Lewis: ‘What is motivating Smallwood’s attack on Funk and the rights of unarmed citizens?’

By CARLTON LEWIS | For Nashville Voice

On Friday morning of the past week, I started my daily routine: up at 5 a.m., drinking a cup of coffee, watching the morning news and reading The Tennessean, Nashville’s daily newspaper.

Carlton Lewis

To my disgust and dismay—but not to my surprise—there appeared a column written by James Smallwood, president of the Nashville Fraternal Order of Police, with the lead line that police aren’t criminals for doing their jobs.

Smallwood took issue with the prosecution of Officer Andrew Delke in the shooting death of Daniel Hambrick in July 2018, particularly criticizing District Attorney Glenn Funk’s decision to prosecute as possibly resulting in more police officers being hurt or killed in the line of duty.

My disgust and dismay were related to the decision of Smallwood to discredit an institution of government because he disagrees with a decision made by that institution, but my lack of surprise was based on the fact that the current president of the US has spent every day of his administration discrediting nearly every institution of government, including the US Constitution itself.

I vividly recalled candidate Trump at a political rally telling law enforcement officers to “rough up” suspects as they are being taken into custody.

According to Smallwood, Funk’s decision to prosecute Delke was politically motivated; but by not stating specifically what that motivation is, curious readers were left to imagine exactly what is motivating Smallwood.

Shortly after the police shooting of unarmed Michael Brown in Ferguson, Missouri in 2014, a community meeting was convened in Nashville, and members of the community and Metro Police leadership discussed the Brown shooting and the fact that such incidents had not occurred in Nashville.

Following that community meeting, Metro police continued to meet with members of the community and were supportive of several peaceful protests that occurred in the wake of the shooting.

After the 2014 shooting of Brown, which resulted in the prosecution and acquittal of the police officer, Freddie Gray—a black man—died while handcuffed in a police van in Baltimore. Six officers were charged in Gray’s death; three of whom were acquitted and charges against the other three were dropped.

Sandra Bland—a black woman—died in a Prairie View, Texas jail after being arrested for failing to give a turn signal and not putting her cigarette out upon the officer’s command. The arresting officer was charged with perjury, which was later dropped.

In Falcon Heights, Minnesota, Philando Castile—another black man—was shot to death by a police officer while riding in a car with his young daughter and girlfriend, while complying with the officer’s commands.

Tamir Rice, a 12-year-old black boy, was shot and killed by Cleveland, Ohio police responding to a local park where an anonymous person called in a complaint about a black man was seen with a gun. Again, no conviction for this death.

Like Smallwood, I can list many, many cases of back citizens who have met their death at the hands of police.

I also believe in the institutions of government, including the US Supreme Court.

While I do not agree with every decision handed down by the court, as a lawyer and magistrate/judge, I know that disregard for, and discrediting, the Supreme Court is the first step on the journey to tyranny and anarchy.

One decision of the Supreme Court that established the law of the land is the 1985 opinion in the case of Garner vs. United States, which holds that under the Fourth Amendment to the Constitution, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

It was found that the use of deadly force to prevent escape was an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a physical danger.

The Tennessee Court of Criminal Appeals was instructive on the issue of police pursuing fleeing individuals in the 2005 case of State of Tennessee v. James D. Nicholson.  

The Court of Appeals, citing U.S. Supreme Court decisions, stated, while not wishing to encourage flight from officers, especially in areas of high crime, we realize from a practical standpoint that flight does not always amount to reasonable suspicion. In fact, innocent reasons for flight abound in high crime areas, including fear of retribution for speaking to officers, unwillingness to appear as witnesses, and fear of being wrongfully apprehended as a guilty party.

According to Smallwood’s column, while pursuing Daniel Hambrick and ordering him to stop, the real danger occurred. Hambrick “allegedly” looked over his shoulder, employing what self-defense experts call a “targeting glance.”

That is when Officer Delke did as he was trained: he fired his weapon to stop the deadly threat, shooting Daniel Hambrick twice in the back and once in the back of his head.

Where was this training, one must ask, in June 2015 in Charleston, South Carolina? It was in June, days after Dylann Roof entered Charleston’s historic Emanuel African Methodist Episcopal Church where he shot and killed the pastor and eight worshippers following Bible study, that police arrested Roof—known to be armed, dangerous, and had already slain nine people in church—and the police generously took their suspect to Burger King and bought him breakfast.

Let me conclude by saying that I am not anti-police.

My first born proudly serves this country in the US Army Reserve as a military police officer and serves his community as a commissioned police officer in southwest Tennessee.

My prayer for my son and all law enforcement officers is that they always be kept safe from harm. My prayer for my city is that we have an honest, open conversation about police training and actions in our community before another life is lost.

Carlton Lewis serves as a Juvenile Court Magistrate in Nashville, Davidson County, Tennessee.

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