‘How many people need to bleed?’ Charlotte activists criticize new CMPD policy.

Approaching the seventh night of protests on Thursday, Charlotte-Mecklenburg Police Chief Kerr Putney announced a new policy that he said would help prevent a death like George Floyd from happening in Charlotte.

But local activists say the policy falls far short of what is needed.

Across the country, there have been calls for police departments to enact policies that would punish police officers if they fail to intervene when seeing other officers using excessive force. Charlotte activists have asked for this policy for more than a year and after last year’s fatal police shooting of Danquirs Franklin at a westside Burger King.

This week, Putney implemented the policy but limited it to incidents where failing to intervene would result in “egregious behavior which shocks the conscience.” It’s a standard that critics say is vague and would only be used sparingly in the worst scenarios.

“This only affects cases that will cause embarrassment to the police department,” said Robert Dawkins from the social justice group Action NC.

The specific wording added to CMPD’s rules of conduct states that officers will take action in a situation in which “their failure to act would result in an excessive response to resistance or egregious behavior which shocks the conscience.”

“We’re not talking about a run of the mill handcuffing scenario ... we’re talking about something that rises to the level — it’s a legal term — of shocking the conscience,” Putney said.

Citizens Review Board chair Tonya Jameson said that the intention behind a duty to intervene policy would be to create a culture where every officer feels responsible for de-escalation in every encounter no matter how minor.

“(The new policy) doesn’t have the teeth that we intended to de-escalate encounters before they become egregious,” Jameson said. “It’s vague and makes it sound as if officers should only intervene if they witness something as tragic as the killing of George Floyd.”

Jameson and Dawkins have both been in conversations with CMPD on use of force policy and have provided input in the past year.

“They just need to tell me how many people need to bleed or go to the hospital or die before it rises to ‘shocking the conscience,’” Dawkins said.

On Wednesday, Mecklenburg County Sheriff Gary McFadden announced the sheriff’s office would also adopt a “duty to intervene” policy.

After George Floyd protests, CMPD announces ‘duty to intervene’ policy change

What is the standard and what do activists want?

According to Julian Wright, an attorney for the Citizens Review Board, the legal standard of “shocking the conscience” comes from a U.S. Supreme Court case decided in 1952. The case concerned the behavior of police officers who took a man to a hospital to induce vomiting after they saw him swallow pills, which the officers suspected were illegal drugs, he said.

The Supreme Court decided that the incident was such a violation of the man’s right to privacy that it “shocked the conscience,” Wright said.

“It’s not a standard that’s used or applied very often,” Wright said in an interview on Thursday.

In recent feedback between the Citizens Review Board and CMPD, the review board recommended that CMPD adopt a policy that would affect police in all encounters. The recommendation, which was released in May, stated that supporting officers on scene should “take control of an encounter” when the primary officer is is unsuccessful at de-escalating a situation or gaining compliance from a suspect.

This can include ineffective communication, excessive force or unnecessary escalation, the recommendation says.

Complaints reach the review board when citizens appeal decisions made by the chief of police after an internal police investigation if they believe disciplinary action has been insufficient or that officers have not been punished for violating policy.

CMPD said in response that it would be “unrealistic and potentially dangerous” to require officers on scene to determine whether the leading officer’s “control methods are reasonably necessary in every situation” and in armed encounters.

“Requiring officers to immediately intervene and assess whether a lesser degree of force would be appropriate is not practical, as frequently circumstances are tense, uncertain, and rapidly evolving.”

A “duty to intervene” policy — like the one recommended by the review board — was originally proposed last year when CMPD revamped its Response to Resistance policy and procedures to emphasize de-escalation. While some policy recommendations were adopted, Dawkins said ultimately a “duty to intervene” policy was not included.

New CMPD de-escalation rule not ‘perfect’ but step toward better policing, chief says

Mecklenburg County Sheriff announces new policy

The Mecklenburg County Sheriff’s Office, which has arrest authority and oversees over 1,000 people in the jail, also announced a “duty to intervene” policy this week.

The order, which takes effect today, states that all employees of the county sheriff’s office “must recognize and act upon the Duty to Intervene to prevent or stop any staff member from conducting any act that is unethical, or that violates law or policy.”

The order gives examples of what actions employees could take in examples such as an deputy raising their voice during a traffic stop after a minor violation or witnessing a detention officer take unnecessary force against an individual.

Legacy of Danquirs Franklin’s Death

Some activists and protesters are still asking about last year’s fatal police shooting of Danquirs Franklin.

Franklin was killed in March 2019 after CMPD Officer Wende Kerl and another officer responded to a Burger King on Beatties Ford Road after 911 calls came in about a man inside the restaurant with a gun.

When officers arrived, body camera footage shows that Franklin was squatting next to a car in the parking lot. Police have said Franklin was armed.

In video from the body cam Kerl was wearing that day, she is heard yelling at Franklin to put the gun down more than 15 times in the roughly 40 seconds before he was fatally shot.

Critics said the video showed Franklin was lowering a gun toward the ground when Kerl shot him, The Charlotte Observer has previously reported. During the investigation and a review by the Mecklenburg County District Attorney’s Office, Kerl said she saw Franklin pull out a gun and that she believed he was preparing to point the gun toward someone.

The DA’s office found Kerl was legally justified in shooting Franklin, and she was not charged. Following a CMPD internal affairs investigation, Kerl was placed back on full duty in November last year to a non-patrol investigative assignment. However when the review board examined the case in February, the board broke with CMPD and said the use of lethal force was not justified.

“(Officer) Wende Kerl shot and killed a guy at a Burger King,” Dawkins said. “Should that be covered by duty to intervene?”

In rare move, Charlotte review board disagrees with CMPD on Danquirs Franklin case

Jameson said the board recommended its “duty to intervene” policy because of the footage that shows that Franklin had been largely “non-responsive and non-communicative” prior to the shooting.

“Maybe if a different officer had tried to talk to him in a different tone or try to gain compliance in a different method then he might have been able to walk away from that encounter with an arrest,” she said.