Did Virginia police mislead investigators about deadly hospital tasing?

Updated

Virginia police misinformed state investigators about their use of force against Linwood Lambert, a man who died after officers repeatedly tased him in a hospital doorway, according to files from a state criminal investigation.

The records, obtained exclusively by MSNBC, offer the first comprehensive look inside the open criminal inquiry into the 2013 incident. They may also provide new grounds for potential charges against police, according to some legal experts. 

The inquiry into the tasing has remained open for so long – two and a half years and counting – that Virginia’s governor, attorney general and U.S. senators recently took the unusual step of urging the local prosecutor to finish the job.

The records offer new clues about that lengthy process, revealing a prosecutor who initially leaned against charges but sought a review of that call; state investigators who accepted police claims even when contradicted by videos of the tasing; and State Police officials increasingly pushing for a decision by the prosecutor, privately calling her “indecisive” and “unsure” about “what to do.” 

In a new response to MSNBC, the prosecutor, Tracy Quackenbush Martin, said those state investigators “left questions unanswered that must be answered.” She stressed that while the investigation gathered facts, she is working “to assign value to those facts and draw legal conclusions.”

Since MSNBC first reported video of the tasing last month, there has been widespread criticism of the repeated use of tasers on Lambert, who was handcuffed and initially taken into custody for medical care. 

After Lambert broke a police car window and ran towards a hospital in South Boston, Virginia, three officers discharged their tasers 20 times, despite federal guidelines against repeat tasings and local rules against tasing a restrained suspect. The officers have denied all wrongdoing in a related civil suit. 

According to the newly obtained investigation files, Cpl. Tiffany Bratton, who discharged 15 of the tasings, told investigators when she tased Lambert, he “was lying on his back” and he “grabbed the end of the Taser and was pulling it.” She “stated this probably happened several times,” according to investigators.

“If an officer credibly stated that a suspect was trying to get the Taser several times, than that would certainly justify elevating the force used by the officer.”
Kendall Coffey, a former federal prosecutor
But the video does not show Lambert ever grabbing a Taser.

In addition, his hands were cuffed behind his back throughout the tasing – making such an action physically unfeasible.

Bratton also claimed the repeated tasings were needed because after Lambert was tased, he kept getting back up – four times in all.

A state investigator writes that once Lambert was first tased in the hospital doorway, Bratton said after about “five seconds” he “got back up.”

Then after a second tasing, she said “Lambert hit the ground then right back up.” After a third tasing, Bratton said “Lambert hit the ground then got right back up.” And after a fourth tasing, she said after 5 seconds – the standard length of a tasing – “he got back up.”

Another officer, Clinton Mann, told state investigators Lambert “jumped up” once after a tasing.

On the video, however, Lambert is never seen getting himself up on his feet after the first tasing.

Instead, the video shows his body went stiff and dropped after the first tasing in the hospital doorway. Then he mostly rolls around on the ground, according to the video, and asks the officers to stop. While he is on the ground, they also shackle his legs.

Bratton’s claims to investigators, now public for the first time, are legally significant for two reasons.

If prosecutors believed Lambert did repeatedly grab an officer’s weapon and get up after tasings, that alleged conduct might justify additional tasings.

“If an officer credibly stated that a suspect was trying to get the Taser several times, than that would certainly justify elevating the force used by the officer,” says Kendall Coffey, a former federal prosecutor. 

So while Bratton’s claims are not supported by the video, the claims could provide an internal written record that would seem to cut against charging the officers. (There is no indication that police planned to release the video, or expected it to be made public during the 2013 investigation.)

Second, it is a crime to deliberately mislead state investigators, a separate charge that prosecutors could investigate.

“In Virginia, it’s a Class 1 Misdemeanor – it carries up to 12 months in jail – for any person to knowingly and willfully make a materially false statement to any law enforcement officer investigating the commission of a crime.”
Steve Benjamin, a Virginia defense attorney
“In Virginia, it’s a Class 1 Misdemeanor – it carries up to 12 months in jail – for any person to knowingly and willfully make a materially false statement to any law enforcement officer investigating the commission of a crime,” said Steve Benjamin, a Virginia defense attorney. 

That crime, obstruction of justice, covers “materially false statements” made to law enforcement officers “conducting an investigation of a crime.” 

The Virginia State Police, which led the state investigation into the tasing, indicate Bratton made the claims to a law enforcement officer investigating the tasing, Agent Kevin George, in May 2013.

Benjamin said a claim about “whether the suspect was lunging for a taser” is material, and prosecutors would also analyze whether it was deliberately misleading.

Coffey, the former federal prosecutor, said “if an officer states to a police authority that the suspect was resisting – grabbing a taser – at the time the suspect was handcuffed, that’s serious matter. It certainly could be considered a charge for making a false statement,” he told MSNBC.

Rod Sager, who served as a federal prosecutor in Virginia for six years, told MSNBC a false statement made to investigators can also give prosecutors wide leverage in a case. “A potential false statement is always helpful,” he said, and can be used in cross examination “should that person go on trial and take the witness stand.”

The investigation file also includes a handwritten statement from Bratton, dated the day of the incident, which claims Lambert got up three times during the tasing, but does not claim he ever grabbed her Taser. 

“Suspicious death”

While Bratton’s claims are contradicted by the videos, which show multiple angles of the entire tasing, the State Police investigation summary does not address those discrepancies. 

Running slightly over two pages, the summary provides a terse and often incomplete synopsis, apparently relying more on the officers’ testimony than the video evidence.

The summary, now public for the first time, is dated October 23, 2013 and titled “Summary of Investigation Concerning Linwood Ray Lambert, Jr., Victim Suspicious Death.” 

“There’s not much resistance you can offer — in attitude, maybe, but it’s not a resistance where he’s putting anyone in danger that would merit the using of an intermediate weapon like a taser.”
Jim Cavanaugh, NBC law enforcement analyst
It only uses two sentences to independently characterize the tasings:

“Officers utilized their tasers to subdue LAMBERT and took him back to the patrol car. LAMBERT was being uncompliant and would not stop resisting so officers used their tasers again in the rear seat of the patrol car.”

The reference to subduing Lambert does not mention the fact that officers shackled his legs before placing him in the car.

That detail is legally critical, since police rules prohibit tasing a restrained subject, and a shackled suspect is less likely to pose the kind of danger that justified continued use of force.

The investigators’ assertion that Lambert was “uncompliant” and “resisting” when put back inside the car is also relevant to the use of force. Jim Cavanaugh, a former ATF agent who reviewed the videos for MSNBC, said Lambert was largely unable to resist at that point in the car. 

“He’s shackled to the maximum already, hands behind his back and his legs shackled, and he’s in the back of a locked patrol car,” said Cavanaugh, an NBC law enforcement analyst.

“There’s not much resistance you can offer – in attitude, maybe, but it’s not a resistance where he’s putting anyone in danger that would merit the using of an intermediate weapon like a taser,” said Cavanaugh.

While some of the summary’s statements could sound like legal conclusions, the State Police documents include a generic disclaimer stating that they do not contain “conclusions of the Virginia State Police.” 

The investigation summary’s only other discussion of tasings is limited to counting the total tasings and reciting the officers’ defense of their use of force.

Tasing defense 

The report recites Bratton’s defense, noting she said “several” of her tasings “had no effect” and she “accidentally” discharged her Taser “while struggling with LAMBERT all with no effect on him.”

But the investigators do not attempt to verify Bratton’s assertion that her tasings had “no effect” on Lambert, nor whether she actually was physically “struggling with” him during the tasing – an apparent reference to her claim that Lambert grabbed her Taser.

The summary also cites a few witnesses and notes Lambert’s autopsy listed the cause of death as Acute Cocaine Intoxication. (Lambert had “less than 0.01 mg/L” of cocaine in his blood – a relatively low level that could still account for an overdose.)

While investigators had over an hour of videos showing officers taking Lambert into custody, driving him to the hospital, tasing him there and in the car, driving him to the jail, finding him without a pulse and loading him into an ambulance to return to the hospital, the summary only cites the videos once – to note their existence. 

“Videos from patrol cars and video from Halifax Regional Hospital were obtained and viewed,” the report states, “These videos document and record this incident.”

All told, the investigation summary, prepared five months after the incident, is striking for its cursory and at times incomplete evaluation of the night’s events. Investigators do not explain why all the video evidence went largely unused, or why the officers’ side of the story is recited without any evident attempt at verification.

A source with knowledge of the state police files, who did not want to be identified discussing an open case, said the files show “it doesn’t look like they investigated anything – they don’t even use the videos.”

The investigation’s contents are legally significant because, in Virginia, they provide the foundation for a prosecutor’s decision of whether to press charges. The local prosecutors, called Commonwealth attorneys, rely on the State Police for both the initial inquiry and most follow-up investigative work regarding potential misconduct by local police.

The prosecutor in charge of the Lambert case, Tracy Quackenbush Martin, told MSNBC this week that “the Virginia State Police investigation left questions unanswered that must be answered – questions that would not have been contemplated by the State Police Investigator, and that I didn’t fully develop until I had consulted extensively with colleagues,” she said.

“The State Police’s job is primarily to gather facts, and my primary job is to assign value to those facts and draw legal conclusions from those facts,” she said, adding, “I’m not going to apologize for being circumspect and thorough.”

“Appears to be indecisive”

The investigative file sheds new light on her working relationship with State Police investigators. The agent in charge of the investigation, John Rieger, kept notes of all contact with Martin, and according to previously released documents, Rieger wrote that Martin told him in May 2014 that she didn’t see a reason to charge the officers. 

In the newly obtained documents, Rieger and his team recount repeated and increasingly ardent attempts to get a decision from Martin on the case. 

In October 2014, they note an “attempt to secure a letter of declination” from Martin to close the case. In December 2014, they note an “attempt to obtain written documentation” from her regarding the “decision.”  In February 2014, they note that Martin initially declined to charge the officers, “yet never delivered a declination letter” to close the case, and in response to their attempts to get that letter, Martin “decided on an additional review of the matter by another prosecutor – that is the current situation!”

Michael Herring, a Commonwealth attorney in Richmond, was appointed at Martin’s request to assist her case, and he says his job is to offer “thoughts on what the facts suggest, and maybe investigative steps and angles to consider.”

The state investigators’ notes continue up through late 2015, noting in July that Martin “appears unsure on what to do” and “has asked” for Herring to review. On October 6, the last note in the file, they note that “although” Martin “made an earlier decision,” she has “reconsidered and is currently seeking an expert to review the case. Appears to be indecisive.”

The written notes do not specify whether investigators were concerned with Martin because they thought she was delaying the process, or because they thought she was leaning towards changing her mind and charging the officers.

In a new interview with MSNBC, Herring said Martin “is being diligent and perhaps going beyond to determine whether there’s more to the review by the Virginia Medical Examiner, or other parties, that might supplement the ME’s analysis and opinion.” 

For any charges relating to Lambert’s death, the state would likely want evidence beyond the autopsy, which noted taser wounds but listed cocaine intoxication as the cause of death. (The State Police files note that Martin and Herring sought “another medical professional” to review the autopsy and “see if they concur,” in June 2015).

Asked whether Martin is leaning for or against charges, Herring said, “I don’t know which way she is leaning now.”

Asked whether the criminal inquiry would review potential obstruction charges if officers misled investigators, Herring said he would not “be looking at that for that reason,” and that he wasn’t brought on the case “to decide whether South Boston folks lied to State Police.” 

Instead, he said his work is focused on the police conduct in the tasing itself.

Some prosecutors do pursue charges for false statements by police during investigations of police misconduct. 

When federal prosecutors indicted a Missouri police officer in a tasing incident this year, for example, two counts were for excessive force, and two counts were for obstruction of justice, for “filing a false police report” and “making a false statement” to investigators about how much force he used.

The officer pleaded guilty in September.

There have been no public indications that federal prosecutors are reviewing the Lambert case. Coffey, a former federal prosecutor in Florida, said federal officials could act if they found taser violations. “If there are clear violations of Department Guidelines, with the respect to the use of tasers,” he said, “that could be something that gets the feds very interested.”

To see the Virginia State Police files regarding the prosecutor’s office, click here

To see the original Virginia State Police Investigation summary file, see below:

Police Brutality and Virginia

Did Virginia police mislead investigators about deadly hospital tasing?

Updated