Richie Harbison Hearing – January 29, 2021, 9 am Eastern

Transcript: Hearing on the Case of Richie Harbison


  • Rapporteur Ria Julien
  • Commissioner Ms. Hina Jilani
  • Commissioner Prof. Niloufer Bhagwat
  • J. Denton Daniels, attorney
  • Kyle Brazile, attorney
  • Michael Avery, attorney and expert witness

Ria Julien  00:01

[Welcome to the hearings of the International Commission of Inquiry on systemic racist police violence] against people of African descent in the United States. These hearings are a process by which witnesses can present accounts of the unjustified killings and maimings of Black people by police officers in the United States before an international panel of human rights experts. We now begin the hearing in the case of Richie Harbison. My name is Ria Julien and I am the rapporteur for this hearing. Presiding over this hearing today is our commissioners Niloufer Bhagwat of India and Commissioner Hina Jilani of Pakistan. Witnesses for this hearing are attorneys J. Denton Adams, Kyle Brazile, and Michael Avery. There will be 50 minutes for this hearing. Witnesses will testify followed by a period of questions from commissioners. I will call time at the 30 minute mark and the 45 minute mark, please excuse my interruptions, commissioners Bhagwat and Jilani. I now present to you, your first witness, Attorney J. Denton Adams. Mr. Adams, please confirm your name.

J. Denton Adams 01:10

Jeremy Adams, you have it?

Ria Julien  01:13

Do you promise that your testimony to the Commission of Inquiry will be true to the best of your knowledge and belief?

J. Denton Adams 01:19

I do.

Ria Julien  01:20

You may begin.

J. Denton Adams 01:22

I should probably introduce myself first. I’m an attorney. I’m occasionally a law professor, a former political reporter. And I happened to have grown up and intermittently throughout my life lived in the county of the man whose case we are talking about today, Mr. Richie Harbison. I’m also joined by attorney, law professor and author Michael Avery, and Kyle Brazile, who is also an attorney who has worked for the North Carolina Central School of Law. We may be a little bit unique among those presenting information to the commission in that none of us represent the family in this case, we were brought in, in many ways, as as legal scholars, and I just happen to have a personal connection to the area of Mr. Harbison. So I will present kind of the facts and the legal analysis regarding Mr. Harbison’s case. Mr. Brazile is going to explain some of the details of taser use policies in North Carolina and a little bit of discussion about qualified immunity and I believe Mr. Avery will will be able to touch on the systemic problems and how Mr. Harbison, his case is somewhat emblematic of those issues. Richard Lee Harbison died November 8 2016 after encounter with law enforcement in Harrison County, North Carolina.

According to news reports and statements from the Harrison County Sheriff’s Office, the 62 year old Black man was involved in a motor vehicle accident prior to the encounter, in which he had run his vehicle into four parked vehicles on the side of the road. He apparently by all by all accounts then proceeded to leave the vehicle, disrobe and was in a severe mental distress when law enforcement arrived. According to a statement from the sheriff’s office, he was acting irrational and non compliant to any of the deputies’ commands. They apparently ordered him to submit to get him under control. But allegedly the naked and clearly unarmed man then charged them and he was tased and officers subdued him. He died shortly thereafter. He was according to reports, unarmed had no criminal history and not under the influence of any intoxicating substances. His death certificate lists the cause of death as undetermined. It’s clear from the record and reports that Mr. Harbison suffered cardiac arrest. Although it’s unclear from what is publicly available in interviews with people, whether it was due to positional asphyxiation, such as the Eric Garner case in New York, or if it was due to the taser.

In any event, he was in full cardiac arrest when emergency personnel were able to evaluate him. The North Carolina State Bureau of Investigation opened in its own probe into the death of Mr. Harbison but no officers were charged in his death. The estate filed for Mr. Harbison, indicates a pending wrongful death action and but a review of the court records does not produce any resolution in that case. Public records requests that I’ve made and others have made on this case have not been responded to in earnest by the sheriff’s office and the resources to obtain those records would be probably excessive in light of the amount of time that we have. Also efforts to seek comment from the family, their attorney or the sheriff’s office have not been successful. Some of that, I believe, is because there’s ongoing litigation. It is sound legal strategy to advise your clients not to talk to anyone about a case except for jurors hearing it. In summary of kind of the legal status of Mr. Harbison’s death, there are indications that it both violates international standards for the use of deadly force and state standards, though it’s a little more arguable that his death was compliant with state rules. I think there are broader issues at play. And I’ll discuss that a little more as we go on. It’s also clear that the family has not recovered anything in this death, there is no indication of settlement of the case. So there’s no civil remedy that has been reached. And I think the case is somewhat emblematic of a lot of cases that we have seen, and that the Commission is seeing, that mental health is there.

There are issues of race in the background. And there are issues of accountability that I think are common, common threads. And I think there were a number of cases that were going to be presented to the commission that it’s difficult to get information to the commission at about the cases, mainly due to various sunshine laws on records, and reluctance to speak. And I think this is a good example of many of those cases. Henderson County, which is where I grew up, it’s got a population of a little over 100,000 people. According to US Census data, 92.5% of that population is white, while only 3.4% of African Americans are in the population. I can say growing up anecdotally that I think I knew two Black people in my youth that lived here. And they they might have been the only family here at the time that was of African American descent. A review of the deaths at the hands of law enforcement since 2013 in the county shows four deaths. Two of those, and keep in mind, this is a population that’s only 3.5% African American, two of the deaths are African American, the other two are white. Mr. Harbison is a bit of an outlier in that he is the only unarmed person who has died at the hands of law enforcement in Henderson County since 2013. Under state law, and this is fairly settled law, the really short version of when deadly force can be utilized in a situation is when there’s a clear and immediate threat of serious bodily harm or death to oneself or others.

That’s fairly settled law that that force can’t be excessive and taser use, which is at issue in Mr. Harbison’s case has been recognized in the estate of Armstrong v. Pinehurst case as possibly excessive in the state. So the Fourth Circuit has ruled on that. And there Mr. Brazile will talk about that a little bit more later, but the short version is a taser or any electronic electrically conductive device like that may only be used if there’s risk of immediate danger to an officer that’s responding or to others. Mr. Harbison’s case raises some significant issues as to whether law enforcement utilized appropriate force to apprehend him. While the facts of the case are limited, it’s undisputed that when Henderson County Sheriff’s officers arrived on the scene, Mr. Harbison was having some mental health crisis. He was elderly, he was naked and clearly unarmed. The sheriff’s public statements that Mr. Harbison refused to submit and then was tased. It makes it interesting to get into because there were four responding officers to this 62 year old man it is. It may be less lethal force to use a taser, but it very well can kill and the officers at this point, were on notice due to the Armstrong case that that caution should be used in utilizing a taser. State law is fairly clear that the officers were entitled to defend themselves if Mr. Harbison did in fact, charge them. But it is interesting to me that Mr. Harbison is the only unarmed death and there were four of them. It’s, it is strange, that that happens to be the case. Also, the the whole thing to the population demographics begs the question if there would be a different outcome had Mr. Harbison been white. As it stands, I think it’s fair to say that we would need more information or video evidence to really evaluate whether Mr. Harbison’ case complies with North Carolina law. It’s slightly different. I think when we start talking about international standards.

Christof Heyns, the UN Special Rapporteur on extra judicial, summary, or arbitrary executions identified in the 2014 report to the Human Rights Council, the particulars of use of force for international purposes, it’s appropriate where there is a sufficient legal basis, being published and accessible to the public, to save a person’s life or protect a person from serious injury only if other means are ineffective or unavoidable and have sufficient amount to address an immediate threat. Deadly force is only proper after other precautions were taken to avoid its use. And it must be in proportion to the seriousness of the harm, the force is aimed at preventing may only be used to protect life and in a non discriminatory fashion. International Standards also mandate an accountability for law enforcement. I believe commissioners heard some discussion of that in the hearing prior to this one. Those issues are prominent here as well. In kind of evaluating whether the state standards line up with the international standards, North Carolina’s law on the use of deadly force is fairly well settled. It’s readily available to the public. And if you ask almost anyone with a law license, to quickly explain it, they probably could. And in fact, many people who in the public at large, with many people could also describe that to you. So meets that standard, that first prong of international standards. It can only be used to save life, or to prevent serious injury, that’s present in both international standards and North Carolina law. They call for proportional responses, it can’t be excessive. That’s true in both.

And ideally, state standards also call on deadly force, I say, to be in a non discriminatory fashion, I say ideally, because the practice and the law don’t necessarily line up. Now, where the two standards diverge is in when such force may be used and and what must be done to avoid it. So under the North Carolina pattern jury instructions, which are kind of a compilation of case law that are fairly well developed from the law of the land, a person may only use such force as reasonably can feel certain about that as reasonably appeared necessary to the defendant under the circumstances to protect the person or another from death or great bodily harm. International standards, however, provide deadly force may only be used if other means are ineffective or unavoidable and have sufficient amount to address an immediate threat. Additionally, international standards provide deadly force may only be used after proper precautions were taken to avoid lethal force. Mr Harbison’s death and the encounter with law enforcement Harrison County probably and I’m willing to say likely does violate the international standards on when deadly force can be used.

It was clear that he was having a mental health crisis. There were four officers there. They knew a taser can be deadly and instead of the state or the county, providing some clear mechanism to respond to a mental health crisis. They had officers who, as this commission is heard are, in many ways militarized and trained to respond to crimes, respond to what is really a mental health issue. There’s also accountability issues floating around in this case, the public cannot really evaluate what happened to Mr. Harbison, because you can’t really get comment from the family. And frankly, that’s good litigation strategy. If I was representing them, I would tell them not to talk to me either. The sheriff’s office, same thing goes for them. They’re in active litigation, probably a good idea not to talk someone presenting any information that was Commission, the public records requests can be kind of roundly denied. I’ve experienced this as both reporter and as an attorney, you can just avoid producing records for as long as you want. And if someone doesn’t sue, and I don’t have the resources, really to just go sue on this case for fun, It’s going to be hidden. So there can’t be any accountability without sunshine. And that is a problem here. I think.

Michael Avery  16:18

Yes. Be a little conscious of time, please.

J. Denton Adams 16:22

Oh, yes. And I was about to pass it on to Kyle because I was running out of things.

Michael Avery  16:26

I think why I was going second.

J. Denton Adams 16:28

Oh, well, you can go second.

Michael Avery  16:34

My name is Michael Avery. I’m a professor emeritus at Suffolk University Law School. In Boston, I have litigated police misconduct cases over the last 50 years. I’m one of the founders of the National Police accountability project, a project of the National Lawyers Guild that has 600 lawyers across the country who specialize in the litigation of these cases. And I’m a former president of the National Lawyers Guild, and also the author of police misconduct, law and litigation, which is the leading treatise that is employed by lawyers who litigate these cases. I’d like to talk about two things today. One is the disproportionate use of tasers against African Americans, which is a very important aspect of this particular case. And the second is the systemic causes of how African Americans who suffer from mental illness are at greater risk than white Americans from violence by police. First with regard to –

Ria Julien  17:45

Mr. Avery, if I may just swear even before you continue.

Michael Avery  17:48


Ria Julien  17:49

Thank you very much. Okay. Mr. Avery, please confirm your name.

Michael Avery  17:52

Michael Avery,

Ria Julien  17:54

Do you promise that your testimony to the Commission of Inquiry will be true to the best of your knowledge and belief?

Michael Avery  17:59

I do.

Ria Julien  18:00


Michael Avery  18:01

Thank you. Reuters news service. Well Respected News Service conducted a study looking at taser related deaths through the end of 2018. They found that 1081 people have died in the United States as a result of taser use. Of those 32% were black, although African Americans constitute only 14% of the United States population. On the other hand, 29% were white, although whites constitute 60%. Non Hispanic whites constitute 60% of the United States population in a number of cities. They have also looked at taser use in Sioux City Iowa, for example, of 70 uses of the taser 33 were against racial minorities. In Baltimore, Maryland for two years between 2012 and 2014. The police used tasers 730 times. 90% of the time, taser use was against African Americans, even though they make up only 63% of that city’s population. 90% as compared to 63% of the population. In Connecticut, Connecticut, police use tasers against African Americans 56% of the time, although in Connecticut, they make up only 19% of the population. So we see that across the country, taser use is much greater against African Americans than against whites.

Now I gather from what I heard of the previous panel, that you’ve received some information about police training with regard to incidents involving mentally ill people, what’s interesting to me is that there’s unanimity among police trainers, about what the appropriate approach to people who are suffering any emotional crisis is. If you look at all the training materials and I have across the country, they’re in agreement that the police should approach the subject in a friendly and open manner, they should arrive quietly, avoid making unnecessary noise, avoid confusion. Most importantly, the police should try to make time their friend in these incidents, they should proceed slowly, they should take time to assess the situation, they should avoid haste.

Very important is that one officer should assume the responsibility of having contact with the individual involved, and the other officers should simply take a cover position, standing back and not getting involved with that person, unless necessary. The person who has contact with the individual should make every effort to find out what is bothering him, should be empathic, should ask questions. Police should not expect somebody who’s mentally ill or emotionally disturbed to behave the way a criminal suspect would. Police approach a criminal suspect in a very threatening manner and most criminals, or many criminals will back down, they’ll behave rationally, when they’re confronted by superior force by the police. That is not true of somebody who’s mentally ill. What the officers need to expect is verbal abuse coming back from the subject, lack of compliance with their requests, they should not make demands or threaten or abuse the subject, they should not lie to the subject, and they should make every effort to de escalate the situation. Now, in this particular case, involving Mr. Harbison, as Mr. Adams indicated, a lot of the facts are not known. We, we don’t have a very detailed account of what happened. But interesting to me is that when the sheriff’s office did make a statement, it was that the officers were issuing commands and issuing orders to Mr. Harbison and he was not following.

In other words, the statements coming out of the sheriff’s office do not indicate any effort whatsoever to comply with what the training is in this area. And instead, it looks like all the officers may have been shouting and screaming at this individual ordering him about and making no effort to understand what his what his predicament was. I said before that there’s unanimity regarding training. But unfortunately, there’s also a great deal of unanimity regarding the actual responsibilities to people who are suffering from mental problems. And that is that they fail to follow their training. And one of the most important things to know about this situation is that so far, the United States Supreme Court has failed to say that it’s a constitutional violation for officers not to follow their training in these situations. Court says that you’re supposed to assess how officers behave, taking into account the totality of the circumstances. But the US Supreme Court so far does not take into account, police training, does not take into account how the police approach an incident. They tend to look at it only at the last possible moment.

In which in this case would be Mr. Harbison running toward the officers and judge the situation in that split second of time. That is inappropriate, in my opinion from the constitutional point of view. And the failure of the Supreme Court to recognize that is one of the reasons that we have these problems. More important is the systemic, systemic causes of this situation. Some of the questions that the Commission asked of the last panel go directly to this point. In the United States, about 27% of African Americans live below the poverty line, compared to only 10.8% of non Hispanic whites. That means that they’re unable to afford private mental health care and unable to afford insurance that might pay for it. About 11% of African Americans are uninsured with regard to health issues, as compared to 7% for non Hispanic whites. As it turns out, as the rate of mental illness is about the same among African Americans as it is among non Hispanic whites, but the treatment they receive is very, very different. Only one in three African Americans who needs mental health care is receiving it. By the way, all these statistics, which I’m giving you now, are a result of a study by the American Psychiatric Association, and I furnished a copy of that report to the commission. Compared with whites, African Americans are, once they go for care, less likely to receive guideline consistent care, less frequently to be included in research about mental illness, and more likely to have to use emergency rooms for primary care, rather than mental health specialists. Compared with the general population, African Americans are less likely to be offered either evidence based medication, or psychotherapy. The American Psychiatric Association has acknowledged that when they do receive care, the care that African Americans received from physicians is different from the care that white patients received.

One study found that, in treating African Americans physicians were 23%, more verbally dominant than they were with white patients, and engaged in 33% less patient centered communication with African American patients than without white patients. So the problem of racism in American society finds its way into the communication difficulties that African Americans have in dealing with therapists. Moreover, black Americans with mental health conditions, particularly those with schizophrenia, bipolar disorders, and other psychoses are much more likely to be incarcerated than people of other races. And what that shows is, is that the police, when dealing with African Americans who suffer from mental problems, are more likely to view them as criminal suspects, more likely to arrest them, were likely to send them to criminal prosecutions and ultimately to penal institutions than they are with white people. So we see that as a result of poverty, as a result of insurance problems, as a result of problems once they get into care. There are systemic reasons why African Americans are at greater risk than, than white Americans, when we put that up against the fact that the police generally do not follow their training, or when confronting people who are emotionally disturbed and that the police tend to use more force in dealing with black people than with white people. We see that the Harbison case is merely one example of a general systemic problem in the United States, a problem which needs systemic solutions to overcome, including economic solutions, race based training solutions, and the change in constitutional law by the Supreme Court. Thank you.

Ria Julien  28:30

Thank you, Attorney Avery, professor Avery. It’d like to call attorney Kyle Brazile. Mr. Brazile, please confirm your name.

Kyle Brazile  28:43

Good morning. Kyle Hamilton Brazile.

Ria Julien  28:47

Do you promise that your testimony to Commission of Inquiry will be true to the best of your knowledge and belief?

Kyle Brazile  28:53

I do.

Ria Julien  28:54

You may proceed.

Kyle Brazile  28:57

Thank you. And it’s an honor to be here and to speak with you about these issues. I hope I can bring a context that’s helpful to provide an overview of the law, the application of the law, and perhaps some angles where we can change some of the issues that are going on. My background, I have a political science, social science training from University of Chicago, and of course I am an attorney practicing. And I have done research and read and been fascinated, interested in done a lot of work as it relates to the area of legal access and justice and how legal access and justice and education access, intersects with poverty. And so it is an honor to be here today. And I share with you all and if you all,  can you all please confirm you see the slides that are up?

And so I wanted to provide a quick overview of some of the case law here. In particular, there’s a specific Fourth Circuit case that’s become seminal in how the policies have been enacted. And some of the laws have been enforced. There are specific North Carolina statutes that Mr. Adams is, has already talked about. And I want to go through them briefly. And then there are selected policing policies. But in this analysis, excessive force and overlapping areas of law, there are many angles to go down. I choose two here today, in addition to the statutes discuss the Fourth Amendment, as well as the qualified immunity, which is a defense that we often see. But in addition to that, of course, we have the Eighth Amendment, which is geared around unfair, cruel and unusual punishment. There’s the 14th due process amendment, we have state statutory statutory law that may include wrongful death claims, common law assault. So there are many, many things that we could go through and discuss today.

But I think what’s most important here, as we discussed this, the hardest thing is that there is a case that is specific and really applicable to the Harbison case. Timing is important as well, Mr. Harbison passed in November of 2016. This case, Armstrong versus the village of Pinehurst was a case that came through North Carolina to the Court of Appeals for the Fourth Circuit. And it was a case that was decided in January of 2016, shortly before Mr Harbison was killed. The important parts to realize those, that of course, the intersection here is mental health issues, and also have a taser being implemented and the death of the victim. In this case that now informs a great deal of the research and a great deal of the policies that are implemented within the state of North Carolina. Mr. Roland Armstrong who suffered from bipolar and paranoid schizophrenia, his sister had convinced him to seek treatment at a local hospital. She had, he had told her that he, for example, some of the issues mental health issues that he was suffering from, he was trying to poke holes through the skin on his legs to let the air out and she wanted him to seek help. During the evaluation, he left the ER he eloped from the ER, the doctor at the time had determined and made a decision to admit him to the hospital and to do involuntary commitment of Mr. Armstrong based on him being a threat to himself and there was an analysis the doctor did.

He did not identify that Mr. Armstrong was a threat to anyone else, only that he was a threat to himself. The police arrived as he was wandering across the road in the intersection. He resisted the officers’ orders to comply. And what’s important to note is that he was then surrounded by three officers, his sister and two security guards from the hospital so there were six individuals around him. After wanting to let go of a post he had grabbed on to and was holding, a post, an officer deployed a taser five separate times over two minutes. During a struggle Mr. Armstrong complained of being choked. And after he was shackled, he’s still resistant as he was on the ground after he was shackled. His hands and legs were handcuffed and his legs were caught. He became unresponsive and was later pronounced dead after admission to the hospital. The family sued the officer involved, they sued the village of Pinehurst, and the lower court says that because of qualified immunity, the officers were not liable. The fourth amendment objective, as this went up to the to the appeals court, the appeals court determined that there was excessive force in this matter. And the analysis that they turn to for this excessive force. Was that analysis underground, a three prong analysis, wherein looking at the Fourth Amendment analysis, which of course, the Fourth Amendment is geared towards unreasonable searches and seizures of the individual. In this case, the objective standard is to look at the severity of crime. Examine the extent to which the suspect poses an immediate threat to the safety of the officers and to others, and consider whether the suspect is actively resisting arrest or attempting to evade arrest by flight. And then through that analysis, it’s viewed with an eye toward proportionality of force in light of the circumstances.

The court held that this was an instance of excessive force. The deceased in this case, Mr. Armstrong, he did not commit a crime. He was assuming the commission of crime is a proxy for potential dangerous individual. And so as the courts look at the severity of the crime, they are saying, hey, what is the crime? And how is this showing that there’s a potentially dangerous individual? And they look at factors of mental illness, illness, analysis, parts two and three, an examination of the extent to which the suspect poses an immediate threat, and the consideration whether the suspect is actively resisting. At the time he was tased, Mr. Armstrong was holding on to a pole, he was no longer in the roadway, he was no longer crossing the street or attempting to cross the street. He was simply passively resisting, if you will. And so in looking at the proportionality, in relation to this static impasse that they were at, the level of force was not objectively objectively reasonable. Similar, tasing and not giving a person an opportunity to comply, with a case out of the Sixth Circuit, where it was held that simply not giving a person the opportunity to comply is not reasonable. The court went on to explain that, of course, the taser is meant to extract excruciating pain. And the manufacturer during this court case even stated that their use may, the tasers use may not be effective on emotionally disturbed persons or others who may not respond to pain, in mind body disconnect. In short, it is excessive to use a taser to control of target without having any reason to believe that a lesser amount of force or verbal command could not exact compliance. And so even though it is clear here in the court agreed that this was excessive force, there was an immunity clause. The qualified immunity clause shields government officials from liability for civil damages provided that their conduct is not finally clearly established statutory or constitutional rights within the knowledge of a reasonable person.

And so to tease this point out of qualified immunity, there, it’s important to realize that they are looking at the light of pre existing law, and the unlawfulness must be apparent. And so timing here is crucial. When the court ruled in 2016, they argued, and they agreed that at that time in 2016, when the case was before them, this seemed unreasonable. But their standard had to apply, what was reasonable in 2007, when this incident occurred, May of 2007. And so even though it was a violation of rights, there’s qualified immunity, because there is conclusion that this was not settled at the time of the incident in May of 2007. And for that reason, the type of accountability that pushes conduct to become reasonable, it’s established the standards of statutory rights. And so this important doctrine of qualified immunity, that looks at what the officers saw, in what the officers have been trained at that time can be pushed. And so because qualified immunity at 2007 was unsettled, the usage of a taser at that point was unsettled case law and unsettled policy. There was qualified immunity. And of course, these officers, they were not held liable. North Carolina law has statutes of course, as Mr. Adams said earlier, on use of force in arrests. It’s subject to the provision of subdivision to where to the extent that the officer reasonably believes it’s necessary. An officer may use force to prevent the escape from custody or to effect an arrest of a person who he reasonably believes, has committed a criminal offense unless he knows that the arrest is unauthorized, or to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape. So this is the justification for the use of force.

The justification for the use of deadly physical force upon another person can be applied when the officer seeks to defend himself or third person from what he reasonably believes to be the use or imminent use of a deadly force to effect an arrest or to prevent the escape from custody of a person who he reasonably believes is attempting to escape by means of a deadly weapon, or who by his conduct or any other means indicates that he presents an imminent threat of death or serious physical injury, and to prevent the escape of a person from custody imposed upon him as a result of a conviction or a felony. And so the first statute looks specifically at in general, the use of force and the justification of the use of force. The second prong here looks at the use of deadly force. And so clear in the statute, and clear as a carryover from case law that we saw, in the case presented, it is how the situation appears. It’s a use of force required as reasonable necessity. And it is the officers perspective stemming from that.

There are multiple policies based off of the sheriff’s departments and throughout the counties of North Carolina, as you all know, and of course throughout the country, as well as policies for city officers. And so unfortunately, we were unable to find the policies related to Henderson County. But did find two policies that clearly stem from the case law and from the statute, the use of force and weapons policy for the Raleigh police department. It’s just one example of policy implementation, the officer must only use that force which a reasonably prudent officer reviews under the same or similar circumstances. And we also see here objectively reasonable standard, again, as we’ve seen before, and this term means that in determining the necessity for force, then the appropriate level of force, the officer shall evaluate each situation in light of unknown circumstances, but not limited to the seriousness of the crime, the level of threat or resistance, and the danger to the community, which is the three prong analysis that we saw before, which is a carryover from earlier case law, Graham. We also have the use of force and weapons policy. And in particular, the conducted energy device or the taser. And so really policy, and similar to some of the other policies, we found, requires that the use of force be followed with the report that supervisors are required to respond and ensure that photographs of the activation area and officers and suspects injuries are taken.

And so a portion of, going back to Mr. Harbison in this case, and some of the information that we do not have, what’s clear in these policies is unclear from case law and other issues that are presented in this case. We do not know where Mr. Harbison, where the contacts went to his body. We don’t know how long he was tased, how many intervals, you know, how many officers implemented the tasing device. And so there are so many unknowns, but typically there are policies, which not only say this is how an officer must behave, but also when they should not be used. And so for example, the Raleigh police department they say, conduct energy devices or tasers should not be used when the subject is only offering passive resistance, which is similar to the Harbison case. So the earlier case that we saw on Armstrong, case law, it’s clear that even though he had qualified immunity, along the other end, it was excessive force. And so what’s been passed down throughout the state now is that it cannot be used for passive resistance or as a punishment in defense of verbal threats alone, on pregnant women, on handcuffed persons, when a subject is in physical control of a vehicle, and so in general, there are limits to when officers should and cannot use the taser device and similarly, we see this across the board and this is another example for the Durham police department.

Ria Julien  44:48

I would like to break in with just an update about the time. It is 9:45 Eastern time. We have five minutes left in the hearing. If you would like to wrap up your presentation to allow a few minutes for questions.

Kyle Brazile  45:03

Absolutely, I will. Thank you.

J. Denton Adams 45:09

At this point, let’s go ahead and open up for questions.

Ria Julien  45:19


Niloufer Bhagwat  45:27

May I address the question to attorney Michael Avery? Can you hear me?

Michael Avery  45:34

Yes, I can.

Niloufer Bhagwat  45:38

You have given us a statistical figure that 27% of African Americans live below the poverty line. And you have also given us relevant figures, which establish beyond doubt that they are the victim of the use of brutal force, including from the use of weapons like tasers, etc. And even when they suffer from mental health conditions, what I would like to ask you is, is it at all possible to remedy the situation without economic policy in the form of reparations to the community, living below the poverty line, and middle income, African American citizen, to restore the concept of equality before the law?

Michael Avery  46:46

My personal opinion is that reparations are necessary in order to deal with the great wealth imbalance in the United States. Wealth imbalance that goes far beyond the income injustices in this country. And as you know, there are many systemic reasons for that. having to do with, for example, access to mortgages in order to buy a housing, which has deprived African Americans of that source of wealth accumulation, which is most useful to the vast majority of whites. So yes, I think that it’s hard to say that we could solve this problem just with better regulations on police, or even better court decisions on police. Although both of those are necessary. I think we need underlying changes in the structure of our society is, as you suggest.

Ria Julien  47:51

Commissioner Jilani, there’s a moment for at least one question by you, if you wish,

Hina Jilani  47:58

I just want to first thank all the three attorneys for enlightening us on many legal issues that, at least in my mind, I was not very clear about and thank you very much, all the attorneys for making us more clear on the especially on the standards for the use of force or the use of deadly force. And that helps us a great deal to make an objective assessment, not just of the cases that you have brought before us, but also generally, on what recommendations would be necessary, because as Commissioner Bhagwat has said, repeatedly made comments on the whole issue of inequality. And for us, it would be very necessary to see not just the law itself, but also the social circumstances that have to be changed in order to give real equality before the law. So these are, I think, important points that you have made. I also would leave you with one question. And you may answer that or we can, you know, we’ve already got enough from you to be able to make some kind of sense out of that.

The question here is of standards. Of course, we will look at the international standards. And most of us know that and we are familiar with the UN Human Rights system and the special rapporteurs who’ve been laying the standards and the normative development that has taken place over the years. But I think it’s also important for us to understand that these are standards that may or may not be universal in the United States. So we will be looking at what the Supreme Court has said in particular, because that’s where, finally, the state speaks, as the standards are, what the standard should be, and I thank you, attorney for pointing us to some of the comments that the Supreme Court has given and where the failures are in clarifying those standards, and applying those standards to the situations that we understand happen every day in this country. Thank you very much.

Michael Avery  50:19

Unfortunately, We’re now entering a period of time when the Supreme Court is not likely to be of much help in this regard. It’s dominated by conservatives, by conservative members of the Federalist Society. And a lot of us civil rights lawyers in the country think that instead of going to the Supreme Court, in the near future, we may have a better chance with state legislators to try to improve the standards on the state level. Colorado earlier this year passed a bill providing a state Civil Rights Act which eliminated qualified immunity, which was spoken about by my colleague, and there’s a bill currently pending in New Mexico that would do the same thing. And many of us are trying across the country to get as much support for this kind of legislation on the state level as we can, because unfortunately, there are dark days ahead in the United States Supreme Court.

Hina Jilani  51:21

Thank you, Mr. Avery. I think as a human rights lawyer, I share your views about my own Supreme Court as well.

Niloufer Bhagwat  51:29

I may add my voice, to the general discomfiture that we are facing with many of our supreme courts.

Ria Julien  51:39

Thank you, commissioners, and thank you to all the witnesses, to the attorneys, Avery, Brazile and Adams for being with us today. This concludes the hearing of the case of Richie Harbison. We will now have a short break here and will resume on the hour with the case of Michael Brown. Thank you.