Court documents provide details of a “fogging” incident for which two Richmond police officers each face three misdemeanor charges of assault and battery, but also diverging accounts of what police faced on the second night of civil unrest in Richmond last year.
Attorneys representing Mark Janowski and Christopher Brown — the two officers who sprayed O.C. fogger into the open window of a car containing three females, ages 17 to 19, stopped in the 200 block of North Belvidere Street — intend to argue that the officers are immune from criminal prosecution as their actions were “absolutely and unquestionably reasonably necessary to disperse and quell the riot,” according to documents filed last month.
The prosecution disputes this characterization and argues that the officers exceed their authority.
The defense team describes the night of May 30 into May 31, 2020, as “an ongoing war waged against the city of Richmond and its law enforcement officers” in court documents filed ahead of a hearing initially set for Wednesday, which was continued at the last minute. A date for a new hearing will be set Monday.
“Evidence presented by officers tasked with quelling that riot at the upcoming hearing will paint the picture of a city in the midst of the closest approximation to war that many of those former soldiers had witnessed,” wrote Peter Baruch and Edward Nickel, defense attorneys representing Janowski, in a plea of immunity.
“The court will hear officers testify that the most notable difference between the May 30-31, 2020, riots and being in active combat was the inability to retreat and the knowledge that reinforcements were not coming,” wrote attorney Jacqueline M. Reiner, who represents Brown. The attorneys lumped the three women who were fogged in with the “rioters” that set fire to various buildings and vehicles across the city that night.
But Richmond Commonwealth’s Attorney Colette McEachin and her deputy, Michael Hollomon, said in the response to the officers’ pleas that “the victims in this case were not ‘rioters’” and were not “unlawfully assembled.” They were stopped at a light — the third or fourth car in line — and were not a threat to the officers, but were yelling obscenities at them, according to the prosecutors.
“It is worth noting that the Commonwealth is not unsympathetic to the conditions under which law enforcement officers were working on the night in question,” Hollomon wrote. “In various locations in the city of Richmond, riotous activities took place and massive damage was done to multiple businesses and private properties. There were many instances where riotous individuals were engaged in acts of violence and likely would have engaged in further acts of violence had Richmond police officers not acted heroically in a number of instances to quell such violence. However, contrary to the contentions of counsel for the defendants, the case at bar is not one of those instances.”
The incident for which the officers were charged took place at about 3:45 a.m. May 31, 2020, and was captured on police body-worn cameras.
A group of officers, including Brown and Janowski, congregated on the sidewalk and parking lot along North Belvidere Street between Broad and Grace streets “talking amongst themselves, some were laughing, and observing vehicular traffic,” Hollomon wrote.
Prosecutors said the traffic was heavy and slow moving, but operating in compliance with traffic laws. The defense team said the vehicle had “stopped in the street creating a threat to public safety” and refused “lawful police commands to disperse.”
Prosecutors said that no commands were given to any of the cars and that they appeared to be leaving the area anyway.
“One officer in the group of officers shouted to the victims, ‘Why don’t you get out of the car?’ Another officer in the group then said, ‘Spray ’em. It doesn’t matter. F--- it, spray ’em,” Hollomon wrote in court documents. “At that moment Brown and Janowski left the sidewalk, walked across two travel lanes and approached the passenger side of the victims’ vehicle. As they approached the vehicle, officers can be heard yelling, ‘Get the f--- out of here, get out of here,’ despite the fact that the victims were stopped in traffic with a stopped vehicle immediately in front of them.
“As Janowski approached the victims in the vehicle, he pointed his O.C. Fogger canister at the open passenger window just a few feet away and sprayed a burst of O.C. fog into the open window at the heads and faces of the victims,” the document continued. “Brown immediately followed after Janowski, pointed his O.C. Fogger cannister into the open window, and sprayed another burst of O.C. fog at the heads and faces of the victims.”
O.C. is a type of pepper spray.
Prosecutors plan to argue that this behavior violates the Richmond Police Department’s policy for using the foggers. RPD’s general order, which Hollomon attached to the document, states that “O.C. Fogger may be deployed when there is an imminent threat of injury to the officer or citizen.” It goes on to say that before spraying, “the officer shall give ample warning when possible” and “O.C. Fogger should not be directed at a person’s face.”
The policy says O.C. fogger “can be very hazardous” in confined areas and “should only be considered as an option under the most extreme circumstances, after the officers have carefully considered all other options, including disengagement.”
Hollomon wrote that the officers’ “actions exceeded both legal and administrative authority. As such, their conduct was outside of the scope of their employment.”
This is the essential argument on which the court must decide: whether or not the officers’ actions were within or outside of their duties as law enforcement officers at the time.
The defense team cites a Virginia law that “provides immunity for police officers tasked with quelling an unlawful assembly and/or riot,” Reiner wrote.
In rebuttal, and citing the same law, Hollomon wrote: “Of the five elements that the court is required to find before granting the defendants immunity from criminal prosecution under Virginia Code Section 18.2-412, only the first element can arguably be found to having been satisfied by the facts of this case. The facts and evidence fall well short of satisfying any single one of the remaining four elements, let alone all of them. Therefore, the court should find that the actions of the defendants under the circumstances do not meet the required threshold for the granting of immunity.”
But the protection that the state code provides to officers “has been so effective in this purpose that there is no appellate case law in Virginia where it has documented that the immunity was not upheld,” Baruch and Nickel wrote in their filing.
Multiple attempts to roll back immunity for law enforcement failed in the General Assembly last year. But those measures would not have come into play in this matter as they created ways for people to sue officers civilly for damages, rather than criminally, for unlawful acts of force.
The police department came under criticism for its liberal use of chemical munitions throughout the near nightly protests that lasted months. On June 1, without warning, police tear-gassed a crowd of peaceful protesters. Several lawsuits have been filed, including a petition from the ACLU of Virginia to curb the use of nonlethal force, including tear gas and pepper spray, that was ultimately struck down by the same Circuit Court judge who will rule in this case.
More than 300 protesters were arrested. But just the two officers have been charged.
Hollomon and McEachin plan to focus on this single incident rather than the chaos that ensued throughout the city before and after the fogging.
“Any evidence that defendants seek to introduce about the conduct of other civilians, at other times, in other parts of the city, is irrelevant to the issue at hand and should be inadmissible,” Hollomon wrote in a motion.
But the defense team wants to broaden the scope of the hearing to establish the officers’ state of mind that night. Reiner wrote in one document, to which she attached Brown’s time card, that he had worked 17 hours of what would be a 19-hour shift when the fogging incident occurred. It appears that Brown was called on his regular day off, according to the attendance report, and had already worked 54.5 hours in the four days leading up to the incident.
They intend to call as an expert witness Dr. Byron Greenberg, a licensed clinical psychologist, who “is expected to testify that based on the totality of the circumstances that the officers involved in the incident at bar conducted themselves both consistently with police training and as ought to be expected in light of both.”
Prosecutors have filed a motion to prevent the psychologist’s testimony, saying it is the for court to decide if the officers acted reasonably.