When the city of Charlotte in May settled a wrongful death lawsuit in the police shooting of Jonathan Ferrell for a record-high $2.25 million, officials never explained why they struck the deal.
Newly released depositions in the civil suit give some insight into the scrutiny that Charlotte-Mecklenburg police would have faced over how the department assesses officers’ readiness to carry out deadly force.
U.S. District Judge Graham Mullen in May ordered that no one disclose material from CMPD’s investigative file and the depositions collected in the civil suit because of the impending criminal trial of Officer Randall “Wes” Kerrick, which is now underway.
The Observer asked Superior Court Judge Robert Ervin, who is presiding over Kerrick’s criminal trial, to release the depositions since the city settled the lawsuit and paid the Ferrell family. Ervin only released partially redacted depositions of three CMPD majors.
Much remains unknown about all the information collected in the civil suit.
But the documents released last week depict top commanders challenged repeatedly by the attorney for the Ferrell family over officer training and oversight.
They testified that the department did not keep written records on how well officers performed in video training simulations in use of force situations. They also said the unit charged with looking into misconduct allegations did not fully track information from an early intervention system meant to identify officers who show troubling patterns of behavior.
In its civil suit, the Ferrell family held the city accountable for Kerrick’s actions. The lawsuit accused CMPD of failing to adequately train and supervise officers in the use of force. It said the department had a “long and extensive history of excessive force by its officers.”
“Given the questionable shootings they have had, one would think they would want to address could we handle this better and how can we do this better,” Charles Monnett, the attorney representing the Ferrell family, told the Observer.
It remains unclear whether testimony in the depositions will resurface in Kerrick’s criminal trial. Officers who were deposed are listed as potential witnesses. A jury will decide whether Kerrick used excessive force in 2013 when he shot Ferrell 10 times in a northeast Mecklenburg neighborhood.
CMPD would not respond to Observer questions about issues raised in the deposition, citing the ongoing criminal trial.
In a written statement, the department defended training practices overall. CMPD said it has implemented training for firearms and other use of force that exceeds state requirements.
It is unclear whether the department has made changes since the January depositions.
“The training we provide prepares officers to respond with the appropriate level of force,” CMPD said.
Maj. Sherie Pearsall, who leads CMPD’s Office of Professional Responsibility, which includes Internal Affairs, told the Observer in an earlier interview that, after every police shooting, the department gathers information in order to learn whether it was justified and whether officers followed their training.
And, unlike many police departments, CMPD benefits from operating its own training academy instead of contracting with a college or university. That allows CMPD the flexibility to drill officers in local practices and policies as well as state-mandated standards.
A former CMPD commander, who did not want his name used to protect relationships, said Ferrell’s shooting naturally leads to questions about how the department trains its officers on using force.
“What is policy and what is practice and do the two meet?” he said. “Training should teach people to do things one way. How do you teach 1,800 people to do exactly the same thing?”
‘A major deficiency’
State law allows officers to use deadly force to protect themselves and others from imminent threats of serious bodily harm or death.
Officers train for making shoot-don’t shoot decisions on an interactive video simulator that tests their use of cover, verbal skills and weapons handling. Video images flash across a 7-foot by 9-foot screen and officers must make the right call in different scenarios.
Following police shootings involving white officers and unarmed African-Americans across the country, CMPD has taken the equipment to community forums around the city to show residents what it is like to be a police officer facing a use of force situation. On its website, CMPD says positive public response to the simulator has been “overwhelming.”
Monnett questioned officers about the equipment’s use during deposition testimony taken in January.
Maj. Michael Adams, who supervised training at the time of Ferrell’s death, testified that the department has used a training simulator since about 2002 but the equipment became inoperable in 2008 and wasn’t replaced for four years.
Now, the technology is used to train up to 30 officers in a given day, but CMPD doesn’t score their performance or give written assessments, Adams said.
Instructors, he said, evaluate officers and give them feedback when they fail to make the right decision about when to shoot.
Under questioning from the Ferrell’s attorney, Adams conceded the department’s training instructors do not share written reports to identify possible deficiencies in training and other patterns, instead depending on conversations about what they see. He also acknowledged there is no formal process to report the information about negative trends to commanders.
When CMPD started using a video simulator again, it could have evaluated the entire department by scoring officers’ results, Monnett suggested when he deposed Adams.
“In the most important and most realistic training they do, they had no standards,” said Monnett in an interview. “That’s a major deficiency. They need to ensure that officers properly respond.”
Law enforcement experts contacted by the Observer said it is difficult to compare CMPD’s use of the simulator and overall training practices with other departments because there is relatively little conclusive research on what works best. Minimum training standards vary from state to state and local police departments have their own policies, they said.
Gregory Morrison, a criminology professor at Ball State University in Indiana and former police officer, said scoring how well officers perform during training poses a needless risk.
“The whole point of training is to challenge and teach them,” Morrison said. “You would rather have them make their mistakes in training. If it is going to show up in their personnel file everyone is going to be petrified.”
Matthew Barge, deputy director of the Police Assessment Resource Center, disagrees. Law enforcement agencies should set some competency standards during in-service training, especially in decision-making about shooting, Barge said.
Lack of oversight
In 2005, CMPD installed an early intervention system, a data analysis program typically used to spot officers with behavior that does not warrant formal discipline but suggests they might have problems interacting with citizens.
Police managers who identify issues are supposed to intervene with counseling, training and other resources. According to deposition testimony, CMPD supervisors are assigned to check the early intervention system at least weekly for alerts it may signal about any employees they manage.
The U.S. Department of Justice has recommended the system to help monitor problems such as racial profiling and excessive force.
Yet CMPD’s Internal Affairs Bureau, which investigates excessive force and serious misconduct, does not regularly track information that goes into the database, according to deposition testimony.
Maj. Cam Selvey, who once headed Internal Affairs, said he did not know who audits the database to ensure all supervisors are monitoring their employees by using the system.
Barge, the law enforcement expert, said that some police departments do not put Internal Affairs in charge of their early warning system to avoid the appearance that the information will be used to take punitive action against officers. When CMPD implemented its intervention system, officials said the data was stored in the training academy to escape that perception.
Barge said he believes the best practice is for agencies to put the information in a central clearinghouse where Internal Affairs and others can have instantaneous access.
Dash cam video
CMPD equips squad cars with digital mobile recording devices, commonly known as dash cams. They allow supervisors to independently review interactions between officers and citizens, protect the public and see any performance problems.
When officers fail to use the equipment, Selvey testified that the department does not record the infraction in the early intervention system. Selvey said the department does not know how often officers are disciplined for failing to use their video equipment.
In the Kerrick case, then-CMPD Chief Rodney Monroe watched a video shot by a nearby police car driven by one of three officers who responded to the scene. At the time, Monroe said the video showed Ferrell was clearly unarmed and unnecessary force had been used. Kerrick had turned off his dash cam, according to testimony Friday in his criminal trial.
Kerrick has pleaded not guilty and his attorneys say he fired shots in self-defense after Ferrell charged at him.
Monnett, the attorney for the Ferrell family, has said that without the video Kerrick would not have been arrested and indicted. Michael Gordon contributed to this story.
Top CMPD officers were deposed in January as part of the civil lawsuit filed against the city by Jonathan Ferrell’s family. The following excerpts were contained in transcripts with Charles Monnett, representing Ferrell’s family, as the questioner.
Maj. Cam Selvey, former head of Internal Affairs, was asked how an officer’s decision to use lethal force applies to a series of gunshots.
Monnett: Each shot has to be independently considered about whether the use of force at that moment was justified, correct?
Selvey: Yes, sir.
Monnett: So, in other words, we could find that, (for) example, Officer Kerrick's first shot may have been justified but his tenth shot may have not?
Maj. Michael Adams, commander of the Special Investigations Bureau, was asked about the lack of records on how officers performed in a shooting simulator, referred to as FATS.
Monnett: And you’re telling the court that there is absolutely no assessment in writing or recorded anywhere on how these people, your officers, performed in these what are supposed to simulate real-life situations, correct?
Adams: For FATS simulation, no, there’s not a written record of that.