MARTINSBURG — It was 10 days after former West Virginia State Police trooper Michael Kennedy took part in the beating of a teenager before he told his supervisors about it.
By the time he’d submitted a written statement to his sergeant, at about 11 p.m. on Nov. 29, 2018, the governor had publicly condemned the beating, the State Police superintendent had requested a statement and Kennedy’s supervisor had allowed him to view a video of the Nov. 19 altercation, Kennedy said Tuesday during his federal trial.
Kennedy’s statement included information about him punching the back of the teenager eight times, then handcuffing, lifting and throwing the teen to the side of the road. On Tuesday, Kennedy testified that it did not mention a subsequent incident in which he dropped the teen in a snowbank and slapped him across the face twice when he attempted to sit up against Kennedy’s instructions.
“There was already plenty of cause for a supervisor to come out that night,” Kennedy said on the witness stand. “There was no need for every little detail.”
Tuesday’s evidence and arguments brought evidentiary proceedings at Kennedy’s trial for the deprivation of rights under the color of law to a close.
An immediate ruling is unlikely. Because the parties opted for a bench trial, U.S. District Judge Gina Groh has final say on the verdict. She asked for attorneys to submit proposed findings of fact as to what happened, due one week after the release of the official trial transcript, before she makes a ruling.
On Monday, several law enforcement officers who witnessed the events attested to their own decision to stop the use of force when four officers handcuffed the young man after he had collided with one police car and led others on a chase that reached speeds of 100 miles per hour.
Kennedy, however, can be seen in video footage throwing the handcuffed 16-year-old to the side of the road. He said he did so because, when he held the teen up by his shirt, face-to-face with him, some liquid — either spit or blood — got on his face.
The “body toss,” as State Police Superintendent Col. Jan Cahill has described it, came after two state troopers and two Berkeley County sheriff’s deputies kicked, stomped and punched the teen.
Federal prosecutors pointed out that, in Kennedy’s statement to police, he never mentioned any kind of bodily fluid. Neither did he mention concern he’d raised during testimony that the teen could have been intoxicated.
Prosecutors, pointing to testimony from the director of training for State Police and policies introduced as evidence, said that tossing a handcuffed teenager is not how troopers are trained to act.
“It’s not what you would teach at the academy,” Kennedy said Tuesday.
Prosecutors argued that Kennedy’s actions in all three engagements (the handcuffing, the body toss and the face slaps) each constituted excessive force.
Craig Manford, Kennedy’s attorney, argued that, while the video appears damning, a frame-by-frame viewing shows a series of actions of resistance by the teenager and commensurate reactions of force from Kennedy.
Whether it was the suspect attempting to stand up, as Kennedy alone testified, or him “tensing up” when the officers tried to handcuff him, as several officers testified, each of Kennedy’s uses of force amounted to “pain compliance” techniques and were within police standards for the use of force, Kennedy’s lawyer said.
By the time Kennedy dropped the teen in the snowbank, after the chase, crash, beating and tossing, Manford said, the teen’s continued ignorance of Kennedy’s commands proved that uses of force such as “pain compliance” techniques were justified.
“He’s still resisting after all this stuff had happened,” he said.
Manford also urged the judge to consider the “totality of the circumstances” — the teen rear-ended a trooper, potentially causing injury, he led them on a 100-mph chase, he wrecked his car hitting a telephone line and causing a dangerous explosion, and he failed to comply with repeated commands.
“When you take it bit-by-bit and consider the totality of the circumstances, he’s just trying to do his job,” Manford said of Kennedy.
Prosecutors, however, depicted Kennedy as acting out of anger and seeking to punish the teenager. They said Kennedy and Berkeley County Sheriff’s Deputy Chris Merson served in the military together and had known one another for years. They pointed to testimony that Kennedy scolded the teen for potentially injuring Merson before slapping him in the snow bank.
Kennedy admitted to frustration during the course of events and concern for Merson, but denied ever feeling angry. He testified that he slapped the young man with his left, non-dominant hand, which his attorney said is proof he was not seeking to excessively harm him.
The trial caps a winding saga that led to the firing of Kennedy and trooper Derek Walker in January, after they were placed on administrative leave Nov. 28. Deputies Merson and Austin Ennis were fired but reinstated upon appeal.
Testimony from Berkeley Deputy Willy Johnson on Monday indicated that the incident came to light only when Johnson saw footage of what “looked like a bag of garbage was being tossed to the ground” from another deputy’s dash cam and told the sheriff, who told the State Police.
In an email after the trial, State Police spokeswoman Capt. Shallon Oglesby declined comment regarding the delay in reporting or the manner in which the internal investigation was conducted.