What HPCAC report says on HPD use of pepper spray, rubber bullets, overreactions during June 3, 2020 protests

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HUNTSVILLE, Ala. – The Huntsville Police Citizens Advisory Council report on the protests in downtown Huntsville last summer found violations of policy, overreactions to social media posts, a lack of coordination between law enforcement agencies, and a need for more training.

The report, issued Thursday took a broad look at the Huntsville Police Department’s response to the protests and found significant room for improvement.

Here are some of the issues highlighted in the report:

The use of chemical agents to disperse protesters, pdf pg. 13:

“Law-enforcement agencies used chemical agents to disperse protesters at the Floyd protests. Some citizens claimed that the deployment of chemical agents was an overreaction and an inappropriate or unlawful use of force.”

“Although some citizens complained of short-term ill effects, we are not aware of chronic, long-lasting harm arising from chemical agents that HPD deployed. On the other hand, there were individual instances when HPD officers used pepper spray in a manner that was, at a minimum, unprofessional and on multiple occasions in violation of HPD policy. HPD officers also made comments that demonstrated their lack of a serious appreciation of the use of pepper spray
and further indicated ignorance of HPD policy.”

“HPD officers expected to deploy chemical agents need extensive training in circumstances that would more closely resemble the challenging issues raised by the Floyd protests.”

Poor communication, pdf pg. 14:

“There was poor communication on multiple fronts, and for multiple reasons, that likely exacerbated the tensions and confusion in the Floyd protests and the recriminations that followed them.”

“One source of repeated complaints and confusion was the change of time for the end of the permitted protest on June 3. Although we find nothing nefarious in the change of time itself, the communications between HPD and the organizers; between the organizers and their membership; and between HPD and the public left much to be desired. In addition, HPD communication with the public after the Floyd protests was defensive; at times inconsistent; and open to charges of after-the-fact rationalization.”

Dispersal order volume, pdf pg. 14:

“Finally, the audibility of orders to disperse—an important step before chemical agents are deployed or force applied—was compromised because HPD, apparently lacking appropriate systems, employed tools (such as bullhorns and the LRAD) that did not work well. Like many tools, the LRAD has an appropriate use and requires competent deployment. To be fair, the LRAD can be louder than the traditional megaphone or loudspeaker, but because the LRAD relies on narrowed and concentrated sound for effectiveness, its sound may not cover as broad of an area.3 Additionally, the siren or “area denial” function of the LRAD may be an effective means of dispersing a crowd, but care is required because of the high decibel level of that function.”

Lack of self-awareness, pdf pg. 15:

“HPD did not sufficiently appreciate the difficulties involved when law enforcement itself is the subject of the protest.”

” … ordinary decisions that one might take to control a crowd, such as the timing of deployment of officers in riot gear, take on a heightened significance that would be lacking (and not a problem) in the management of a potentially violent crowd, say, after a concert, or in the protection of a dignitary visiting Huntsville. In the Floyd protests, that heightened significance made matters worse.”

Interview requests and HPD refusal, pdf pg. 40:

“The CAC and Independent Counsel were unable to interview a key group of witnesses—Huntsville police officers. This review of the civil unrest last summer is the only one of which we are aware where the investigators requested but were not allowed to speak with the law-enforcement officers “on the ground” and involved in the events. This lack of transparency was and remains troubling; is based on an unwise policy and questionable legal analysis by the City and HPD; and is inconsistent with the letter and spirit of the Resolution.”

June 3, arrests, pdf pg. 56:

“Similar to June 1, numerous videos depicted officers talking amongst themselves and discussing that the protesters were peaceful. However, around 7:10 p.m., HPD and MCSO declared the protest an unlawful assembly, and HPD began efforts to disperse protesters, first by warnings, then officer movement; then by smoke, gas, and less-lethal rounds.

“At one point in the night, a window at the Kaffeeklatsch was broken, but the BWC footage does not show when this occurred. The available video footage of June 3 also evidenced significant assistance from both ALEA and MCSO in handling the protest and later dispersing protesters. Video also showed that HPD’s approach to dispersing protesters constantly shifted, particularly toward the end of the events recorded.

“At various points, different HPD supervisors and officers told other HPD officers that if protesters
were leaving, not to arrest them and let them leave. However, throughout the night, many protesters asked officers if they could leave in a certain direction because their cars were close and they were trying to leave. Officers frequently told protesters “no” and told them to keep following the direction of the crowd. Within the same hour that HPD arrested several protesters near Big Spring Park, BWC
footage shows HPD abandoned its plan for IRT to remove its gear and return to arrest remaining protesters. Instead, HPD decided to deny protesters points of exit, and then arrest only those protesters who officers could apprehend before running away. HPD’s original plan for officers to get into their cars, drive down to the intersection of Lowery and Williams, and start grabbing people was abandoned.”

Use of Force and HPD comments, pdf pg. 61:

“Video revealed other conversations about HPD’s use of force and potential callousness in its use of force and potential callousness in its use. …One HPD sergeant who had a less-lethal shotgun on June 3 stated that he did not remember how many rounds he fired that evening. Twenty minutes before making that statement, he said he fired ten rounds. Notably, the sergeant stated the first five were finned “T&E” rounds and that he “could drive nails with them.” The rest of the rounds were beanbags. Another HPD officer was heard a few minutes later stating that HPD needs a rubber-bullet machine gun. Another video shows an officer asking another group of IRT officers if they were the arrest team. One HPD officer in the IRT group responded, ‘no, we f- people up.'”

“Other video footage showed a protester who was being treated by HEMSI. The protester claimed that she was shot in the back of the leg with less-lethal rounds five times while she was walking away from officers. One video showed a protester talking with a HPD officer. The protester stated she was sprayed and the officer asked the protester, ‘Was it worth it?’ The protester’s response was that she was running away and not near officers, but officers decided to spray anyways. The protester further stated she could not hear what was being said and she could not go anywhere. In another video, a HPD sergeant sprayed a protester with OC, even though the protester was simply standing and looking at officers. The sergeant was later heard telling an officer that the sergeant ‘hosed the crap out of that skinny white guy.'”

Munitions used, pdf pg. 87:

HPD’s Incident Response Team, pdf pg. 90:

“From our review of BWC footage during the protests, we know that IRT conducted an Offensive Movement to move crowds of protesters from areas where the crowd’s assembly had been declared unlawful on June 1 and 3. As would be expected, several members of the IRT physically contacted individual protesters during this process. This type of contact would constitute a use of Less Lethal Force, because the officers were pushing the crowd with batons governed by the LLF Policy
Directive. Examples of the types of LLF used by IRT included the following:

• Some officers on the IRT pushed individual protesters to the ground as they moved the crowds from areas where the assembly was declared unlawful.
• At least one IRT officer dove on top of a protester after pushing the person to the ground. The same officer pushed the protester to the ground a second time after the protester pushed the officer.
• Multiple IRT members were observed struggling with protesters on the ground once IRT began its push.
• IRT members also used OC spray on protesters as they moved them.
• One IRT officer appeared to spray the entire crowd with OC upon initial engagement, even as protesters backed up from the advancing IRT officers.”

Rubber Bullets, pdf pg. 92:

“The evidence related to the use of force that is of perhaps the greatest concern to the public—the firing of rubber bullets—is not entirely clear. MCSO used them; HPD may or may not have used them.

“Although there were numerous reports of rubber bullets being fired during the protests, most of the evidence indicates that only MCSO made prominent use of rubber bullets on June 1 and 3. In his interview, Chief McMurray testified that he understood rubber bullets were used by MCSO, and he denied that HPD used them. In fact, he stated that HPD does not even have them in their munitions inventory and has not had them for years. On the issue of rubber bullets, Chief McMurray’s
testimony including the following exchange:

MR. SHARMAN: Given that HPD does not use them, did it surprise you that the sheriff’s department used them?

CHIEF McMURRAY: I think the use of them is not so much the problem. It’s the misuse of them that becomes the problem. They have a direct application. Okay? A bean bag is only good from about me to you. It floats after that.

You go to a rubberized device which has stabilizer fins on it. If I have—if I have to shoot somebody at the back of this room, I have to use a stabilize fin device. It was our determination that if we have to disrupt you that far away, let’s just use some gas or some other device. Okay?

So we’ve had a lot of experience and training, and we just decided to get
away from it. One reason is because, yes, it is more accurate, but it is more devastating because it’s harder, and so you can put out eyes with it. You can cause other — so it was our opinion just to get away from the use of it.

Close encounter, if you need to be moved close and I can move you with
a bean bag with less damage, that was our choice. It’s always been our
choice, and we’ve stuck with that for many, many years now.

“MSCO refused all efforts to participate in this investigation or provide records to the CAC or Independent Counsel, so we have not been able to explore any of the munitions employed by them.”

OC Spray, pdf pg. 97:

“In our review of the use of OC spray we found compliance issues similar to our concerns with the use of LLF munitions. There were several instances where officers’ use of OC spray appeared indiscriminate, excessive, and not limited solely to a ‘defense against combative, actively resisting, or violent individuals.’

“BWC video showed an officer aim OC spray at the face of a protester and then spray that person after they began walking away. One protester was sprayed while walking away from an officer even though his back was turned to the officer. Another officer sprayed a subject with OC, threatened to use his taser against the subject, and then sprayed the subject’s shirt left lying on the ground after the subject had taken it off.

“In yet another instance, an officer sprayed a protester who appeared to be doing nothing other than standing near the officers, and the officer later commented, “that he hosed the crap” out of this particular subject.

In none of these instances does the camera depict any behavior by the subject that fits within the Directive’s justification for OC use.”

Command confusion, pdf pg. 102:

“It is important to note that Chief McMurray indicated that it was his point of view that once the protests became focused on the courthouse, Sheriff Turner, in effect, became the commanding officer of the response and Chief McMurray was his subordinate.

“Chief McMurray’s point of view is understandable. An elected county sheriff has considerable powers. In fact, the office of the county sheriff is a state executive branch position created by the Constitution of Alabama. However, it is not clear to us that the sheriff’s discretion when operating within the jurisdiction of a municipal police department in the same county, as was the case here, is
unfettered. It would stand to reason that discretion would be even further curtailed where the sheriff is utilizing the officers of an adjacent municipality to provide overwatch as he did with MPD.

“Chief McMurray seemed to take issue with both agencies’ use of tactics that have drawn considerable public attention and controversy, and his circumspection about the use of such tactics is commendable.

“However, the CAC, in its advisory function for HPD, is concerned that other law enforcement agencies engaged in questionable tactics during the protests, within the city limits of Huntsville, without the approval of Chief McMurray, the Huntsville mayor, or the City Council. Of course, the CAC must confront the possibility that HPD used rubber bullets on its own. However, the CAC is even
more concerned that it is left without recourse as to these issues because it has no jurisdiction over them whatsoever—an issue compounded by these agencies’ lack of cooperation with this review.”

Use and Misuse of Intelligence, pdf pg. 104-114:

“Of the many questions raised during this review, three particular questions regarding the June 2020 events emerge recurrently: (1) What did HPD know? (2) When did they know it? (3) What did they do with the knowledge?

“In addition to social media posts, some of the ‘intelligence’ HPD supposedly relied on provides questionable support for the positions HPD has taken. For example, Chief McMurray highlighted that protesters wearing masks, carrying water bottles, or acting as field medics—so-called black bloc or Antifa tactics—gave rise to concern that some protesters may have been prepared, if not spoiling, for a fight with law enforcement. He also mentioned that some protesters came prepared with wooden signs or with skateboards, which, based on observations from other protests around the country, was evidence protesters prepared for destruction and violence. According to Chief McMurray, HPD observed ten of thirteen potential classes of Antifa protest participants at the June 1 and 3 events.

“What is concerning about Chief McMurray’s claims is the lack of corroborating evidence that any of the types of individuals described actually participated in or provoked violence. For example, there is no evidence the person….. with a skateboard and backpack at the June 1 event in Huntsville engaged in violence similar to that portrayed in the image from Los Angeles. Additionally, there has been no specified evidence of wooden signs used as shields or weapons.”

“Finally, Chief McMurray’s reference to field medics as complicit with violent protesters has questionable merit based on comparable cases.”

Summary observations and conclusions, pdf pg. 130:

Policing high-profile civil unrest is difficult under the best of circumstances. Law-enforcement officers must guard against loss of human life and destruction of property while also guaranteeing constitutionally provided rights of expression and assembly—and they must do so in a fluid environment. Most HPD individual officers conducted themselves professionally during the Floyd protests, even in the face of uncalled-for provocation. On the other hand, HPD did not seem to appreciate that the dynamics are different when the subject matter of the protest is not an
extraneous issue (immigration, for example, or abortion) but rather the police officers themselves. Rather than being in a traditional neutral role of monitoring antagonists and keeping them separate and safe, the police during the Floyd protests were—accurately or inaccurately—the almost exclusive subject of the demonstrations. In that context, ordinary decisions that one might take to control a crowd, such as the timing of deployment of officers in riot gear, take on a heightened significance that would be lacking (and not a problem) in the management of a potentially violent crowd, say, after a concert, or in the protection of a dignitary visiting Huntsville. In the Floyd protests, that heightened significance made matters worse.”

The report can be read in its entirety here.

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