Reporting: Shannon Miller
Photos: Shannon Miller, Nissa Tzun
This is part two of a three-part series about Las Vegas Metro Police Use of Force.
"Incidents of use of force can create a false narrative for the public concerning the appropriateness of police actions—a narrative that is not statistically representative or supported by data." —COPS Report (2012)
Las Vegas, NV - Las Vegas Metro Police’s reform took place 2012 to 2014. It was partly prompted by the Las Vegas Review-Journal’s 2011 investigative series Deadly Force, which ranked LVMPD in the top five (out of 16 other municipal departments) in frequency of officer-involved shootings and in average total shootings per year. The federally mandated reform started with the department voluntarily underwent eight months of observation by the federal Community Oriented Policing Services (COPS) Office.
“2010 was a brutally ugly year for our [Las Vegas Metropolitan] Police Department,” said Metro Captain Kelly McMahill at a panel event in July. “We used deadly force 25 times and about half of those shootings were lawful but unnecessary.” Included in that statistic are Erik Scott, shot by police in July 2010 and 21-year old Trevon Cole, who was unarmed when he was shot in his apartment point blank by active police union leader Brian Yant in his apartment. The following year, 23-year old Rafael Olivas was fatally shot by police. Stanley Gibson, who was a war veteran with a history of anxiety, depression and PTSD, was fatally shot by police in December 2011. Each of these deaths could have been prevented.
Crime and Justice Institute's Christine Cole, retired metro officer Greg McCurdy, and LVMPD Captain Kelly McMahill sit on the Use of Force panel hosted by the Mob Museum. July 25, 2018, Las Vegas, NV. Photo by Shannon Miller
According to a COPS Office report, Las Vegas Metro was at an average of 17.8 for annual officer-involved shootings pre reform (2007 to 2011). Mapping Police Violence reports Metro's average annual OIS at 8.2 during 2013 to 2017. According to these disparately sourced and hard-to-find figures, OIS decreased during the reform, and for a few years after the reform.
source: COPS Office report (2014)
Still, reported OIS is not the only metric for police-community relations. Wrongful death or misconduct settlements, which often range upwards of six figures to millions of dollars, are very telling. Moreover, these figures cannot express the impact of police violence on families. Communities affected by police homicide not only lose their loved one, but also they report extended trauma—of being prohibited from viewing the victim’s body, of not having any sufficient information or department liaison to answer their questions, of their loved one being continually vilified by police, the media and the community, of being marginalized and intimidated from telling their story, and of seeing officers who commit unjustified homicides get away scot free.
To improve police-community relations, it is essential that Metro improve the transparency in how it reports, investigates and disciplines officers involved in Use of Force (UoF) incidents. Furthermore, those officers must face appropriate discipline for tactical errors and violation of policies—not only to give a sense of restoration and safety to the communities of those wrongfully killed or injured by police, but also to establish a precedent that other officers will face the same discipline if they make these errors and violations.
"One of you has a bad experience with an officer who was having a bad day today and you're going to tell 15 people they're all jerks." —Christine Cole, Crime and Justice Institute (July 2018)
Systemic problems persist for Metro’s Use of Force and incident review practices; yet, the department tries to characterize negative relations as anomalous, or as the public’s unwillingness to empathize with police. This is not about one cop who had a bad day. This is about systemic barriers in Metro’s Use of Force which impede transparency, accountability and justice for victims of police violence and those victims’ families.
Body Cams and the OIS of Junior David Lopez
In 2014, Las Vegas Metro was one of the first police departments in the US to pilot body-worn camera technology. Director of UNLV Center for Crime and Justice Policy William Sousa oversaw a study which found that over the course of one year, officers who wore the body cams had decreased misconduct complaints and decreased use-of-force incidents compared to a control group of officers who did not wear them. The study also found net cost savings to be about $3,000 per officer per year saved (in expenses associated with misconduct complaints and investigations).
Overall, body cams have proven beneficial in terms of cost savings and decreased complaints. But the technology itself does not necessarily improve police-community relations. “A body cam can give us more information, but that doesn’t mean it gives us answers,” Sousa says. Metro might demonstrate some transparency when they release body-cam footage; however, if the footage is of officer misconduct, then accountability and public trust do not necessarily follow.
In the case of Junior David Lopez, who was fatally shot by Metro police in April 2018, police used body-cam footage to craft a biased account of what actually happened during that incident. When Metro Officers Francisco Rivera and Padilla Mills pulled over Lopez for speeding, both officers activated their body cams. Lopez’s fiance Amber Bustillos and their friend Kimberly Gonzales also were in the vehicle when Lopez pulled over. Footage shows Lopez got out of the car, threw his gun and hat on the ground, followed the officer’s command to get on his knees, and then was fatally shot.
Amber Bustillos, fiancee of Junior Lopez, speaks for the first time in public about the police shooting of Lopez, that happened one month ago. They were supposed to be married on May 10. Las Vegas, NV, 2018. Photo by Nissa Tzun
The footage does not show officer conduct at the beginning of the incident. Bustillos said in an independent interview that one of the officers yelled at them to “Get the fuck out of the car,” when they pulled over. “[Junior] clearly said ‘Don’t shoot me.’ But in the video, you can’t hear the ‘don’t’ part,” Bustillos said, questioning why the first 30 seconds of audio is not included in the footage. Nor does the body cam footage show police conduct toward eyewitnesses and the family after the incident. Police handcuffed Gonzales and held her and Bustillos in the back of separate police cars for four hours after gunshots were fired. While Bustillos was briefly interviewed, Gonzalez was not interviewed at all and was deemed, "uncooperative," by the police and the media.
This RESIDUUM episode features the fiancee of police homicide victim, Junior Lopez, Amber Bustillos, who witnessed his shooting on April 6, 2018 in Las Vegas, NV. Film by Nissa Tzun
Sousa offered an explanation for the missing audio in the first 30 seconds of footage—that the camera is always recording video, but does not record audio until the camera is activated by the officer wearing the device. “Let’s say I’m an officer at an intersection with a body cam mounted to my lapel ... I see someone blow a stop sign right in front of me and then get into an accident. If I turn the camera on in that moment, the previous 30 seconds have been recorded, but the audio for those 30 seconds has not been recorded.” So missing audio is not necessarily the result of tampering, but more likely a limitation of body-cam technology.
"Transparency and trust are two very different things. Transparency is more concrete: If I turn over the video then I’m being transparent. But trust is a lot more abstract—something that is built or destroyed over long periods of time. And it’s asking an awful lot of a piece of technology to improve trust, at least immediately." —William Sousa, UNLV Center for Crime and Justice Policy
Releasing footage of an incident may give the appearance of transparency, but does not eliminate potential for biased presentation of evidence. In Metro’s routine 72-hour press brief, Assistant Sheriff Brett Zimmerman released Lopez’s “criminal history” which boiled down to false statement to a parole officer two years ago—information which has no bearing in addressing the legitimacy of Use of Force during a traffic stop. Zimmerman went on to say that Lopez would have been charged with assault with a deadly weapon on an officer, had he survived. Metro’s official story—that Lopez had said “Shoot me” twice, and that he picked up the gun—is not verified by the footage. Yet, that is the narrative that has gone forth in news media coverage.
Changing public perception of police is not enough—police-community interactions must change. In the case of Junior Lopez, releasing body-cam footage may have demonstrated transparency at a surface level; however, police interactions with the eyewitnesses and the disingenuous presentation of the incident show that Metro's reform is far from complete.
Reform Recommendations Refused
In 2014, the COPS Office published a follow-up report on the status of Metro’s reform. The department had "complied" with 72 of the Office’s recommendations. It rejected two recommendations, one being that OIS investigators video record all interviews with involved officers and witnesses, “when appropriate.” If this recommendation had been implemented in the OIS of Junior Lopez, it could have provided crucial information to investigators and to the community. Video footage can show involved officers’ immediate accounts of and reactions toward an incident, and can give insight on an officer’s motives and tactics for using force and discharging a firearm. Collecting eyewitness accounts can prevent a biased presentation of events. Yet, the involved officers' audio or written reports of the incident were not disclosed during Zimmerman's media brief. In fact, Las Vegas Police Protective Association discourages officers from cooperating with or giving interviews to investigators. As for interviewing witnesses, investigators briefly interviewed only Bustillos after the incident.
Discipline for the involved officers—who made tactical errors that resulted in a devastating, preventable death—is not disclosed during the brief either. Nor was Lopez’s family successful when they attempted to obtain that information from the department when they tried.
One of the frequently-cited trademarks of Metro's improved "accountability" are the two administrative boards (created during the reform) that review and recommend discipline for officers in OIS and other incidents: the Use of Force Review Board (UoFRB) and the Tactical Review Board. These boards use evidence presented by Metro detectives to decide whether an officer complied with training and policies in UoF incidents. The boards also provide recommendations on whether to commend, suspend or to terminate incident-involved officers. The Tactical Review Board—comprised of five voting department officials and four non-voting citizens—can modify or completely overturn the findings from the UoFRB. And ultimately, there is little to no definitive criteria for the Sheriff to override all recommendations in this process.
Public controversies have surrounded this administrative review process, this “reform” will not tip the scale toward improved police-community relations. In 2013, a string of board resignations ensued after then-Sheriff Doug Gillespie ignored the boards’ recommendation to terminate an officer Jacquar Roston. The UoFRB concluded that Roston had made poor tactical decisions that led to him shoot an unarmed man in the leg. The UoFRB chair (then-Assistant Sheriff) was the first to resign when Gillespie announced Roston would keep his job. Four other board members’ resignations followed. One of those members cited union politics and Gillespie’s lack of accountability as main reasons for resigning.
Similar criticism was directed at Metro Sheriff Joe Lombardo in regard to the case of former Metro Officer Kenneth Lopera. Lopera fatally choked Tashii Brown on Mother’s Day last year. At the time of his murder, Brown was unarmed, non combative and would not have been charged with any crime had he survived the encounter with Lopera.
Shortly after the incident, Lombardo publicly confirmed Lopera’s criminal charges—even fleshing out the terms of prison sentences. Shortly after the press conference, Lopera was arrested and booked into Clark County Detention Center. Hours after that, Las Vegas Police Protective Association (LVPPA) posted the $6,000 bail, and started a Go Fund Me account for Lopera, thereby undermining the Sheriff’s position on the matter.
Trinita Farmer, mother of Tashii Brown, poses with a framed collage of photos of her son and one of his many creative business logos. March 4, Las Vegas, NV. Photo by Nissa Tzun
Any time an officer faces suspension or termination, the union paints it as injustice, meanwhile accusing the Sheriff of bending to special interests and acting unjustly toward officers. Following the advice of union attorneys, Lopera filed a lawsuit against Metro claiming violation of due process. Lopera’s commanding officer, who was present during the incident, filed a similar lawsuit against the department after being demoted for failing to intervene when Lopera was choking Brown. Ever since Lopera’s charges of manslaughter and oppression were recently and outrageously dropped, the Sheriff has remained virtually silent on the matter. Metro’s culture is such that the union, rather than Sheriff, controls the department’s public image and its stances on incidents.
"Lock up Lopera" and "Metro Murders" drawn by artist Joey Lankowski outside Police Fatality Public Fact-Finding Review in September 2018. The Public Fact-Finding Review was established in 2013 during Metro's reform, to replace the Coroner's Inquest.
For insight on department culture the current state of Metro’s review process, I spoke with Las Vegas Metro Captain Kelly McMahill shortly after the Mob Museum panel in July. In 2012, Capt. McMahill started at the Office of Internal Oversight—another product of the reform—and has been intermittently in charge of the OIO ever since. The Office plays a central role in training, monitoring and reviewing Use-of-Force incidents. The Office also acts as a communications arm for Metro by releasing a standard set of documents for each OIS. This set of documents is unavailable for non-shooting incidents such as the chokehold homicide of Tashii Brown.
Releasing these documents demonstrates transparency; however, it does not guarantee police accountability to the community. ACLU and NAACP recommended in January 2012 that Metro obtain an independent monitor to oversee the department’s incident review boards, and to write public, quarterly reports on the boards’ findings. This recommendation seems like a potential remedy for lack of accountability in the review process; however, the department refused to implement it. According to McMahill, the department was fully capable of playing that role for itself:
"We didn’t see the necessity to have an outside monitor when we have Critical Incident Review [Boards] trained to review their own." —Capt. Kelly McMahill (August 2018)
Metro leadership do not acknowledge how their post-reform policies and practices still fail to be accountable to communities impacted by wrongful death or injury by police; nor do they acknowledge how the “lawful but not necessary” civilian deaths are a direct result of these policies. Of the 60 police homicides recorded 2013 to 2017 (post-reform) five victims were classified as unarmed. Those five victims include Keith Childress (2016) who was holding a cell phone that police say they mistook for a gun, and Tashii Brown. When measuring the department’s “reform,” it is important to remember that with each statistic, there is a victim, a community and a lifetime of trauma.
These incidents are not anomalous, they are the results of precedent: decades of covering up tactical errors and misconduct, criminalizing victims of OIS and UoF and not disciplining officers for committing crimes. Departments across the US continue a tradition of isolating, at times intimidating families of victims from speaking out. Finally, no interface exists for police and the community to have open, inclusive and productive conversations to influence and change public-safety policies.
If police departments want to improve public perception of police, they first must deeply reckon with the root cause of these perceptions. They must acknowledge how police culture creates an environment where needless civilian killings continue, and where guilty officers’ crimes go unpunished. Finally, they must bring unprecedented community influence into department-wide reforms and policy-making.
Part three will address Las Vegas Metro Police’s reform in regard to the Force Investigation Team and working with District Attorney's office. It also will discuss the public fact-finding review for the case of former officer Kenneth Lopera.
COPS - Community Oriented Police Services
UoF - Use of Force
OIS - officer-involved shooting
BWC - body-worn camera
UoFRB - Use of Force Review Board
TRB - Tactical Review Board
CIRT - Critical Incident Review Team
CIRP - Critical Incident Review Process
OIO - Office of Internal Oversight