The Cunningham case is unique in that some of the beating Cunningham sustained at the hands of sheriff's officers was caught on tape by a camera mounted in the intake area at the jail. The tape, the centerpiece of Cunningham's case, initially shows Cunningham conversing with an officer inside the jail. On the day the incident took place in 1997, Cunningham, who admits to drinking several beers that day, had been arrested for a drunken fight at a bar. Just before the incident on the tape took place, Cunningham had been released from the holding cell at Mecklenburg County Jail Central where officers had left him to "cool down" for about half an hour.
The videotape, which has no audio, initially shows what appears to be Cunningham and an officer peacefully conversing at the bottom of the screen. Then three uniformed officers suddenly come from off screen and rush Cunningham, who they quickly subdue and pin to the floor. Although the lower half of Cunningham's body is blocked from view by a partition, the tape shows a detention officer stomping on Cunningham's stomach area twice with both feet. The kick to Cunningham's eye by the officer's foot, which occurred while Cunningham was restrained on the floor, is not clearly visible on the tape.
Scott MacLatchie, the attorney for the sheriff, argued that the kick to Cunningham's eye was "accidental." He also said that the officer didn't stomp on Cunningham, but "stepped" over him.
"He does step on him and step over him," said MacLatchie. "He could have taken a little bit longer and walked around Mr. Cunningham's body, around the feet and walked away. You'll hear testimony from the plaintiff that that was a stomp. In hindsight does he wish he didn't (step on Cunningham)? Yes. But the fact of the matter is what brings us here is the alleged act of excessive force, the alleged injury it supposedly caused was an unprovoked kick to the eye."
MacLatchie also argued that sheriff's officers rushed Cunningham because they had to pull him off an officer described as "Walker." The tape, though, showed no physical confrontation between Walker and Cunningham before the officers rushed Cunningham. MacLatchie said the tape showed Cunningham holding Walker in a stranglehold around the neck and that the officers had to separate Cunningham from Walker because Cunningham was pounding Walker's head into the wall. Again, none of this is visible on the tape.
But according to testimony from Walker read in court by Cunningham's attorney, Cunningham didn't have him by the neck. Instead, Walker said, the two men's arms became entangled as officers rushed Cunningham and in the ensuing ruckus, Walker banged his head against the wall.
Both sides agreed that before officers rushed Cunningham, Walker and Cunningham, who had been ordered back into his cell, exchanged inflammatory words. In testimony read in court in court, Walker admitted to regretting the inflammatory and provocative language he used toward Cunningham, who Walker knew was drunk. Walker also admitted that the exchange might have been unprofessional.
As two very different versions of what is clearly visible on the videotape emerge, it will be up to the jury to decide whether Cunningham's injuries merit compensation.
Earlier in the year, Creative Loafing requested that the Sheriff Department allow us to view the videotape in question, but we were repeatedly refused access.
In April, Cunningham and a legal associate of his attorney, Pamela Hunter, said they had been offered a five-figure monetary settlement by the legal team representing the sheriff and Riley, but they turned it down in favor of a jury trial in which compensation to Cunningham for his injury might be more substantial.
Meanwhile, the American Civil Liberties Union and investigators for the US Justice Department have taken an interest in the beatings cases. Both are currently reviewing at least seven of the cases filed against Sheriff Jim Pendergraph and 27 sheriff's officers named in beatings lawsuits. Neither has formally announced an investigation, but may in the coming months.
Of the 27 sheriff's officers who've been named in beatings lawsuits, 17 are still employed there and five no longer work there. According to a document provided by sheriff's spokesperson Julia Rush, the sheriff's office isn't sure whether the remaining five officers are still employed by the sheriff or not.