Man stunned with Taser plans to sue Boise Police Department Ombudsman Pierce Murphy says an officer violated department policy and used indefensible force. BY KATY MOELLER - email@example.com Published: 07/23/09
* Listen to an audio recording of the Taser incident (warning: explicit language)
A man who was shocked by a Taser stun gun while he was handcuffed on the ground during his arrest at a Boise home in February - and then threatened with additional shocks - plans to sue the Boise Police Department for excessive use of force.
Eagle attorney Ron Coulter said Wednesday that he's been retained by the man, whose identity was not released Wednesday in a report on the Feb. 14 incident by Boise Community Ombudsman Pierce Murphy.
Murphy concluded that the officer who Tased the man violated the Boise Police Department's use-of-force policy. He said evidence showed the man was shocked once in the back before he was handcuffed, and once in the buttocks after he was cuffed, and threatened with further shocks to the anus and genitalia.
"This clearly was excessive force. It's just not defensible. It's very troubling," Murphy said.
The officer and a police supervisor have since been disciplined, officials said.The supervisor, an 18-year veteran, erased an audio recording of an interview with the suspect at the jail and did not write a report on the use of force in the arrest. In fact, Murphy said, he didn't even start one.
The issue is not that the officer used the Taser more than once, or that he hit the man's buttocks, Murphy wrote in his report. It was the coarse verbal and physical threat that followed while the suspect was handcuffed and held down. The officer, a five-year veteran referred to only as Officer No. 3 in Murphy's report, told the man he'd shoot him with the Taser gun "in the a--" and "in the nuts."
"(It was the) totality of the officer's actions in threatening and taunting the subject with the Taser ... following it up by placing it in an anal and genital region," Murphy said.
NOT CRIMINAL, OFFICIALS SAY, BUT AGAINST POLICY
During his investigation, Murphy advised the Boise city attorney that the evidence pointed toward possible criminal behavior, and Boise police Chief Michael Masterson asked Idaho State Police to do an independent investigation.
The report by ISP was forwarded to the Ada County prosecutor's office, which elected not to pursue criminal charges.
"I don't look at if it was appropriate, or within policy, or if it was a good idea or could have been done better," said Ada County Deputy Prosecutor Roger Bourne.
The question, he said, was, "Did the officer commit a crime, and could it be proved beyond a reasonable doubt?"
Bourne's conclusion was that it could not.
But it was a violation of department policy, Masterson said. Officer No. 3's actions were "not appropriate, not condoned and not professional," he said.
Masterson said the department disciplined Officer No. 3 and a supervisor - called Officer No. 10 - who violated two department policies. "This is the exception, not the rule," Masterson said. "There have not been complaints about this to the ombudsman. ... I hope this is an isolated incident."
Disciplinary action can range from a written reprimand to suspension to termination.
"The elements weren't there to support termination," said Masterson, who said he could not reveal what actions were taken because these were personnel matters and protected under Idaho law. "This was the first time either employee had been before the discipline board. They have not been involved in serious policy violations throughout their career."
A MOMENT MADE WORSE BY MISUNDERSTANDING
In a press release Wednesday, Boise police underscored that the situation the officers had been called to was "an urgent, dangerous and potentially violent situation, with the safety of a woman and child at the forefront of their thoughts and actions."
Eight officers had responded.
A neighbor had reported a fight between a man and a woman; en route, officers learned the man had been recently released from jail and a 3-year-old boy was in the house.
The officers said that when they arrived and pounded on the door, the man inside yelled profanity back at them. He also pushed against the door as they tried to push their way in. Murphy's investigation found that the officers did not identify themselves. He said the man had been told by the woman in the house that she'd called a friend to come over and beat him up - so the man in the house had the wrong idea about who was trying to get in.
"The minute they came through the door, he went down on the floor quickly," Murphy said. The middle-aged, overweight suspect was physically exhausted by pushing against the door, Murphy noted.
In his recommendations, Murphy warned police officers to be careful about "positional asphyxiation," which occurs when an individual ends up in a position where he can't breathe. He said this man had three people sitting on his body, including at least one on his back.
A PROMISE TO CONTINUE THE ISSUE IN THE COURTS
Soon after the incident, the man sought legal counsel from the American Civil Liberties Union, said Monica Hopkins, executive director of the Boise office. "This does call into question the use of excessive force - this was excessive. ... We made sure he had competent legal counsel," Hopkins said.
Coulter said his firm - Camacho, Mendoza, Coulter Law Group PLLC in Eagle - has been working on the case since April and plans to file suit "within 96 hours." He declined to release the name of his client before then.