Independent review of Kilgore College incident - KCBD NewsChannel 11 Lubbock

Independent review of Kilgore College incident

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Background:

On February 23, 2013, a basketball game between Kilgore College and Navarro College was held at the Masters Gymnasium on the campus of Kilgore College. At the conclusion of the game, Kilgore College police officers used Oleoresin Capsicum aerosol (pepper spray) against members of the Navarro College basketball players who were in the hallway, attempting to gain entry back onto the basketball court and into the gym.

A subsequent written complaint was made against Corporal Charles Horton and Lieutenant Tony Means for excessive force. The complaint was made by Navarro College coaches, Eric Colbert and Brian Crawford. The complaint alleges the use of the OC spray was unwarranted and abusive. A second complaint was made against Corporal Horton for abusive language.

Corporal Horton has 1.5 years of service with the Kilgore College Police Department. Lieutenant Means has 6.5 years of service with the Kilgore College Police Department.

An internal investigation conducted by the Kilgore College Police Department exonerated Corporal Horton and Lieutenant Means for their use of the pepper spray.

As to have no perception of impropriety, an outside review of the use of force was requested by the Kilgore College Police Department.

Findings:

After a review of the investigative packet and accompanying statements, the reviewer agrees that the use of OC spray by Corporal Horton was objectively reasonable. Based on the statements, it appears his actions were appropriate and within his departmental policy.

The reviewer also agrees with the exoneration of Lieutenant Means' use of force.

Reasoning:

After a review of the information provided, several factors were found for the reviewer to reach his findings. Each area will be discussed separately.

Area 1:

Corporal Horton contends the use of the OC spray took place in the hallway, while Coaches Colbert and Crawford contend their players were in their locker room at the time the OC was used.

In his written report, Corporal Horton states he began spraying towards two Navarro College players in the hall. Corporal Horton states he did this after two players took off their shirts, as if to fight him, and made threatening remarks towards him. Corporal Horton stated he felt threatened at this point and deployed his pepper.

Given the totality of the circumstances, Corporal Horton was outnumbered by several large athletes, two players making threatening remarks, as well as taking off their shirts to fight (a pre-attack indicator), Corporal Horton's use of pepper would be deemed reasonable.

Prior to this, Corporal Horton stated his verbal commands were being ignored and there was resistance against his efforts to contain the players to the hallway and locker room area. It was not until Corporal Horton was threatened and saw pre-attack indicators that he used his pepper spray.

The statement provided by Laurence Sabeta, a Kilgore College employee, tends to corroborate the statement of Corporal Horton, in that the spraying took place in the hallway. Sabeta states he saw the use of OC take place in the hallway and not in the locker room.

Area 2:

Corporal Horton states within his written report, "My verbal commands were being ignored and I began to physically push the players back towards the locker room area. I was able to get them back as far as the door leading into the hallway towards the visiting locker room. The players continued to push against me……"

One could conclude that Corporal Horton was dealing with an aggressive element, who was either unwilling or unable to follow apparently lawful commands. Corporal Horton would have been justified at this point to use force, but refrained.

It was not until threatened and upon seeing the pre-attack indicators that Corporal Horton utilized his pepper spray.

Area 3:

There were several statements given by both supporters of Kilgore College and Navarro College. Most of these statements cover what transpired during the game and immediately after. These statements tend to corroborate the statements by officers of an unruly and agitated Navarro College team. One statement in particular (Sandra Raby), describes the threatening language used by a Navarro College players and tells of the players pulling off their tops in an aggressive state. Raby's statement also describes the scene as "total chaos".

Statements made by Navarro personnel say that the players had come out of the locker room and into the hallway leading back to the gym after a whistle was blown. Coach Colbert's statement says, "There were two or three who had come out before we were able to come out the door…." Statement by Christy Taylor says, "When he walked out of the locker room, the whistle was blown repeatedly. The entire team then began to exit the locker room."

There is some dispute as to whether the Navarro players made it back to the gym or not. However, the use force did not take place in the gym. So this point is somewhat moot.

Area 4:

The main focus of the investigation was the actions of Corporal Horton. Lieutenant Means was subsequently brought into the investigation after it was discovered he used OC spray as well.

Given the point in time that Lieutenant Means entered the hallway, the scene was already chaotic. Lieutenant Means believed Corporal Horton had been assaulted and deployed pepper spray at Navarro players. This was done after seeing Corporal Horton using his pepper spray on the same players. The players then returned to the locker room.

Conclusion:

There is little doubt that Corporal Horton was in an overwhelming and volatile situation. Corporal Horton was outnumbered and being threatened by the Navarro College players. Corporal Horton was also placed in the position of not only having to protect himself, but preventing harm from coming to the people still in the gym, as well as, trying to calm a tense situation.

An officer's use of force must satisfy the "objective reasonableness" standard as set forth by Graham v. Connor, 490 U.S. 386 (1989). An officer may only use that force which is reasonable and necessary to effect an arrest or detention. Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003). Anything more is excessive force.

These were the questions put forth by the reviewer during his assessment. Was the use force used by Corporal Horton and Lieutenant Means objectively reasonable given the totality of the circumstances? Also, was the force unwarranted, unnecessary or excessive?

The answer to the first question is yes. In regards to the second question posed, the answer is no.

The courts have held that the force used doesn't have to be the best option at the time, only a reasonable one. The courts have also held that an officer's underlying intent is irrelevant when the force is used based on the totality of the circumstances. There have been several statements made that Corporal Horton was agitated and appeared to be holding a grudge due to a prior incident. The courts have deemed this irrelevant.

Given the situation Corporal Horton was faced with, his limited experience as a police officer, being outnumbered and threats being made towards him, the totality of the circumstances dictate that Corporal Horton acted appropriately and reasonably.

The use of force by Lieutenant Means was also appropriate based on the totality of the circumstances he encountered upon coming to aid Corporal Horton.

Recommendation:

After a review of the information provided, it is recommended that the Kilgore College Police Department have on-going training into effective crowd management, as well as, use of force training.

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