Eugene Weekly : News : 2.18.10

Excessive Force
Review board faults police Tasering
by Alan Pittman

Will the city of Eugene take any real action after the Civilian Review Board (CRB) found that a police officer used excessive force in Tasering a Chinese student? It doesn’t appear likely.

Asked if he would fire Police Chief Pete Kerns who ruled the Tasering of the unarmed student in his own bed “reasonable,” City Manager Jon Ruiz gave a “hmpf,” answered only “No” and turned his back and walked away before he could be asked if he would even reprimand Kerns.

The Eugene City Council could fire Ruiz for failing to supervise his employee, but that doesn’t appear likely. Asked if she thought the police did anything wrong in Tasering the Chinese student, Mayor Kitty Percy made only a “mmmm” noise, bowed her head, waived her hand and turned away. 

Kerns, who gave an Officer of the Year award to the policeman after he Tasered the student, also did not respond to a request for comment for this story. A civil suit against the city is pending.

But while city leaders had almost nothing to say about the Tasering, the CRB — previously criticized as too pro-police — voted unanimously that officer Judd Warden used excessive force and that Kerns failed in later approving that force. 

The CRB can’t force Kerns to discipline his officers, but the three-hour public discussion of the case does allow the public a rare look into the failures of police to police themselves.

From the CRB discussion, it emerged that Warden thought he would have been justified in shooting the Chinese student with his pistol. CRB chairwoman Kate Wilkinson said a transcript of an Internal Affairs interview with Warden had the officer stating: “If I had my gun out, I probably would have shot him.” Wilkinson noted that only one of the four officers in Warden’s chain of command contradicted the claim that shooting the unarmed student would have been justified. “That’s pretty scary.”

“That was really alarming,” agreed CRB member Steven McIntire.

Another revelation from the CRB discussion was substantial evidence that the police knew or should have known that one of the students was speaking a foreign language and could not understand them before they Tasered the second Chinese student.

Kerns claimed in a memo to the City Council that Warden fired his Taser “without having heard the first subject speak.”

But evidence contradicts that claim by the police chief. When Warden and another officer handcuffed the first student, “at that point there was no question he was Asian looking, he was speaking Chinese,” said Deputy Police Auditor Dawn Reynolds.

“The only thing that was understood was the word ‘friend,’” Wilkinson said pointing to interview transcripts with the officers. Wilkinson said the officers should have known the speech by the first student was a foreign language. “It wasn’t gibberish.”

But Wilkinson said the EPD Internal Affairs officer did not press the officers in the interview on the key issue of why they didn’t understand they were dealing with a foreign student. “There was no investigation or clarification of when that issue became apparent to these officers.”

A Eugene City Charter amendment requires auditor “participation in investigative interviews” related to complaints, but the Eugene police have refused to allow the auditor to directly question police officers at interviews.

CRB member Marisa Mendoza said she found “discrepancies” in the police account of when they knew the student didn’t understand English. She said that with school starting that week and the many international students at the UO and the students’ Asian appearance, it was “really hard to understand” how the police wouldn’t have recognized that the students might not understand the officers.

CRB member Snell Fontus questioned whether the officers didn’t take more than a moment to try and communicate with the first student to find out if there were others in the apartment. For officer safety, “wouldn’t that be good information to know?”

Chief Kerns claimed that the Tasered Chinese student “potentially had a weapon in a hand out of view under a blanket.” But that claim by the chief was contradicted by the Taser camera video, according to CRB members. 

CRB member Tim Laue, a strong police advocate for years, said the video showed, “both hands were visible. They were clutching a blanket to the chest with a sitting person. I just couldn’t get to a credible threat,” he said. “There’s no resistance,” he said of the video footage. “There’s shock, and then there’s pain.”

“He was not armed, you could see the hands,” said CRB member Steven McIntire. “He’s terrified.” 

Police Auditor Mark Gissiner, who has previously defended controversial Taser uses, faulted the officer this time. “I tried to view it in the best possible light for the officer, and I still thought the threat assessment was flawed.”

Kerns claimed that the student “moved toward [the officer] and did not get back.”

But Gissiner said the video showed the sitting student only “pivoting slightly on his butt.”

Kerns claimed the student was “consis-tent with the appearance of a trespasser.”

But CRB members noted the Vaio laptop, connected mouse, framed picture and cell phone in the room seen in the video and no evidence of empty alcohol containers or forced entry into the apartment. The CRB members questioned why the officers didn’t realize the young Asian students, one in pajama bottoms and the other in boxer shorts, didn’t look like transients.  

Even the most ardent supporters of the police on the CRB were critical of the Tasering. Bernadette Conover, who worked as a deputy district attorney for a decade and who’s husband has defended officers against lawsuits, called the police conduct “egregious.” 

Conover said that even an EPD police lieutenant stated, “certainly other options were available.” Conover said “there were so many places where he [Warden] could have stopped” before Tasering the student. “He went in with a mindset,” she said of the police incident. “It’s beyond unfortunate, it was really unnecessary.”

Conover said it appears that EPD officers don’t restrict their use of Tasers to when there’s an actual threat to an officer or others. “There is an expectation that the Taser is a tool to expedite compliance,” Conover said. “It’s not.”

“People are using it more and more as a pain compliance tool,” CRB member Fontus agreed. 

Instead of one of the last resorts for officers, Laue said he’s concerned that for EPD the Taser has become “the first resort.”

This is the second highly controversial Taser incident involving Warden. Last year Kerns absolved Warden of wrongdoing for twice Tasering another student in the back. Police video showed the environmental protester was laying face down with one or both arms behind his back when Warden Tasered him.  

For almost a year, the Eugene Police Commission has been working on a revised police policy on Tasers —50,000 volt weapons which human rights advocates have linked to hundreds of deaths and serious injuries. The commission has not favored policies that actually restrict police use of force in the past.

Even if the Police Commission does recommend a strict new policy, Chief Kerns is free to ignore it. Asked previously whether he would name any circumstance where he felt a Taser should not be used, Kerns refused.