NHPD approved more progressive use of force policy while promoting head-punching officer
The promoted officer hit and pepper sprayed the unarmed man after being kicked while NHPD new use of force policy requires necessary cause.
Yale Daily News
The New Haven Police Department’s updated use of force policy has prompted city residents to reconsider the case of a police officer who punched an unarmed man during arrest last year and was promoted earlier this month.
Justin Cole was promoted to Sergeant on Jan. 18 during an online Board of Police Commissioners meeting. This promotion came a year after he was involved in allegations of excessive use of force against Shawn Marshall, who Cole arrested during a commercial eviction.
After being struck first, Cole repeatedly punched Marshall in the head until another officer intervened. The new policy, written by Captain David Zannelli and city Police Commissioner Tracey Meares, was approved by the Board of Police Commissioners last month. In response to Bill 6004 Police Accountability Act and community feedback, the policy emphasizes that the use of force must be “necessary” and “proportional” to the cause, and that police officers should employ de-escalation and mitigation techniques to the greatest extent practicable. Cole’s promotion sparked debate as to whether his use of force fit with the new policy.
“We are a community policing agency.” Zannelli said, “officers do deescalate, but that’s not going to solve every use of force scenario… And we do our best to have the policies that not only the community wants, but policies that are going to keep police officers safe.”
Does the new policy explain Cole’s behavior differently?
A Youtube video shows that after being kicked by Marshall, Cole grabbed Marshall by the neck, punched him three times in the head and pepper sprayed him. Officer Ashley McKernan intervened to stop Cole from attacking Marshall further. Security guard Jolisha Troutman, who was on the scene, shouted, “that’s not fair.” After the video circled widely on social media, an Internal Affair investigation against Cole was launched on Feb 3, 2021. After seven months of investigation, the report shows that the “the alleged act did occur, but the officers engaged in no misconduct because the act was lawful, justified and proper.” Cole was determined to be exonerated.
However, the new policy requires officers to “use only the level of force necessary to achieve legitimate, lawful purposes,” and only use it to the proportional level of threat.
“What necessary means is that the force was necessary because there’s no other alternatives.” Zannelli told the News.
According to Zannelli, during the IA investigation, NHPD brought in the use of force experts that were trained at Police Officer Standards and Training Council. The experts looked at the two hours of body camera footage and transcripts from the officers, and they decided the use of force was reasonable and not excessive.
Zannelli told the News that many people did not watch the two-hour camera footage before making the comment that Cole did not try to de-escalate. According to Zannelli and the IA report, Cole and his partner tried to appease Marshall, carried his bags out and offered to document his complaint, while Marshall’s behavior was deemed unstable and non-compliant.
“Was it necessary? Well, you know, Officer Cole was struck first. ” Zannelli said. “We have a diverse [group of use of force experts], men, women from all backgrounds, and they look at it and they say this is what officer Cole was trained to do, and given the facts and circumstances of this scenario. It was reasonable…it was necessary at the time based on what was going on. So it’s our opinion that he attempted to de-escalate, and the force that was used was only after he was struck.”
McKernan, who intervened and stopped Cole, told investigators she thought Cole’s level of force “wasn’t necessary at that time.”
The new policy also states that “the use of a choke hold or neck restraint may only be used when the use of deadly physical force is necessary.”
However, in the IA report, the city use-of-force trained expert Robert Hwang stated that “it was not a choke hold when Officer Cole placed his hand on Marshall’s neck.”
Barbara Fair, a longtime New Haven activist, was disheartened but not surprised by Cole’s promotion.
“To see Officer Cole with several publicized incidents of what most would describe as police brutality be promoted is not uncommon within NHPD history.” Fair wrote to the News. “Due to the lack of transparency and the department’s inability to police itself and hold brother officers accountable for rogue behavior these incidents of police violence will continue. The city’s response to police brutality has always been paying settlements, silencing victims and never holding officers accountable for their behavior.”
Police officers who violate the new policy will face consequences from suspension to termination on a case-by-case basis.
Other aspects of the new policy
Zannelli told the News that the new policy prioritizes the sanctity of human life. Therefore, deadly force and firearms will be prohibited for the purpose of protecting property.
The policy also states that officers are prohibited from creating Jeopardy, namely situations created by the officers in which they needlessly put themselves in a position where they must use deadly force to protect themselves.
“We’re not out there to hurt people.” Zannelli said. “We’re there to help them. And we want the community to know that as well. So working together with the communities, we just hope that’s better community policing relations.”
In addition, the new policy requires police officers to render aid to the extent that their training allows and request an emergency medical service. Officers are also required to intervene in any manner they can when they witness other officers use excessive or unreasonable force. Officers are advised to be mindful of their body language and tone of voice upon arrival at a scene and throughout their interaction with subjects, complainants and witnesses.
Fair expressed frustration with the fact that the updated guidelines “carry language which remains open for officer interpretation.”
“It continues to allow too much discretion to officers to decide when force is necessary,” Fair said. “Instead of the goal being non-violent and community safety policing, its focus remains on measuring how much police violence is allowable under the law. I expected more from this new commission and so it is disappointing.”
John DeCarlo, professor and director of the masters program in criminal justice at the University of New Haven, agreed that while New Haven is among the cities that have more progressive policies, and that the new use-of-force policy is a good start, more changes to regulations on the state level are needed.
“I would go a step further,” DeCarlo said. “if we want to be really progressive, we cannot simply depend on municipalities… the state of Connecticut makes regulations that train officers. Unless we are regulating the use of force from the very beginning, we.. are waiting until an officer does something illegal or harmful, and then we have a victim.”
Seven officers and detectives were promoted to the level of sergeant on Jan 18.