Legally Speaking: Will FBI make a difference in Glendale stun gun case?

The eyes of the nation are on Arizona and its police officers — again. The big gun, the Federal Bureau of Investigation, has been called in to investigate why Johnny Wheatcroft was shocked with a stun gun 11 times and whether the Glendale Police Department and three of its officers used excessive force and violated the Constitution by doing so.

By now you have heard about the incident where Glendale Police officers shocked Wheatcroft 11 times back during an aggressive traffic stop in 2017.

The incident started when Wheatcroft was still seatbelted into the passenger side of the car and did not end until his pants were pulled down and he was shocked in his groin. The body cam footage from the officers show the incident that has many, including myself, disgusted, dismayed and shaking their heads.

The incident resulted in criminal charges for aggravated assault against both Wheatcroft and another passenger, a civil lawsuit against the department and its officers and now, an investigation headed by the FBI.

The civil lawsuit brought by Wheatcroft, his wife and children (who were present and witnessed the entire incident) alleges the officers used excessive force, acted in retaliation (because Wheatcroft asked the officer why he needed to see his ID), wrongful arrest, malicious prosecution, civil rights violations, and municipal liability. Bottom line, the lawsuit alleges the officers had no right to detain or arrest Wheatcroft because no crime had been committed by him and police used excessive force when they shocked him 11 times and violated his civil rights in doing so.

After news of the civil lawsuit and comments by Wheatcroft’s attorney were made public, the questions started coming. One of the biggest being, why did the Maricopa County Attorney’s Office decline to file charges against the officers?

Gov. Doug Ducey responded to the body cam footage by stating what he saw was “completely unacceptable and it seems to me that the investigation was whitewashed. I’d love to see the county attorney’s office re-open the investigation…”

Even with the prompt from the governor, the county attorney’s office declined to re-open the investigation and instead the FBI was brought in to investigate. Why you might ask? I would venture to say this was done for a variety of reasons.

First, MCAO is overloaded with the amount of criminal and civil cases it handles. Second, if it did in fact decline to file charges against the officers once, why would it want to reverse itself? It is possible MCAO only reviewed what was submitted to it for possible charges against Wheatcroft and his wife.

Third, the governor already alleged the investigation was “whitewashed,” which is a not so veiled criticism of how the county attorney and Glendale police handled the situation. I am sure MCAO doesn’t want to play into any further possibilities of being called inadequate or biased in its investigations.

Lastly, investigating incidents like this one is exactly what the FBI does. According to FBI.gov, “The FBI is the primary federal agency responsible for investigating allegations regarding violations of federal civil rights statutes. [P]rotecting civil rights remains one of its top priorities.”

The FBI explains “In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is ‘reasonably’ necessary. The breadth and scope of the use of force is vast — from just the physical presence of the officer to the use of deadly force. Violations of federal law occur when it can be shown that the force used was willfully ‘unreasonable’ or excessive.’”

The FBI will investigate whether the force used by Glendale officers was “excessive” by comparing their actions to those of a “reasonable officer.” Coincidentally, this is what the civil lawsuit will focus on. Wheatcroft and his family will have to prove to the jury that a “reasonable officer” in a like or similar situation would not have shocked him 11 times and acted as they acted.

Although any conclusions the FBI draws in its investigation could be helpful to the plaintiffs in the civil lawsuit; it is important to note that the FBI is not working for the plaintiffs and its focus is not to get money for the plaintiff. It will focus on what happened, why it happened and whether it should hold the Glendale Police Department accountable for the officers’ actions.

As for the timing, it is unknown when the FBI will complete any investigation it goes forward with. It is not under a deadline. It is even possible the civil lawsuit could go to trial before it is done. However, since the FBI’s conclusions could be impactful, I find it unlikely the civil trial will commence until after the investigation is completed.

#LegallySpeaking, this case exemplifies the exact reason why body cameras worn by officers is a good idea. Officers are entrusted with tremendous amounts of authority and discretion because their job is important and dangerous. Although we need to equip, support and trust them to do their job, they also need to be held accountable for egregious violations. Just like the rest of us would in our own jobs.

Again, I encourage you to view the footage and draw your own conclusion. In this particular case, a picture (or video) is worth a thousand words.

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