After more than two years of internal disputes and legislative setbacks, Charlottesville’s Police Civilian Oversight Board has finally delivered an evaluation of its first case.
The board was scheduled to hold its initial hearing in July—but on the day of the hearing, complainant Jeff Fogel, a local attorney, and the Charlottesville Police Department agreed to an alternative dispute resolution, due to Fogel’s claim that two board members were biased against him. After city attorney Lisa Robertson expressed concern over the board’s lack of operating procedures and a facilitator for an ADR, the board and two parties then decided in August to allow PCOB Executive Director Hansel Aguilar to conduct a neutral evaluation of the case.
On September 28, Aguilar issued his evaluation, which determined the CPD did not “thoroughly, completely, and accurately” investigate Fogel’s complaint. “There were elements or investigative tasks missing from the Department’s investigation,” as well as “instances where the objectivity and impartiality of the Department’s investigation could reasonably be called into question,” reads the 63-page report.
Fogel filed his complaint against the CPD in July 2020, after a Charlottesville police officer—identified as Officer Houchens in Aguilar’s report—arrested 36-year-old Christopher Gonzalez, who was lying down on the Downtown Mall. Gonzalez admitted to drinking alcohol, and said he was homeless. Houchens threatened to arrest him for public intoxication unless he left the mall, which Gonzalez refused to do. Houchens tried to handcuff him, but Gonzalez pulled away. Houchens then pinned Gonzalez to the ground, and put him in a headlock for nearly a minute, according to a now-deleted Instagram video. Gonzalez was later charged with assault of a police officer, public intoxication, and obstruction of justice, and was held without bail for almost three weeks at the local jail. Though Gonzalez’s charges were later dismissed, in September 2020 the CPD exonerated Fogel’s allegations of excessive force, and concluded that the allegations of bias-based policing were unfounded.
In Aguilar’s report, he emphasized that his job was not to “reinvestigate” Fogel’s claim, but rather to determine whether the CPD “thoroughly, completely, accurately, objectively, and impartially” investigated whether Houchens assaulted, kicked, and applied a chokehold on Gonzalez, as well as the appropriateness of Houchens’ threat to arrest Gonzalez, his arrest of Gonzalez, and his charging of Gonzalez with assaulting a police officer. During Aguilar’s investigation, he reviewed the unredacted 100-page internal affairs report, third-party videos of the incident, on-the-scene body-worn camera videos, BWC videos of prior encounters officers had with Gonzalez, emergency communication recordings, and calls to witnesses and Fogel.
During the department’s criminal investigation into Houchens’ use of force and Gonzalez’s resistance to arrest, investigators only interviewed Houchens, and did not refer the case to the commonwealth’s attorney, claiming that no criminal violation took place. “It is unclear how that conclusion was reached,” wrote Aguilar.
In regard to CPD’s administrative investigation into the use of force and arrest, Aguilar argued the department could have better evaluated the “tactical, strategic, and training implications” of the incident, questioning why Houchens did not wait for backup to help de-escalate the situation. He also criticized the department for not interviewing Gonzalez—investigators only made one phone call to his attorney. “Had C.G. been willing to provide a narrative of the event in question, this may have answered key questions regarding his level of intoxication, his resistance to the officer’s actions, and his ‘assault’ on the CPD officer,” wrote Aguilar.
The CPD should have evaluated the appropriateness of Houchens’ threat to arrest Gonzalez “through the lens” of its public intoxication policy—which directs officers to arrest intoxicated people when they “may cause harm” to themselves or others—instead of just its biased-based policing policy, said Aguilar. Investigators also should have better questioned Houchens to determine if his actions were biased.
“I like to give them the opportunity to go sober up or go somewhere,” explained Houchens during an interview with a CPD investigator. “I know that these people don’t have anywhere to go, really anywhere to be. But since I am the mall officer, I get complaints all the time about intoxicated people on the mall. … Once we start getting calls from citizens about it, that’s kind of when it starts to become a problem, but I still will try to get them at least out of the public’s view.”
“Who are ‘these people’ that the officer is referring to?” asked Aguilar. “Was C.G. ‘causing a problem’ other than community members calling in about him? Under what departmental guidance, practice, or procedure is Officer L.H. operating under when he states the need to ‘try to get them at least out of the public’s view’? Is Officer L.H. suggesting that being intoxicated in public is acceptable just if it is not on the downtown mall?”
“It is unclear … how the officer determined C.G. was intoxicated to a degree that the officer believed C.G. could ‘cause harm to himself/herself or others,’” continued Aguilar.
However, Aguilar agreed with the CPD that “there is sufficient support that the officer had established probable cause to affect the arrest of C.G. in violation of the state’s public intoxication law,” which states that “if any person is intoxicated in public … he is guilty of a Class 4 misdemeanor.” He also agreed there was “probable cause to support” Gonzalez being charged for assaulting a police officer.
“When informed that he was being placed under arrest C.G. stated, ‘let’s do this.’ A reasonable officer … could interpret the underlying behavioral cues of C.G. to be pre-assault indicators,” explained Aguilar. “During the probable cause hearing before the magistrate, C.G. clarified to the magistrate, ‘I was whooping his ass, he wasn’t whooping my ass.’ This admission of guilt [makes] the charge of assault on a police officer an accurate charge.”
Concluding his report, Aguilar provided the CPD with nine recommendations to help increase transparency and accountability. Most notably, he urged the department to consider: “revising the public intoxication general order [to] further guide officers;” “retraining officers [about] the purpose of the public intoxication statute and the options officers have;” “retraining the subject officer on the importance of utilizing backup officers to de-escalate;” and “revisiting how much information is made available to complainants of misconduct.”
Aguilar also suggested that City Council examine the disproportionate impact public intoxication policies have on vulnerable communities; that PCOB take steps to improve its efficiency and credibility; and that the city manager provide the board with more resources.
Fogel says he was impressed by the “thoroughness” of Aguilar’s report, and believes the director raised strong questions and made helpful recommendations. But he remains frustrated with the CPD for not providing him with more evidence—he cannot adequately evaluate Aguilar’s report since he has only seen Houchens’ BWC footage and one video of the arrest taken by a witness.
“There were something like nine videos that were used, and I was only aware of the one that I asked for that they refused to give me. And as [Aguilar] points out in his report, there’s no explanation for why they wouldn’t give me that video,” says Fogel. “Can you have a fair hearing with secret evidence? … In my view the answer is clearly no.”
The CPD has until October 24 to respond to Aguilar’s report. Fogel will then have 10 days to respond to the department.