White Officer Fails To Prove Termination Based On Race

The seven-year tenure of Arthur Jones as Police Chief of the Milwaukee, Wisconsin Police Department produced a striking number of lawsuits against the City filed by police officers. Among the lawsuits was a jury verdict against the City that Jones, who is African-American, had discriminated against 17 white male police lieutenants on the basis of race or gender when they did not receive promotions to the position of captain.

A recent case is one of the few employee lawsuits actually resolved in favor of Jones. The case involved Robert Henry, a white police officer. On March 20, 2002, Officers Talmer Wilson and Rodney Young, both African-Americans, arrested Billy Miles, an African-American male. The officers brought Miles to the police station where Henry was working. A video camera located in the booking room recorded the events that took place. The videotape did not record sound.

During the booking process, while Miles’ hands were both down at his sides, Henry suddenly pushed Miles in the collarbone area. This action knocked Miles off balance, and he stumbled backwards. Miles regained his balance, and, with both hands raised above his head, moved towards Henry. At that point, Henry grabbed Miles near his jaw and pushed him against a wall, then onto a desk. Several persons then entered the room, and Miles was led back to the bench in handcuffs. After Miles had been handcuffed, Henry flexed his right arm and patted his bicep several times while staring at Miles.

Four months later, a Milwaukee television station aired portions of the videotape from Miles’ booking. That night, Chief Jones telephoned the Internal Affairs Division and asked for an investigation into Henry’s actions.

After the conclusion of the internal affairs investigation, Jones fired Henry. Wilson and Young received 30-day suspensions without pay for witnessing Henry’s conduct and failing to report it.

Henry appealed his termination to the Board of Fire and Police Commissioners of the City of Milwaukee. Wilson and Young testified that before Henry initiated contact with Miles, they believed that Miles was about to spit on Henry and that Miles did not turn to the wall as Henry had instructed. Other witnesses, including the author of a training manual for a Defense and Arrest Tactics course, testified that they had watched the video and observed nothing improper in Henry’s behavior. A lieutenant who instructed at the police academy testified that Henry’s bicep flex could be a form of “verbal judo,” a communication tool taught at the academy. The only evidence Jones presented in support of Henry’s termination was the videotape itself.

The Board overturned Henry’s discharge, and concluded that Jones had failed to present sufficient evidence that a fair and reasonable effort had been made to determine whether a rule had been violated. Henry was subsequently reinstated. Jones then issued a press release stating that he had asked the FBI to investigate whether Henry’s actions violated federal civil rights statutes. The Department of Justice ultimately found no evidence of a civil rights violation; Henry took disability leave soon after seeing the press release announcing the matter had been referred to the FBI.

Henry also filed a lawsuit against the City, alleging that he was discharged because of his race. The federal Seventh Circuit Court of Appeals rejected Henry’s lawsuit. The Court found that the primary way Henry attempted to establish racial discrimination was by showing that he was treated less favorably than similarly-situated officers who were not white. In the Court’s judgment, “although Henry points to several African-American police officers whose discipline fell short of termination, none are sufficiently comparable to suggest that Henry was singled out for harsher treatment. First, Henry turns our attention to Wilson and Young, the two African-American officers involved in Miles’ arrest and booking. Miles stated during an IAD investigation interview that on the night he was booked, Young elbowed him in the nose and Wilson punched him in the head. However, Wilson and Young both adamantly deny striking Miles, and, significantly, there is no corroboration whatsoever to support Miles’ story. There is no medical or other evidence consistent with Miles’ account.

“Henry’s conduct, however, was captured on videotape and shown on the evening news. The presence of a tape suggesting that an officer used force against an arrested person without provocation can present a far different call for discipline than an unsupported story of excessive force by two officers.

“Henry also points to Officer Allen Perry, another African-American officer, who drew a ‘smiley face’ on a prisoner in a hospital and received a one-day suspension. Drawing on a prisoner, although a form of misconduct, is simply not comparable to the sudden force used on Miles.”

Henry v. Jones, 2007 WL 3230407 (7th Cir. 2007).

This article appears in the January 2008 issue