Above Photo: Keith Davis was the first person to be shot by police after Freddie Gray died in police custody in April. But whether or not Davis committed crimes that day remains in dispute. Photograph: Courtesy of Keith Davis
There’s no dispute that police shot Keith Davis but as he nurses his wounds 200 days later from jail – and awaits trial – he’s fighting against criminal charges
On 7 June 2015, Baltimore was still reeling from the unrest that had put thousands of citizens at odds with battalions of police dressed in riot gear in the aftermath of the death of Freddie Gray. May had been the city’s most violent month since the 1970s. More than 40 people had been murdered in the city and more than 100 others non-fatally shot in the month since the hopeful day when state’s attorney Marilyn Mosby told the city that she felt its pain as she announced she would press charges against the officers tied to Gray’s death in the back of a police van.
Residents and police alike were expressing confusion and fear, as some claimed officers were in the middle of a “slowdown” in retaliation against city leadership. So when reports of a shoot-out between a suspect and officers came out, no one was surprised – or particularly outraged. The local newspaper ran a story based on the police reports, which said that the man, Keith Davis Jr, had robbed an unlicensed cab driver with a pistol and fled from the police to a garage, where he refused to give up his weapon and was shot at numerous times before being hit in the arm and the face and surrendering.
But unlike many victims of police shootings, Davis lived to provide his own account of what happened that morning – he says he didn’t have a gun and was misidentified as the suspect. He is now fighting criminal charges against him and has been in jail awaiting trial for more than 200 days, while nursing his gunshot wounds behind bars.
As the Guardian’s The Counted has reported, more than 1,130 people were killed by police in 2015. But there are others who, like Davis, are shot or otherwise injured by police and survive.
Davis was the first person to be shot by police after Freddie Gray died in police custody in April. And whether or not Davis committed crimes that day remains in dispute. But local activist groups have taken up Davis’s case, holding demonstrations and protests at Mosby’s office.
“This is what would have happened to Freddie Gray if he had lived,” a demonstrator said to passersby.
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When Davis walked into a packed courtroom for trial wearing a jumpsuit and chains, the bullet that went into his face was still clearly visible as a large lump in the back of his neck.
“I still have a bullet in my neck,” he said later in a telephone interview from jail. “It’s really a fight just to get what you’re supposed to have. It’s not like having a doctor at home, even the medicine they give you is not up to par. They told me there’s nothing they can do about the pain in my neck, they told me there’s nothing we can do about that.”
Davis is facing 16 charges, including attempted armed robbery, firearms use, discharging firearms, handgun on person, first and second degree assault and reckless endangerment. On 3 December, the state brought a new case relating to the same incident against Davis, charging him as a felon in possession of a firearm.
Davis’ trial has already been postponed three times, the third time because he was arranged on new charges. His lawyer, Latoya Francis-Williams, says the prosecutor’s office has failed to supply her with information she requested in discovery, such as statements from the shooting officers.
As a result of the postponements, Davis has been in jail without a trial for more than 200 days, far beyond the 180 days allowed by Maryland law for a speedy trial. His lawyer says she just wants to give her client his day in court.
There are competing narratives about what happened the morning Davis was shot. The police say that he got into the car of an unlicensed cab driver and tried to rob him with a pistol and fled from officers into an auto garage wielding a gun. From inside the garage Davis kept pointing the gun at officers who opened fire on him.
Davis says he was never in the car and did not have a gun. He thinks the officers mistook his cellphone for a gun and shot him as a result of the mistake.
His girlfriend Kelly Holsey says she was on the phone with Davis the night of the incident, and has enlisted anti-police brutality group Baltimore Bloc in a vigorous movement to see him freed.
“Bloc takes a lot of leadership from the families directly,” said Payam Sohrabi, a member of Baltimore Bloc. “Kelly is a fighter who has been speaking out since the beginning by herself. That’s how we found her and so we have been working to support her and Keith ever since.”
According to Holsey and Bloc, the fault is the case now lies with Marilyn Mosby, who garnered national attention when she brought charges against the six officers allegedly involved in the death of Freddie Gray. But in this case, her office offered letters of declination clearing the officers of any criminal charges – and her office has failed to provide statements from any of the shooting officers to the defense so that Davis can exercise his constitutional right to confront his accusers.
“Marilyn Mosby stood on the war memorial steps just six months ago with so much fire, so much passion, so much determination, yet we have not heard or seen from her in this situation,” said Holsey at a rally on the morning of Davis’s November trial date. “She aggressively went after protesters more than she’s gone after these police officers. I was one of the people who thought that she was for justice and for fairness. She is not.”
Reporting by the Baltimore Sun has shown how rare it is for police to be charged in shooting incidents in Baltimore, noting of the 67 police-involved deaths since 2006, only two officers faced criminal charges, prior to the six indicted for Gray’s death. There is no comprehensive data for non-fatal encounters such as Davis’s but the Law Enforcement Officers Bill of Rights gives extra protections to officers involved in such incidents, shielding them, for instance, from having to give statements for up to 10 days.
And in many big cities with high crime rates, it is also common for suspects in Baltimore to remain in jail beyond the 180-day limit required by the Maryland law often called the Hicks rule.
“The only guy that’s ever benefited from a Hicks motion is a guy named Hicks,” said Todd Oppenheim, a public defender and candidate for circuit court judge for Baltimore city. “Hicks rights are violated all the time, but judges can justify it by finding good cause. Good cause is subjective.”
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The incident that landed Davis in jail began when officers from the Northwestern District were called to the scene of a car accident. Another car, driven by an unlicensed cab driver named Charles Holden, came careening towards the investigating officers.
Holden said he aimed the car at the police after a man got in the car and tried to rob him at gunpoint. “I said man what the fuck are you doing and I seen these two polices up there,” Holden told investigators. “I’m gonna run into the police car with my car.”
When Holden’s car stopped – it is unclear if it actually hit the police cruiser as Holden had intended – the man in the passenger seat leapt from the car and started to run. When Holden told the police the man had a gun, Officer Eskins began to pursue him, calling it in on the radio.
This is where the stories of the officers and Davis diverge.
The charging documents – written by a sergeant who was not involved in the shooting five days after the incident – allege that the man who fled the car was Davis. Holden described the man as a light-skinned African American in his 30s with braids or long hair. “He had good size hair. I think it was platted,” he said to investigators.
Davis, who is 25 and wears his hair closely cropped, says that he was still walking up the sidewalk listening to headphones with his phone in his hand when Holden’s car roared up.
According to Davis, when the car stopped the passenger ran towards the crowd, followed by police. “They just centered on me. When they ran towards the crowd everybody kind of broke away from the crowd and ran in a direction,” he said. “I wasn’t even the only one that ran in that direction but they ended up chasing me.”
Davis maintains that he did not have a gun in his hand at all that day and says that the gun which was recovered does not have his fingerprints on it.
Davis said that he still had his phone in his hand when he ran into an auto shop.
The Baltimore police department has not made public any statements by the four officers directly involved in shooting Davis. But statements given to investigators by other officers, obtained by the Guardian, show how chaotic such a shooting scene can be.
The officers on the scene that day were separated into two main groups, to either side of the garage’s rolling door, where Davis was taking cover behind a refrigerator and some toolboxes.
Some of the officers said that Davis was shooting – though they did not see muzzle fire come from the dark garage but instead relied on the sound of gunfire. Others did not hear any shooting other than that of the officers and one said only that he heard shots and didn’t know whether they were “red or blue, friend or foe”.
The confusion extends beyond the initial scene to the statement of charges. Davis is charged with discharging a firearm, but the narrative affidavit does not mention him shooting and says only that he pointed the gun.
One witness did not mention a gun at all when giving a statement to the police. The other said he had a “square” black gun – the driver described a silver gun – in his hand and described him as looking “like a little kid.”
When the first witness, Martina Washington, ran out of the garage, she said an officer was already shooting. “As I was running out the police lady, she had her gun… she shot. It’s not like she shot at me. She shot around me or something,” she said.
“I just remember a lot of shots,” Davis said from jail. “I remember being shot in the arm. That’s when I called Kelly and I shouted and I figured somebody would help. I kept saying ‘I don’t have nothing I don’t have nothing’ and they just kept shooting. I called Kelly and said ‘the police trying to kill me.’”
Holsey took a screenshot of her call log from that morning which shows a 1 minute and 7 second call.
“His first words were ‘Baby I’ma die,” Holsey said. “I could hear [shots like] popcorn like a constant pop pop pop.”
Holsey said she heard Davis yell out “Why y’all tryin’ to kill me?”
Then he told her “The police shot me.”
Holsey said that between the pops she heard muffled voices and heard Davis yell “I don’t have nothing.” Then she heard what she described as “one big pop” before the call dropped.
With that final pop, the two narratives converged again as officers entered the garage, where they found Davis, shot in the face and what they describe as a .22 caliber long gun on top of a refrigerator. Davis contends that his fingerprints were not found on the gun.
The four officers who were described by witnesses as having discharged their firearms – Santiago, Eskins, Filippou, and Lopez – were put on administrative duties.
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Davis described his life since then as a “living nightmare”.
“I went in the hospital, I never knew exactly what was going on, what the police were doing,” he said.
According to Holsey, she was not allowed to see Davis for the first four days he was in the hospital. Then she had one day to visit with him. “The next day, detectives went in and tried to talk to him and he didn’t cooperate, so they called his mom and said he could have no visits at all,” she said.
She said doctors removed the tracheal tube and police took him to central booking in the middle of the night.
“They take me down to central district, and the detectives tried to question me and I kept asking them what am I being locked up for,” Davis said. “At the time I couldn’t even talk. I had to write everything down so they would know what I was saying. I was confused about what was going on and nobody would ever tell me.”
Conditions in the Baltimore jail can be harrowing – especially if a prisoner also needs medical care. The day after Davis was shot, on 8 June, Jeffrey Blair, whom police shot in February, committed suicide. In a lawsuit filed last week, Blair’s family blames his death on the treatment he suffered both while hospitalized following the shooting and in central booking, where his family says a public defender found him “half naked”. The family is seeking $12m in punitive damages.
As Davis waits for yet another trial date, scheduled for February, his lawyer says she is still wondering what happened to all of the initial documentation of a major event required by departmental general orders.
The police department filed a motion of protective order last week in an attempt to keep some of the information that Francis-Williams is requesting confidential.
“We are entitled to all statements,” Francis-Williams said. “We can’t let them off the hook. That’s bullshit.”
“It’s laughable if someone wasn’t sitting in jail or severely injured,” Francis-Williams said of what she called the “miscarriage of justice” with regard to her client.
“They have me sitting here on a crime that I’m a victim of,” Davis said from jail.