By Anna Douglas
For the first time in its 20-year history, Charlotte's Citizens Review Board ruled against the Charlotte-Mecklenburg Police Department on Tuesday with a 7-1 vote.
The vote came on a complaint against CMPD involving an allegation of excessive force after one officer put a gun to an unarmed man's head and threatened to kill him in March 2016. That happened less than 20 seconds after several officers had chased and tackled James Yarborough to the ground and instructed him to put his hands behind his back -- something Yarborough's attorney says he was physically unable to do because he was pinned down.
The officer at the center of the complaint, Jon Dunham, left CMPD in the weeks following the incident and is now working at Davidson Police Department as a corporal. Dunham did not respond to a request for comment. The Davidson department declined to comment.
Julian Wright, an attorney for the Citizens Review Board, said there is no direct disciplinary action CMPD officials can take against Dunham in this case because he no longer works there. The board's findings and decision will appear in Dunham's personnel file.
Although the review board acts only in an advisory capacity and has no authority to overturn Chief Kerr Putney's decisions, its vote Tuesday carries significance as the first time members have favored a citizen in a complaint case.
"The chief of police clearly erred" by not disciplining Dunham, board chairwoman Sandra Donaghy said in a prepared statement read out loud following the board's vote. Details of the board's deliberations, witness testimony and CMPD's internal investigation of the complaint have not been released. The board, under state and local law, is required to meet in closed-door session and members sign confidentiality agreements.
Complaints reach the review board following internal police investigations. Citizens may appeal decisions made by the chief of police if they believe disciplinary action is insufficient or if officers go unpunished for alleged violations of policies and procedures.
CMPD leaders initially denied Yarborough's accusations that Dunham used excessive force.
But as the complaint case made its way to the Citizens Review Board in recent weeks, CMPD re-examined the incident and conceded that Dunham showed conduct "unbecoming of an officer." The police department then unsuccessfully asked for Yarborough's case to be thrown out, according to Luke Largess, Yarborough's attorney.
Tuesday's meeting, which operated much like a trial, lasted eight hours.
Officers had charged Yarborough with resisting arrest after the 2016 incident. He ran from police following a traffic stop involving a vehicle in which he was a passenger. An offficer caught up to Yarborough and tackled him.
Four officers surrounded him on the ground and pinned him down. In video footage of the incident, officers can be seen holding him down. Yarborough was punched and elbowed in his head.
Dunham can be heard telling Yarborough, "I will kill you," as he held his gun to Yarborough's head.
Largess said late Tuesday that he and his client showed Citizens Review Board members that Dunham was not justified in drawing his gun and pressing it to Yarborough's temple.
Dunham initially reported that he believed Yarborough was reaching toward his waistband for a weapon, Largess said. Police have confirmed that Yarborough was unarmed at the time.
During the incident, one officer also used a Taser stun-gun on Yarborough while he was on the ground. Just before that moment, officers yelled at Yarborough to put his hands behind his back.
CMPD told the Observer it would not comment on the disciplinary decision change in Dunham's case. The department says it now plans to review, at random, video footage from officer-worn body cameras. In light of Yarborough's complaint, CMPD also said it will also ensure citizen complaints are fully investigated by the department even if the officer involved is no longer employed.
The review board said Tuesday it is asking Putney to reverse the department's decision that Yarborough's complaint of excessive use of force was unfounded. The board will also send policy recommendations to Putney for consideration. Board recommendations on discipline and policy changes are reviewed by the department and action is determined by the chief, in consultation with Charlotte's city manager.
Wright, the board attorney, said he expects the materials to reach Putney next week.
Whether the documents sent to Putney are released is up to CMPD, the board said in its statement Tuesday. In August, review board members asked the Charlotte City Council and the city manager to release all prior policy recommendations from the board.
Earlier this month, Putney broke with past practice at CMPD and opted to release an abbreviated and edited version of Citizens Review Board recommendations from the high-profile police shooting case of Keith Lamont Scott, which sparked unrest in September 2016. CMPD said then it was withholding information in those documents that would be considered confidential personnel information.
Under North Carolina state law, most personnel records for police officers and other municipal employees are considered confidential. Under rare circumstances, city elected officials and city managers may choose to release some personnel records.
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