Shawn Vestal: Firing of officer who kicked handcuffed Black man sets the right standard for conduct — a higher one

In February or March, Lt. Bart Stevens wrote a memo about a Spokane Police Department case involving an officer kicking a Black, handcuffed suspect in the groin while cursing him and acting like an angry tool.

The memo follows a determination by a five-member administrative review panel that the kick was not an excessive use of force, according to department policy and the “objectively reasonable” standard of evaluating uses of force.

That standard comes from the Supreme Court’s Graham v. Connor ruling of 1989. It holds that an officer’s intentions and thoughts don’t matter in determining whether a use of force is justified; all that matters is what a reasonably objective officer on the scene would think. A lot of people believe that standard has opened the door to an all but consequence-free approach to police misconduct with regard to force.

In his memo about the kicking case, Stevens indicates he’d been thinking about its conclusion, and wondering about the ways in which the standards didn’t entirely cover all of the values the department might wish to see in its officers. In the incident last summer, Henderson had kicked the resisting, argumentative handcuffed suspect in the groin, and then said, “There you go,” and cursed him, in addition to lots of other bellicose, vulgar behavior.

Stevens was one of the five people on the review panel, and he wrote in his memo that he agrees with the decision that the force was not excessive by the terms of policy and legal standards.

But, he asks, are there other standards that should be applied? Higher standards?

“I still believe the subjective intent of our officers is of utmost important in preserving the integrity and legitimacy of our organization,” he wrote in the memo, which was released to The Spokesman-Review last week. “With that in mind, I believe the (kick) can be deemed objectively reasonable, and at the same time, consider accountability for mal-intent. I do believe there are several factors that suggest the officer may have used force in a punitive manner.”

This memo – and what Spokane Police Chief Craig Meidl did afterward by firing that officer – offers an important point for reflection about police misconduct and consequences.

Instead of excusing the officer on technical grounds, Stevens, then Meidl, sought a higher standard.

Meidl fired the kicker, Kristofer Henderson, and went against the review panel in doing so. He also disagreed with their conclusion that the kick was not excessive.

I wrote columns last week about problems in police culture and accountability, trying to focus on areas where pressure to change might be exerted on police cultures: changing state labor laws with regard to officer unions and maintaining public pressure on leaders to fulfill the ideals of accountability.

The firing of Henderson, and the reasoning behind it, represents another type of potentially valuable pressure: strict consequences for misbehavior. I hope Henderson’s firing stands up to the union defense that is now under way, and that the organizational message behind this decision resonated. It shows a thoughtfulness and consideration on questions of accountability and integrity for which critics of the department, myself included, may not always give it credit.

We live in a world where true consequences for police misconduct – whether it’s a fatal use of force or a kick to the groin – are exceedingly rare.

Officers are protected from criminal and civil consequences, and some level of that is fair, given the difficult nature of their jobs and its call upon them to, at times, make incredible rapid life-and-death decisions.

But it’s harder to punish a cop for bad behavior, and make it stick, than it is to punish a grocery bagger for breaking eggs. Prosecutors almost never file charges in misconduct cases, and juries often acquit, even when video evidence seems clear-cut. The starkly unusual speed with which officers in the George Floyd and Rayshard Brooks have been charged criminally highlights this.

That has an effect on culture. It has a sanctioning effect on what officers believe is right and wrong. The framework for deciding cases under Graham – only the reasonable officer’s view matters – is itself a formula for dismissing critics.

Graham is a poor standard for police departments who are trying to ensure the best from their officers – because it is the bare minimum, the point at which an officer is not charged with a crime.

As our ombudsman, Bart Logue, put it recently, “Graham is the lowest standard. If you violate Graham, you go to prison.”

Truly changing police culture toward public-mindedness and accountability requires the opposite formulation. More serious consequences, not more technical clearances. More lasting ramifications, not greater ranges of appeal. A higher standard than not-criminal.

Something like this is what Stevens and Meidl appear to have been thinking in the Henderson case, based on the records and the results.

People might fairly note that this does not seem to be the same standard applied in other SPD cases, notably the case of the officer who hoisted a police dog into a car to attack a surrendering suspect. Henderson himself, in his defense, claimed as much.

In a passage where he talked about the bullying, vulgar and aggressive language he used toward the suspect he kicked in the groin – as well as the incredibly callous, cruel way he treated the suspect’s young son – Henderson said this, according to the case record:

“I am not the only person on this call who made comments like this and looking into many other uses of force you will find that officers make inappropriate statements during these highly stressful situations. … There have been other highly publicized incidents where officers made inappropriate comments and they have not been punished nearly to the level I have. Some officers haven’t even been placed on administrative leave for statements far more inappropriate than mine.”

If this is so, it was those other cases that were handled badly, not this one. Perhaps this firing – the discipline itself, the message it sends to the culture, and the hints of hope in terms of police accountability – will help to build a new norm.