APD’s arrest of an unarmed,
60-year-old intoxicated man by firing numerous bean bags at him, siccing a dog
on him and then repeatedly Tasering him was “clearly excessive” force, says a
federal judge who took the unusual step of overturning the jury’s verdict in
the case.
U.S. District Court Chief
Judge Bruce D. Black said it would be “a miscarriage of justice” to let the
verdict in favor of the Albuquerque Police Department stand.
“No reasonable person could
believe that an inhibited, slow-moving 60-year old individual who made no
physical or verbal threats and wielded no weapons could constitute a threat to
the safety of any of the 47 armed and shielded police officers who stood 20
feet away,” Black wrote, reversing the outcome of the weeklong jury trial last
October in Santa Fe.
“Nothing presented at trial
showed that the officers’ extraordinary use of force was reasonably necessary
to safely arrest (the plaintiff),” said the opinion Black wrote this month.
He speculated that jurors
may have been confused by a disorganized presentation of the plaintiff’s case
and a weak expert, but concluded no reasonable jury could have found in favor
of APD.
“Instead, the only
reasonable conclusion that can be drawn from evidence shown is that the force
was clearly excessive. Allowing this verdict to stand would be a miscarriage of
justice, and (the plaintiff’s) motion for judgment as a matter of law will be
granted.”
The decision to overturn
the verdict and issue his own findings in the civil case is so novel that
experienced trial lawyers can’t remember a similar occurrence during their
careers.
Assistant City Attorney
Stephanie Griffin said Wednesday her comments would be limited because the case
is still pending. But she said the city is exploring filing a motion asking
Black to reconsider, and “pointing out testimony in the record.”
The civil rights lawsuit
stemmed from police response to a March 3, 2009, argument between two drunken
friends that escalated. Hours of beer-drinking turned into an argument, and
Jeffrey Patterson called 911 asking to have his buddy Tony Nelson removed from
Patterson’s house. When no one responded, Patterson called back and said Nelson
had threatened him with a knife and pellet gun.
This time, the response was
immediate — and full bore.
Forty-seven members of APD
showed up at Patterson’s house: 17 SWAT officers, eight K-9 units and three
snipers among them. Some of them arrived in an armored van known as the BearCat
with a range of lethal and nonlethal weapons.
Civilian neighbors were
evacuated, while snipers were poised on the roofs of nearby buildings.
Officers supported their
tactics by testifying that it is safer to arrest a suspect while exercising
complete control over him, then failing that, they use physical force. But
Black noted that nothing at trial showed that such tactics “were even remotely
objectively necessary” for Nelson’s arrest.
According to the lawsuit:
Patterson was sitting
outside when the officers arrived and placed him under arrest. He explained
that he had called 911, and Nelson was still in the house.
Officers used loudspeakers
to order Nelson out, to walk toward them and to drop his knife, which he did
after some delay. Nelson, told to raise his hands while he walked, appeared
intoxicated, disoriented and unable to maintain a straight line, and did not
raise his hands. Snipers, however, could see through their long-range scopes
that he did not have a weapon.
Nelson was ordered to stop
and turn around. Eventually, he did, but police interpreted the move as an
attempt to return to the house, and an officer ordered, “Bag him.”
Nelson was shot with
successive bean bag rounds, then with a flash-bang explosive that landed
between him and the house.
Another officer next shot
Nelson with a canister of four wooden batons, two of which pierced his skin.
A K-9 officer dispatched
his police service dog, trained to “bite and hold” suspects indefinitely — and
whose meaty, flesh-tearing bite prompted Nelson to cling to a nearby fence with
his hand. The dog remained “on the bite” while the officer commanded the dog to
pull Nelson toward him, further ripping his arm.
At this point, Nelson
wasn’t trying to go back to the house, according to officers’ testimony cited
by Black, but since he was still “standing upright,” an officer Tasered his
chest.
But Nelson kept clinging to
the fence, and police worried that the Taser wasn’t working through Nelson’s
thick jacket, and Tasered his neck. Officer Daniel Hughes cycled the Taser for
the maximum time — 5 seconds — then did it five more times.
At that point, the
nonlethal weapons had all been deployed.
APD called off the dog,
“Doc,” pried Nelson’s hand from the fence and he collapsed and quit moving.
“They carried his unconscious body to the BearCat, leaving a trail of blood and
urine,” Black’s summary of the police testimony said.
Nelson was arrested for
aggravated assault. But there was an hour between his dangerous conduct and his
APD encounter, the court noted, during which the assault had ended.
Citing factors highlighted
in the U.S. 10th Circuit Court of Appeals about what constitutes an imminent
safety threat, Black said it is clear Nelson was not a safety threat “when he
staggered out onto the driveway unarmed.”
Black said testimony showed
Nelson was slow to react, incoherent, clearly not holding a weapon after he
dropped the knife, was a significant distance from officers who were armored,
in tactically shielded positions and who possessed “a plethora of both
projectile and lethal weapons, and protected by numerous attack dogs.”
— This article appeared on page A1 of the Albuquerque Journal
— This article appeared on page A1 of the Albuquerque Journal