After Metropolitan Police Department Sgt. Enis Jevric shot and killed An’Twan Gilmore—the second of three shootings D.C. officers committed in roughly a week—Chief Robert Contee promised a thorough investigation.
That investigation will determine whether the sergeant’s actions were justified and whether he’ll face any administrative repercussions. But Loose Lips may not be allowed to see the investigation report, and neither will you.
In late May, LL asked MPD for the complete investigative reports into the deaths of D’Quan Young, Jeffrey Price, Marqueese Alston, Eric Carter, Deon Kay, and Karon Hylton-Brown, all of whom died at the hands of D.C. officers. It took the department nearly three months to issue a blanket denial, well past the 15-day deadline required by law. MPD cited three exemptions to FOIA that are intended to protect the right to a fair trial and personal privacy.
“Because some or all of the subject investigations are pending in litigation … no additional records can be released under a FOIA request absent authorization and/or a privacy waiver from the decedents’ families and/or their legal representatives,” the denial letter says.
In effect, MPD is withholding at least some of the records based on the possibility they might get sued in the future. The denial letter does not distinguish between the fatal incidents that are currently the subject of litigation and those that are not. There are no lawsuits filed in the deaths of Young, Carter and Hylton-Brown, according to the Office of the Attorney General.
If MPD’s claimed exemption is allowed to stand, “that would mean almost any law enforcement information could be withheld because the agency could say, ‘you never know, we might get sued,'” says Tom Susman, president of the D.C. Open Government Coalition. “That seems to me to be a clear abuse of the exemption and one that would provide a limitless exemption for avoiding disclosure.”
LL asked Contee in an email to reconsider his agency’s decision. MPD spokesperson Dustin Sternbeck replied that the agency’s response is appropriate because the records LL is seeking “had been prepared without these protections in place for cases that are currently pending civil litigation.”
“In everything we do, including the creation of a comprehensive and publicly available investigatory report, we strive to exceed expectations,” Sternbeck wrote in an email. “While we ask for patience, our pledge to the community is that we will fulfill our commitment to provide transparency into these critical investigations without jeopardizing the personal privacy of involved witnesses. Once completed, and consistent with current MPD open data content, the investigative information will be made publicly available on the agency’s website for all to see.”
MPD could not immediately confirm whether all six deaths are involved in litigation.
LL also appealed the decision to the Mayor’s Office of Legal Counsel. But the office has a backlog of appeals and LL doesn’t expect an immediate response.
Contee, in his response to a D.C. Auditor’s report released in March on fatal police encounters in 2018 and 2019, said he agreed with each of the auditor’s recommendations and “will begin working on implementation immediately.” One recommendation said MPD should release its investigative reports on fatal encounters with the public to the public.
That transparency is important given the auditor’s findings, which indicate that thoroughness is a generous characterization when it comes to MPD’s willingness to scrutinize its officers’s use of deadly force. The report, which the auditor produced with the help of the Bromwich Group, identified serious flaws with MPD’s investigations into the deaths of Young, Price, Alston, and Carter. Interviews with most of the officers involved in Alston’s death lasted less than 10 minutes, for example. In Price’s death, internal investigators determined that any policy violations were “unfounded,” which according to MPD’s definition means “there are no facts to support that the incident occurred.” But the collision between Price’s dirt bike and Officer Michael Pearson‘s cruiser obviously occurred, and Price died as a result.
The review of those four cases was a follow-up to a 2016 report from Bromwich that concluded MPD’s investigations into officers’ uses of force had deteriorated since the Department of Justice mandated reforms in 2001. In the March 2021 report, Bromwich said the issues they identified in 2016 remained. “Indeed, they have grown substantially worse,” he writes. “Our review of the four 2018-2019 fatal use of force cases has shown that those weaknesses persist, and that generally MPD has not recognized them and appears to resist or be unconcerned with remedying them.”
In Kay’s case, rather than reviewing MPD’s work after the fact, Bromwich and the audit team monitored the investigation in real time and provided input. The team described the investigation as “professional and thorough,” but still identified holes.
“I’m sorry the department hasn’t lived up to the promise the chief made earlier this year on transparency on officer-involved fatalities,” D.C. Auditor Kathy Patterson says in an email to LL regarding MPD’s FOIA denial. “Chief Contee’s letter to ODCA in March said MPD agreed with our report recommendations and that included public release of Internal Affairs investigative reports and Use of Force Review Board conclusions in each and every case. Transparency helps all of us—it helps grieving families. It helps the community understand not just what happened on the street but how the department did its evaluation. And it certainly encourages every member of the department to hold themselves accountable.”
The auditor’s office has an agreement with MPD to monitor its investigation into Hylton-Brown’s death, which has not begun. But no such agreement is in place for subsequent fatalities.
Efforts to increase police accountability and transparency made some significant progress in D.C. this year. The Council approved a sweeping reform bill that requires MPD to release body camera footage of serious and fatal uses of force and identify the officers involved within five days.
And a bill scheduled for a hearing in the Committee on the Judiciary and Public Safety in October would make officers’s disciplinary records public. The bill does not currently apply to MPD’s internal investigations of fatal uses of force.
That same bill creates a deputy auditor for public safety within Patterson’s office. The deputy auditor would have the authority to monitor MPD’s internal investigations and make recommendations on the department’s policies and practices, among other responsibilities. The Council included funds for the position in the 2022 budget. Patterson estimates the first-year costs at around $1.2 million, which includes the deputy auditor and eight staffers.
D.C. police officers have shot 10 people this year, according to the Washington Post. Four of them died.
Gilmore was shot and killed last Wednesday as he drove away from officers on New York Avenue NE. He had fallen asleep behind the wheel of a BMW. Officers, who reportedly saw a gun tucked into Gilmore’s waistband, attempted to wake him up by tapping on the window, video of the incident shows. Gilmore awoke, and the car lurched forward, stopped, and then drove off. Jevric, who was holding a ballistic shield, fired several shots, killing Gilmore.
George Watson, the third man shot by police in about a week’s time, was reportedly seen holding a “long gun” on his balcony when police were called.
It turns out, Watson was holding an Airsoft gun that fires plastic pellets using compressed carbon dioxide. The Post reports that police spoke with Watson and tried to de-escalate the situation. One officer, who has not been identified, fired when Watson emerged with the gun and pointed it at officers, according to the police account.
The United States Attorney’s Office for D.C. will review these cases to determine if officers should face criminal prosecution, but it’s rare that cops in D.C. are charged in fatal incidents.
The USAO is also considering criminal charges against three officers who struggled to arrest a man in Southeast D.C. One of the officers repeatedly punched the man in the face while the other two tried to cuff him.
After prosecutors decide whether or not to bring charges in these cases, MPD will begin its internal administrative investigations. Despite Contee’s nods toward transparency it remains to be seen whether the full investigative reports will see the light of day. Until then, the system where D.C.’s police are allowed to police themselves without public scrutiny will continue.