An Official Narrative, Built on Sand

I'm honored today to be able to share a different kind of piece for QTP.  The following is a guest post by Rachel Wannarka and Jason Sole, of the Minneapolis NAACP.  In this post, Wannarka and Sole meticulously refute the narrative put forth by Hennepin County Attorney Mike Freeman in his rationale to bring no charges in the killing of unarmed Minneapolis resident Jamar Clark by Minneapolis police officers.

 

A County Attorney Lies; More Officers Escape Accountability 

It is clear from the statements of African American witnesses at the scene and evidence of a false narrative being put forward by Mike Freeman that a miscarriage of justice happened in this case. There is absolutely no reason for an unarmed African American man to be shot in the head within 61 seconds of encountering police. Attempts by Mike Freeman to justify his murder are unconscionable.
— Nekima Levy-Pounds, Esq. President, Minneapolis NAACP. April 5, 2016

Officer-involved shootings are damaging police-community relationships, with race being a focal point. White male officers have killed unarmed Black men in a disturbing number of cases across the country. In Minneapolis, Officers Mark Ringgenberg and Dustin Schwarze took the life of 24-year-old Jamar Clark on November 15th, which spurred ongoing protests as well as an 18-day occupation of the police department’s Fourth Precinct (which is where the officers worked). Ultimately, the Hennepin County Attorney, Mike Freeman, chose to bypass a grand jury, stating that “the accountability and transparency limitations of a grand jury are too high a hurdle to overcome.” He chose to look at the evidence and determine himself whether Officers Ringgenberg and Schwarze were to be held criminally responsible for the killing of Jamar.

Freeman held a press conference on Wednesday, March 30th to announce his decision not to bring any charges against either officer.  He began this highly anticipated presentation by claiming that the Jamar Clark case was not similar to the cases of Mike Brown, Tamir Rice, or Walter Scott. This was one of many lies he would tell during his 30-minute press conference, as those cases are very similar. As with the Jamar Clark case, officers in those cases killed the individual shortly after making contact (Rice was killed in under four seconds and Clark was killed in 61 seconds). As with the Jamar Clark case, each case involved White officers and an unarmed Black man or boy. As with the Jamar Clark case, each individual was said to have committed a crime.  

Mike Freeman began his announcement with a lie.  He then proceeded to spin a narrative that Jamar Clark was a domestic abuser of his girlfriend, that he was violent and intimidating towards paramedics, that he defied police orders, and that DNA evidence essentially proved that he grabbed an officer’s gun.

This entire narrative from Freeman’s dramatic press conference is based on lies, deceptions, misdirection, and unsubstantiated claims by the involved police officers.

 Hennepin County Attorney Mike Freeman.  Photo courtesy of Patience Zalanga.

Hennepin County Attorney Mike Freeman.  Photo courtesy of Patience Zalanga.

1. Freeman claimed that it is necessary for the state to be able to prove guilt beyond a reasonable doubt in order to even bring charges. The actual standard for charging is probable cause.

In his statements at the March 30 press conference (PDF), Freeman said, “In order to bring charges against a police officer for using deadly force, the State must be able to prove beyond a reasonable doubt that the officer’s use of deadly force was not justified. This legal standard remains the same, regardless of whether the factual determination is made by a county attorney or a grand jury” [emphasis ours]. He repeated the claim that “beyond a reasonable doubt” is the standard to bring charges three more times, when describing the criteria for second-degree manslaughter, second-degree murder, and first degree murder.  

Prior to the Jamar Clark case, Freeman used the grand jury process to decide whether officers who killed civilians should face charges. He failed to obtain a single indictment in any officer-involved shooting during his entire 19 years holding the office of Hennepin County Attorney. The standard for a grand jury returning an indictment is probable cause (this is also the ethical standard set by the American Bar for a prosecutor to bring charges generally). The U.S. Supreme Court describes probable cause as what reasonable people (not legal technicians) would consider a “fair probability.” This is deliberately less stringent than the standard of proof for conviction at a subsequent criminal trial, which is proof beyond a reasonable doubt. Grand juries nearly always deliver indictments because they only see the prosecution’s case and they need only to clear this lower standard of probable cause. The obvious exception is officer-involved shootings, for which grand juries almost never indict.

County Attorney Freeman electing to bypass the grand jury process was a good initial step; based simply on the numbers, grand juries effectively and consistently function to shield officers from criminal accountability. In Minnesota, the grand jury process is also highly secretive, so the public cannot know what evidence the County Attorney chooses to present or emphasize. But Freeman, who works closely with the Minneapolis Police Department (MPD) in prosecuting other cases, should have sent the case to an independent special prosecutor to avoid even the appearance of a conflict of interest. 

We believe Freeman’s repeated and false claim that the standard to charge the officers was beyond a reasonable doubt, rather than probable cause, was an attempt to justify his deliberate failure to hold the officers accountable for Clark’s unnecessary death.

 

2. Freeman characterized RayAnn Hayes as Clark’s girlfriend and said this was a domestic abuse call. She denies she was Clark’s girlfriend or that he broke her ankle.

At the March 30 press conference, County Attorney Freeman said, “These officers were called upon to respond to a person who had assaulted his girlfriend and interfered with the paramedics caring for the girlfriend […] Jamar Clark was present with his girlfriend, RayAnn Hayes, age 41 […] he [Clark] was the alleged assailant in a domestic assault which resulted in a need for medical attention for that victim.”

Freeman presented a narrative of police responding to a domestic abuse call and painted Clark as having violently assaulted his girlfriend, RayAnn Hayes. This narrative is false. Hayes gave an initial interview to MPD while in the hospital, a later interview to the Minnesota Bureau of Criminal Apprehension (BCA), spoke a few days ago to local news station WCCO, and spoke at length at an NAACP press conference this Monday. She has consistently and repeatedly denied that she was romantically linked to Jamar Clark, much less that she was in a relationship with him. It is baffling that Freeman chose to ignore and distort her voice, but that decision impacted public perception and implied that as a woman-beater, Clark got what he deserved.

In none of Hayes’s statements did she describe Clark as her boyfriend. Rather, she described him as a friend. When asked by the MPD interviewer “Has he ever beat you in the past?” she responds “No, I don’t know ‘em. How can he beat me when I don’t even know ‘em.” The interviewer insists, “Well he just did so, right? Gave you that lip” and she responds “He didn’t beat me like… Just craziness, he didn’t beat me.” (p927-8 in the full BCA report)

To the BCA, she said “the news people are trying to make it seem like, uh, he didn’t, he never beat me up. There was never no fight. I don’t know who said it was domestic. There was none of that.” The BCA interviewer asks, “Well, what happened to your ankle? How did you break it?” and she responds, “We were at a birthday party and I had on some heels like this high – and I’m pulling away and I twisted my own ankle. He was on the ground trying to help me. I don’t know what everybody was talking about he was beating me up.” (p1106) When asked directly, “What was your relationship with Jamar?” she responds, “We’re friends” and to the follow-up query “So, according to, were you romantically involved with him or…” she says flatly, “No.” (p1108)

To characterize Ms. Hayes as Clark’s girlfriend and a victim of domestic abuse plays into damaging stereotypes that paint Black men as violent and dangerous, and also diminishes what domestic violence means. One of the reasons that domestic violence is so damaging, and distinct from other forms of violence, is because it is repeated over time and from a person with whom the victim has a sustained relationship and often interlocking dependencies and responsibilities. Even if Clark was involved in Ms. Hayes’ injuries that evening, he was not in any sort of a domestic relationship with her. Countless narratives have sprung justifying Clark’s killing the because he “was beating his girlfriend.”  These appalling narratives were given fuel and official legitimacy by the deceptive and inaccurate statements of County Attorney Freeman.

 

3. Freeman stated the paramedics were very afraid because Clark was interfering with them. The paramedics did not say that. Video does not show him blocking them.  

At the March 30 press conference, Freeman said, “The paramedics loaded Hayes into the ambulance and locked the door. Thompson and Haskell were very afraid at this point […] he had interfered with EMS personnel to the degree that they requested police intervention.” 

In their immediate interviews, conducted by the MPD (not the BCA), neither EMTs Haskell (p860) and Thompson (p782), nor their supervisor Trullinger (p798) ever stated they were afraid of Clark at any point.

EMT Haskell explained why officers were called: “...we just walked past him asking for a squad to respond just so that we have somebody there just in case something happens.” (p864) They began treating Hayes in the back of the ambulance. “And so we were doing basic care, waiting for officers to arrive on scene, think my partner started an IV and I put an icepack on her ankle. And ah he, the whole time the male was knocking on the back window and trying to open the [locked] door to get in and he wasn’t saying anything just trying to get in” (p865). Thompson confirms this account (p785-6). 

None of the EMTs even mentioned the word “afraid” in any of their interviews, even when Thompson was asked “Did she [Hayes] say that she was afraid of him [Clark]?” He responds, “no she was fairly tight lipped about it all” (p791).

The video from the ambulance captures Clark at the rear doors. He calmly stands near the ambulance. There is no video showing him blocking paramedics, and their statements confirm that he obeyed their instructions to provide space. When Trullinger arrived and asked him to back away from the ambulance rear doors, he also obeyed that instruction, per Trullinger’s own testimony (p801). This is clearly evident in the video at 06:47:28 (ambulance GMT timestamp).

 

4. Freeman presented numerous implausible and uncorroborated statements from officers Schwarze and Ringgenberg as evidence justifying the shooting. Over 20 witnesses have repeatedly and consistently contradicted those officer statements.

At the press conference, County Attorney Freeman said, “They [Ringgenberg and Schwarze] told him [Clark] to take his hands out of his pockets. He refused. Ringgenberg then took his gun out and held it down alongside his leg […] Clark started yelling, ‘What’s the pistol for?’ The officers again and repeatedly told Clark to take his hands out of his pockets and he continued to refuse to do so […] as they approached him his hands were in his jacket pockets and he refused directives to remove them from his pockets, and when they attempted to handcuff him he actively resisted, compelling the use of force to achieve their goal of handcuffing him […] Ringgenberg told Schwarze multiple times that Clark had his gun […] Schwarze told Clark he was going to shoot him if he didn’t let go; Clark responded, ‘I’m ready to die.’”

Statements from officers Schwarze (p220) and Ringgenberg (p249) weren’t given to the BCA until two days after the incident. Attorneys Frederic Bruno and Robert Sicoli represented Schwarze and Ringgenberg, respectively, and the officers were interviewed sequentially by the BCA at Bruno’s office (Ringgenberg from 6:53pm to 7:32pm and Schwarze from 8:30pm to 9:09pm). Both officers used nearly identical language to describe the encounter, even though minor inconsistencies are actually normal in eyewitness testimony that is not crafted and rehearsed. For example, Ringgenberg and Schwarze respectively describe Clark as having a “really weird stare” (p255) and “this thousand yard stare” (p224).  

Ringgenberg and Schwarze claim that they engaged in an extensive dialogue with Clark in the 61 seconds that passed between their arrival and Schwarze shooting Clark in the head. Freeman uncritically presented this dialogue as if it is convincing exculpatory evidence, but in fact not one of the key phrases can be substantiated by even one single other witness, and some of it is explicitly contradicted by multiple witnesses.

Ringgenberg and Schwarze claim that Clark refused to take his hands out of his pockets when ordered and so as a consequence of his refusal to obey this order, Ringgenberg pulled out his gun.

From the BCA report:

Ringgenberg: “I walked towards him and I told him to take his hands out of his pockets. And he refused. And so as I was doing that, I pulled my gun from my holster.” (p255
Schwarze: “I said take your hands out of your pockets. At the same time I was saying that my partner was also saying take your hands outta your pockets… I saw my partner take his gun out of his holster.” (p224)

But the EMT supervisor on scene, who met the officers and directly observed their initial interaction with Clark, contradicted this narrative:

Trullinger: “So the three of us, you know the officers and I were kinda walking towards him [Clark] and I did notice that the officer I talked to, withdrew his weapon and held it down… as he walked up I could hear the individual, the suspect say Why do you have your gun out? And he goes – or first, I’m sorry, first the officer said do you have any weapons on you? And the guy said No man. Why do you have your gun out?” (p802-3)

Trullinger’s testimony, as a neutral party, should be given much more weight than that of the involved officers, and Trullinger states that Ringgenberg drew his gun immediately, not after Clark refused multiple commands; in fact Trullinger does not describe even a single command from either Schwarze or Ringgenberg to Clark to take his hands out of his pockets. This might seem a minor point but it sets the stage for the “struggle” that the officers next describe. In the officers’ framing, they encountered a non-compliant suspect and necessarily used force, whereas from Trullinger’s testimony it was the officers who immediately escalated what should have been a routine interaction.

The ambulance video shows Ringgenberg next (with the gun reholstered) grabbing Clark in a choke-hold from behind and slamming him to the ground (06:49:29, ambulance GMT timestamp). Freeman acknowledged that the neck restraint takedown move by Ringgenberg is “not a technique normally favored” by the MPD, which is a particularly deferential way to describe a use of force that is prohibited on passively resisting subjects (5-311).

Once Clark was on the ground, the officers claim that he grabbed Ringgenberg’s gun, that Ringgenberg shouted repeatedly to Schwarze that Clark had his gun, that Schwarze told Clark to let go or he would shoot, and that Clark, incredibly, told Schwarze that he was “ready to die.”

Not a single aspect of this, despite it being critical to Freeman’s determination, is supported by any other witness.

Again, from the BCA report: 

Ringgenberg: “I tell Dustin [Schwarze] ‘He’s got my gun’… I feel his, his whole hand he’s got the, whole gun… I keep telling Dustin ‘He’s got my gun, he’s got my gun’… and I remember Dustin telling him to, I can’t remember exactly, it was something like ‘Let go or I’m gonna shoot you.’ And then the guy said ‘I’m ready to die’… I tell Dustin a couple more times, I keep telling him ‘He’s got my gun.’” (p255-6)

In the interview a BCA agent asked “When you say you tell him are you talking in a normal voice or are you yelling that?” and Ringgenberg responded “No I’m, I’m yelling… pretty loud.” (p256

Schwarze: “My partner then says he’s got my gun… I said let it go or I’m gonna shoot you…he says I’m ready to die. My partner then says dude he’s got my gun… And he says it again this is the third time he said it now and he just he says he’s got my gun and it was just a screaming I’ve never heard Mark ever scream like this before” (p224-5).

There were three EMTs in the ambulance. They all report hearing the gunshot when Schwarze put a bullet into Clark’s head from close range. They all report hearing screams from bystanders subsequent to that shot. Not one of them heard “he’s got my gun,” which Schwarze and Ringgenberg claimed was yelled or screamed multiple times.

In an MPD interview, Trullinger was asked “Did you hear a scuffle or anything like that outside?” and responded “Mostly it was verbal” (p809).

Haskell was asked “And so and you never heard any arguing with the officer or anything?” and responded “No I didn’t hear a thing, I wasn’t, we were talking with our supervisor as well so I may not have been paying attention to noises outside necessarily but no I don’t remember hearing any screaming, arguing… all of a sudden there was just a shot.” (p871)

Thompson was asked “So when you come out after you heard the shot, do you hear before that, before you can hear that shot (inaudible) the police” and responded “I couldn’t hear anything, but I have hearing loss from my Iraq so for me that’s not a shock.” (p789)

There were multiple eyewitnesses to the incident, some watching from near the apartments and some from near the Elk’s Club. Teto Wilson told the BCA that “I didn’t hear anything coming from either of ‘em [the officers]. They may have been talking but again I think I was just so shocked at what I was seeing… I didn’t hear the police making comments. They may have made comments I don’t know. I was just really focusing because my concern was I’m hoping this kid doesn’t get shot.” (p368)

On April 4th, Wilson elaborated in an interview with Rachel Wannarka:

"What I saw was the two officers had Jamar under control and one of the officers had his knee in the center of his back. It seemed that Jamar was on his stomach so I did not see any movement or reaching or anything from Jamar. I saw him laying on the ground with two cops much larger, much much larger than him and they had him under control thoroughly. I just saw one of the cops with his knee in the center of Jamar’s body and the other cop bouncing around in Jamar’s shoulder blade area…. I paid close attention because it seemed like awkward police procedure. Before you knew it a shot went off. A lot of us were stunned.
"I didn’t hear anything coming from Jamar “I’m ready to die,” seemed really strange to me how he could have this dialogue with the other cop and trying to reach for the gun. It didn’t make sense to me hearing this report." 

Jerome Copeland was asked by the BCA, “Did you hear any dialogue or any conversation between anyone at that time between this person on the ground or the officers? Was there anything being said?” He responded, “Of course you know the very words, stop resisting. But he wasn’t resisting.” (p195)

Derrel Gross told the BCA that “after they swept him down, he was like fuck you,” and, “I didn’t hear the cops say anything.” (p315)

Nekelia Sharp told the BCA that “By this time the only thing I could hear was fuck you, fuck you. Pow. The gun shot went off.” (p336)

None of the multiple eyewitnesses to the incident heard “he’s got my gun,” which Schwarze and Ringgenberg claimed was yelled or screamed multiple times.

It should be noted that the claimed dialogue between the two officers and Jamar Clark could have been established with the squad car dash cam video and body-worn microphones that are standard MPD issue. The officers made a deliberate and unreasonable choice to violate MPD policies (7-403 and 4-218) when they responded to a code 3 emergency situation without activating their lights and consequently without activating the dash cam video, and they opted not put on the required body-worn microphones.

The narrative presented by County Attorney Freeman was based largely on the statements of the two involved officers, many of which are not corroborated by a single other witness.

 

5. Freeman described the DNA evidence as independently establishing Ringgenberg’s claim that Clark grabbed his gun. The DNA does no such thing.

At the press conference, County Attorney Freeman said, “The presence of Clark’s DNA on Ringgenberg’s duty belt and grip of Ringgenberg’s gun is strong forensic corroboration of the officer’s statements that Clark’s hand was on the grip of Ringgenberg’s gun. [...] At the time he was shot, Clark was attempting to gain control of Ringgenberg’s firearm. Ringgenberg reasonably believed that if Clark had succeeded in removing his firearm from his holster, Clark would have shot both officers as well as exposing third parties to danger of injury by firearm. Ringgenberg and Clark were wrestling on the ground in a position which rendered Ringgenberg unable to remove Clark’s hand from his firearm.”

Freeman told Fox9 on April 1st  that You don't have to believe the cops. The DNA is there. DNA is truth serum.”

Patrick Sullivan is an expert in forensic science litigation. He was interviewed by MPR on April 6th and explained that “DNA is, as they say, the gold standard in forensics. But it's not a truth serum. It provides you information that you can use to help you make a decision [...] I might shake your hand and touch your gun and you never touched the gun but your DNA might end up on the gun. [...] this test isn't able to pluck somebody out of a mixture and say that they're there.”

In other words, there are many ways in which Clark’s DNA could have ended up on Ringgenberg’s belt and gun that do not involve Clark grabbing the gun.  And there’s a chance the DNA wasn’t Clark’s to begin with.

Freeman placed significant weight on the presence of Clark’s DNA (technically, a probable match to Clark’s DNA) on Ringgenberg’s duty belt and on the grip of Ringgenberg’s gun. Freeman inexplicably neglected to mention in his presentation that there were no fingerprints or palm prints from Clark found on Ringgenberg’s gun, as would be expected if Clark’s hand had indeed “got my whole grip” and “he was pulling on it” as Ringgenberg claimed. When asked about this discrepancy at a news conference, Chief Harteau could only say that fingerprints can be “challenging to recover” – but a lack of fingerprints is more consistent with Clark never having grabbed the gun than with the police narrative.

DNA from Clark was present all over Ringgenberg’s duty belt (p733-4). Specifically, it was found on the front left handcuff holder, on the back right handcuff holder, on the mace holder, and on the holster. But Freeman does not suggest this is evidence that Clark grabbed for and was attempting to take Ringgenberg’s mace, or that Clark grabbed for and was attempting to take Ringgenberg’s handcuffs. Perhaps he assumes that it was present due to casual contact, presumably when Ringgenberg’s clumsy choke-slam takedown left him on his side then on his back on top of Clark.

When examining Ringgenberg’s gun (p739), Clark’s DNA was not present on the back top and hammer, the back sides of the slide, the magazine, slide, and safety release, the flashlight, the bottom of the magazine, or the trigger; it is only present on the grip (and the confidence is not even particularly high, with just 87.5% of the population excluded). This suggests the same casual contact that left Clark’s DNA present across Ringgenberg’s duty belt. The lack of DNA except on the grip would seem to flatly exclude that Clark could have been about to pull out Ringgenberg’s gun, or that he could have been about to fire it within the holster.

Ringgenberg wore gloves. There is no mention that those gloves were tested for Clark’s DNA – presumably they would contain it, as per Ringgenberg’s own testimony he grabbed Clark’s hand, and then applied the choke-slam takedown, and then wriggled around on top of Clark. After Clark was shot Ringgenberg drew his gun – it is entirely possible that this action transferred Clark’s DNA from Ringgenberg’s glove to the grip of his gun. Clark was shot at close range in the head. Freeman described in detail the blood spatter pattern on the handcuffs that Schwarze says he dropped in the vicinity of Clark. Obviously Clark’s blood would deposit Clark’s DNA on any contacted surface.

Former Minneapolis Police Chief Tony Bouza feels charges are warranted, and commented specifically on the DNA evidence: “It could have been that Clark’s hand brushed against the gun. It [DNA] is not positively and definitively linked to Clark [the way] fingerprints would have been.”

While it’s true that the forensic evidence does not itself disprove the statements of Schwarze and Ringgenberg, it also doesn’t concretely prove much of anything. There are any number of ways Jamar Clark’s DNA could have been transferred to Officer Ringgenberg’s belt and gun, and we do not even know for certain that the DNA was Clark’s to begin with. In fact, the forensic evidence casts doubt on the claim that Clark grabbed Ringgenberg’s gun. Freeman’s characterization that the DNA strongly supports the officers’ account is false.  

 

Conclusion

Hennepin County Attorney Freeman has put forward a narrative that Jamar Clark abused his girlfriend, that he physically interfered with paramedics and made them afraid, that he defied police orders and grabbed an officer’s gun, and that DNA evidence all but assures us the officers’ accounts are true. Every component of this narrative, which has been endlessly amplified in the media, is based on inaccuracies, uncorroborated claims, or outright lies.

The failure to charge Schwarze and Ringgenberg, despite overwhelming evidence that goes beyond probable cause, leaves members of the community left to hypothesize about County Attorney Freeman’s competence and motivations in clearing the officers. Freeman must be held accountable for the inaccuracies and lies on which his narrative is based. The Minneapolis NAACP is now calling for the case to be re-opened and assigned to a special prosecutor.  If all of the evidence were considered (as highlighted above), there would be two officers in jail facing murder charges. There must be justice for Jamar, and now there must be accountability for Mike Freeman.

 

 

Rachel Wannarka is a member of the Minneapolis NAACP Criminal Justice Reform Task Force, and a special education teacher for St. Paul Public Schools. Jason Sole is the Criminal Justice Reform chair of the Minneapolis NAACP, and a criminal justice educator at Hamline University/Metropolitan State University.