Appeal denied: County cop convicted, transparency still elusive
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Albemarle County Police Officer Andrew D. Holmes, pictured here leaving Albemarle District Court in March, was convicted of improper driving for an October 2011 accident. The conviction was upheld on appeal.Hawes Spencer
Five years after the notorious Gerry Mitchell case in which an officer went uncharged despite striking a wheelchair-bound pedestrian in a crosswalk, the Albemarle County Police Department seems to be sending a new message: that its officers aren't immune from prosecution even in minor traffic incidents. Two cases that went to court this year seem to illustrate the notion of Albemarle accountability.
"Our police officers are held to a higher standard than the general public," says Police Chief Steve Sellers, who points out that officers drive a lot more miles than the average citizen and face an additional level of scrutiny because the officers also become subject to an internal investigation.
"Even if they're not at fault but the accident is preventable," Sellers says, "they're held accountable."
On January 13, Albemarle Police officer Caroline Ann Morris struck a jogger as she attempted to turn from the eastbound exit ramp of Interstate 64 onto Fifth Street. Nearly two weeks after the incident, Morris was charged with failure to yield, even though the victim– Carlos Pezua– was forgiving.
"Accidents happen," he said at the time, noting that he'd been wearing dark clothing at dusk when the accident occurred, and that Morris did not appear to have been using a phone or otherwise obviously distracted. On March 6 in Albemarle General District Court, Morris was found not guilty.
The victim in another police-caused accident– which occurred nearly a year ago– sounded similar notes of understanding during a recent hearing.
"Fender benders happen every day," testified Sara Gutshall in Albemarle County Circuit Court on Tuesday, October 9.
A year earlier, at a traffic signal on Georgetown Road, Gutshall's car was struck from behind by an Albemarle Police cruiser. A UVA Medical Center employee, Gutshall testified that the driver, Officer Andrew D. Holmes, seemed "very concerned with my well-being" after the October 27, 2011, accident, noted that she was uninjured, and said her car sustained only minor bumper damage.
"We exchanged insurance information, and I thought that would be the end of it," she testified in the recent hearing, on Holmes' appeal of the improper driving conviction he received in March.
After his supervisor, Lt. Todd Hopwood, viewed the dashcam video of the accident and then conferred with Commonwealth's Attorney Denise Lunsford, Holmes was initially charged with reckless driving. Testimony at the March 13 trial indicated that investigators found no skid marks or other evidence that Holmes hit the brakes before impact. Moreover, the trial court was shown the dashcam video that showed Gutshall's car braking uneventfully at the traffic signal at Barracks Road.
"The video shows the brake lights came on with sufficient time to stop," said Circuit Court Judge Paul Peatross, who upheld the conviction. Holmes attorney, Fran Lawrence, had unsuccessfully argued that there should have been evidence of driver distraction to sustain the conviction. Neither Lawrence nor Holmes would comment after the hearing.
Chief Sellers denies that the recent charges resulted from fallout after the Gerry Mitchell case. That's the infamous 2007 incident in which Albemarle County Police Officer Gregory C. Davis struck the wheelchair-bound Mitchell in a crosswalk on West Main Street. Lying in his hospital bed, Mitchell was then visited by a Charlottesville police officer who handed him a ticket for "failure to obey a pedestrian signal."
While the charge was dismissed, outrage soared. And the dashcam video taken from Davis' cruiser only fueled the concern. The video revealed that Davis had been listening to music when striking Mitchell in broad daylight. Depositions in Mitchell's ensuing lawsuit revealed that Davis had been sending and receiving text messages up to the moment of the accident.
Mitchell, a Yale-educated artist who'd long suffered from an array of health woes, alleged that his condition worsened after the injuries sustained in the crosswalk; he died in December 2011, shortly after settling with Albemarle County for an undisclosed sum.
While Sellers denies that any "Code of Blue" would lead officers to protect each other in legal or traffic matters, that doesn't mean the chief plans to open the department's disciplinary process to the public. Several Freedom of Information Act, or FOIA, requests related to Holmes case made by the Hook have been denied, among them a request for the dashcam video, even though the evidence was screened in open court.
"It's a clear delineation for me," explains Sellers. "If it's part of an internal investigation, we typically wouldn't release that information. If it's part of an active ongoing criminal investigation, we wouldn't release that until it's adjudicated."
Despite releasing a photograph of Gregory Davis last year, the department now refuses to release photographs of its officers. Sellers defends the policy as safety issue.
"This is a small community," says Sellers, noting that disseminating photos could put undercover officers at risk. According to previous Albemarle Police spokesman Darrell Byers, the release of Davis' photo was a "mistake."
Even as he acknowledges his unwillingness to release certain information, Sellers insists that increased transparency remains a goal.
"As chief, I have the authority and flexibility to be more open than FOIA allows," says Sellers, mentioning the possible launch of a Facebook page that would help the community get to know the officers in the department.
"I'm going more in that direction every day."
The Hook has resubmitted its request for the dashcam video from Holmes' cruiser.
32 comments
Rarely see a cop in a car without their cell phone to their ear............
Another real crime is wearing that Easter shirt in October!
@? - if you read the comment accompanying the picture, you'll see that the picture was taken in March, not October.
There's no excuse for a charge and conviction in a simple ACCIDENT such as this. Hopwood and Sellers might find themselves on the receiving end of a vote of no confidence by the majority of the officers in the department if they practice this foolishness very often. We've had one police chief marched out of town on a vote of no confidence.
In sharp contrast to Holme's accident, my wife and daughter were hit broadside by a parts delivery truck running a red light a few years ago. Even with 3 witnesses saying the truck ran the red light, no charges were placed against the elderly semi-retired driver. The police left it to the insurance companies to work out fault and damages.
And then the police charge one of their own officers in a simple bumper tap accident. Sounds like county police officers are being held to a "no accident" policy now. UPS used to have a no accident policy until a few drivers took them on in numerous lawsuits to get their jobs reinstated. The drivers won.
Furthermore, there was no excuse for Caroline Morris ever being charged as well. It involved a jogger running at dusk in dark clothing. My parents taught me to wear light colored clothing when being near traffic after dark. At least her charge was dismissed. I have seen dozens of near hits when joggers RUN into crosswalks. One second they're not there, the next second they are.
Well, anyhow, I think Albemarle County Police Officer Andrew D. Holmes learned a valuable lesson. Namely, get as far away from the department as fast as he can. There's better paying law enforcement agencies all over the Commonwealth of Virginia.
GSOE...I agree. Being held to a higher standard is fair for law enforcement, being held to an impossible standard is just that...this does seem like a simple accident, without need to set an example.
That said, I don't know how someone in LE can possibly drive without distraction. Between computer displays and inputs, cell phones and two-way radios, it much be challenging at best, dangerous at worst.
@Gasbag...You're spot on. This is the classic grandstanding you see by chiefs when a little public relations is needed. The Mitchell accident was oranges compared to Holmes's apples. The fact that Holmes's crash even made it to Circuit Court is laughable. The next time I hear CAs and judges complaining about crowded dockets, I might mention cases like this.
As for the jogger accident at the top of an on-ramp from a major Interstate onto a busy divided highway, where was the jogger at the time of the impact? Maybe we need to paint 6' or 8' crosswalks at every intersection in the county because, frankly, if a ped is a few feet to one side or another of an intersection, at some point, it crosses the line into jaywalking. Where does the reasonable distance from crossing at an intersection become not actually being in the intersection?
R.I.P.: Cleavon Little
I do not know the fine details in the Caroline Morris accident. But any degree of contributory negligence, such as jogging in dark clothing at dusk, should have been and obviously was enough to clear her of any wrongdoing. The judge might even have felt their was no negligence on the behalf of Caroline Morris.
BTW, another salient comment to this thread...
If you shave Officer Holmes's head, he'd look a lot like Billy Corgan in that photo.
R.I.P.: Winston Sharples
Nice to see the apologists out in full force. The rules about paying attention and not running into people are pretty straightforward. Too bad so many people chalk it up to 'accidents happen'.
Hopwood sounds like a real leader of men...I bet his officers really respect him. Guess he was trying to salvage his career, and impress his new boss. I am sure Sellers will make him the Captain of the Rat Squad soon. An accident, is just that an accident. If that cop wasn't negligent, the county should have just fixed her car, and given the cop a counsel. Cops drive as much as truck drivers, under trying conditions. That is an impossible standard. If I were an ACPD cop, I would just park in a cemetery until I got a radio call, and then take my sweet time getting there.
That LT sounds like a real leader of men...I bet his officers really respect him. Guess he was trying to salvage his career, and impress his new boss. I am sure Sellers will make him the Captain of the Rat Squad soon. An accident, is just that an accident. If that cop wasn't negligent, the county should have just fixed her car, and given the cop a counsel. Cops drive as much as truck drivers, under trying conditions. That is an impossible standard. If I were an ACPD cop, I would just park in a cemetery until I got a radio call, and then take my sweet time getting there.
Police have almost always and routinely placed a reckless driving charge when there is an accident. If some posters know of cases where not, then there was either evidence making it unclear who caused it or -- as is not all that uncommon -- just a lazy investigating officer.
What was done here was routine -- except that it was applied to an officer as it should have been.
Police have almost always and routinely placed a reckless driving charge when there is an accident???? Are you serious? Do you really believe that? Go to traffic court in the city or county any day and you will see how silly your statement is.
This is a major step for the Albermarle County Police Department. I use to live directly behind the headquarters on Stagecoach Road and after being harassed on a number of occasions because their officers could 'hear' my music at night, and even having my 4th amendment rights violated by one officer (was actually grabbed by my wrist from inside my home and ripped out through my door and slammed to the ground in front of my then pregnant wife and later found not guilty by court for bogas charges, Officer Mikesh was his name by the way) even though they blare bagpipes throughout the evenning that can be heard over my stereo at full blast, tested it. So thanks to them we moved to take out what little revenue we added to their payroll. They are a corrupted organization who bond together with only one thought in mind, who can be the next John Wayne. And yes it is rare to see an officer driving around on duty w/o an cell phone to his ear.
To furthermore add a citizen's "outside looking in" on this particular department's abusive conduct, I tried to file a complaint for this and was turned down by one of their Srgt's. They do not hold "each officer accountable." That Seller's guy could make it along way in a political career.
Gasbag -- hey, absolutely that is what they routinely did. In fact, they brought that charge without ANY OTHER EVIDENCE even as to how the accident happened until the Supreme Court ruled that evidence of an accident alone wasn't enough to prove reckless -- then they started trying to get some evidence as to how it happened (speed, not paying attention, etc.) to go with and support their reckless charge (that often then got reduced to improper, speeding, whatever, depending on the circumstances, prosecutor, etc.)
Don't know if there's been some major shift in the past, say, 5 years you've been apparently doing your court watching but be glad to hear how this has supposedly changed.
cville reader2, I first became associated with law enforcement in 1972. Since that time, I have never known a police department to routinely charge reckless driving in accidents. If you check the daily dockets of traffic court in the city and county courthouses online, you will see very few reckless driving charges ever being placed.
Let me ask you a related question. Let's look at this from another angle. Do you know the long term effects of the silly charge and conviction on this officer? It will cause his personal automobile rates to go up once his insurance company gets wind of this conviction. The insurance companies have access to and routinely run the records of all their insured drivers. The insurance company couldn't care less that he was operating a car that's not even on his personal insurance policy. All they see is yet another opportunity and cause to raise rates and make more money.
Back on topic though.... whether it WAS right or wrong, whether it IS right or wrong, cops just didn't charge each other or each others family members in the past unless it was a situation where they had no choice. It was a brotherhood. They were all like family to each other. As late as 1998, I caught a cop's daughter doing 75 mph in a 55 mph zone in Greene County. I did not give her a traffic ticket. I sent her home with instructions to tell her father what had just happened because I was going to tell him the next time I saw him. It's a very sad day when we see cops now charging each other for a simple bumper tap accident. All of these cops will keep smiling and greeting each other politley, but I doubt if Sellers and Hopwood made many friends within with their choice to charge the officer in this simple accident.
My biggest concern on this issue is this.... the fear of being charged in a traffic accident is a major threat to public safety when an officer is afraid to step it up and get to an emergency as quick as possible. Response time in the county is already a problem in some areas, just add more time because the officers won't step it up now when a person's home has been invaded, when a person is being assaulted, or when shot s have already been fired. The rescue squads will not render any aid until the police are on the scene already in most cases.
Gasbag -- In trying to reconcile our apparently different realities (and surely different past observations--by the way, Albemarle didn't have a PD back in 72, of course, so assume you're talking about the sheriff)), the best I can do is this -- in the case of very minor fender benders in which no serious property or personal injury some officers no doubt didn't think it worth the paperwork or charged some lesser offense which no one but court watchers would know about. But perhaps that catches your point here to the extent this wasn't a "serious" accident (which is fortunate because it could have been) so you feel the reckless charge was "silly."
But I'd take issue with you here too. You say, "the fear of being charged in a traffic accident is a major threat to public safety" -- and downplay the reasoning behind reckless driving charges. Hey, guys not paying attention as they drive, veering out of their lane, looking down when they should be watching the car ahead of them (or pedestrians as Mr. Mitchell) -- all these have potential for serious, serious consequences. Thus the far bigger public safety issue is drivers including officers who are recklessly ignoring their duty to watch the road and endanger everyone as a result.
And if I'm not mistaken, I think there are special exemptions for officers driving in emergency situations, so your "biggest concern" doesn't strike me as valid.
I am well aware that the county had a Sheriff's Office in 1972. The birth of a police department in 1980 was NOT an improvement to the residents and taxpayers in Albemarle County, it simply gave the Board of Supervisors more control over law enforcement. The Board of Supervisors couldn't tell Sheriff George Bailey what to do and what not to do. Whenever a police department is born, this is usually the reason.
This officer in this story was never charged with reckless driving. He was originally charged with improper driving, and convicted of the same.
ยง 46.2-920 exempts law enforcement vehicles from prosecution if they are being operated "with due regard for the safety of persons and property" while using emergency lights and siren. The code goes on to say "such exemptions shall not, however, protect the operator of any such vehicle from criminal prosecution for conduct constituting reckless disregard of the safety of persons and property. Nothing in this section shall release the operator of any such vehicle from civil liability for failure to use reasonable care in such operation." But if a law enforcement vehicle, even with the siren and blue lights, hits another vehicle, it can be said that it was NOT operated "with due regard" if and when Hopwood wants to place charges, or else the accident would not have taken place. The exemption in the law is uselss as far as I am concerned.
The officer was originally charged with reckless driving. It was reduced to improper driving in General District Court and the officer appealed it to Circuit Court. In Circuit Court it was upheld as an improper driving conviction. What is important to consider in this case is the fact that had this officer been in his personal vehicle there wouldn't even be an accident report taken, it would've been a simple information exchange; however, because the officer was operating a county vehicle it required a supervisor notification and an accident report that resulted in a criminal charge, a class 1 misdemeanor to be precise. So to those that say reckless driving charges are the norm in these circumstances you are compleltly misguided. A report wouldn't even have been made had it involved a citizen of the county and had one been taken the most common traffic charge would be a charge of following to close. There shouldn't be a brotherhood or a practice of not charging officers if they do something wrong simply because they are "brothers" in law enforcement. What should be practice is equity and fairness in the application of the law no matter who the offender is and in this incident that was not the case.
Hey, "The Facts" -- It is my understanding that accidents over a certain amount of damage -- between two private citizens -- MUST by law be reported to the police, and the police then act (generally) accordingly. And I believe in all such instances they are supposed to do a report. So when you say "A report wouldn't even have been made had it involved a citizen" -- that's just not the facts. Whether the officer would have charged an offense, and if so, whether reckless or something lesser would be up to the officer (though it certainly used to be most often reckless, as officers generally shot for the catch-all highest grade of crime and it then often got worked on down, as it did here)
thefacts, I stand corrected. I went back and looked at the docket again, and you are right. It was indeed an original charge of reckless driving. That's about the dumbest thing I have ever seen. Maybe the department needs increased random drug testing, starting right at the top.
cville reader2, an accident report must be done in Virginia if the damages are or exceed $1,500 now. And it sure doesn't take much damage to get up to $1,500 now of course. My wife was run out out of the road a few years ago by a speeding VDOT snow plow on Rio Road. The county police would not respond or do anything about it. She came to rest against a small dogwood tree and the damages to her bumper cover, hood and grille was $3,800. Also, notwithstanding all off the above, some departments will do an accident report if the damages are less and one party involved requests the report be done.
Thank you for your version of "the facts" But you are just making assumptions to which you know nothing about. Your "understanding" is one assumption you got correct, accidents over a certain value do have to be reported but not accidents under $1500. Gen. District Court is open to the public and if you has been present you would've heard testimony that the value of the damage was under $1000. As to your point that officers just charge reckless driving as a catchall, I'll let you run with that assumption as well being that you have no facts to base that opinion on.
thefacts, in a perfect world I agree, police officers should be held to the same standard as any other motorist. But it's never been that way when a cop stops another cop or a cop's family member. Cops can exercise discretion in writing any ticket. And they give civilians as many breaks as they do with cops and family members of cops. It takes a real bonehead rookie to go against the Thin Blue Line unless DUI, extensive property damage or personal injury is involved. This is just a fact of life, always has been.
If a local judge, commonwealth attorney, assistant commonwealth attorney, city manager, county executive, city or county spokesperson, etc... is stopped for speeding tonight, 60 in a 45 zone on the Route 29 business district, do you think they will get a ticket? Im betting $1,000 the answer is NO. Because the officer has discretion. If any of the above runs into the back of a car tonight in a simple bumper tap accident, do you think they will be charged with reckless driving? Again, I am betting $1,000 the answer is NO. The same people that convicted Holmes would never be charged in an accident similar to his in the first place.
What's even more disturbing is the fact you didn't see Hopwood placing charges when one of his men ran over a pedestrian in a wheelchair. Quite the opposite was true, the police rushed to the hospital and charged the pedestrian in what everybody viewed as an offensive coverup. Double standards being exercised between Officer Greg "Wheelchair" Davis and Andrew "Bumper Tap" Holmes? Appears so. You have to wonder why.
thefacts,what? I have never made a statement that reckless driving is placed as a catch all charge. As a matter of fact, I have gone on record here saying that reckless driving is charged very seldom in traffic offenses. I also coined the phrase "bumper tap" here for a reason. It was to imply that very little damage was done here in the first place. I know there was very little damage done. I think you are confusing the remarks made by others as my having made them.
That wasn't in response to you, it was in response to Cvillereader 2.
OK. Thanks.
There shouldn't be an issue with police officers held at a higher standard but Gasbag, I do see your point about the reckless driving charge.
Many moons ago, I recall having a woman in a station wagon make a left hand turn into my rear quarter panel, she was in a turn lane and I was in a traffic lane. The Albemarle County Police Officer arrived, spoke with her for about 45 minutes and me, not at all but charged me. (I know believe he knew this woman.) So damage was paid by my insurance to fix my car but we went to court and the charge on me, "Failure to Yield" was thrown out, but in truth that woman failed to yield, not me, I was in a traffic lane going up the highway and she was in a turn lane to go across the line of traffic, which she should yield. No one could then charge her properly and as a result on my insurance and driving record.
I had called the Albemarle County PD and tried to file a complaint against this officer and was railroaded.
So - I have seen the whole "code blue" thing go on here. Most officers are good people wanting to serve the public and do not do this sort of thing but those few, put a sour taste in our mouths and we savor them being nailed for things based upon our bias.
An officer cannot charge someone with "improper driving" in Virginia. They can only charge reckless, especially when they can't figure it out. The proper charge would have been Follow to Close. A judge is the only person who can reduce a charge to "improper driving", which is usually what occurs when a reckless charge is brought in. Improper is four points as oppossed to six points for reckless. Now, how any officer can work in a department where you get charged by your supervisor for an accident is beyond me. Most real police departments handle poor and reckless driving internally. Penalties ranging from written counsels or reprimand, to suspension, and eventually termination when they don't get the message. ACPD administration has no idea how to run a real police department. The majority of them would have an accident in their pants if they ever worked in Richmond or DC. ACPD should just let the State Police investigate their police accidents, takes out the confilct of interest, and insures fairness to both parties since apparently the bosses there have their own political agenda. I feel sorry for the rank and file officers that work there, what a bunch of b.s. .
So you just admitted you're not impartial and you're biased based on one negative encounter. It's commendable that you savor good officers getting in trouble based on a few "bad apples". You're credibility is completely void with a comment like that, it just shows where you are coming from. And if officers "most often" charge reckless driving as you stated then why weren't you charged with reckless driving?
Maybe he was wearing that hideous green shirt and he thought the glow from it was a green light?
The dashboard cam video is posted on youtube by a youtube user named DanceRooster. It is titled "man ticketed after being struck by police cruiser". Enjoy!