Citizen board: Police stonewall probe of Eagle raid

By Christian Boone and Rhonda Cook

The Atlanta Journal-Constitution

Atlanta’s Citizen Review Board, frustrated that police refuse to answer questions about last summer's controversial raid of a Midtown gay bar, is threatening to subpoena 10 APD officers.

At stake could be the relevance of the nascent board, which claims it received little cooperation from police under the leadership of former Chief Richard Pennington, who resigned in December.

"We have been dealing with this issue of officers' refusal to cooperate for a long time," attorney Seth Kirschenbaum,  vice chairman of the review board, told the AJC Friday. "While Pennington was chief, officers were refusing to cooperate and no discipline was ever imposed."

Altogether 25 APD officers involved in the Eagle raid have refused to answer queries posed by the board, created following the 2006 death of 92-year-old grandmother Kathryn Johnston, shot and killed by undercover officers in her Neal Street home.

The Eagle case has brought renewed scrutiny to police procedures after no major arrests were made following the Sept. 10 bust. Police records claimed undercover officers had witnessed patrons engaging in public sex at the Ponce de Leon nightclub.

No charges were filed against any of the 62 patrons detained during the raid, though eight Eagle employees were arrested for permit violations.

The 10 officers being threatened with subpoenas, which must be approved by the Atlanta City Council, were named in a complaint filed by Eagle patrons after the raid. Kirschenbaum said the council has approved such subpoena requests before.

The board is not pressing the issue yet, as it wanted to give new Mayor Kasim Reed and interim Police Chief George Turner time to comply. It hopes to have an answer within the next few weeks.

"We're not giving an ultimatum but we are communicating with the new administration to get them to address this question about officer cooperation," Kirschenbaum said.

Maj. Moses Perdue, newly appointed head of the APD’s office of professional standards , said the department was still coordinating its response with the mayor's office.

“They haven’t made that decision if they are going to follow the law or violate the law,” Kirschenbaum said. “That lack of cooperation is supported by [APD] management."

If the officers fail to respond they could be sent to jail for up to six months or fined $1,000, said Cristina Beamud, the board's executive director.

Lt. Scott Kreher, head of the Atlanta Police Union, said the department’s rules require officers to appear when called by the review board. However, they are not compelled to answer any of the board's questions, he said.

“The union’s stance is we’re still going to protect officers’ due process rights no matter what the members of the citizen review board have to say about that," Kreher told the AJC. "We’re going to have them follow the [standard operating procedures] of the department, which requires them to go down but doesn’t require them to testify.”

Kreher said the union is concerned that officers would not have any protection from administrative or criminal charges, particularly in light of a federal lawsuit filed against the city on behalf of 19 Eagle patrons searched and detained during the raid.

“What’s surprising is they know that there is a civil suit pending against the officers and the city in the Eagle raid. Not only is there an internal affairs investigation that’s open but there also is a civil suit," Kreher said. "There is absolutely no reason to testify before the Citizen Review Commission when those things are still pending.”

But Kirschenbaum said police are protected from criminal liability by the U.S. Supreme Court's Garrity decision.

"Nothing that police say in an investigative interview can be used against them in a criminal prosecution," he said. "Garrity protects the police from incrimination."

"If you cooperate you have no problem," Kirschenbaum said. "It's a failure to cooperate that's a violation of the law."

The review board also could file suit to force the officers to testify.

"The board is considering its options for enforcing the law," Kirschenbaum said.