claimed to have seen his informant walk across the room, saw Russell pick up a revolver, saw Russell place the gun on a counter, saw Russell look at him with his hand on the revolver, saw him grasp the revolver again, and then finally saw him raise the gun toward Weatherford. The officer claimed he still then had time to look both look down the barrel of the revolver and see “every hole in the cylinder.” Only then did he decide he’d given Russell enough warnings, and he began shooting. Hartsville Police Department officer Robert McIntyre then started shooting, too. The two officers shot Russell eight times, including in the head, neck, and torso.
Here’s the relevant portion of Weatherford’s statement. It picks up just after McIntyre unsuccessfully attempted to smash open Russell’s back door with a battering ram:
The door did not move at all, as if something was behind it. I then headed to the front door. I opened the screen door and checked the other door. It was open. As I opened the door I yelled “Sheriff’s office search warrant”. As I entered, I pulled out my weapon. I yelled again “Sheriff’s office”. I looked at the CI walking away from the counter to my right. The CI had her hands in the air saying something but I don’t remember what. I told her to get her hands up and then I went on past her. I then saw a subject bending over behind the counter. I yelled several times “let me see your hands, Sheriff’s office, search warrant”. I continued to yell “let me see your hands”, but he would not show me his hands. He then looked up at me. I looked him in the eye and yelled “Sheriff’s office put your hands up”. That’s when I saw a gun in his right hand. It was a silver/rusty color revolver. He then laid the revolver down on the counter and looked at me but never took his hand off of it. I started yelling “put the gun down sheriff’s office”. He then picked it up and he was leaning on his right elbow with the gun pointing towards me. I yelled several more times “drop the gun, drop the gun”. He then looked right at me and raised the gun towards me. I could see down the barrel. I could see every hole in the cylinder. Feeling that my life was in jeopardy, that is when I shot.
But it turns out that the officer behind Weatherford, Hartsville officer John Specht, was wearing a body camera. According to the footage from Specht’s camera, approximately 4.5 seconds passed from the time Weatherford entered the building until he began firing at Russell. Here’s the video:
Immediately after the shooting, Weatherford and McIntyre refused to be interviewed by or give statements to the SLED investigators, as is permitted under South Carolina law. But this means that Weatherford’s improbable narrative wasn’t even given in the heat of the moment. Nor was it given before he was aware of or before he could view the body-camera video. It came five days later, after he had viewed the footage, and after he had consulted with an attorney.
Three policing experts who viewed the video for this series found it alarming. “There are some real problems here,” says Walter Katz, the current independent police auditor in San Jose, Calif. “The video simply isn’t consistent with the officer’s statement.”
Professor Seth Stoughton, a former police officer who teaches police law at the University of South Carolina School of Law, agrees. “There’s a pretty wide gap between the statement and the reality here. The officer could not have given all the warnings he claimed to have given in only 4 to 6 seconds. Twenty seconds would be more plausible.”
While both Stoughton and Katz say the video shows that the raid couldn’t possibly have happened the way Weatherford claimed, both stopped short of saying that Weatherford had lied. Stoughton cautions that an officer’s memory of a traumatic incident such as a shooting won’t be perfect, nor will anyone else’s. Both say it’s still at least possible that Weatherford actually believes what he said in his statement was true. (In a sworn deposition given this year, Weatherford stood by everything in his original statement.)
“I’d be uncomfortable going that far,” Stoughton says. “The video raises real questions about how this raid was conducted and about whether the shooting was justified, but I think we need to be really careful before accusing an officer of lying.”
Stephen Downing, a retired deputy police chief for the Los Angeles Police Department, Katz and Stoughton also had serious concerns about the raid itself. All three found it unprofessional, excessive and unnecessary. “Tactically, they weren’t operating as a team,” Katz says. “There was apparently no knock and announce. I’m especially troubled by the battering ram at the back door, which probably alarmed Russell. And you can see in the video that Weatherford is running for the front door before the ram even hits the back door.” Indeed, the police informant in the case later said that when the battering ram first hit the back door, Russell told her he thought they were being robbed. All three experts also questioned why the police would conduct a volatile no-knock raid while their informant was still inside the building.
“I really question the decision to do an unannounced raid here,” says Stoughton. “This is a search warrant, not an arrest warrant. They provided no evidence that Russell was violent. Why not knock and announce? Or wait until the house is empty to go in and look for evidence?”
Here again, Downing is far less withholding with his judgment. “A total cowboy operation,” he says. “The manner of dress is totally unacceptable. You cannot tell that they’re police officers.”
It’s worth noting that this raid came at a time when the state was cracking down on illegal gambling operations, particular poker games. In one raid conducted about a year earlier, 72-year-old Aaron Awtry got into a gunfight with officers attempting to raid the small-stakes poker game he hosted at his home in Greenville. The police fired more than 20 shots. Somehow, only Awtry was wounded. As he fell, he reportedly said, “Why didn’t you tell me it was the cops?” The police claim they knocked and announced, but other players said they never heard it. Awtry was eventually sentenced to five years in prison.
All three experts also agreed that if they were to evaluate the Russell raid based solely on Weatherford’s statement, the shooting of Russell would appear to have been justified. And all three said the video portrays an entirely different incident.
Taken at face value, Weatherford’s statement provides cover for the sloppy planning and execution of the raid. If he did indeed announce himself as a police officer multiple times, give Russell several warnings, repeatedly order Russell to drop his weapon and held his fire until Russell refused to comply, then the surprise tactics become irrelevant, and Russell bears the brunt of the responsibility for his own death. If he didn’t give Russell ample warning, the police here gave Russell every reason to think he was being attacked, then killed him when he attempted to defend himself.
This is where SLED is supposed to come in. “In any investigation, but especially in an officer-involved shooting, discrepancies between witness statements and the physical evidence have to be pursued,” Stoughton says. “Maybe you can’t resolve those discrepancies. But you have to try. Failure to do that is a fundamental flaw in any investigation.”
SLED Special Agent Glen McLellan’s summary report of the raid, which was sent to Fourth Judicial Circuit Solicitor William Rogers, makes no mention of the contradiction between the video and Weatherford’s statement. In fact, the word “video” never appears in the report. McClellan does make a one-sentence reference to Specht’s body camera, but it’s referenced in an especially odd way:
Sgt. Specht was wearing a small camera, which captured the inside of the building as the shooting takes place and he took some photographs of the scene. (Attachment 10).
In the list of attachments, McLellan writes this:
10. Sgt. John Specht’s Statement and Copies of Photos from the camera he was wearing
The SLED report seems to suggest that the camera captured only the inside of Russell’s house, instead of the critical moments leading up to the shooting. It also suggests the camera took only still photos, instead of the incriminating video it captured. (None of the policing experts interviewed for this series could think of a body camera that takes only still photos.)
“Why would SLED only include still photos?” Robert Phillips, the attorney representing Russell’s estate, asks. He then seems to answer his own question. “Still photos won’t show how the raid couldn’t have happened the way Weatherford described it.”
Because of the odd wording in his SLED report, it’s difficult to say if McClellan was claiming the photos are stills taken from the body camera, or photos taken with a separate camera. The video does show Specht taking photos with a conventional camera after the shooting. But he wasn’t “wearing” that camera. He retrieved it after the shooting. The only camera he was wearing was his body camera. The SLED report not only doesn’t mention the video footage, but also it’s worded in a way to make the reader believe no such footage was taken.
“I’m really bothered by the still photos,” says Stoughton. “Still pictures are not a good way to evaluate a series of events like those leading up to a shooting. They can be misleading. This is the most important kind of case you’re going to investigate. A man is dead. I can’t think of a good reason why you wouldn’t include the video, which provides a more comprehensive record of events.”
Phillips had a difficult time getting the police agencies involved to even admit that the video existed. He sent an open records request for the video to the Hartsville Police Department, which employs Specht. The department responded that it had no such records. He sent a similar request to the Darlington County Sheriff’s Office and the solicitor’s office. He got the same response. His paralegal then contacted SLED. After initially indicating that SLED would have to first prepare the video to be picked up, a SLED representative then emailed Phillips’s paralegal to tell her that the agency was no longer in possession of the video and that she should check with the sheriff’s office or solicitor’s office instead.
Frustrated, Phillips finally asked his private investigator to contact Specht in person. After initially balking, Specht turned over the video on a CD within 48 hours.
Despite the fact that it was a critical piece of evidence in a fatal shooting, in a civil rights lawsuit, and at least at one point in a possible criminal investigation, there appears to have been little effort on the part of SLED, the solicitor’s office, or the relevant police agencies to preserve the body-cam footage. The only person who appears to have been in possession of the footage was the officer who was wearing the camera. He also happened to be both one of the subjects of the investigation and one of the targets of the lawsuit.
At worst, the SLED investigator deliberately left the video out of his report, implied in the report that it didn’t exist and made no effort to obtain or preserve the video — all of which point to a cover-up. At best, SLED was unaware the video even existed — a pretty significant bout of incompetence for an oversight organization.
The SLED investigators also took DNA swabs from the gun found near Russell’s body, ostensibly to check it for Russell’s trace DNA to confirm Weatherford’s claim that Russell held and pointed the gun at him. But the SLED report itself never indicates whether those test results confirmed that Russell’s DNA was on the gun. Notably, Weatherford’s only discernible command in the video is when he instructs Russell to “Get your hands up.” But that isn’t a command an officer would typically give to a suspect holding a firearm. He’d be more likely to tell the suspect to drop the gun.
Based on the SLED report, solicitor William Rogers cleared the officers of any criminal wrongdoing in December 2011.
“The absence of an investigative interview, even for administrative purposes is astounding,” says Downing. Perhaps most telling is the fact that throughout the SLED report, the investigators refer to the police officers as “victims” and Russell as the “suspect.” That’s odd not only because Russell was the one who was shot eight times, but also because SLED’s function in these cases is to investigate whether police officers committed any crimes, not to investigate the underlying alleged offenses that led to the incident. Referring to the officers as the “victims” at the outset isn’t proof that the investigation was rigged, but it certainly suggests that the investigators approached it with a less than objective state of mind.
Until now, the video of the raid that took the life of Earnest Russell, Jr. was never made publicly available. Perhaps not coincidentally, none of the officers involved were ever reprimanded or disciplined. Russell’s estate recently settled its claims against McIntyre and Specht for $500,000. The claim against Weatherford is still pending.
Video ends troubled law enforcement career
Last October, Richland County Sheriff’s Department Deputy Ben Fields was fired after a viral cellphone video showed him slamming a black Spring Valley High School girl to the floor, then throwing her across the classroom.
Subsequent news reports revealed that Fields, a large white man who included powerlifting and bodybuilding among his hobbies, had been sued in 2007 for slamming a black man to the ground, kicking him and macing him after pulling him over for playing his radio too loud. When the man’s girlfriend took photos of the altercation with her cellphone, Fields’s partner confiscated her phone and deleted the images. The couple sued, but a federal jury found in favor of Fields and his fellow deputy.
But there was yet another incident with Fields that occurred years earlier and escaped media attention after the Spring Valley video went viral. In February 2006, Sharon Cousar, a black woman in her 60s, was bathing her granddaughter when she noticed that the child’s vagina was swollen. Cousar called 911. Fields was first to arrive. He then radioed for other deputies.
According to Brian Gambrell, who represented Cousar in her lawsuit, Cousar soon felt as if she may have overreacted by calling 911. She was just concerned and wasn’t sure what to do. It happened to be a Sunday morning, and Cousar told the commanding officer that some elderly people were relying on her for a ride to church. According to Gambrell, Cousar and the commanding officer agreed that after church, she’d take the child to a doctor to be examined. (The deputies disputed this agreement in court records.)
Cousar then went upstairs to get ready for church. At some point before Cousar returned downstairs to go to her car, the deputies changed their mind. They decided that the child was in danger, triggering a state law that allowed them to forcibly take her into custody. According to Gambrell, Cousar wasn’t informed of that decision. When she returned to her car to take the child to church, Fields blocked her from accessing her car. When she attempted to reach into the car anyway, Cousar alleges, Fields grabbed her, picked her up and slammed her face-first into the pavement. He then arrested her.
Cousar’s grandaughter was later diagnosed with a yeast infection. There had been no abuse. Shortly after Cousar filed a complaint against Fields and the other deputies, she was indicted by a grand jury on a charge of interfering with a police investigation. The charge was later dropped, but Gambrell says the indictment retroactively provided legal cover for her arrest. That essentially doomed her lawsuit.
“Once they said the child had to be taken into protective custody, state law gives them pretty wide authority to do what they need to take her,” Gambrell says.
Over the course of that lawsuit, Gambrell also heard from other deputies that Fields had been internally disciplined before. But the judge in Cousar’s case denied Gambrell’s motion to force the sheriff’s department to turn over Fields’s disciplinary file.
“This guy had a history of body slamming black people,” Gambrell says. “And nothing was ever done. Instead, they made him a school resource officer. I’d think that’s the last place you would want him.”
Richland County Sheriff Leon Lott says Fields wasn’t disciplined prior to the school incident because he hadn’t done anything wrong. “Those were false accusations,” Lott says. “He was cleared by a judge in one case and a jury in the other.”
After the Spring Valley video went public, several students alleged on social media that Fields had a reputation for being rough, including allegations that he had previously slammed other students to the ground. (To be fair, a few students also came to his defense.)
Gambrell believes the Spring Valley incident finally led to Fields’s firing for one reason: It was captured on video. “Without that video, he’s still a deputy,” Gambrell says. “There’s no question.”
Here, Lott seems to agree. “The video played a major role in my decision,” he says.
In an October 2013 incident that also attracted a lot of media attention, another Richland County sheriff’s deputy, Paul Allen Derrick, arrested 23-year-old Brittany Ball at a Buffalo Wild Wings in Columbia, allegedly after Ball refused his advances. According to witnesses, after his exchange with Ball, Derrick — who was off-duty at the time — went out to his truck, retrieved his gun and handcuffs, returned to the restaurant, and placed Ball under arrest. He then slammed her head into a metal table. A man with Ball at the time recorded the incident on his cellphone. When officers from the Columbia Police Department arrived, they interviewed Ball, Derrick, and other witnesses, watched the cellphone video and placed Derrick under arrest.
Despite the video and witness statements, local media reported that Sheriff Leon Lott still publicly defended Derrick for nearly a week after the incident, claiming that Ball had “resisted arrest” (though it isn’t clear for what crime she was being arrested in the first place). Lott disputes that narrative. “I never defended him. I just said that he has the authority to make an arrest, whether he’s on duty or off.”
What is clear is the timing: Lott didn’t fire the deputy until after the video was released to the public. In March of last year, Derrick pleaded guilty to third-degree assault and battery.
A scuffle in Five Points
Those on the receiving end of police shootings and excessive force incidents generally tend to be black, low-income and powerless to do much about police abuse. But that isn’t always the case. At times, middle-class, wealthy, even well-connected residents of the state have come into conflict with the police. Here, too, there seems to be little accountability.
In a particularly high-profile incident from October 2009, a bartender at the since-closed Red Hot Tomatoes pub in the popular Five Points area of Columbia called police after a dispute with a customer. Allen Keith McAlister had complained about other customers charging drinks on his tab without his permission, and the discussion apparently grew heated. But McAlister eventually settled the tab and left the restaurant before police arrived. When three officers from the city police department arrived, they immediately threw McAlister up against a wall, then tackled and arrested him. Moments later, McAlister’s friend Jonathan McCoy (he goes by Jonny), an attorney in Myrtle Beach, showed up and asked the officers why McAlister had been arrested. They then arrested McCoy, too.
In a subsequent police report, officers Amanda Long and James Heywood claimed that McAlister ignored their demands to leave the bar. They claimed that on two occasions, McAlister pretended to leave the bar, but then returned “within seconds.” The officers also stated that they gave McAlister “several chances” to leave, but he refused. They arrested him on a charge of “refusal to leave.” They further claimed that when they tried to arrest him, McAlister snatched back his arms and pushed the officers away. For that they added a charge of resisting arrest.
The officers claimed they arrested McCoy for interfering with a police officer and resisting arrest when he approached them in a threatening manner as they were arresting McAlister. They claimed McCoy grabbed Long by the arm. Their report also claimed that McCoy continued to get “in the face” of the officers, which gave them no choice but to arrest him. McCoy and McAlister spent the weekend in jail.
Several months later, attorneys for McCoy obtained video of both arrests from the surveillance video of a nearby bar. The video directly contradicts the police reports. First, McAlister was nowhere near Red Hot Tomatoes when the police confronted him — he was about 70 feet away. The three officers — Long, Heywood and John Passmore — shoved McAlister into a wall almost immediately upon seeing him. They then forced him to the ground, even as he appeared to be complying. They walked straight up to him, suggesting they never asked him to leave, as they claimed to have done twice. When McCoy emerges in the video about 45 seconds later, he doesn’t appear threatening at all. His arms are outstretched and he appears to be asking a question. He never grabs any officer’s arm, as claimed in the police report. In fact, two officer shove him almost immediately. With both men, all of the physical contact is initiated by the police officers.
The city dropped the charges against the two men the following May when the officers, after seeing the surveillance video, told prosecutors they would plead the Fifth Amendment if asked to testify.
In his lawsuit against the officers, McCoy claims that when he asked why he was being arrested, Passmore replied, “For that right there— asking questions. It’s none of your business.” When McCoy told Passmore he was an attorney who knew it wasn’t illegal to ask a police officer questions, he claims Passmore responded, “I’m gonna put on the report that you lied to me about being a lawyer. Are you sure you want me to put that down or do you want to explain that to the judge?”
As it turns out, not only were both men attorneys, but McAlister at the time was a prosecutor in Aiken County. (He worked under solicitor Strom Thurmond Jr., son of the longtime senator.)
Shortly after the video was made public, city officials told local media outlets that the police department would conduct an internal investigation. But the department put that investigation on hold when SLED announced it would look into the incident. But by July 2011, 14 months after SLED said it was looking into the matter, and 21 months after the incident, a SLED spokesperson told a local TV station that the agency had no record of any investigation into McCoy’s arrest.
“The department didn’t investigate because SLED got involved,” says McCoy. “But SLED sat on the case for over a year, then claimed there was never any investigation in the first place. They said they couldn’t even find a file that included my name.”
McCoy settled with the city in March 2013 for $300,000. Days earlier, a South Carolina judge had declared the law under which McCoy had been arrested to be unconstitutionally vague.
McAlister and McCoy are affluent attorneys. McAlister was a prosecutor. Yet even in a case with incriminating video, two well-connected victims and a swarm of media publicity, there was barely any real accountability. In an affidavit filed for McCoy in his lawsuit, former Tallahassee police chief and use-of-force expert Melvin Tucker concluded that the officer’s actions “constitute nothing more than police cover-up of an unlawful arrest.” Yet the three officers were never disciplined.
While some police agencies in South Carolina seem to be increasingly reluctant to release potentially damning videos to the public, in ongoing litigation over a 2012 fatal roadside shooting, the Kershaw County Sheriff’s Office has gone to great lengths to deny that video ever even existed.
Attorney Robert Phillips says he has lost count of the number of times he’d asked someone from the sheriff’s office about dash-cam footage of Melvin Lawhorn’s death. He has asked in depositions. His legal assistant asked over email. He has asked in discovery requests. Each time, the sheriff’s office, deputies or their attorneys replied with some variation of the same denial: There was no dash camera at the scene.
On Feb. 28, 2012, Lawhorn was riding in the passenger seat of a truck driven by his friend Darryl Herbert when the two men were eventually confronted by Brian Elliott, Mickey Sellers and Kirk Willis — all narcotics officers with the sheriff’s office — and Jack Rushing, a narcotics investigator from SLED. (As mentioned in Part One, SLED has multiple responsibilities as a department.) The deputies would later say they had received a tip from an informant that Lawhorn was about to pick up a major supply of cocaine from a dealer. If true, it still isn’t clear why they pulled the truck over before the alleged buy instead of after. The police did say they found an ounce of cocaine in the truck.
Elliott initiated the stop. He activated his lights, and Herbert pulled over after turning onto a side street. According to Herbert, as Elliott approached the truck, he drew his gun. Elliott later said he merely put his hand on his gun, and that was because an informant had told him that Lawhorn was often armed. Lawhorn wasn’t armed, but according to Herbert, Lawhorn began to panic when he saw Elliott walk toward him with his gun drawn.
According to both Elliott and Herbert, Lawhorn then quickly moved over next to Herbert, grabbed the steering wheel, put his foot on top of Herbert’s, and pushed down on the gas pedal. By both accounts, Elliott then reached in to grab Herbert through the passenger-side window. As the truck continued, Elliott claimed he could only run alongside to keep up.
Elliott then claimed that he became stuck in the truck, rendering him unable to withdraw. As he began to be dragged, he had no choice but to pull his gun and shoot Lawhorn through the back window. He said that he then fell and the truck ran over his leg. Herbert said in a deposition that Elliott never appeared to be stuck and could have simply removed himself from the truck by taking his arm out of the window.
There are some problems with Elliott’s account of the incident. First, if he had gotten stuck in the truck, it’s unclear how killing Lawhorn would have freed him, since, according to Herbert, Lawhorn was not grabbing him. Second, Philips repeatedly requested that the sheriff’s office turn over the pants and boots Elliott was wearing the night he killed Lawhorn. They weren’t produced until the day Phillips was to depose the deputy. There’s also some question as to whether the pants produced were legitimate. Elliott claimed in depositions that EMS technicians had cut the pants when the arrived at the scene in order to access his leg. The pants the sheriff’s office produced hadn’t been cut.
There are other problems with Elliott’s story. Elliott was taken to the hospital that night with what he said he feared was a broken leg. The Kershaw County Sheriff’s Office later told local media that Elliott had suffered torn ligaments and abrasions. But Philips subpoenaed the officer’s medical records. Because of federal privacy regulations, the officer’s actual records can’t be made public, but according to Phillips, doctors found no bruises, no abrasions and a normal range of motion in Elliott’s legs.
If Elliott wasn’t injured, and his pants showed no wear and tear, that would at least suggest the incident didn’t happen as he claimed it did. Of course, it also isn’t definitive proof that it didn’t. That’s where dash-cam video would be valuable. So Phillips asked for it.
Phillips first asked for any dash cam footage from the two police cars at the scene of the shooting. The sheriff’s office responded, “These vehicles were not equipped with dash cams at the time of the incident . . . ”
Phillips then sent a more detailed request:
The sheriff’s office responded, “There are no dash or body cameras involved in this this incident.” Philips sent a similar discovery request to Kershaw County Sheriff Jim Matthews. Again, Matthews indicated that there were no dash cameras at the scene.
On Dec. 10, 2014, Phillips’s paralegal contacted the law firm representing the sheriff’s office to make arrangements for one of Phillips’s experts to inspect the two police cars involved in the incident, as permitted under South Carolina law. The firm representing the sheriff’s office delayed the request for a few weeks until early January.
Then, on Jan. 5, the firm told Phillips’s office that the two cars were no longer part of the county’s fleet. Two days later, they emailed that one car had hit a tree and had been taken away by an insurance company. The other car, they said, had been sold at auction. This, the firm wrote was “all the info the County has as to the vehicles.”
Under common law, the sheriff’s office is obligated to preserve any evidence that may be relevant to a lawsuit. Here, the department not only gave up possession of the vehicles, but also never notified Phillips to give him an opportunity to inspect the cars before they were gone. Attorneys for the sheriff’s department further said they had no record of to whom the cars had been sold, or how they could be located.
The car with the best view of the incident belonged to Deputy Aaron Threatt, who had responded to the officers’ call for assistance. In a deposition last April, Phillips asked Threatt once again about a dash camera.
Q: Your car didn’t have a dash cam, did it?
Q: It didn’t?
Q: Okay. That’s too bad. It would have helped us know exactly what happened if we’d had dash cams, wouldn’t it?
Several months later, Phillips was looking through photos from the scene and found a shot of the front of Threatt’s car. Near the top of the windshield he noticed a box that looked a lot like a camera.
Phillips found another photo of the car from a different angle, fiddled with the image in Photoshop and quickly determined that not only was it a mounted camera, but also that he could figure out the name of the manufacturer, L-3 Mobile-Vision.
Phillips then filed a motion asking the judge in the case for a default judgment in favor of Lawhorn’s estate. Acknowledging that what he was asking for was severe, Phillips cited a roster of cases in which video footage has contradicted police reports after officer-involved shootings, including the Walter Scott and Levar Jones shootings in South Carolina. That motion is still pending.
In a sworn affidavit responding to the motion, Kershaw County Sheriff Jim Matthews acknowledged that there was a camera mounted in Threat’s car but claimed it was nonfunctional. The office claimed that the camera was part of an old VHS system that Matthews had decided to replace with a digital system because of a host of technical problems. The camera head was left in the car because it’s compatible with both systems.
There are a couple of problems with that claim. First, another photo of the interior of the car shows an L-3 digital control panel near the passenger-side visor. Those aren’t compatible with a VHS system. Second, the camera itself is a digital model, not a VHS model.
It’s at least possible that the sheriff’s office bought a digital camera and digital control panel with a VHS recorder, then tried to sync the two with a converter kit. Some departments don’t like digital video because of security concerns and cost of storing digital data. Perhaps this is what the sheriff’s office did, but then decided that it didn’t like the difficulties of a VHS system, and planned to eventually install a digital recorder. But if that is indeed what happened, it should have been easy to explain. For a patrol car to be on the road for weeks or months without a functional dash camera also defeats the transparency interests of having dash cameras in the first place.
“This one is really troubling to me,” says Stoughton. “From the loss of the cars to the misleading statements about the dash cam, there seems to be a series of steps, from smaller to larger, designed to conceal information. It isn’t just an officer or two, it’s on multiple levels. It could all be innocent, or coincidence, but it really doesn’t look good.”
Then there is the role of SLED. First, one of SLED’s own officers was present at the shooting. That makes the alleged independence the agency brings to these investigations already more suspect than usual.
The lead SLED investigator in the Lawhorn shooting was James Flowers, the same investigator who admitted in the Lori Jean Ellis case that he doesn’t read all of the forensics reports in the cases he investigates and doesn’t feel there’s any need to press police officers when their statements contradict the physical evidence.
The policing experts consulted for this series also found lots of problems with the way SLED investigated Lawhorn’s death. “SLED investigators should have gotten to the bottom of the camera issue immediately,” says Walter Katz. “They should have inspected the car, seen that there was a dash camera, and asked for the footage. If they were told there was no footage, they should have asked why. Perhaps there was a good explanation. But that should have been in the report.”
Katz sees some other problems. “I see in the photos that the door to the responding officer’s car was closed. That isn’t generally how these situations happen. You’d expect the officer to leave the door open when responding to a distress call from another officer. Also, his lights are turned off. You’d expect him to have activated his lights. When an investigator arrives at a scene like this, you want everything frozen in the state it was when the incident happened. I’d want to know if that happened here, or if there was tampering with the scene.”
“I think this was the single most troubling of these cases I’ve reviewed,” says Stoughton. “The sheriff’s department’s disposal of the vehicles raises a lot of questions. It sure doesn’t look clean. If the cars are part of a fatal shooting, you hold off on selling them.”
Stoughton says he’s also bothered by the way the department released new information only after being caught in a contradiction. “You want your police department to be like Caesar’s wife — above reproach. All of the information about the dash cam should have been released right away. It really doesn’t look good when you’re only transparent when you’re forced to be.”
Stoughton and Katz also say Elliott’s clothing should have been photographed immediately after the incident. It was never photographed. And Katz added that even if the shooting went down the way the officers claim it did, reaching into a moving vehicle and then firing into that vehicle as it leaves are dangerous tactics in and of themselves. “It’s something police departments all over the country are grappling with,” Katz says. “It’s just an unnecessary escalation.” A 2015 Post and Courier investigation found that one in four South Carolina shootings by police involved an officer firing into a moving vehicle.
The Lawhorn shooting didn’t receive a lot of media attention. But in other shootings that have, some of the state’s law enforcement agencies have responded not by denying the existence of video, but by preventing its release to the public. When the South Carolina legislature passed a bill last summer requiring all police agencies in the state to implement body cameras, the bill included a provision pushed by law enforcement groups that exempted body camera footage from the state’s open records laws.
Currently, dash-camera footage is technically still subject to those laws, but that doesn’t always mean police agencies comply. Last August, SLED and the Dorchester County Sheriff’s Office refused to release video of the fatal police shooting of 24-year-old Shamir Palmer. SLED also refused to release the dash-cam video of North Augusta Officer Justin Craven’s 2014 fatal shooting of 68-year-old Ernest Satterwhite for more than two years. SLED chief Mark Keel said in February that he worried the video could jeopardize Craven’s right to a fair trial. The video was finally released in April shortly after Craven pleaded guilty to a misdemeanor for the shooting. He was sentenced to three years of probation.
SLED also withheld the dash-cam video of the shooting last July in which Seneca police Lt. Mark Tiller killed 19-year-old Zachary Hammond. News organizations, including the Greenville News, sued for access to the video, but SLED withheld it until solicitor Chrissy Adams announced she wouldn’t be pursuing charges three months later. When the video was finally made public, it led to widespread criticism of Tiller’s actions and of the sheriff’s department that had defended him. In March, Hammond’s parents settled their lawsuit for $2.1 million.
Eric Bland, the attorney for the Hammond family, says that despite the lack of accountability for Tiller, Hammond’s death has prompted some policy changes. “The Greenville County Sheriff’s department now has a policy that bars shooting into moving vehicles,” he says. “Officers also have to use all available means of non-lethal force before resorting to lethal force.”
SLED withheld the video in Hammond’s case for months, they claimed in order to allow Solicitor Adams to make her decision without public pressure. The decision to settle the lawsuit with Hammond’s family also came shortly after a federal judge ordered Seneca’s PR firm to turn hundreds of emails and other documents related to the case over to federal investigators looking into whether Tiller violated Hammond’s civil rights.
In the aftermath of the Hammond case, the state legislature is now considering substantive reforms to South Carolina’s open records laws. Earlier this year, South Carolina state Sen. Larry Martin introduced a bill that would require police agencies to get a court order to keep dash-cam footage from the public. As it stands, they can refuse to withhold the footage, which then requires a media group, attorney or watchdog group to get a court to force them to release it. SLED and the state’s sheriffs association have already expressed opposition to the bill.
“If that video doesn’t get released, none of this happens,” says Bland. “There’s no settlement, there’s no outrage, there’s no change in policy.”
(Note: The Kershaw County Sheriff’s Department, the Darlington Sheriff’s Department and the Darlington Police Department did not respond to requests for interviews. Attempts to reach Dept. Ben Fields and Dept. Paul Derrick went unreturned. A public information officer for SLED initially agreed to set up an interview with chief Mark Keel, but then didn’t call back.)
Coming in Part 3: The South Carolina police files — cover-ups, wrongful arrests and cowboy raids