But on July 8, 2018, the unarmed Pettaway was mauled horrifically by a police dog inside the pink house. The dog ripped open Pettaway’s femoral artery. An autopsy photo shows a gaping thigh wound two and a half inches long and deep, with bone visible.
In depositions, police officers near the attack agree that Pettaway did not break any law, didn’t resist arrest and didn’t argue with police.
RELATED: WATCH: Body cam video shows suspect begging cop to call off out-of-control K9
The tragedy leading to Pettaway’s death was captured by police bodycam video that has been kept confidential from the public and the press.
Police depositions describe Pettaway screaming, pleading that he’s trying to cooperate as the dog holds its bite on his groin for two minutes. One deposition describes the video as showing K9 officer Nicholas Barber forced to strangle his dog into unconsciousness just to get the dog’s teeth unclamped from Pettaway’s flesh.
Unlike George Floyd’s final moments, this video might never be seen publicly.
In court documents, Montgomery city attorney Christopher East reveals a controversial reason for keeping the video secret. The video has “the potential of creating and/or facilitating civil unrest based on the graphic images alone.”
East invokes the fear that riots like those that erupted after video of George Floyd’s murder went viral.
Pettaway’s brother, Walter, sued Montgomery police in 2019. It took Walter’s pro bono attorney, Griffin Sikes, two years to obtain the video so he could prepare for trial. Judge Emily Marks, appointed to federal court by ex-President Donald Trump, ordered the video kept under seal of confidentiality, meaning Sikes cannot share it with reporters or members of the public.
First Amendment expert and Columbia Law School lecturer Robert Balin told Raw Story he’s never encountered public safety as a reason to refuse to release bodycam video to the press.
RELATED: Records show Florida cop giddily wanting to sic dog on suicidal teen: 'COME GET UR BITE'
Balin makes a clear distinction between fear of civil unrest and concern for national security.
“An imagined fear that riots that may happen if people react a certain way is very different from citing specific national security concerns like an undercover law enforcement agent’s life would be at risk if certain information is released,” Balin explained.
By contrast, the city of Montgomery argues the video would expose police to “annoyance and embarrassment.”
First Amendment access to police bodycam video looms as a huge issue as the Jan. 6 hearings unfold. Bodycam video shows how vicious, violent and dangerous the riot was for a vastly outnumbered Capitol police. It also shows how courageously police fought to protect members of Congress and a free election.
Try to imagine the hearings without the bodycam video as an impartial, unedited witness.
Pettaway’s killing has also spurred debate over whether it’s just too dangerous — for police officers as well as innocent bystanders — to weaponize dogs. Lawyers can tell you how much juries love police dogs. And there are plenty of examples of smart, brave canines completing heroic missions like sniffing out explosives and drugs, finding lost kids or hikers injured in the wilderness, even dogs who disarmed bad guys with guns.
But dogs aren’t robots or drones mindlessly obeying a human’s commands. They have emotions and feel stress, so much that some need to retire as early as 6 or 7 years of age. As Pettaway’s death demonstrates, during an attack, they might not heed or understand a handler’s commands.
What’s on the video?
The trial is finally scheduled for spring of next year.
Joseph Pettaway’s brother, Walter, says that when Joseph was young, he served seven years in prison for writing bad checks. Joseph was discouraged by the long sentence but determined to change his life.
“While he was incarcerated, Joseph mailed our mother certificates he earned in prison for good behavior, counseling other inmates, taking classes, volunteering, learning skills,” Walter said. “She was so proud of his certificates. When he got out, he lived with her and took care of her.” Having a prison record made finding longtime employment hard but “Joseph worked all the: construction, detailing and washing cars, day labor. He was smart, had lots of skills.”
Electricity and water were turned off while the little pink house was rehabbed. But Jones kept beds inside so he or his workers could sleep there overnight when they worked late. Walter says it was a great perk for his brother because if he was out late on a date night, he could sleep at the pink house rather than accidentally wake his mom up when he got home.
The July 8 picnic ended between 10 and 11 p.m. Walter said his brother probably hung out with friends until 2 a.m. then decided to sleep at the pink house. He knocked on the front door, not knowing whether Jones or his coworker, Gary Dixon (who also had permission to sleep over) might be inside. The door was locked. Joseph saw a window was open and climbed inside and went to sleep on a bed.
Joseph never realized Dixon was in another room. When Dixon heard someone in the house, he figured it was a burglar. He took a packet of cigarettes, went outside and called 911. He was on the sidewalk smoking when police arrived.
Police woke Jones to get permission to enter the house and let a police dog loose inside. Jones consented although he was puzzled by why a burglar would linger in a house containing nothing but two cots and some sheetrock. It didn’t occur to him that Pettaway might have dropped in.
K9 handler Nicholas Barber and his dog, Niko, went to the front door. Walter Pettaway’s attorney, Griffin Sikes, has viewed and listened to Barber’s bodycam video. Sikes insists that he found the warning Barber yelled to be unintelligible. Barber maintains that he identifies himself twice as police clearly but concedes that he didn’t give three warnings as Montgomery Police policy requires.
Barber agreed that he waited only one second for the person inside the house to respond before he released Niko into the house.
Sikes wonders why one of the four policemen who gathered at the pink house didn’t use the bullhorns or patrol car voice amplifiers to contact a person in the house.
“In Alabama, there’s a fetish around police dogs; a canine getting its first bite is a big rite of passage,” Sikes told Raw Story. “Barber’s dog hadn’t gotten his first bite yet and I think they wanted to be there for it.”
“Bull Connor’s ghost is alive in Alabama,” he added ruefully, referring to Birmingham’s white supremacist public safety commissioner who deployed police dogs against peaceful 1960s civil rights protesters.
Montgomery Police declined to comment on this story.
After Barber issued his warning, he opened the front door and shouted, “Voran!” (German for “ahead”) to Niko. According to Barber’s deposition, Voran commands the dog to “search, find and bite someone.”
The next sound was Pettaway’s terrified screams.
When Barber entered the house, he found Pettaway under the bed trying to escape Niko’s claws and jaws. Sikes says the bite lasted two minutes and Barber’s bodycam shook as he struggled to choke Niko into releasing Pettaway’s groin.
According to the video timeline, the unconscious Pettaway was left alone inside the house for four minutes. Then, as Barber takes a photo of Pettaway for official documentation, Barber says, “Awesome.”
At one point, a policeman asks, “Did you get a bite?”
“Sure did,” Barber replies, chuckling.
Police brought Pettaway to the sidewalk to wait about three minutes for medics to arrive. Jones had arrived on the scene. He recognized his friend and realized this was not a burglary but a terrible misunderstanding. Pettaway died at the hospital from loss of blood.
Walter Pettaway was shocked to learn from Lt. Andre Carlisle’s deposition that Montgomery police are not taught first aid, not even how to apply a tourniquet. Sikes consulted Texas trauma surgeon and Iraq/Afghanistan veteran Dr. Scott Trexler who testified that Pettaway’s life might have been saved if any officer had known how to apply pressure to an arterial wound to stop or lessen bleeding.
Sikes is exasperated that Montgomery doesn’t even require officers to take inexpensive Boy Scouts first aid courses that now cover injuries common to rural and urban settings.
“Montgomery patrol cars don’t even carry first aid kits in their cars which you’d think police would want in case an officer was wounded and needed help before EMTs could help,” Walter said.
Alabama police dogs attack
The Journal of Forensic and Legal Medicine tracked about 3,600 Americans sent to emergency rooms annually from police dog bites from 2005 to 2013. There’s no national database tracking how often police dog bites happen.
Pettaway’s death inspired the Marshall Project and Invisible Institute, nonprofits focused on criminal justice research, AL.com and the Indianapolis Star to team up for a 2020 examination of police dogs’ use in 20 cities across America. They found no consistent policy for deploying dogs during arrests.
“Chicago almost never deploys dogs for arrests and had only one (bite) from 2017 to 2019,” the report stated. “Seattle had 23. New York City, where policy limits their use mostly to felony cases, reported 25.”
The project found dozens of cases where police dogs ignored commands to release their bite--including a California dog who tore off a man’s testicle and a dog who tore off an Arizona man’s face—and had to be strangled or hit on the head to get them off a person.
Ernie Burwell, a former Los Angeles County Sheriff canine handler explained to the Marshall Project that a police dog’s trainer has a huge impact on the dog’s behavior on the job.
“If the handler’s an idiot, the dog will be, too,” Burwell said.
Barber was not an idiot. He joined the U.S. Army at age 19, served from 2004-12 and was promoted to staff sergeant, joined Montgomery police in 2013 and was promoted to corporal in 2017. But Montgomery Police officials came to doubt his judgment so much that a captain investigating Barber’s behavior recommended that Barber be fired.
In his deposition, Barber explains how he got into trouble. He used his position as a police officer to get information about his girlfriend’s ex-lover. Barber wrote out a warrant for the man’s arrest on domestic violence charges, then arrested him during a traffic stop and sent him to jail. A judge dropped all the charges against the man and the police department investigated Barber’s actions.
He resigned after accepting a law enforcement job in a small Alabama town.
Alabama v the press
Police bodycam video is one of the newest forms of public records for the First Amendment to confront — and Alabama just made it harder for the press and public to see them.
Last year, Mobile’s weekly paper, The Lagniappe, fought all the way to the Alabama Supreme Court to obtain a law enforcement officer’s bodycam video after he was exonerated in a fatal shooting alongside Interstate-10. Only a redacted version was released.
Alabama’s highest court ruled that "investigative writings or recordings are privileged communications protected from disclosure."
It’s a new landmark precedent that Alabama journalists denounced as dangerous.
"(The Court’s decision) puts photographs, videos, documents, 911 calls, autopsy records, and correspondence related to any criminal investigation behind a shroud of secrecy. The opinion appears to say these records are to be hidden from the public regardless of the source…" read a statement by J. Evans Bailey, Alabama Press Association General Counsel.
None of this surprises Kevin Goldberg, First Amendment expert at the nonprofit, nonpartisan Freedom Forum. Goldberg is very familiar with Alabama’s laws related to public/press access to government records.
“Alabama’s open records aren’t very strong,” Goldberg told Raw Story. “And laws governing body cam video are all over the map…different laws in different states.”
But he believes the fear of riots cited by Montgomery as a reason for suppressing bodycam video is not valid.
Fear of “a generalized harm is not sufficient,” Goldberg said, explaining that the reason to withhold evidence must be “specified and narrow.”
Goldberg and Balin both take hope from the judge’s decision in the Pettaway case to leave the door open for the video to be released to the public after the trial starts.
If Montgomery settles the case out of court, Pettaway’s last moments of life may remain unseen by the public.
Fire, blood on the sidewalk
The Pettaway family’s pro bono attorney, Griffin Sikes, filed a motion asking Judge Emily Marks to recuse herself from the Pettaway case, His worry was that one of the key attorneys defending police, Winston Sheehan, Jr., was the judge’s mentor. Marks and Sheehan worked at the same law firm in Montgomery for years and were co-counsel on 21 cases. The motion for recusal observed that Sheehan seemed to be a mentor to Marks.
She refused to recuse herself. Her denial angrily noted that the only evidence Sikes had of mentoring was that Sheehan was 26 years older than her.
Marks was one of the judges showcased unfavorably in a 2021 Wall Street Journal investigation, “131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest.”
Reporters found a case where a couple sued Wells Fargo because it foreclosed on property owned by the wife’s dying father. The couple said only one $695 mortgage payment was missed and they were ready to pay. After Marks was assigned to the case, the Wall Street Journal said Marks bought a lot of Wells Fargo stock---then ruled in favor of Wells Fargo, ordering the couple’s lawsuit to be dismissed.
The Journal article points out that Marks ignored recusal requirements related to financial conflicts.
Social and professional relationships are more ambiguous.
“It’s human nature for us all to believe we can be unbiased, put aside friends’ influence, think for ourselves,” Sikes said. “But humans aren’t always aware of their biases.”
Indian University law professor Charlie Geyh is an expert on recusals. He says the judge may be utterly free of a former colleague’s influence. But if a reasonable and prudent person might question her impartiality in a situation, it may be time to recuse.
“There is no hard and fast rule against judges presiding over cases in which lawyers at their former firms enter appearances,” Geyh wrote in an email to Raw Story. He added that most disqualification requests were meritless and “the judge in your case may well think she can be impartial and may likewise think that reasonable people would agree. But she is in a lousy position to make that call because most of us cultivate an exaggerated sense of our own impartiality and regard views to the contrary as unreasonable or ill-informed.”
Meanwhile, Walter Pettaway wonders what legacy Joseph, who had no children, will leave. Neighbors were angry after learning details of his agony. “I tried to calm them down, told them to wait for justice,” Walter says.
But 24 hours after Joseph died, a fire swept the little pink house. No one can see the care and craftsmanship he invested there. But, four years of rain haven’t washed away Joseph’s blood stains on the sidewalk.
Sikes says he’d learned that several Montgomery police officers are now taking first aid classes. That gives Walter hope that “my brother’s death may lead to lives being saved.”
Walter says his 89-year-old mother comforts herself by looking at the certificates Joseph earned while he was in prison, where he dreamed of being free and winning a new life with hard work.
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