ST. LOUIS • As video cameras begin to sweep post-Ferguson policing — and policymakers grapple with whether to bar the public from watching the images — one such recording sits at the heart of a new lawsuit.
It shows St. Louis police making an arrest that would later be called abusive, and catches an apparently surprised officer yelling, in part, “Everybody hold up. We’re red right now!” before she abruptly shuts off the camera.
Joel Schwartz and Bevis Schock, lawyers who filed suit Jan. 22 on behalf of Cortez Bufford, said “red” is cop slang for a running camera. What is seen before the video stops, they claim, supports their accusations in St. Louis Circuit Court that police lacked probable cause and applied excessive force.
The video, which St. Louis Mayor Francis Slay’s office had asked a private lawyer to delay releasing last summer, shows city officers pull Bufford from a car, kick him repeatedly and shock him with a Taser. It played a role in the dropping of charges against Bufford.
But a lawyer for the St. Louis Police Officers’ Association insists that the video really reflects a proper escalation of force applied against a resisting suspect who was lucky he didn’t get shot when he reached for a gun.
Police Chief Sam Dotson declined to comment on the specifics of the case.
CALLS FOR SHOTS FIRED
The stop followed 911 reports of shots fired near Lafayette Square just after 10 p.m. April 10. One caller mentioned a silver car with big wheel rims.
Five minutes later, according to a police report, officers Nathaniel Burkemper and Michael Binz watched as a silver Ford Taurus made an “illegal” U-turn and “abruptly parked” in front of 1614 South 13th Street.
The video, released by Bufford’s lawyer, shows them pull over the car. Conversations are hard to hear. Binz searches and handcuffs the passenger as Burkemper talks through the car window with Bufford, the driver.
Burkemper’s report says both men in the Taurus raised their hands when asked. He wrote of smelling marijuana and seeing “plastic baggies and a green leafy substance.”
Burkemper is heard saying, “I’m telling you right now” and “Let’s go” to Bufford. The passenger repeatedly urges Bufford to get out.
Bufford “became agitated,” Burkemper wrote, refusing to give his name and reaching for a pants pocket before the officer warned him to keep his hands in view. Bufford refused orders to get out. Burkemper called for backup when Bufford became “increasingly hostile.”
The report says Binz told Burkemper he had found two bullets in the passenger’s pocket. Burkemper then ordered Bufford out again, saying he was under arrest. Bufford unlocked his door, but refused to exit.
The video shows Burkemper reaching in and opening the door as backup arrives, at 10:14.11 p.m. The report says that after Burkemper maneuvered Bufford to the ground, the suspect struggled repeatedly and reached for his pocket.
Burkemper spotted a gun and warned fellow officers, the report says.
The video shows officers struggling with Bufford as one arrives and kicks at him. The report says Officer Monroe Jenkins administered a “foot strike” to keep Bufford from reaching his weapon.
Bufford hit and kicked several officers, the report says, before another officer “administered a foot strike” to the leg, and Bufford was jolted with a Taser twice. At least seven officers participated.
He was then handcuffed, and Binz recovered a Kel-Tec 9mm semi-automatic pistol with four rounds in the magazine and one in the chamber. It has a capacity of 11.
At 10:15.38 p.m. on the recording, the officers appear to be turning Bufford over without noticeable resistance. Most of the officers are standing.
At 10:16.06 p.m., Officer Kelli Swinton approaches Burkemper’s patrol car. There is the sound of an opening car door, and she loudly declares: “Hold up. Hold up, y’all. Hold up. Hold up, everybody, hold up. We’re red right now, so if you guys are worried about cameras, just wait.”
The audio cuts out, and the video ends eight seconds later.
In response to an open records request, City Counselor Winston Calvert released the same video on Friday, plus views from other dash cams.
One shows that after Burkemper’s camera stopped, officers continued to huddle around Bufford. That camera shuts off, too, leaving a gap of more than two minutes before Bufford is seen on it again, stumbling and falling once as he’s taken to a police vehicle. Other videos show unrelated scenes and both Bufford and his passenger sitting inside vehicles.
EXCESSIVE FORCE CLAIM
Schock claims that officers struck Bufford again after the first video ended, and that his client “got banged up pretty good.”
Bufford’s passenger did not respond to a reporters’ messages seeking his version.
The lawsuit says Bufford suffered abrasions to his fingers, face, back, head, ears and neck, and incurred medical bills of $6,439.32. It seeks unspecified damages from Burkemper, Jenkins and two unnamed officers.
Schwartz maintains that Bufford should not have been stopped: that the car was not logically connected to the shots, the U-turn was legal and the driver is seen pulling to the curb using his signal in response to police lights.
He said that getting out of the car would have been “the right thing to do” but said Bufford was “just exercising his rights” to refuse. Schwartz acknowledged that at 18, his client was not old enough to legally carry the gun.
OFFICERS’ LAWYER RESPONDS
Brian Millikan, a union lawyer for four of the officers at the scene, told the Post-Dispatch and KTVI Fox 2 the 911 calls and U-turn provided probable cause to stop the Taurus, and the sight of marijuana was sufficient reason to remove Bufford from the car.
The lawyer said the video shows “perfect use” of police tactics by officers who were “just moving up the chain of the escalation-of-force policy and they deliver some very targeted, directed strikes to his arm and leg. When that doesn’t work, they move up the ladder again to the Taser. And the Taser ultimately is what makes the suspect comply.”
Millikan said police even could have used lethal force after Bufford reached for a weapon; the lawyer noted that an officer is heard calling out, “Gun!”
Millikan declined to comment on whether it was a policy violation for an officer to turn off the video; he is not representing Swinton. He did say he is not aware of any force used once the recording stopped.
CHARGES FILED, DROPPED
The police report says the passenger told officers the gun and marijuana both belonged to Bufford. An investigation of whether the men had fired shots earlier was “inconclusive.”
Bufford was checked at a hospital that night and deemed “fit” for jail. There’s no mention of injuries in the report, except for a soft cast he was already wearing. Burkemper and Binz declined treatment for abrasions.
Bufford was named on a felony charge of unlawful use of a weapon and a misdemeanor of resisting arrest. Lab results later showed just under four grams of marijuana were recovered. The charges were dropped Aug. 26.
Schwartz said it was because the tape contradicted the police report.
But a circuit attorney’s spokeswoman, Susan Ryan, disputed that, saying Friday the case was dismissed because “the action of turning off the dash cam video diminished the evidentiary merits of the case.” She also said a review showed the officers did not break the law, although prosecutors notified police Internal Affairs about the video being stopped.
Either the night of the dismissal or the next morning, Schwartz said, Jeff Rainford, Slay’s then chief of staff, called Schwartz’s law partner and asked him to delay any release of the video pending an Internal Affairs investigation.
Schwartz said he presumed it was to keep from provoking Ferguson protesters. Said Schwartz: “We didn’t want to create more unrest at the time.” He added later, “A tape like this certainly could have made things worse.”
But Rainford angrily denied in a call several days ago to Fox 2 that the request had anything to do with Ferguson.
WATCHING THE COPS
Police department “special orders” regarding dashboard cameras say that “traffic and any type of investigative stops” and “vehicle pursuits,” among other things must be “recorded in their entirety.” The camera should be stopped “once the assignment or the reason for the initiation of recording is completed.”
The department has a small number of dashboard cameras and no body cameras.
A police spokeswoman told Fox 2 that the officer who turned off the Bufford case camera “has been recommended” for discipline, but is appealing. A lawyer for Swinton declined to comment.
Asked about making police videos public, Chief Dotson said it should be decided case-by-case, balanced by privacy interests of those depicted.
Millikan said that the union is “all for releasing the video whenever it’s in compliance with the Sunshine Law.”
Cameras promise to play a big role in holding both the police and public accountable in their encounters. But there are issues about protecting privacy of the people interacting with officers.
Sarah Rossi, director of advocacy and policy for the American Civil Liberties Union of Missouri, said she believes the in-car videos are always public by law. She is working with state officials to forge policies balancing privacy and access to body camera footage.
But Missouri Attorney General Chris Koster has called for restrictions on public access to body camera footage, warning the Legislature of “a new era of voyeurism and entertainment television at the expense of Missourians’ privacy.” His proposal would also make police car videos a closed record.