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Violation of citizen’s rights raised in employee relations investigation

by Jordan Green

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Racial tension in GPD highlighted in recorded interview

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Police Capt. Charles Cherry, whose termination is on appeal to City Manager Rashad Young, is joined by the Rt. Rev. Chip Marble at a recent community meeting. (photo by Jordan Green)

A Greensboro human resources employee suggested to a police commander with responsibility for a patrol division that he consider taking a more flexible approach on a matter in which officers could be considered to have violated citizens’ constitutional rights by illegally entering a house through forced entry.

The comments are made on a recording of a private conversation between human resources manager Terri Wallace and police Capt. Charles Cherry dating back to September 2008. The remarks were made during a conversation spanning two and a half hours that was part of a hostile work environment investigation conducted by Wallace on Cherry based on a complaint by Lt. Karen Walters, who had previously reported to Cherry. Walters is white, while Cherry is black.

The recording, which was obtained by YES! Weekly, was made by Cherry without Wallace’s knowledge. Cherry submitted it to Assistant City Manager Michael Speedling, who subsequently implemented a rule forbidding city employees from recording another individual without their knowledge and consent.

The recording also reveals a level of heightened sensitivity by city administration about racial division within the police department under the leadership of former Chief Tim Bellamy at a time when the city manager was under scrutiny for investigating allegations of discrimination that prompted the abrupt resignation of a previous chief.

About an hour and 15 minutes into the conversation, Wallace is heard asking Cherry to give an example of why he felt Walters had been resistant to his efforts to provide supervision.

“We had a situation where an officer entered a house illegally,” Cherry said. “He did a forced entry that was illegal. I tried to explain to her why it was illegal. I called her and a supervisor and tried to explain to both of them. Eventually I ended up having to do an addendum on a document that I knew was wrong. And then, of course, the chief and internal affairs agreed with me, because it was wrong.”

About 20 minutes later, Wallace is heard telling Cherry that technically an officer might be wrong to force entry without a warrant but if there were a concern for safety or a sense that “something was getting ready to ensue” it might be viewed in a more favorable light. She then described a hypothetical situation from a previous position working in building-code enforcement in which she overruled a subordinate inspector who wanted to hold up a certificate of occupancy because one of the establishment’s aisles lacked sufficient width, reasoning that it would impose unbearable cost on the business. “I can remember doing those battles,” Wallace said. “Technically, they were right. But the scheme of the intent of what we were trying to accomplish I felt like it was better to be flexible in that case.”

Cherry expressed disagreement. “You can’t be flexible,” he said. “In that situation you could but when an investigation comes up where a citizen’s constitutional rights are violated, you still have to address that. Now, whatever you choose to do in regards to training the officers, which is in that case is one of the things I suggested, but the fact of the matter is, you can’t sign off on the document that it was reasonable and justified entry when you know that their constitutional rights were violated.”

Wallace said she is for the most part constrained from commenting on the conversation because it deals with a personnel investigation, but remarked, “I’m pretty relieved the recording took place.”

Discussing a separate segment of the recording in which she is heard broaching the topic of Cherry’s efforts to uphold the department’s directive prohibiting profane language and the resistance from within the ranks that greeted his initiative, Wallace told YES! Weekly: “I would never advocate encouraging people to violate a policy.”

Jeffrey B. Welty, an assistant professor at the UNC School of Government with expertise in criminal law and procedure, who commented on a generic scenario without being told the names of individuals or specific agencies, expressed the viewpoint that police officers should scrupulously observe citizens’ constitutional rights and take care not to cross Fourth Amendment lines.

“In general, it’s the responsibility of the police to abide by the constitutional protections that all citizens have,” he said. “And if they fail to do that, they not only jeopardize the investigation that they’re working on, but they risk liability for their department or their municipality. They can be sued for money damages it they knowingly violate a citizen’s constitutional rights. That’s why many officers are very conscientious of that.”

Welty acknowledged that there is ambiguity in the law governing when it’s appropriate for an officer to enter a private residence without its owner’s permission, but that underscores the importance of good leadership in a law enforcement organization.

“The law is complicated, and there are lots of gray areas,” he said. “There are also areas where the rules are very clear. The officers need to abide by them. Where the law is murky, the officers often seek advice from their superiors or a police attorney.”

Speedling said he listened to the recording and determined there was no merit to any concerns raised by Cherry about Wallace’s remarks. The assistant city manager declined to comment further on the recording, citing personnel privacy protections under state law. Cherry and a coalition of police officers, pastors, members of the North Carolina Latin Kings and other concerned citizens traveled to Washington in September to meet with representatives of the US Justice Department. The federal agency received a list of city employees, including Speedling and Wallace, alleged to have committed policy violations that have not been internally investigated.

Following their discussion about forced entry, Wallace is heard in the recording discussing a previous work experience in which she observed during an emergency response incident: “People were like, ‘I know what itsays, but this is what we do on the scene.’You see it all the time. And I’m not sayingit’s right, but you’ve got to realize that in theculture of any department, there’s probablymore people that don’t do things as you dothem than do do things as you do them — bythe book.” Wallace continued by saying that about4 percent of employees at either end of thespectrum are either exceedingly scrupulous orare unethical and corrupt.“And then you’ve got the majority ofpeople that these people are going to look atthe situation and they’re gonna go 90 percentby the book, and they’re gonna look atwhen they can really be fl exible and where itdoesn’t involve — in other words, everythingwould stand up in court, okay?” Wallace said.“You’ve got about 46 percent that are kind oftreading that line. If it gets questioned a lotthe whole case may be thrown out and everythingelse because they’ve really morphedinto an area of being a little bit shady.”Wallace suggested Cherry consider that hisdifferences with Walters might be less a functionof her being disrespectful to him than thathis subordinate was closer to the middle in thecontinuum than he was. “In essence you’re saying that I am inthat 4 percent that follows the rules,” Cherryresponded, “and you’re doing an investigationon me because I am in the 4 percent that followsthe rules and I’ve put her in an environmentbecause she doesn’t follow the rules.”The grievance submitted to the JusticeDepartment states that after the conversation,Wallace sustained the hostile workplacecomplaint. Wallace declined to comment onan allegation included in the federal grievancethat she had been untruthful during her conversationwith Cherry.“The complaint is basically that she feltthat when you were supervising her she wasin a situation that wasn’t emotionally healthybecause of the way you handled events overall,”Wallace told Cherry during the conversation. Cherry pressed Wallace to provide a specific example of how he had placed Waltersin a hostile work environment. The primaryexample provided by Wallace was an incidentin which Cherry handled an employee evaluationappeal fi led by an African-Americansubordinate reporting to Walters named Sgt.Jonathan Heard. Cherry called both Waltersand the sergeant into a meeting and explainedwhy he was concurring with the sergeant whofelt his rating should be higher.“For that to happen in front of a subordinateoffi cer,” Wallace told Cherry, “it felt likeit demeaned her and her authority to do thatin front of him.”Later in the conversation, Wallace is heardsaying, “I have to say that one of my concerns,whether it’s realistic or it’s just visual,it starts looking like it’s on racial lines.” Elaborating, she said, “When I start seeingKaren, who is Caucasian, and some of thepeople that report to her that are concernedabout how they feel like she supports themand they feel like she’s not able to operatein ways that they saw as very functional forthem, then they’re going to continue to takethat side. When I say ‘they,’ it seems, ironically,like ‘they’ is mostly Caucasian. Andthen I see you, Charles, as a newly promotedcaptain, and one of the ones who’s appealedis Heard — another African-American male.”Cherry and Heard are both plaintiffs, alongwith 37 other black offi cers, in a federaldiscrimination lawsuit against the city ofGreensboro. Walters could not be reached forcomment for this story. “To me, I look at it like an African-American commander supervising hisCaucasian subordinate,” Cherry told Wallace.“She may have felt like me being an African-American offi cer, she didn’t have to listen towhat I said.” Cherry was fi red in August by then interimChief Dwight Crotts before Chief Ken Millertook office because he sent out an e-mail tohis subordinates explaining why Crotts hadplaced him on administrative duty pendinga fi t-for-duty evaluation. Two psychologistsultimately determined that Cherry was,indeed, fi t for duty. A second reason givenfor the fi ring is that Cherry violated a confidentiality agreement by disclosing that awhite captain allegedly remarked during acommand-level staff workshop that he didn’ttrust any of the plaintiffs in the federal discriminationlawsuit. Cherry has appealedthe fi ring and awaits a decision from CityManager Rashad Young.The Rev. Cardes Brown, president of theGreensboro NAACP, said Speedling’s lack ofconcern about Wallace’s remarks is indicativeof a cover-up involving the city’s top leadership. “You disregard the fact that you talk aboutimproper entry, and that’s not important?”Brown said. “And you disregard the fact thatonly 4 percent follow the policy, and that’snot important? That’s just another indicationof the fact that they’ll go in and cover up thewrongs in the department.”

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