What A Police Takedown of a White Mayor and a Little Known Killing of a Black Man Taught Me About Excessive Use of Force
A Citizen’s Guide to Watchdogging Policing
On the evening of March 1, 2018, the mayor of Richwood, a tiny impoverished city tucked in West Virginia mountains, was slammed into a wall, handcuffed and dragged off by the chief of police while trying to ask a question about corruption at a city council meeting.
Suddenly, in the midst of reporting for a book about Richwood and three other inland communities struggling to become protected from flooding, I had to understand whether it was legal for a police chief to do this to a mayor trying to make his city flood resilient.
I asked basic questions about police conduct: use of force, complaint and discipline records, training, regulations and laws, court cases. All questions many Americans are probably asking as widespread protests continue over the police killing of black men and women, and Congress and President Donald Trump discuss reforms.
While the mayor’s arrest did not occur in a Black community, the little-known shooting of a homeless Black man 22 times in Martinsburg, WV, in 2013 did. Taken together, the answers I found and the sources I used(linked in article) can help citizens better understand policing in their own communities and what reforms are needed.
A poet, college professor and one-time governor candidate, Bob Henry Baber, 67, won election June 21, 2016, by one provisional vote. He had big plans to improve the city. Two days later a record-breaking flood destroyed much of his city, including two schools and the nursing home.
Largely because of problems with reimbursement from the Federal Emergency Management Agency, Richwood was $1 million in debt. Although the council controls spending, it was trying to force Baber out of office for a small amount of purchases on his state credit card, even though he had presented receipts.
This night, flood weariness and fear of losing his job gave Baber’s voice an edge as he asked, “At the last meeting there were a lot of questions were raised about residency. How Glenn managed to change his ward so he could represent one ward. And how Chuck, who does not live in the city of Richwood, had managed to get himself on the city council.”
After an unclear answer from the acting mayor, Baber asked, “How much money approximately, has the council approximately spent paying Jared Tully to enforce the illegal administrative leave and to try to implement this illegal impeachment.”
“Nothing,” answered acting Mayor Chris Drennen.
“How much are his fees today?” Baber continued.
“I don’t know,” Drennen answered
From behind Baber, Police Chief Lloyd “Allen” Cogar told him, “Question asked, question answered.”
“No sir, the question has not been answered,” Baber responded. “You sit down. “This has nothing to do with the law.”
Instead, Cogar grabbed Baber’s arm, spun him and slammed him against the wall so hard that Baber’s head and shoulder dented the sheetrock as he fell to the floor. “Put your hands behind your back,” Cogar commanded as he handcuffed Baber.
While Baber was held in the police station, his daughter, Cara, 30, brought his backpack and laptop. Cogar told her to leave by the side door. But she stopped to comply with her father’s request to take a photo. At that point, Baber said, Cogar exploded and said, on second thought, you are going to jail, too. Panicked, Cara ran into the alley. Cogar followed, threw her down and put her in a choke hold, she told her father. The city’s other policeman watched her arrest, Baber said. He and Cara were charged with several misdemeanors and released on their own recognizance, pending a court hearing.
Was this excessive use of force?
“There is no single, universally agreed-upon definition of use of force,” the National Institute of Justice stated March 5, 2020 on its website. “Officers receive guidance from their individual agencies, but no universal set of rules governs when officers should use force and how much.”
Many local police departments in West Virginia follow use-of-force guidelines taught at the state police academy. The academy refused to release them. “Said document could reasonably disclose techniques and procedures for law-enforcement and endanger their life or physical safety,” wrote Melinda Craddock, a paralegal for the state police.
Baber filed a Civil Rights complaint with the FBI. Early in his term Baber had warned Cogar that he knew of his history of using force. Still, four attorneys refused to take Baber’s case, saying he had no chance of winning. A few months later, he pleaded guilty to trespassing and paid a $200 fine.
Would a court have ruled Cogar used excessive force? Two U.S. Supreme Court rulings have made proving use of excessive force quite difficult. In the 1989 Graham v Connor, the Court held that the Fourth Amendment protection against unreasonable search and seizure must be balanced against countervailing police interests. This “reasonableness” standard gave the power to police, at that instance, to determine what is “reasonable” force.
Dethorne Graham, a 39-year old diabetic who was Black, had taken a brief break from his North Carolina Department of Transportation maintenance job to buy orange juice to boost his blood sugar. Seeing a long line at the convenience store, he ran back out and got in his friend’s car. Thinking Graham had robbed the store, police rushed in, handcuffed him as he was having a sugar reaction, rolled him over and shoved his face into the car hood. The police drove him home after determining he had not stolen anything. Graham sued for damages, alleging that the officers actions violated his Fourth Amendment protections against unreasonable search and seizure.
The concept of qualified immunity was first established for President Richard Nixon aide Bryce Harlow in the 1982 Harlow v Fitzgerald. A. Ernest Fitzgerald had sued Nixon and several aides who he claimed caused him to be fired from his job in the office of the Secretary of the Air Force. Judges ruled that as a public official, Harlow was entitled to qualified immunity: “Government officials performing discretionally functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” A Reuters investigation in May found dozens of cases where qualified immunity shielded police from prosecution.
Strong rules on use of force do make a difference. In 2016 Samuel Sinyangwe of We the Protestors and Campaign Zero, a data-informed group associated with Black Lives Matter, looked at force guidelines at 100 of the largest cities. Departments with the strictest rules had fewer fatal use-of-force incidents. Since then, Campaign Zero’s #8CANTWAIT documented which of those departments revised eight crucial policing policies, including use of force.
How many people have been attacked by police, but not killed? Impossible to know. While the The Washington Post, The Guardian and Mapping Police Violence track killings by police, comprehensive non-fatal use of force data has not been available.
The Justice Department failed to comply with the 1994 Violent Crime Control and Law Enforcement Act requirement to collect data on excessive force. Instead, the most complete study on nonfatal force was the Bureau of Justice Statistics Police Use of Nonfatal Force, 2002–2011. Data came from the BJS Police-Public Contact Survey, a statistical sample that supplemented the National Crime Victimization Survey. On the average, 44 million people a year had face-to-face police contact. Of those, approximately 704,000 experienced the threat or use of nonfatal force, approximately 528,000 considered the force excessive.
In 2013, a Justice Department survey of police departments asked about use of force for the first time. The 2015 report of the President’s Task Force on 21st Century Policing tried to use that data but inconsistencies in how each department keeps data made the study nearly useless. In 2017, the FBI collected uniform data from 100 police agencies in a pilot study for the new National Use-of-Force Data Collection. Data collection nationwide began January 1, 2019. However, compliance is voluntary and data only covers 40 percent of the nation’s approximately 18,000 law enforcement agencies. The FBI recently announced that the study data will be available this summer.
Many large and midsize cities have citizen review boards for police. The National Association for Civilian Oversight of Law Enforcement lists many of the places with review boards. In West Virginia, Bluefield has a review board created after the 1998 killing of Robert Ellison, a young Black man. The legislature has resisted establishing a statewide review board.
In West Virginia, state police and local departments investigate misconduct. Individual police departments decide whether to release complaints and discipline reports. So there is no way for the public to know statewide statistics on police use of force. However, the state did release the records of 51 officers decertified by the state to a nationwide USA Today database of decertified officers. A WNYC project found only 12 states make police conduct records totally public.
A 2011 law does require the Law Enforcement Professional Standards Information System to keep more complete data on places of employment, training and misconduct, that can be checked by local officials hiring police.
“There was what seemed to be a problem at the time that police officers involved in some type of incident would transfer from one department to another and stay one step ahead of the consequences of misconduct,” former Senator Bill Laird, a bill sponsor and former sheriff, told me. “It seemed to be a problem in smaller municipalities that were having difficulties recruiting and retaining qualified police officers.”
In the end, the only information about Cogar I could obtain from the state was dates of training and his four jobs in 14 years of law enforcement.
In March 2019, a man Cogar arrested sued him for excessive force, unlawful arrest and battery. He was finally fired from Richwood after he, Baber and other city officials and residents were named in a March 2019 state Auditor’s Office audit of FEMA spending after the flood.
But Richwood’s police troubles continued. On May 21, 2020, Richwood Police Chief Charles L. Burkhamer Jr. was charged with domestic battery in a fight with his wife. He was demoted, and a new police chief was hired.
Reforms in President Donald Trump’s recent executive order, and those being discussed in Congress may force West Virginia to make public use-of-force incidents and guidelines. But change must come from the courts as well.
Surprisingly, here in West Virginia, a place not known for history altering events, a little-known killing of a Black man produced a shocking dismissal of qualified immunity in police shootings.
On June 9, The U.S. 4th Circuit Court of Appeals overturned a summary judgment in the March 2013 death of Wayne Jones, a homeless Black man shot 22 times by Martinsburg police. Now the case can go before a jury.
“Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of Black lives,” the three-judge panel wrote. “Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a Black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.”
On June 15, the U.S. Supreme Court announced it would not reexamine cases of qualified immunity in its next term. Perhaps the Jones case will come before the Court someday.
Penny Loeb was a member of investigative reporting teams at Newsday and U.S. News & World Report. She has been a finalist for a Pulitzer Prize and a National Magazine Award. She wrote Moving Mountains how one woman and her community won justice from big coal, and wrote and produced a feature film based on the book.