Report on assault spreads blame to T police leadership
The ugly confrontation was caught on video: An MBTA police officer squirted pepper spray in a bystander’s face as she called 911 to report the officer’s harsh treatment of an intoxicated woman. The officer and her partner then knocked the bystander to the ground, beat her with a baton, and handcuffed her, leaving her bruised and bleeding from a gash in her shin.
Today, former transit police officer Jennifer Garvey is serving six months in jail for the March 2014 assault on Mary Holmes of Roxbury. But a scathing consultant’s report obtained by the Globe suggests transit police leadership shares some responsibility for Garvey’s conduct, raising troubling questions about how thoroughly the agency investigates allegations of brutality or trains officers to avoid it.
The consultant, New Hampshire-based Municipal Resources Inc., found that Garvey’s superiors ignored repeated warnings that Garvey was prone to using excessive force from the time she was hired in 2008, including 11 formal complaints about her conduct.
And, when Holmes and a witness accused Garvey of police brutality, her superiors quickly exonerated her, assigning an inexperienced officer who failed even to question Holmes before concluding there was no excessive force. Only after Holmes filed a lawsuit against Garvey did prosecutors seek an indictment of the officer on criminal charges.
The consultant’s report was also highly critical of several superior officers, including Lieutenant James Witzgall, who up until last week — when the Globe began making inquiries — was a program coordinator and instructor at the state agency that trains thousands of police officers on topics including the proper use of force.
State public safety officials placed Witzgall on administrative leave from the agency, called the Massachusetts Municipal Police Training Committee, on Oct. 3. A spokesman said officials had just reviewed the 2016 consultant’s report. It faulted Witzgall for assigning an “untrained and inexperienced subordinate” to investigate the actions of an officer that Witzgall knew had faced numerous excessive force complaints.
There were “numerous weaknesses, omissions, and deviations from industry best practice” in the MBTA’s internal review of the complaints against Garvey, concluded the consultant’s report, released to the Globe in response to a public records request.
The lawyer for the union representing transit police officers said that MBTA police instructors encouraged officers to be more aggressive when using their batons prior to Garvey’s confrontation with Holmes at the Dudley Square T station. The lawyer, David E. Condon, recently wrote to the transit police superintendent that officers had been encouraged to “use more stick” and “go for the knock-out punch.”
“Our members need clear direction as to what level of force they are expected to use and how that continuum of force should be executed in the process of an arrest,” wrote Condon.
The MBTA said in a written statement that a new police command staff was appointed after the Holmes incident and “checks and balances are now in place to ensure the integrity of the department and its policies.” Acting MBTA Transit Police Chief Kenneth Green, who had been with the force since 1991, was promoted to head the 270-person department in October 2015.
A spokesman said the agency also made significant changes to its internal investigation process and use of force guidelines, added training for officers, and revamped its system for investigating citizens’ complaints.
In addition, the MBTA spokesman said new training supervisors now emphasize that the “only acceptable use of force is the minimal amount necessary to overcome aggression towards an officer or another, or to overcome resistance to an officer’s lawful actions.”
Garvey, sometimes known by her maiden name, Amyot, is a highly decorated US Army National Guard veteran who completed tours in Iraq and Afghanistan. But, according to court filings, the 35-year-old was bypassed for a job at the Worcester Police Department and charged with assault and battery three years before she was offered the MBTA job. The 2005 case, which stemmed from a Provincetown bar fight, was continued without a finding, with a recommendation that she receive counseling.
Witzgall, who investigated Garvey’s background as part of the hiring process in 2008, told consultants he found Garvey an unsuitable candidate. He said he relayed his concerns to supervisors but was overruled because there was “a push to hire more females at the time,” according to the consultant’s report.
In his written report in 2008, however, Witzgall did not object to her hiring, saying only that he had completed the review of her background. Witzgall later told the consultants that he had “always considered [Garvey] a risk.”
As a transit police officer, Garvey ran up 19 alerts from an early intervention program intended to identify at-risk employees. The alerts included complaints of assault, harassment, and rudeness that began when she was a new officer on probation. In 2011, a pizza delivery driver complained that she confronted him for double-parking, then squirted him with pepper spray and arrested him when he tried to call 911 to report she was rude and unprofessional.
But Garvey was routinely exonerated. The consultant’s report said a supervisor who cleared her after a 2012 complaint wrote that Garvey “seems to always employ the strongest action allowable and demands tactical submission in all encounters” and concluded it was a strategy that “causes many people to take umbrage” and led to higher than average complaints.
The consultants found the investigation into Holmes’s complaint failed to meet professional standards in at least 11 ways, including the failure of the investigator, Detective Lieutenant Dennis Hong, to interview the officers or the alleged victim or to review photographs, listen to Holmes’s 911 call, or review Garvey’s history of complaints.
The report faulted Witzgall, then a deputy chief who oversaw internal affairs and other units, for assigning the investigation to Hong in the first place. Hong, the report said, was “not properly trained in internal affairs investigations.” Witzgall said that he, too, never had any internal affairs investigation training and “that’s how it goes here, just kind of learn as you go,” according to the report.
After overseeing Hong’s investigation, Witzgall than sat on the transit police committee that cleared Garvey of any wrongdoing.
Witzgall told consultants that he still doesn’t believe the officer used excessive force, according to the report.
He told the consultants that the video “looks awful, but my opinion as far as use of force, was that she was in compliance.”
Attorney Condon, who represents the MBTA Police Association, said that members of the union contend Witzgall himself encouraged officers to “use more stick” during a training session attended by Garvey about five years ago.
“When you have an officer who was trained this way and she was cleared and ends up in jail, it shatters the trust” of union members and the public, Condon said.
Witzgall denied he instructed anyone to use excessive force.
“Using a baton, you need to swing and be effective,” Witzgall said in an interview. “If you are not effective, if you keep swinging, you look like you are abusing somebody.”
In 2015, the MBTA demoted Witzgall to lieutenant, but the state continued to promote him as a police trainer. In October 2016, six months after the consultant’s report, the Municipal Police Training Committee tapped Witzgall, then one of its part-time instructors, to serve as a statewide program coordinator, overseeing a program that trains officers in the use of batons, tasers, pepper spray, and other tools.
MBTA officials say they did not share the 2016 consultant’s report with the training committee until recently, saying they were unaware of Witzgall’s position. State officials then suspended Witzgall from the training committee pending an investigation. Witzgall said the program director told him “that I wouldn’t be able to teach until this is all cleared up.”
Garvey was indicted in the assault on Holmes in December 2015. Eleven months before, Garvey had been charged with assaulting her wife inside their Wilmington home and pointing a gun at her. A lawyer representing Garvey in that case said she suffered from post traumatic stress disorder from her military service and needed help. The charge was later dismissed.
But, in July, a judge found Garvey guilty of assaulting Holmes and filing a false police report to cover up the assault.
Philip Tracy, the Boston attorney who represented Garvey at her trial, said the judge’s decision to sentence her to just six months in jail, half the time prosecutors wanted, suggests he believed Garvey’s actions followed the training she received at the transit authority.
“She took the classes [the MBTA] gave her and followed the instructions, and I think the judge took that into account,” Tracy said.
The MBTA in June reached a settlement with Holmes in a federal civil suit, which accused the agency of violating her constitutional right to free speech and of using excessive force.
As part of the settlement, the MBTA agreed to enhance its systems and policies for monitoring officer behavior and to provide aggression management training. The agency also agreed to post on its website its standards of conduct for police, its use-of-force policies, and streamlined instructions that make it easier for people to file police complaints.
Holmes remains deeply troubled by her encounter with transit police and especially by the agency’s investigation of that confrontation.
A single mother of two children, Holmes said she didn’t realize she was about to be arrested when Garvey lunged at her as she spoke on her cellphone that day in Roxbury. Injured from the assault, Holmes was initially arrested and spent the night in jail away from her children. Later, when she went to MBTA offices to file a complaint against Garvey, a desk sergeant, surrounded by other officers, tried to dissuade her. She was so traumatized by the ordeal, she said, she was afraid to leave her home for a year.
“Safety is an illusion,” Holmes said. “I don’t trust anybody.”
This is the consultant’s report on the MBTA Police Department’s handling of a March 2014 attack on a civilian, by police officer Jennifer Garvey. Garvey is currently serving six months in jail for the incident. The report, however, suggests that transit police leadership shares some responsibility for Garvey’s conduct, raising troubling questions about how thoroughly the agency investigates allegations of brutality or trains officers to avoid it.
In the report, Garvey is referred to as Jennifer Amyot, which is her maiden name.