City Paper is not for tourists
The Office of Police Complaints will neither confirm nor deny the existence of misconduct allegations against all but one of the 21 officers recently identified for their roles in killing civilians. OPC won’t even release the raw number of complaints filed against each of the 21 officers. Doing so would violate their personal privacy, an office representative wrote in response to LL’s Freedom of Information Act requests.
A similar request filed to the Metropolitan Police Department, which also asked for any accolades the 21 officers received, was denied in full.
The D.C. government regularly hides behind the “personal privacy” exemption to D.C.’s FOIA law. In the balancing act between the public’s right to know about officers’ actions and officers’ rights to privacy, D.C. often sides with the cops.
In late July, Mayor Muriel Bowser was forced to identify the officers involved in fatal civilian encounters after the D.C. Council passed an emergency police reform bill. The new law, which is in effect temporarily and will receive a full hearing this fall, requires the release of officers’ names and body camera footage for each fatal incident dating back to October 2014, when the District’s body camera program began.
The list of 21 officers spans 10 fatal encounters, with the earliest incident occurring on June 27, 2016. Officer Antoine Brathwaite is the only officer on that list with a sustained OPC complaint, according to the agency’s response to LL’s FOIA request. OPC found that Brathwaite harassed a woman who he arrested without probable cause, according to records provided by OPC. He also referred to her as a “rude bitch,” when he thought she was out of earshot, but his comments were caught on body camera video, OPC records show.
MPD declined to make Brathwaite available for an interview or to say what discipline he faced as a result of the sustained complaint. But a 2018 letter obtained by LL explains that the department “has implemented corrective action, in the form of Education Based Development,” and then closed the matter.
In August 2016, Officer Brathwaite and his partner, who remains anonymous in OPC records, approached four people, one of whom was sitting in her car with the door open. Another person held a beer in a brown paper bag, a third held a white styrofoam cup, and a fourth stood with a liquor bottle near his feet.
The woman sitting in her car, who ultimately filed the complaint against Brathwaite and is not identified in the publicly released OPC records, said she had been drinking ice water from a cup that sat on the car’s roof.
As the officers approached, Brathwaite asked everyone for identification. The woman, according to Brathwaite, “snatched” her ID when he handed it back. She says she did not “snatch” the ID card; rather, she “took it with authority,” according to the records provided by OPC.
Brathwaite asked the woman if she had an attitude, to which she calmly responded, “Yes,” according to the OPC investigator. Brathwaite then handcuffed the woman and arrested her and two of the other people she was with for possession of a container of alcohol. The fourth person was given a citation. Body camera footage reviewed by the OPC investigator shows that neither Brathwaite nor the other officer checked the woman’s cup sitting on top of the car as she repeatedly asked them to do.
At one point during the encounter, when Brathwaite and another officer had returned to his police cruiser, he said, “Don’t nobody snatch nothing from me, not even my sister snatch something from me,” according to the OPC investigator’s description of the body camera footage. Brathwaite also called the woman a “rude bitch,” and said she “done fucked this up.”
The OPC complaint examiner, who is typically a lawyer hired on a contract basis to review police complaints, concluded that Brathwaite and his partner did not have probable cause to arrest the woman.
“Because [Brathwaite] questioned [the woman] about her attitude immediately before he proceeded to arrest her,” the complaint examiner writes, “she was more likely arrested for appearing to have an attitude.”
Still, “the BWC footage does not demonstrate that [the woman] had an attitude and even if she did it is not a criminal offense,” the complaint examiner notes.
Prosecutors ended up dropping the charge against her.
Brathwaite is a named defendant in at least two active lawsuits. The first, filed in 2015, stems from his involvement in Elijah Jackson’s arrest in May of 2015.
Jackson had rear-ended a moped on Florida Avenue NE around 1:30 a.m., according to court filings in his lawsuit. The driver demanded cash from Jackson, who had none, so he drove away. When police later stopped Jackson, a scuffle ensued during which Jackson says officers slammed his face into the side of his car, maced him, and punched him.
Brathwaite and his partner arrived after the initial confrontation, and though Jackson could not see because of the chemical irritant the officers sprayed in his eyes, he believes Brathwaite participated in the physical altercation.
Brathwaite rode with Jackson to the hospital, according to court records, where he was diagnosed with a broken nose and herniated discs in his neck. On the ride there, Jackson was spitting in the ambulance because of the mace, his attorney Meredith Kenner says. According to Jackson’s recollection, Brathwaite told him, “If you spit on me, you think that was bad, I’ll fuck you up even more.”
Once at the hospital, Brathwaite told the doctor that Jackson had been maced, but did not mention any other trauma, the lawsuit says. Jackson became unresponsive at least twice and was eventually taken to the ICU. His physician later called an MPD sergeant, who told the doctor that “officers punched Jackson in the face once, sprayed him with mace, and subjected him to a ‘tactical takedown.’”
Brathwaite’s second lawsuit stems from his fatal shooting of Timothy Williams in 2017. The wrongful death suit filed by Williams’ family accuses Brathwaite and his partner, Officer Patrick Bacon, of using excessive force and violating Williams’ civil rights. The Office of the Attorney General for D.C., which is defending the District in the suit, argues that the officers acted out of self defense and has asked a judge to dismiss the case.
Although body camera footage exists, Williams’ family asked that it not be publicly released, as the temporary police reform law allows.
The U.S. Attorney’s Office for D.C. declined to file criminal charges against Brathwaite, but his name is not included in prosecutors’ announcement of the investigation’s conclusion. Williams’ family’s attorney did not return a call and email seeking comment.
But back to OPC’s FOIA response. LL requested all complaints and subsequent investigations for each of the 21 officers involved in fatal incidents, and the number of complaints against each officer. OPC responded with the sustained findings against Brathwaite and denied the rest of the requests, citing the officers’ right to privacy.
In effect, OPC’s response means the agency believes it can only release certain details, including officers’ identities, for sustained complaints, and only if the requestor first identifies the officer.
Disclosure doesn’t work in reverse, OPC says. LL cannot, for example, provide a list of sustained complaints, such as the 10 investigations completed in 2020 and published on OPC’s website, and ask for the officers’ identities.
OPC Director Michael Tobin says FOIA and MPD’s collective bargaining agreement limit the kind of information the office can release.
“I don’t want to end up in court because I’ve released something we’re not supposed to,” he says.
Up to a point, Tobin’s assertion is correct, says Thomas Susman, president of the DC Open Government Coalition. The agency could be stuck defending a lawsuit if it releases too much information. The DC Police Union recently tried a similar tactic to prevent the District from identifying officers involved in future fatal incidents. But contracts, such as a collective bargaining agreement, cannot trump the law, Susman says.
In order to get a complete understanding of all the MPD officers that OPC found to have committed misconduct, theoretically a requester would need to submit the names of all 3,600 sworn members.
OPC’s interpretation of FOIA also hides the identities of the six officers who, as OPC’s 2019 annual report says, received 10 complaints each, the five officers who received five complaints each, the 13 officers who received four complaints each, and the 35 officers against whom members of the public filed three complaints each.
It seems to LL that the public might want to compare the names of those officers to the names of the three officers identified in OPC’s 2018 annual report who received six complaints, the three officers who received five complaints, the 16 officers who received four complaints, and the 41 officers who received three complaints.
“Especially those whose complaints may have involved use of force—that’s precisely the stuff that should be in the public domain,” Susman says. “The bottom line is it seems like it’s an obstruction of access rather than facilitation in keeping with what the [FOIA] law requires.”
Tobin agrees that the interpretation of FOIA law in the District is too restrictive for police records. He says he supports tipping the scales more in favor of the public’s interest when it comes to disciplinary records specifically, and notes that New York recently repealed a law that kept police disciplinary records secret.
“It would add a lot to community trust if the community was aware what kind of discipline was being handed out to MPD officers,” he says. “Right now, I don’t think we strike a very good balance between those things.”