Attorneys say they see a pattern of violent Chattanooga police officers

Attorneys say they see a pattern of violent Chattanooga police officers

Before Adam Tatum, there was Tim Hicks; experts say use of force is a vast gray area

March 25th, 2013 by Joan Garrett McClane in Local - Breaking News

Tim Hicks talks in his home on Signal Mountain, Tenn., Thursday about being beaten by former Chattanooga police officer Sean Emmer and other officers at Track 29 in 2011.

Tim Hicks talks in his home on Signal...

Photo by Doug Strickland /Times Free Press.

POLL: Are Chattanooga police too heavy-handed?

The beating happened a lot like it did with Adam Tatum. Perceived resistance. Possible danger. A chokehold from behind. Then fists. Other officers looked on, doing nothing Later, they justified the actions.

Instead of breaking legs, Officer Sean Emmer broke this man's face. While another officer held the man down, Emmer punched him again and again, then grabbed him by the hair and slammed his head against the floor until the concrete ran red.

"I thought he was dead," said a witness who saw the whole thing from six feet away.

But this time there was no investigation. No video. Just a blue wall of silence.

In fact, the case had all but gone away until the video showing Tatum's beating brought it all back again.

Nearly a year before Emmer broke Tatum's legs and was fired, he had a similar episode at a downtown music venue, Track 29. At the time, police said 43-year-old Timothy Hicks had gone for Emmer's gun and tried to gouge his eyes out.

Witnesses tell a starkly different story. They say Hicks, a business owner and father of four who has no criminal record, was at the mercy of an enraged cop. A few weeks after the incident all charges against Hicks were dropped.

Police never investigated the incident even though Hicks was so severely beaten that seven bones in his face were broken.

Now Tatum's lawyers, Robin Flores and Mike Raulston, are adding this incident to a laundry list of claims against the Chattanooga Police Department and individual officers, attempting to prove a pattern of indifference to troubled, violent cops and civil rights violations.

"The city cares more about its officers than the public at large," a 22-page lawsuit reads.

But experts say these cases reveal a gray area in policing that leaves a lot of discretion to officers. What may seem excessive, even disturbing, to a bystander is basic procedure to police.

For the most part, law-abiding people respect, even revere, police. When they die in the line of duty, we bury them like heroes. We name highways after them. Students flock to police officers when they stop by the local elementary school. Generations of kids have played cops and robbers.

We want police to be able to intimidate with guns and handcuffs. We want them to know how to wield a baton, throw a punch. We like to see their blue lights in dangerous neighborhoods. They make us feel safe. We trust them.

But with that trust comes obligation, a duty to wield their substantial power lawfully, honorably.

Hicks was drunk when he was forced to the ground by Emmer and knocked unconscious from blows to his head.

Security guards had asked Hicks to leave Track 29 after he exchanged words with some other patrons. When he refused to go, police were called.

Police told this story in their report: They had approached Hicks' friend, Richard Wetherbee, and Wetherbee grabbed an officer's arm, refusing arrest. When police used a Taser on Wetherbee, Hicks got angry and punched Emmer.

But Hicks, Wetherbee, witnesses and Josh McManus, a former club co-owner, had a different perspective.

They say Wetherbee was shocked with the Taser before he even knew police were behind him and that Hicks was put into a choke hold by Emmer and had no idea he was being restrained by a police officer. When Hicks swung behind him to shake free, he was tackled and forced to the floor by Emmer and another officer.

Chris Eggert, 44, who was at the club that night and stood close by, said he watched Emmer straddle Hicks' chest and start throwing punches at his face while another officer held him down.

Fifteen blows.

"[My girlfriend] started crying because of the blood on the floor, the sound of his head hitting the concrete," said Eggert, recalling the night in 2011.

Several police officers stood nearby and told the crowd to stay back. People started to boo after Emmer slapped Hicks' face to make him come to, said Eggert.

After the beating, police dragged Hicks by the ankles out to their police car, witnesses say. On the way to Erlanger North, Hicks said he started to wake up because the officers were speeding up, then slowing suddenly to throw him into the screen that divides the front seat from the back.

The next day, Police Chief Bobby Dodd told the media that his officer had been "sucker punched" and that Hicks deserved the toughest penalty. Thanks to Emmer's training, Hicks was alive, Dodd said.

But charges of assaulting police, public intoxication, disorderly conduct and resisting arrest were dropped not long after. More than 30 people who had been at the club that night contacted Hicks, telling him they would testify against police, he said.

Attorney Lee Davis, who defended Hicks against the charges, said Hicks was no doubt wronged by the police. However, he told Hicks at the time that he could not represent him in a suit against police because he represents Chattanooga police officers through the Fraternal Order of Police.

Davis' firm is now representing Emmer in the civil suit brought by Adam Tatum.

Assuming that police would investigate Emmer's actions in the Track 29 incident, neither Hicks nor Wetherbee filed formal complaints with the department.

Before Emmer responded that night to Track 29, he already had been investigated three times for complaints alleging excessive force. He was exonerated on each one.

Hired in 2008, Emmer worked nights patrolling downtown bars and streets.

In audio from each of his internal investigation interviews, he sounds confident. He carefully explains why he did what he did.

Each case involved a man who was drunk and, according to Emmer, either noncompliant or aggressive.

In one case, a man was taken to the ground because he wouldn't stop talking to Emmer at a gas station. The man wanted to shake Emmer's hand and Emmer refused, told him he was afraid of germs.

When the man wouldn't stop asking or go away, Emmer overpowered him and arrested him. He later Maced him when the man said he had a gun. No gun was found, Emmer said in recorded interviews.

The second complaint involved a drunken man who was punched and taken to the ground because he refused to get a cab after being thrown out of the Southern Comfort nightclub. He took an aggressive posture and clenched his fists toward officers. So Emmer said he punched him in the face to get distance. As a result the man's tongue was split and he had to be taken to the hospital.

"My adrenaline gets going," Emmer said in the interview, explaining his actions.

The third complaint arose from an incident outside the Sing It or Wing It karaoke bar.

Emmer described the subject as drunk and said the man had started a fight at the bar. Outside, the man resisted police and yelled "Don't ... touch me." Emmer took him to the ground.

When the man tried to fight back, Emmer punched him, then Maced him.

Again he said, "His stance made me think he was going to hit me."

In interviews in each of the three cases, other officers corroborated Emmer's account of what happened. They describe those bringing the complaints against Emmer as troublemakers who were fighting arrest.

Cases closed.

In only one interview with Emmer did internal affairs officers chide him. One investigator asked Emmer why his police reports are so bare and short. If the person he was arresting was resisting, why did he not include that in his police report? The man had come back and accused him of excessive force and there was no record that he resisted, just Emmer's word and that of other cops.

Emmer answered that he includes as little as he can in his reports because "everything I put in there they use against me."

The investigator told Emmer he needs to record resistance if he puts his hands on someone he is arresting.

"That way it would have given the defense attorney less ammunition to come at you with," the investigator said.

Emmer may or may not be a bad cop.

But his actions offer insight into a larger problem with the Chattanooga Police Department, said Tatum's attorney, Flores, who was a police officer in South Carolina for 12 years.

Most complaints against Chattanooga officers are dismissed. Most lawsuits against cops are dismissed as well. Without videos, it's the word of the cop against a suspected criminal or drunk.

Even when excessive force complaints are sustained and officers are disciplined or fired, some of those officers are later welcomed back onto the force, Flores says.

The $50 million Circuit Court lawsuit filed by Flores and Raulston on behalf of Tatum lays out several examples of officers accused of excessive force who were fired, then rehired.

"The city has a pattern of overlooking or providing excuses and reasons to justify the misconduct of its officers in order to retain, promote and/or rehire officers," reads the lawsuit.

In 2005, Officer Steven Campbell was fired after beating and Tasing two handcuffed suspects in the parking lot of a Kanku's gas station, which resulted in a settled federal lawsuit. The city later rehired Campbell to the S.W.A.T. team.

The other officer in the case, Michael Wenger, was suspended. He was later promoted to detective and assigned to investigate the Tatum beating.

Officer Kenneth Freeman, who had a long history of complaints, was videotaped shoving a 71-year-old Walmart greeter, which resulted in a lawsuit in 2009. A person who tried to help the greeter was shoved into a glass door. Another officer stood by and watched. Freeman was later suspended 28 days without pay.

Freeman was charged with domestic assault in 2009 and fired.

Officers Steven Miller and Daniel Gibbs were fired for Macing a homeless man in the trunk of their police car and then dumping him at Camp Jordan Park in East Ridge. The two lied about the incident before being fired for excessive force, but were rehired as well, the suit states.

But Emmer's lawyers, Bryan Hoss and Davis, say the case against their client won't hold up in court. Police officers have a history of winning these cases locally. Excessive force is tricky to prove, even when video recordings seem to show unnecessary violence.

Davis and Hoss, who have represented at least a dozen officers in cases that involved alleged civil rights violations, haven't lost a single case.

In 2011, Chief U.S. District Judge Curtis L. Collier -- the same judge who will hear Tatum's case -- ruled in favor of police officers who shot a man 28 times and killed him. The man, Alonzo Heyward, had a gun on his front porch and was ranting about suicide. When the officers thought he was lowering the rifle toward them, they fired 59 times in three rounds, court records show.

Police said the shooting was justifiable and called the death "suicide by cop," though the man's family said he wasn't a risk to police or others. The suit asked for money and claimed a civil rights violation, just like Tatum's.

In his case, Collier lays out the how excessive force claims are argued. The rights of the person have to be balanced against the interest of the government. How severe was the crime? Did the suspect pose an immediate threat to the safety of the officers or others? Was he resisting arrest or trying to escape?

Allowances must be made for the fact that "police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving about the amount of force that is necessary in a particular situation," Collier's memorandum states.

Hindsight doesn't matter to the case. The question is, in the moment, did the officer believe there was a serious threat of physical harm? Collier writes.

In the end, Collier's decision was appealed to federal court, but was ended when Chattanooga paid the children of the victim $33,500.

The truth is, excessive force is a matter of perception. There are very few cases that are clear-cut, said Maria Haberfeld, chairwoman of the department of law and police science at John Jay College of Criminal Justice in New York.

Police have a different perception than the policed.

When everyone else runs from danger, police run toward it. Some theories of policing say officers resent it when citizens try to define how they should deal with danger.

There are theories about how police personalize the suffering of victims and want to avenge them. Adam Tatum was a federal inmate. So police knew he had committed a crime against someone.

There is also a seductive element to policing. Police are the only people who can legally use force to coerce. To handle that requires a certain maturity level. And police departments may not screen for that as much as they should, Haberfeld said.

Some departments are more prone to excessive force because it is part of the culture. Some units within a department are more prone to excessive force.

Still, any kind of force seen by citizens could stir fear and anger. When police officers punch a person in the face, it's shocking. We wonder if there was another way.

"Use of force doesn't look pretty," she said. "These are very fragile things. There is no standard procedure."

After what happened at Track 29, Hicks figured there was nothing he could do. Lawyers told him that winning a lawsuit would be a long shot. One lawyer said he would take the case for $10,000.

That seemed strange to Hicks. Emmer left the scene with scratches and a torn contact lens, according to police reports. Hicks went home with five broken teeth, a broken jaw, eye socket injuries, a broken nose, lacerations on his neck and multiple facial fractures.

So he and Wetherbee just tried to forget about it. When people search their name on the Internet and stories came up that say they fought with police, Hicks tells them it isn't true. The cops lied, he says.

Hicks and his family live in a nice home on Signal Mountain, but he wants to move farther away, into Sequatchie County.

"I don't want [those cops] protecting my kids," said Hicks' wife, Amy.

His jaw hurts more and more, and eventually he will have to have plastic surgery and get it screwed and wired, medical records show. The vision in his left eye, which was swollen shut after the beating, is getting worse, too. His wife begs him to go to the doctor about it.

Before he saw a different side of police force, he would hear about accusations against police and not give it a second thought.

In fact, if he had heard Tatum's story two years ago, he wouldn't have cared.

Now he avoids officers and his 4-year-old son cries when he sees one in uniform.

"I tell [the kids that] cops are good people," said Amy Hicks. "I tell them they are

here to help us and not hurt us, even if I don't believe it."

Contact staff writer Joan Garrett at or 423-757-6601. Follow her on Twitter at @JoanGarrettCTFP.