Bluffton police officer on paid leave as FBI investigates him. Officials won’t say why
When Bluffton Officer Cody Kirkman hoisted the ankles of a handcuffed man he was arresting, causing the man to pitch forward face-first into the pavement and pinning him there in a pool of his own blood, police officials reviewing the incident found the use of force “reasonable.”
When Kirkman and the department faced a civil rights lawsuit in federal court over the incident, an attorney assigned to represent the town said, “we stand behind the actions of the officer.”
Now, almost three years after the arrest, and as The Island Packet and Beaufort Gazette reported in August that Kirkman is under criminal investigation by the FBI in relation to the incident, Bluffton officials have sidelined the officer, with pay, for almost four months and counting.
On June 9 — the same day Bluffton’s police chief received a letter advising the department of the federal investigation — Kirkman was placed on paid administrative leave, Town Manager Marc Orlando confirmed on Friday.
Orlando said he was “not going to comment on personnel matters” and declined to answer questions about the decision, which he said he made with input from former Bluffton Chief Chris Chapmond, who left the department this summer.
Bluffton police spokesperson Capt. Joe Babkiewicz clarified that Kirkman was not “suspended,” as in cases where an officer violates a department policy or is being investigated by internal affairs.
Neither Babkiewicz nor Orlando would say specifically why Kirkman was placed on leave and has remained there for almost four months, on salary.
Lionel Lofton, a white-collar criminal defense attorney from Charleston representing Kirkman during the FBI’s probe, declined to comment and said Kirkman wouldn’t be making any public statements.
The dueling civil lawsuit and criminal investigation both stem from Kirkman’s arrest of Bluffton resident Ted Ellis for minor license and registration violations in August 2017. Police documents show the officer claimed Ellis was resisting a search. Video of the incident, obtained by the newspapers, show Ellis raised his voice and swore but allowed himself to be handcuffed and led to a police car.
There, after a verbal altercation, Kirkman reached around Ellis’ ankles and pulled them backward, causing the handcuffed 6-foot-4-inch Ellis to thrust forward and slam his chin against the payment. He sustained lasting neurological damage, broken teeth and lacerations to his face, according to his lawyers.
Kirkman kept Ellis pinned to the pavement in a growing pool of blood for almost nine minutes, according to the video.
In civil filings, Bluffton and its officers have denied wrongdoing, saying that Ellis failed to respond to commands, acting “hostile, verbally abusive and physically threatening” during the traffic stop.
An internal Bluffton police review found Kirkman “used a reasonable amount of force necessary to conduct a proper search of Ellis,” and he faced no disciplinary action. The review faulted two other officers on the scene for failing to “prevent Ted Ellis from hurting himself.”
The ongoing lawsuit has revealed developments in the federal criminal investigation and shed light on the arrest through expert testimony from witnesses in the case, which has moved slowly through the court system over the past year.
Criminal investigation spills over to civil case
The FBI’s criminal investigation into Kirkman’s use of force, first reported by the newspapers in August, may delay the lawsuit Ellis and his wife Teresa filed against Kirkman, the two other officers on the scene and the Bluffton Police Department in 2019.
A lawyer representing the defendants filed a motion to stay the case “in light of an on-going and parallel criminal investigation” that began in June 2020, according to a federal court document dated Sept. 30.
Kirkman, the court documents warn, could face a federal indictment for his actions.
The documents filed by the defense appear to cite “current events surrounding the issues of racial tensions and law enforcement” as a motivating factor behind the FBI’s investigation, also referencing continued “reporting by local media outlets.”
A letter filed in the civil case from Kirkman’s criminal defense attorney, Lofton, says U.S. attorneys advised Lofton that a prosecutorial decision on the criminal case wouldn’t be reached until late 2020 or early 2021.
Officers are rarely charged under federal “color of law” statute, which allows prosecution of civil rights violations by public officials acting in their official capacity, according to a recent Syracuse University report.
Lofton’s letter says Kirkman won’t provide statements or sit for a deposition for the civil case. The defense’s motion to stay that case argues the officers cannot participate in the civil litigation while also safeguarding their 5th Amendment right against self-incrimination in the parallel criminal proceedings.
Other civil filings offer a brief glimpse into the ongoing federal investigation. (A spokesperson for the FBI previously declined to confirm its existence to the newspapers.)
The two other officers who assisted Kirkman during Ellis’ arrest, Amber Swinehamer and Lindsey Gibson, both no longer employed by the Bluffton Police Department, have not been excluded from the investigation, an affidavit by their lawyer in the civil case shows. Federal prosecutors have interviewed each of the two officers, according to Lofton’s letter.
Derek Shoemake, a spokesperson for the U.S. Attorney’s Office, declined to confirm the existence of the investigation or the participation of his office.
National police use of force expert finds use of force “excessive”
A comprehensive report by a nationally renowned expert on police use of force prepared as part of Ellis’ civil lawsuit found Kirkman’s actions “unreasonable, excessive and contrary to generally accepted police practices” and said Kirkman’s description of the arrest contradicted video evidence.
University of South Carolina law professor Seth Stoughton was employed by Ellis’ lawyers to prepare the 29-page report, filed in federal court on Sept. 28. (Stoughton was interviewed for the newspapers’ first article on the arrest but has declined to comment since he agreed to serve as a paid expert witness.)
The defense has also employed an expert witness on policing, whose report has not yet been filed publicly.
Stoughton’s analysis highlighted discrepancies between Kirkman’s report on the arrest and footage captured by body-worn and squad car cameras, including Kirkman’s assertion that he grabbed Ellis around the waist rather than below the knees and his account of Ellis’s alleged resistance to a search.
“While it is clear that Mr. Ellis was verbally resisting, the available information is ambiguous with regard to whether he was physically resisting or presented a legitimate threat to Ofc. Kirkman’s ability to conduct a search,” Stoughton wrote.
He also took issue with the severity of the force Kirkman employed. Putting a “handcuffed individual into an uncontrolled forward fall is highly likely to result in the subject’s face or head striking the ground,” the report said.
“Such an impact is likely to risk death or serious physical injury,” it continued.
Stoughton cites as of yet undisclosed medical records showing Ellis suffered fractures in his jaw, a head injury, a cervical sprain and dental injuries.
Officer Kirkman’s report claims a doctor said Ellis suffered only a cut on his face.
The report references only “a small laceration on his chin,” which received “a small amount of stitches.”
