Under Fire

I. Shots in the Night

Two viewpoints on a police stop that left both lives irrevocably changed

Editor’s note: The events described here are taken from interviews with the attorneys involved in the criminal and civil cases, news reports and U.S. District Court filings, including a transcription of a videotaped interview of the defendant by Henrico detectives that was played during the criminal court case, and a videotaped deposition with the plaintiff in the civil case. (Sources corresponding to numbers in the story are listed at the end.)

KIMBERLY MCNEIL can always sense when her boyfriend is high. When he sprinkles crack cocaine in his hand-rolled cigarettes,¹ his mood sours. He gets agitated, frenetic.

Though a longtime drug user herself, the 42-year-old beautician doesn’t like being in the car with him when he smokes crack, but she doesn’t have a choice. The couple lives out of the faded maroon Nissan Sentra he drives.² It’s not much, but it keeps them dry and warm. On this mild December night, he drops her off around 9 p.m. at a friend’s house, saying he’ll be back soon.³ When he returns, she can tell he’s high by the way he starts mouthing off at her. They begin bickering. She’s not keen on getting back in the car, but she has to be in court the next morning and needs to stop by her daughter’s house to get ready.⁴

Her boyfriend pulls in to the Exxon Nine Mile Pit Stop, just a few minutes’ drive from Church Hill, where Kimberly’s daughter lives. They’re regulars here, and tonight they roll up to pump No. 5 and Kimberly hops out to pay. She exchanges hellos and how-are-yous with the friendly security guard and stops by the restroom.⁵ When she returns to the car, her boyfriend has backed into a parking space, so she settles in to try calling her daughter.⁶ Kimberly notices a police car driving by, but doesn’t give it much thought.⁷

HENRICO COUNTY POLICE OFFICER Joel D. Greenway needs to fill up with gas and decides to swing by an intersection that he and another officer had been “keeping an eye on.”⁸ He’s not assigned to this route anymore, but he’d assisted his prior supervisor in making drug arrests at the station near the county/city line.⁹

After graduating from basic training in August 2013, he had started working a beat that September, giving him a little more than two years on the force. Before entering law enforcement, Greenway served as a missionary in Brazil for two years and waited tables while finishing college in Utah, getting married and starting a family.¹⁰

Tonight, it’s around 10:30 p.m., about an hour before his shift ends. If he sees something suspicious, he’ll investigate. If not, he’ll just buy his gas and go.¹¹ One of Greenway’s old supervisors had coined the Exxon station a “hot spot” for drug activity, and tonight a maroon sedan with two people inside catches his eye.¹²

He parks near a scrapping business and cuts through the grass separating him from the Exxon lot. He squeezes between dumpsters and shrubbery so the car’s occupants don’t see him approaching.¹³ The male driver has flicked on the dome light and is fiddling with something in his lap. Before Greenway can get a better look, the driver turns off the light. The officer notes the license plate number and communicates via police radio that he’s approaching a suspicious vehicle. Inching up to the passenger window, he floods the car with his flashlight and raps on the glass.¹⁴

“What are we doing tonight?” he asks.¹⁵ The driver drops several folded lottery tickets in his lap.¹⁶

KIMBERLY'S CELL PHONE is pressed to her ear, ringing, as she waits for her daughter to pick up. A sudden knock on her rolled-up window startles her. It’s hard to make out the figure outside.¹⁷

“Roll down the window,” a man’s voice orders.¹⁸ Shining a light at the couple, he tells them to show their hands. Kimberly obliges, but her boyfriend’s hands hover between the wheel and the gearshift. His first thought: We’re being carjacked.¹⁹

PROBABLE CAUSE. That’s what Greenway thinks when he notices wadded lottery tickets in the driver’s lap.²⁰ Probable cause to detain the couple and search the car. He thinks about other arrests he’d observed that involved drugs packaged inside such tickets.²¹ A police axiom, “Where there’s drugs, there’s guns,” plays in his mind.²² He tells the couple to put up their hands. The woman does as she’s told, but the driver’s eyes dart about erratically.²³ His hands hang in the air for a moment, then he digs them into his waistband with the tickets. Greenway draws his firearm as he shifts to the right — so the passenger isn’t caught between the two men in the event of gunfire exchange. The driver reaches for the gearshift and Greenway yells at him to stop, but the vehicle lurches forward, thrusting him onto the hood.²⁴

KIMBERLY'S BOYFRIEND drops the car into drive and starts moving toward the street. His foot has hardly hit the gas when gunshots ring out and, a split second later, Kimberly realizes she’s been struck.²⁵ Only then does she see that the shooter is a police officer. Covering her head and face with her hands, she screams, “Please don’t shoot me again!” She hears her skull crack²⁶ as another bullet — one of seven fired²⁷ — punctures the back of her head.²⁸ The car passes the officer and hops the median onto Nine Mile Road,²⁹ before it crashes — rocking Kimberly’s boyfriend forward and fracturing his eye socket.³⁰ Believing he’s been shot, too, he sprints toward the nearby woods for cover.³¹

I’m dying, Kimberly thinks, her eyes fixed on the sky.³² The security guard she’d spoken with minutes earlier rushes outside to apply pressure to her wounds. Paramedics cut away her clothes.

•••

After an investigation by two Henrico County police detectives, Greenway is indicted in February 2016 on three felonies in connection with the Dec. 15, 2015, incident: malicious wounding, shooting into an occupied vehicle and use of a firearm in commission of a felony.

Henrico’s circuit court judges recuse themselves, citing real or perceived conflicts of interest, and a retired Chesterfield County judge presides over Greenway’s criminal trial.

During the trial, a police academy instructor who taught Greenway testifies that a weapon should be discharged only in extreme circumstances, and officers are taught that stepping in front of a vehicle makes them vulnerable.³³

Greenway’s attorneys argue that even if he violated departmental policy, that doesn’t mean he broke the law. Greenway’s suspicion of drugs was confirmed when a forensic expert identified cocaine residue on the lottery tickets, but the couple was unarmed.

In October 2016, a jury acquits Greenway of all criminal charges. McNeil, who suffered a seizure after testifying, is absent when the jury delivers its findings, but her daughter leaves the courtroom spewing profanities. Her cousin tells reporters he feels “there is no justice.” On the other side of the courtroom, Greenway’s wife and mother break into tears when the jury delivers the verdicts after 10 hours of deliberation.

A civil suit McNeil filed in April in Henrico Circuit Court is moved to U.S. District Court. The suit claims Greenway’s “reckless actions” violated McNeil’s Fourth Amendment protection from unreasonable government intrusion, resulting in life-threatening injuries. The suit seeks $75 million and a civil jury trial, but is settled in December 2016.

Henrico pays a $750,000 settlement, and the county approves spending nearly $15,000 toward Greenway’s legal expenses after his criminal case acquittal.³⁴ Later, the criminal case is expunged, making records in circuit court unavailable.

By January 2017, Greenway is no longer working for the county. His attorneys say he resigned and now lives out of state. McNeil suffers from post-traumatic stress disorder. A brain injury affects her speech and cognitive functions. She stopped smoking crack.³⁵

Property records show she purchased a small, two-story house in eastern Henrico after the settlement — just around the corner from another Exxon station.³⁶

Infographic sources: 2016 Crime in Virginia Annual Report; Henrico, Chesterfield, Richmond and VCU police departments; Officer Down Memorial Page; Washington Post

II. Waking the ‘Sleeping Dragon’

Public reaction to high-profile shootings is changing the nature of police work

The December 2015 shooting of Kimberly McNeil, an unarmed African-American woman, by a white Henrico County police officer occurred at a time of growing public scrutiny of law enforcement actions nationally.

Freddie Gray in Baltimore; Sandra Bland in Waller County, Texas; Walter Scott in Charleston, South Carolina; and Samuel DuBose in Cincinnati — all of them African-American — died the same year after being stopped by white police officers. Only in Scott’s case was there a conviction against the officer involved; Michael Slager pleaded guilty to civil rights charges and received a 20-year sentence.

Charlotte Hodges, a personal injury attorney who represented McNeil in her civil case, says that different standards of proof apply to criminal and civil cases, and this is significant in determining the outcome.

“You can put almost all the exact same information out in a criminal case and a civil case, and the jury — because they have to find you, in a criminal case, guilty beyond a reasonable doubt — may not feel they can reach that standard to find you guilty,” Hodges says. “In a civil liability case, [the jury] has to find by clear and convincing evidence.”

It’s 100 percent the discretion of the chief when an agency should relinquish control of a criminal investigation to an outside agency.” —Shannon Taylor, Henrico commonwealth’s attorney

In the deaths of Gray, Bland and DuBose, charges were either dropped or the officers acquitted — coupled with a few million dollars in settlement money for the families of the deceased. These outcomes spawned protests across the country, along with a public outcry for increased transparency among police departments. In Richmond, college students and community members took to the VCU campus, downtown streets and Interstate 95 to protest unjust treatment of African-Americans by police. Demonstrations punctuated national news events such as the nonindictment of former Ferguson, Missouri, police officer Darren Wilson after the August 2014 shooting death of Michael Brown; the beating of University of Virginia student Martese Johnson by two ABC agents in 2015; and the shooting deaths of Philando Castile and Alton Sterling on July 5 and 6, 2016. Activists demanded answers to questions such as: Why are so many officers acquitted? Why are so few indicted in the first place?

“It’s 100 percent the discretion of the chief when an agency should relinquish control of a criminal investigation to an outside agency,” says Shannon Taylor, the Henrico commonwealth’s attorney who prosecuted the Greenway case.

In other words, unless the police department decides to outsource an investigation to another department such as Virginia State Police or the FBI, the sequence of events after a contentious use of force incident relies heavily upon the department’s policies and procedures. In such cases, the criminal investigation is conducted by detectives within the department. The evidence compiled by the investigating officers is presented to the prosecutor, who decides whether a criminal indictment is in order.

Police officers are also afforded sovereign immunity — a doctrine granting government officials protection from being sued for doing their jobs. But that immunity does not extend to violations of constitutional rights, as McNeil’s civil suit against Greenway claimed.

Across the Richmond region, similar cases of officer use-of-force being prosecuted are scarce. Since Taylor was elected in 2012, she has not prosecuted another case like Greenway’s. In Richmond, there have not been indictments of officers for similar charges in more than a decade. (An off-duty Richmond officer who fatally shot an unarmed teenager at a Chesterfield County car wash in 2015 did receive a three-month sentence for manslaughter.)

Since 2015, there have been 60 incidents of police using fatal force in Virginia, according to a Washington Post database. Of that number, five of the people killed were unarmed. Each year, the number of victims armed with a gun or knife accounts for more than two-thirds of the total deaths across the country, according to the database. The number of fatal uses of force nationally has remained relatively consistent since the Post began compiling the data at an average of roughly 980 deaths per year from 2015 to 2017.

In Virginia, the number has averaged 19 each year. As of March 12, three people in Virginia — each of whom was armed — died this year in encounters with police. One of them was a 40-year-old Richmond man shot on Interstate 64 east of Richmond after a police chase; he emerged from his car carrying a machete.  

Captured on Camera

Relatively few use-of-force incidents have been documented with footage from an officer’s body camera, even as the devices have become widespread.

A 2013 survey by the U.S. Department of Justice found less than a fourth of 500 surveyed departments used body-worn cameras at that time.

On May 1, 2015, the U.S. Department of Justice announced a $20 million Body-Worn Camera Pilot Program after a spike in departments seeking the technology to reduce excessive force and citizen complaints post-Ferguson. By November 2017, 62 of the 67 “major city” departments were outfitted with the cameras, according to the Leadership Conference on Civil and Human Rights, which keeps a scorecard on body-camera policies.

Among the local agencies, Henrico County was the department first to equip officers with the cameras on a trial basis in September 2014. During a Henrico Board of Supervisors meeting that year, then-Police Chief Douglas Middleton cited research indicating a “sharp drop in complaints” against officers who wear the cameras, and aimed to equip the department’s roughly 400 uniformed officers by Jan. 1, 2016. Richmond started issuing cameras to officers with a pilot program in 2016 and expanded to roughly half the force of sworn officers in 2017; Chesterfield and Hanover counties and Virginia State Police added them in 2017.

Each department maintains its own body-worn camera policy. The Virginia Department of Criminal Justice Services published a “Model Policy on Body Worn Cameras” as a template in October 2015.  

In Henrico, officers are instructed to turn on the camera when engaging in traffic stops, suspicious vehicles or persons, domestic calls for service, arrests or calls involving mental health patients.

In Richmond, officers assigned a body-worn camera are instructed to start recordings as soon as a call for service is initiated. Both policies require approval from the police chief or his designee for anyone outside the department and the commonwealth’s attorney’s office to view footage, and unless the footage is tagged as evidence, it will be deleted within 60 days in Richmond, 90 in Henrico.

According to the Washington Post data, only 100 of the 987 deaths involving fatal force nationally in 2017 were captured on video —a decrease from 2016, when 145 of the 963 uses of fatal force were recorded. To date, 11 of the 195 deaths nationally in 2018 have been captured on tape. In Virginia, five of the 17 deaths in 2016 were recorded, but none of the 23 deaths in 2017 were on camera, nor were any of the three deaths this year.

Proponents of the cameras believe they increase transparency and accountability among law enforcement — and studies have corroborated they reduce uses of force and complaints from residents. But some groups fear recordings could infringe upon privacy and free speech rights; without a uniform state policy, individual departments maintain too much discretion over footage.

“We don’t think those cameras should be used to surveil First Amendment activities and that they shouldn’t be turned on unless and until there’s actual crimes being committed,” says Claire Guthrie Gastañaga, executive director of the ACLU of Virginia.

And just because footage exists doesn’t mean that it’s accessible to the public. A Feb. 4 traffic stop garnered attention online after a Chesterfield officer pointed a gun at a Virginia State University freshman, who told police he had a knife and started to reach for it. The student was unharmed and eventually let go, but when Yesha Callahan, the boy’s mother, wanted to view the body camera footage, the agency denied her request.

Chesterfield pointed to exemptions from Virginia’s Freedom of Information Act that allow police to keep records from public view if the materials are involved in a criminal investigation. When Callahan filed a complaint with the department, the county cited another FOIA exemption — “personnel matters” — due to the complaint triggering an internal investigation of the incident. Chesterfield’s body-worn camera policy states that requests to view footage are considered after consultation with the county attorney’s office.

Callahan eventually did see the footage, on March 11 at the police station, but she says her 18-year-old son is still shaken up from the incident.

She says when she viewed the footage, one of the officers said the firearm display was justified. “They said ‘yeah,’ it would’ve been justified [if the officer had pulled the trigger]. The way they explained it was like, ‘You know, they wouldn’t know what kind of weapon it was.’ ”

Chesterfield Police Chief Jeffrey Katz says he empathizes with Callahan, and as a parent understands how frightening it can be when kids are exposed to a potentially dangerous encounter.

 “A lot of times people … fill in the blanks with worst-case scenarios, but it doesn’t speak to reality, it speaks to our fears — and especially when it comes to our kids,” he says. “We love our kids.”

Infographic sources: Henrico, Chesterfield, Richmond and VCU police departments; U.S. Census

Assessing Threats

Balancing caution against police brutality is the ever-present awareness that a routine call or traffic stop could cost an officer his or her life.

According to the Officer Down Memorial Page, which keeps a running database online of line of duty deaths, two Chesterfield officers and one K-9  partner died in the line of duty, all from gunfire, since 2000. In Henrico, an officer drowned in 2003 and Richmond lost an officer the same year to gunfire.

The Virginia State Police, which has the largest authorized force and jurisdiction, lost 13 troopers in the last 18 years, nearly half from vehicle-involved injuries.

 For officers, the split-second decision to shoot or not shoot is complex — and at times, haunting. After exchanging gunfire during a traffic stop, Richmond Police Capt. Harvey Powers couldn’t get it out of his mind. “I had nightmares about it for six months,” says Powers, an officer for more than two decades.

When Powers pulled over a car for running a stop sign around 3 a.m., something just “felt wrong.” The hair on his neck stood up as he took the driver’s ID and noticed the disarray of the backseat. He walked back to his patrol car and opened the driver’s side door, then closed it again without getting inside. Instead, he walked around the back of his vehicle. As he approached the passenger side of the stopped vehicle, the man was pulling out an assault rifle from the back seat.

“We exchanged fire and I put two rounds on the car door and he drove away,” Powers says, adding that the man was eventually arrested. “I didn’t hit him; I didn’t get hit; life goes on, but traffic stops are the most dangerous things in the world for police officers. If you just put your hands on the steering wheel there can be no misunderstanding.” (Editor's note: In a related story, "What Would You Do?" Powers leads a group of law students in a simulation exercise to see how they would handle a tense situation an officer might face.)

He acknowledges that there is a basis for some of the public’s distrust of police.

“There are racist cops, and we need to get rid of them. But just because there’s a racial disparity when a cop makes a mistake, does not necessarily mean that was the motivating factor,” Powers says.  

Culture Change

Richmond Police Chief Alfred Durham says Michael Brown’s death was a catalyst for change in the culture of police departments to work more proactively at building trust through accountability and transparency. “I always say, ‘That woke the sleeping dragon in law enforcement across this country,’ ” he says.

In Henrico, the department began mandating annual Crisis Intervention Training for officers starting in 2015, to hone skills pertaining to de-escalation and when to use force, if at all.

“Our philosophy is you use the minimal amount of force necessary to achieve whatever that lawful means or objective needs to be,” says Henrico Police Chief Humberto Cardounel Jr.

At Virginia Commonwealth University, where the campus police department’s jurisdiction encompasses inherently challenging environments such as the hospital’s secure mental health wards, Police Chief John Venuti has taken the unusual step of establishing an external committee to review every use-of-force incident, beginning last year.

Venuti, who transitioned from the Richmond Police Department’s homicide unit to VCU police chief in 2010, says his philosophy revolves around one central question: Was force necessary? “If force is not necessary, it can never be justified. And I think if you go back to the national conversation — to a lot of the incidents we’ve seen — that’s what the conversation is really about, right?”

III. Holding Police Accountable

In Richmond, grassroots organizers push for more data, citizen review

Inside the community room of the Richmond Public Library on Hull Street, the South Side chapter of New Virginia Majority is celebrating a victory.

After a push by the nonprofit group, the Richmond Police Department began posting the data pertaining to each use -of-force incident in 2017, broken down by race, gender, sector and precinct, to be updated monthly.

New Virginia Majority has chapters throughout the “urban crescent” of Virginia — spanning the suburbs of Washington, D.C. to the Hampton Roads region — working to face and dismantle systemic hurdles in minority communities.

The Richmond chapter decided to focus on policing reforms, after canvassing neighborhoods from Oak Grove and Clopton, to Bainbridge in the South Side.

“What we found is the number one issue is police accountability and community policing,” says Assadique “Muhammad” Abdul-Rahman, who is leading this February meeting of roughly a dozen adults.

The chapter hosted a series of forums, some of which Richmond Police Chief Alfred Durham attended, where community members voiced concerns ranging from stop-and-frisk policies to searches and detainments.

Then, last fall, the group circulated a petition asking the city to establish an elected, independent board “with subpoena-like power and the authority to hold RPD personnel accountable for misconduct and mistreatment of citizens.”

Abdul-Rahman says the stories shared at the forums “weren’t compelling enough for the politicians and the police,” to support citizen oversight, so the chapter pursued a data release with the help of other local advocacy groups, including the Legal Aid Justice Center, the Advancement Project in D.C. and Richmond-based group Southerners on New Ground (SONG).

“The No. 1 issue is police accountability and community policing.” —Assadique “Muhammad” Abdul-Rahman, a New Virginia Majority member

“It’s not replacing the storytelling, but it gives us scaffolding to hang the stories on … to be able to say, ‘This is one person of, like, 75,’ ”says Kim Rolla, an attorney with the Legal Aid Justice Center’s Civil Rights and Racial Justice Program.

Now, the community organizers hope to make a stronger case for a citizen review board, or “CRB,” as another transparency and oversight measure — and get the rest of the data they requested, specifically in regard to stop-and-frisks, which the police department did not include with the use-of-force data release.

“The CRB actually is about power,” Abdul-Rahman says. “Right now, [police are] policing themselves — they’re in control of what data to give to the public.”

He cites a Stanford University database of traffic stops across the country that found minority drivers were more likely to be stopped by police, ticketed, searched and arrested after being pulled-over.

“This study indicates the most important data was not released, and we need to pursue it vigorously,” Abdul-Rahman says.

Though he’s a proponent of community engagement, Richmond’s police chief is not keen on the idea of a citizen review board — a response not uncommon among law enforcement officials.

“We’re not out here shooting and killing and beating people up, violating folks’ civil rights — and the thing is, they say it should be independent,” Durham says. “Well, if it should be independent — you don’t need my say. Get some legislation passed, and I’ll abide by it.”

Thus far, three localities in Virginia have approved CRBs: Virginia Beach, Fairfax County and Charlottesville. Washington, D.C., also has one.

The CRB concept has existed since the mid-20th century, but didn’t gain prominence until former President Barack Obama’s Task Force on 21st Century Policing — formulated in part in response to widespread civil unrest after Michael Brown’s death in Ferguson, Missouri — published recommendations in May 2015. The report calls on agencies to adopt some form of civilian oversight — as well as formulate, and share publicly, “comprehensive policies” on the use of force and de-escalation, mass demonstrations, consent to searches, gender identification, racial profiling, external and independent investigations and prosecutions of officer-involved shootings and in-custody deaths.

In early 2018, activists in Charlottesville lobbied for a CRB, and the City Council there voted in favor of the idea after a damning independent review. Released in November, the report analyzed police response to the “Unite the Right” rally of Aug. 12, 2017. The Charlottesville police chief resigned about two weeks later, and retired Chesterfield Police Chief Thierry Dupuis is leading the department on an interim basis.

Charlottesville resident Rosia Parker was a key advocate in advancing the CRB, which she says stemmed from policies predating the rally — but were amplified by the report findings.

“We have a lot of stop-and-frisks, where the black and brown people are the chosen ones to get harassed,” Parker says.

She says the CRB is still in its planning stages — selecting committee members, interpreting the statute and putting a structural model in place — but she hopes the board will be up and running by the time a new chief of police arrives.

“We see that [police] actions are not being held accountable,” Parker says, “and that needs to change.”

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Citations

1. U.S. District Court Case 3:16-cv-00269-JAG, Document 51-2 “VIDEOTAPED DEPOSITION OF KIMBERLY MCNEIL, PLAINTIFF” (pp. 2)

2. Document 51-2 (p. 6)

3. Ibid.

4. Document 51-2 (pp. 5-6)

5. Document 51-2 (p. 8)

6. Ibid.

7. Ibid.

8. Case 3:16-cv-00269-JAG, Document 70-2 “TRANSCRIPT OF VIDEOTAPED DISCUSSION WITH FEMALE OFFICER, MALE OFFICER AND OFFICER JOEL GREENWAY” (p. 2)

9. Document 70-2 (p. 41)

10. Document 70-2 (p. 37)

11. 70-2 (p. 3)

12. 70-2 (p. 4)

13. 70-2 (p. 5)

14. 70-2 (pp. 6-7)

15. 70-2 (pp. 16, 23)

16. 70-2 (pp. 17-19)

17. 70-2 (p. 18)

18. Document 70-8, “Transcript of the proceedings in the above-styled matter, when heard on October 24, 2016, before the Honorable Michael C. Allen, Judge, and a Jury.” (Kimberly McNeil testimony, pp. 5-6.)

19. Document 70-9, “Transcript of the proceedings in the above-styled matter, when heard on October 24, 2016, before the Honorable Michael C. Allen, Judge, and a Jury.” (testimony of Kimberly McNeil’s boyfriend, pp. 1-10.)

20. 70-2 (p. 24)

21. 70-2 (p. 43)

22. 70-2 (p. 31)

23. 70-2 (pp. 16-18, 23)

24. 70-2 (p. 33)

25. 51-2 (p. 10)

26. Ibid.

27. IN THE CIRCUIT COURT OF HENRICO COUNTY (Case Nos. : CR16-460, 461, 462-00F) “Transcript of the proceedings in the above-styled matter, when heard on October 24, 2016 before the Honorable Michael C. Allen, Judge, and a Jury.” (pp. 21, testimony of forensic detective Kenneth Hill)

28. Ibid.

29. 70-2 (p. 31)

30. 70-9 (pp. 1-10)

31. Ibid.

32. 51-2 (pp. 10)

33. Document 70-12 “PRELIMINARY AFFIDAVIT OF W. KEN KATSARIS” (pp. 4-8).

34. Emails, Henrico County administrator and Parcell, Webb & Baruch

35. 51-2 (pp. 3-4)

36. County of Henrico Finance Dept., Real Estate Assessment Division (parcel ID 799-727-9083)