On Oct. 29, Evansville, Ind., police officers Nick Henderson, Mark DeCamps and Marcus Craig confronted 36-year-old Mark Healy while investigating a garage burglary. According to the officers, Healy resisted when they confronted him, and a physical altercation ensued. During that altercation, Healy broke free and began to run away. When again confronted, he stabbed one of the officers with a syringe filled with liquid methamphetamine. The officers then physically restrained Healy and arrested him.
That, according to local media reports, is what the police use-of-force report said. It was filed by the officers involved about three hours after the incident. A fourth officer, a sergeant, reviewed the report and deemed the officers’ actions justified.
But body camera footage from the incident obtained by the Evansville Courier & Press shows something quite different. In the footage, Healy doesn’t resist at all. And the officer who was stuck by the syringe wasn’t stabbed by Healy, he was pricked by the needle while Healy was handcuffed. Contrary to department procedure, the officer failed to ask Healy if he had anything in his pockets before searching him. As you can see in the video, as one of the officers searches Healy, he pricks himself on the syringe. He then calls Healy a “motherf—–” and strikes him. As Healy lays on the ground, Henderson and another officer then spend about three minutes beating him, yelling at him and threatening to kill him. The third officer just watches.
To his credit, upon viewing the video, Evansville Police Chief Billy Bolin immediately suspended all three officers at the scene as well as the sergeant who reviewed the case. He also recommended the three at the scene be fired and that the sergeant be demoted. That seems appropriate. But in addition to the beating the officers applied to Healy, they also clearly lied in their report. Both would seem to merit criminal charges.
It has now been six weeks since the incident, and all four officers remain on paid leave while their appeal is under review. Meanwhile, according to the Courier & Press, the Indiana State Police (ISP) investigated the incident and sent a report to Vanderburgh County Prosecutor Nicholas Hermann. Last Thursday, Hermann announced that he will not press charges against the officers involved. I asked an ISP information officer for a copy of the report. By email, he replied that “our criminal investigations are not available to the public.”
During the news conference, Hermann explained at length his reasoning behind the decision — without outright saying he wasn’t pressing charges until several minutes in. He said his office could not prove Henderson purposefully struck Healy in a malicious manner. According to talks with Henderson and his attorney, Hermann said the officer struck the suspect with his elbow after pricking his hand on a needle that was in Healy’s pocket.
He said there was no evidence Healy was ever punched. Hermann played a statement Healy gave to police immediately after the incident in which he said there were “no punches thrown.”
This is meaningless parsing posing as legal jargon. The video clearly depicts Henderson striking Healy to the ground. That you don’t see what specific body part Henderson used to initiate that strike isn’t particularly relevant. If this video had been of a citizen striking a police officer, I doubt Hermann would have had much problem filing charges.
But let’s give Hermann the benefit of the doubt here. So what about the police report, which clearly contradicts what we see in the body camera footage? Surely that merits criminal charges, right?
Hermann was also asked about possible perjury charges related to a section of the report that states Henderson, Craig and DeCamps were all working to handcuff Healy while he struggled to get away. That section directly contradicts the video, which shows one officer handcuffing Healy without incident.
Hermann acknowledged the contradiction but characterized it as a “discrepancy” during the news conference, citing the three hours between the incident and the time the report was filed as a possible cause. He also speculated the officers who wrote and signed the probable cause affidavit under penalty of perjury, Craig and DeCamps, may not have watched the body camera footage before writing the affidavit.
Because of this, Hermann said it would be difficult to prove the officers intended to give false information.
“I have to show that they knowingly or intentionally lied for some reason,” he said. “It’s common that they not watch the video prior to writing supplements. That’s an issue that we get all the time. And if we start going after police officers because there’s a line in a probable cause affidavit that contradicts what we see in the video, quite frankly we wouldn’t have any more Evansville police officers.”
As I’ve written before here at The Watch, we should be careful about charging police officers with perjury simply because a police report isn’t entirely consistent with body camera footage. We know that eyewitness testimony is flawed at best, is further degraded by trauma and that we tend to remember incidents in which we were involved in ways that reflect well on us.
But these aren’t discrepancies. They’re lies. The police claimed Healy resisted. He didn’t. They claimed he broke free and tried to flee. He didn’t. They claimed Henderson was struck by the syringe as Healy attempted to flee. He wasn’t. He was struck while searching Healy, while Healy was stationary and handcuffed.
Under Indiana law, “A person who makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true commits perjury.” Under Hermann’s interpretation of the law, the only way to prove the “knowing” part of the law would be if the officer submitted a false report after viewing body camera footage. Because Evansville officers are asked to submit reports before viewing footage, Hermann’s interpretation would seem to suggest that no Evansville officer could ever be charged with perjury for mischaracterizing a use-of-force incident in a police report. And this case only underscores the point. If this isn’t perjury, there is no perjury.
Hermann also could have charged the officers with “official misconduct.” Again from Indiana law: “A public servant who knowingly or intentionally commits an offense in the performance of the public servant’s official duties commits official misconduct.”
Here again, Hermann has set the bar to meet the “knowingly” component high enough to render the law useless.
He also could have charged the officers with obstruction of justice. From Indiana law:
“A person who makes, presents, or uses a false record, document, or thing with intent that the record, document, or thing, material to the point in question, appear in evidence in an official proceeding or investigation to mislead a public servant, commits obstruction of justice . . . “
Indiana’s “false informing” law might also apply:
“A person who gives a false report of the commission of a crime or gives false information in the official investigation of the commission of a crime, knowing the report or information to be false, commits false information, a Class B misdemeanor. However, the offense is a Class A misdemeanor if it substantially hinders any law enforcement process or if it results in harm to another person.”
Keep in mind that Healy was initially charged with resisting arrest, based on the false police report. Had there not been body camera footage, or had it been corrupted, he’d still be facing that charge.
In short, a prosecutor who wanted to hold these cops accountable had a lot of options. Hermann didn’t choose any of them. It’s also telling that in his press conference announcing that he wouldn’t be seeking charges, he complained about local media showing the clip “over and over.” That is apparently the real outrage here.
A local attorney who is familiar with this case tells me that Hermann has a rather cozy relationship with local police — that he considers law enforcement his political base. Indeed, Hermann was first elected with support from the local police union and from victims’ rights groups. If true, that might explain his decision. But perhaps Evansville’s cops could use some better friends. In his vigor to defend these particular cops, Hermann suggests the discrepancies between their report and the camera footage are no different from discrepancies one might find in any other report filed by an Evansville police officer. I’d think a conscientious Evansville police officer would find that notion pretty offensive.
To their credit, officials at the Evansville Police Department dispute Hermann’s characterization of the incident. As you might imagine, they also object to the notion that such clear contradictions between police reports and camera footage are common.
But while senior officials at Evansville PD seem to be at odds with Hermann over this particular case, the prosecutor’s unfortunate defense of police culture in Evansville may not be so far off after all. Consider this letter to the editor of the Courier & Press, written by a retired local deputy chief who worked as a cop for 39 years. In response to the Healy beating, he writes:
When a criminal takes to the streets to commit crimes he should realize the risk of being beaten or shot by a homeowner, business owner or police officer. Criminals have no immunity to the use of force …
While the suspect probably did not resist in that fashion he did injure the officer and it is only natural for the officer to get angry and take the suspect to the ground. In my day if any problem occurred during an arrest it was standard procedure to take them down, secure them and then proceed. In my day I am sure that in most cases where something like this happened there would have been a stop by the Emergency Room on the way in to get the suspect’s head stitched up.
… As a young officer I was told by a judge that I was arresting too many people. He told me that I should handle a lot of the more minor cases on the street, which meant I should give them a whipping and send them on their way.
Note that Healy was never charged with the burglary. His only offense was drug possession. Yet this longtime local cop and former deputy chief thinks that was more than enough for Healy to have been beaten silly, or even shot.
Perhaps this attitude explains why Evansville cops seem to be in the news so often. A sampling of headlines:
- This year, Evansville officers shot and killed a homeless man who they said was approaching them with a knife. While the man had just stolen a police cruiser and led police on a chase, video — which the department released six months later — shows the man at least 30 feet from the officers when they opened fire.
- Last year, a federal appeals court refused to grant immunity to members of an Evansville PD SWAT team who mistakenly raided an elderly woman and her granddaughters in 2012. The raid included flash grenades, a battering ram and one kicked cat. It was in response to a series of Internet posts that allegedly threatened the police. The cops traced the IP address associated with the posts to the house but failed to realize that the family had an open WiFi connection. The posts were written by a neighbor. The court compared to the SWAT team to Keystone Cops.
- In an incident last year, the son of a police officer who was allowed to accompany his father on a ride-along assaulted and threatened a man who attempted to record an aggressive arrest with his cellphone.
- In 2002, several Evansville cops were disciplined in a relatively short period of time for incidents involving a Ku Klux Klan drawing, fondling female dispatchers and reporting a false shooting to cover up for the fact that several male officers were watching an adult video while on duty.
- In 2013, an officer was accused of severely beating a man after confronting him about a noise complaint. A witness — a friend of the alleged victim — disputed the officer’s account. The alleged victim claimed that after arresting him, the officer also handcuffed him to a police bed and taunted him. The officer was cleared of any wrongdoing.
- A 2010 study conducted at the request of then-Police Chief Brad Hill found that black and Latino residents of Evansville found “a consistent lack of respect shown by EPD Officers to Black Citizens,” and that EPD officers used “harsh and disrespectful language” when interacting with black people. The report found that black residents reported harassment, surveillance and profiling, and it detailed numerous incidents of bogus traffic stops, searches without explanation, and wrongful arrests to back up their claims. The report concluded that there was a “a schism in the Community-Police Partnership for African Americans and Latino/Hispanics. At this historical juncture, there is a breach of trust that characterizes the Community-Police relationship in Evansville. The moral authority that is ideally associated with status of Police Officer has been eroded by a perceived, persistent abuse of power, especially in conducting home searches and traffic stops.”
- In 2011, Hermann did press charges against an Evansville officer who punched a 60-year-old man after an altercation at a FOP post — the other man happened to be a retired police officer.
- In 2014, a 59-year-old woman who had just been sideswiped in a car collision was struck, tackled, repeatedly tasered and then arrested by an Evansville police officer after a dispute over her insurance card.
- In 2013, two Evansville cops roughed up, cuffed and threatened to taser a local church pastor. The pastor had waved at the officers while riding on his bicycle. The officers had mistaken his wave for a middle finger. The pastor, who is also a firefighter, was in fact a friend of Evansville Police Chief Bolin.
- In 2011, a black Navy veteran says two EPD officers pulled him over as he drove his RV through Evansville. He was taking the RV to North Carolina to sell it. According to the man, one officer asked him, “Why would a black man be driving a motor home with no utensils, no personal effects, nothing, why would he be driving it by himself unless he had drugs?” After a drug dog “alerted” to the presence of drugs in the RV, the police searched the vehicle top to bottom. They found nothing. Shortly after, one of the officers involved was promoted to sergeant. In 2013, he was named “officer of the year.”
- Despite all of this, Chief Bolin said in 2014 that the nationwide protests against police killings of black men had “absolutely” affected the morale of his officers. “The guys feel like no one appreciates them,” Bolin told the Associated Press. “They feel like they’re made out to be enemies.”
Maybe — just maybe — there’s some justification for why some Evansville communities aren’t that fond of local law enforcement. But those communities probably aren’t part of Hermann’s base.