[Hpn] 'Unnecessary and excessive'use of a Taser unjustified

William C. Tinker wtinker@verizon.net
Sat, 09 Feb 2008 11:16:05 -0500


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Saturday, February 9, 2008

Brattleboro Reformer

'Unnecessary and excessive': Brattleboro receives independent report
calling July 24 use of a Taser unjustified

http://www.reformer.com/ci_8212689

By BOB AUDETTE, Reformer Staff

Saturday, February 9

BRATTLEBORO - The town can expect another lawsuit to hit its
attorney's desk soon.

"We will be naming all parties," said St. Johnsbury attorney David
Sleigh, who is representing Jonathan Crowell and Samantha Kilmurray,
two nonviolent protesters who were stunned with Tasers July 24, 2007,
by Brattleboro police after they refused to leave private property.

Those parties include the town of Brattleboro, its police department
and all the officers involved in the incident, said Sleigh.

On Tuesday, the town received a report on the July 24 use of Tasers
from Gordon Black, an attorney from Bennington County. Black was hired
by the town to conduct an investigation as to whether the use of force
by the officers was justified within the department's old use of force
policy, which has been revised since the incident.

The report (PDF format) [
http://brattleboro.govoffice.com/vertical/Sites/%7BF60A5D5E-AC5C-4F97-891=
A-615C172A5783%7D/uploads/%7B0CA0FEBF-D71D-47E3-8538-C0B872E2F6D0%7D.PDF
].

"The decision in this case to use the Tasers on otherwise peaceful
protesters who were chained to an object was hastily made, and was
unnecessary and excessive," wrote
Advertisement
Black.

"Tasers are not meant to enforce compliance," said Sleigh.

Lt. Robert Kirkpatrick and Officer Peter DiMarino were named in the
Black report as the officers who administered the shocks to Crowell
and Kilmurray. Officer Michael Gorman and Department of Public Works
employees Rick Looman and Robert Murray were also present at the time,
according to the Black report.

Any and all disciplinary action against the officers is a personnel
issue and will be handled internally, wrote Town Manager Barbara
Sondag in a memo attached to the report.

Memorandum from the Selectboard regarding the Report
[ http://www.reformer.com/www.reformer.com/ci_8209010 ]

Crowell and Kilmurray were part of a small group of people protesting
development on Putney Road. They had spent the night on a piece of
private property on the corner of Black Mountain and Putney roads.
When police arrived the morning of July 24 to evict them from the
property, they found the pair had handcuffed themselves inside a
device called a dragon, which is used to hinder police efforts to end
a protest.

After Crowell and Kilmurray refused to unlock the cuffs, police used a
Taser to get them to comply with their orders to leave the property.
After being stunned several times, the pair unlocked the handcuffs and
were arrested and charged with unlawful trespassing and disorderly
conduct.

While the disorderly conduct charges were dropped, Kilmurray was
entered into a diversion program for her charge of unlawful
trespassing. Crowell is requesting a jury trial in the trespassing
charges filed against him.

Tasers should only be used to end a dangerous situation quickly where
the officer or another person is in physical danger, said Sleigh.

"(Police) figured this was a problem, reacted, didn't consider their
options and went to the Taser," said Sleigh.

"(I) reviewed the situation with the question of whether I believed,
as an 'independent reviewer,' that the use of the Taser was
appropriate at the time it was used," wrote Black in an e-mail to the
town manager and Bob Fisher, attorney for the town. "I came to the
conclusion that it was not."

The e-mail was written after Sondag and Fisher questioned Black's
methodology in reaching his conclusion.

Black reviewed reams of documents, including user manuals and
suggested policies from the maker of the Taser device, sworn
affidavits, arrest reports, supplemental statements from each officer
involved, memoranda from supervising officers, e-mails, a sworn
statement from a witness to the incident and "even a video of a
portion of the incident circulating on YouTube."

See the video [ http://www.youtube.com/watch?v=3DU9hL9Hy00pI ].

"I trust that none of us can imagine that it would have been
acceptable for the officers to shoot the protesters with a gun," wrote
Black in his e-mail. "It is also hard to imagine the policemen pulling
out billy clubs and using them against the protesters chained to the
barrels, or the policemen hitting the protesters with their fists ...
If these options are almost unimaginable, how can the intentional
infliction of what has been consistently been described by subjects
... with words like 'intense pain' and 'like getting hit with a sledge
hammer,' be acceptable?"

When should a Taser be used, asked Black in his e-mail. "Only when the
officers are using the device to protect themselves or others. That
was not the case here."

"There is no evidence that they were either threatening to harm others
or harm themselves," wrote Black. "They were not described by anyone
involved as being engaged in any activity that could conceivably be
described as aggressive or particularly disruptive."

Black rendered further comments that echoed sentiments that have been
expressed by some Selectboard members and town residents during the
town's review of its use of force policy.

"The protest was little more than a nuisance and there seemed to be
little reason to escalate matters to involve the use of pain
compliance devices," wrote Black. "The protesters were occupying a
vacant commercial lot. There was no urgency to resolve the matter
quickly, as the protesters were not obstructing traffic, impeding
pedestrians or interfering with adjacent business."

Black wrote that the town's old use of force policy contributed to the
inappropriate use. He also appeared to absolve former Police Chief
John Martin - who was fired by the town last fall, in part because of
the July 24 incident - of any wrongdoing in the event.

While use of the Tasers "may theoretically comply with the broad
language of the use of force policy, it clearly shows a lack of
appropriate restraint, as had been encouraged the day before by Chief
Martin," wrote Black. "The 'laid back,' 'take no action' approach
suggested by Chief Martin ... seems, in retrospect, to have been the
most appropriate under the circumstances."

Martin and Capt. Steve Rowell also allegedly told Kirkpatrick to not
be "heavy handed" in his actions against the protesters, according to
the report.

The report may find its way into court in a lawsuit filed by Martin
against the town contesting his termination, said Burlington attorney
Pietro Lynn, who is representing Martin in federal court.

"This (report) must have been a very unpleasant surprise for the
town," said Lynn. "It's fair to say we will review the report and take
it under consideration and choose whatever course of action that is
appropriate."

Black's conclusions may also find their way into a report being
written by Vermont Attorney General William Sorrell, the result of an
investigation into use of force policies around the state.

"We would hope to be done soon," said Assistant Attorney General John
Treadwell, about the AG's report.

Black suggested the town revise its new use of force policy to prevent
just such an incident from happening again.

"This policy is an excellent step forward in better defining use of
force," wrote Black. "The justification of nondeadly force, however,
appears to contain the same wide grant of discretion that may have
contributed to the underlying incident."

Black recommended a use of force policy allows officers to use a Taser
only on suspects exhibiting "active aggression" and who are deemed
likely to harm themselves or others. He recommended "active
aggression" be defined as an assault or imminent assault.

Sondag is in the process of making those changes to the current use of
force policy.

While police organizations around the country rely on Tasers to subdue
violent suspects, Amnesty International has claimed police agencies
are using the devices inappropriately "as a routine force option to
subdue noncompliant or disturbed individuals who do not pose a serious
danger to themselves or others," wrote Black in his report.

The police officers' "quick action fails to show appropriate patience
and restraint in attempting to resolve the situation."

The Putney Road incident is the perfect example of "where officers
eschew perhaps other slower solutions to a problem because they have
50,000 volts in their back pocket," said Sleigh.

"Black points out how hastily the officers handled the situation," he
said. "He suggested an alternative which should have been readily
available, a flash citation."

The flash citation could have been used to order the pair into court
that afternoon, wrote Black. Their failure to appear in court could
have conceivably been used to justify the use of the Taser, he added.

The complete report is available on www.reformer.com or by calling the
town manager's office at 802-251-8100.

Bob Audette can be reached at raudette@reformer.com or 802-254-2311, =
ext. 273.

William Charles Tinker, Sr.
New Hampshire Homeless
Founded 11-28-99
25 Granite Street
Northfield,N.H. 03276-1640 USA
Advocates,activists for disabled,displaced human rights.
1-603-286-2492
http://www.missingkids.com
http://www.nationalhomeless.org
http://www.newhampshirehomeless.org
newhampshirehomeless-subscribe@topica.com

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<DIV>Saturday, February 9, 2008</DIV>
<DIV><BR>Brattleboro Reformer<BR><BR>'Unnecessary and excessive': =
Brattleboro=20
receives independent report<BR>calling July 24 use of a Taser=20
unjustified</DIV><FONT face=3DArial size=3D2></FONT>
<DIV><BR><A=20
href=3D"http://www.reformer.com/ci_8212689">http://www.reformer.com/ci_82=
12689</A><BR><BR>By=20
BOB AUDETTE, Reformer Staff<BR><BR>Saturday, February 9</DIV>
<DIV><BR>BRATTLEBORO - The town can expect another lawsuit to hit=20
its<BR>attorney's desk soon.<BR><BR>"We will be naming all parties," =
said St.=20
Johnsbury attorney David<BR>Sleigh, who is representing Jonathan Crowell =
and=20
Samantha Kilmurray,<BR>two nonviolent protesters who were stunned with =
Tasers=20
July 24, 2007,<BR>by Brattleboro police after they refused to leave =
private=20
property.<BR><BR>Those parties include the town of Brattleboro, its =
police=20
department<BR>and all the officers involved in the incident, said=20
Sleigh.<BR><BR>On Tuesday, the town received a report on the July 24 use =
of=20
Tasers<BR>from Gordon Black, an attorney from Bennington County. Black =
was=20
hired<BR>by the town to conduct an investigation as to whether the use =
of=20
force<BR>by the officers was justified within the department's old use =
of=20
force<BR>policy, which has been revised since the incident.<BR><BR>The =
report=20
(PDF format) [<BR><A=20
href=3D"http://brattleboro.govoffice.com/vertical/Sites/{F60A5D5E-AC5C-4F=
97-891A-615C172A5783}/uploads/{0CA0FEBF-D71D-47E3-8538-C0B872E2F6D0}.PDF"=
>http://brattleboro.govoffice.com/vertical/Sites/%7BF60A5D5E-AC5C-4F97-89=
1A-615C172A5783%7D/uploads/%7B0CA0FEBF-D71D-47E3-8538-C0B872E2F6D0%7D.PDF=
</A><BR>].<BR><BR>"The=20
decision in this case to use the Tasers on otherwise =
peaceful<BR>protesters who=20
were chained to an object was hastily made, and was<BR>unnecessary and=20
excessive," wrote<BR>Advertisement<BR>Black.<BR><BR>"Tasers are not =
meant to=20
enforce compliance," said Sleigh.<BR><BR>Lt. Robert Kirkpatrick and =
Officer=20
Peter DiMarino were named in the<BR>Black report as the officers who=20
administered the shocks to Crowell<BR>and Kilmurray. Officer Michael =
Gorman and=20
Department of Public Works<BR>employees Rick Looman and Robert Murray =
were also=20
present at the time,<BR>according to the Black report.<BR><BR>Any and =
all=20
disciplinary action against the officers is a personnel<BR>issue and =
will be=20
handled internally, wrote Town Manager Barbara<BR>Sondag in a memo =
attached to=20
the report.<BR><BR>Memorandum from the Selectboard regarding the =
Report<BR>[ <A=20
href=3D"http://www.reformer.com/www.reformer.com/ci_8209010">http://www.r=
eformer.com/www.reformer.com/ci_8209010</A>=20
]<BR><BR>Crowell and Kilmurray were part of a small group of people=20
protesting<BR>development on Putney Road. They had spent the night on a =
piece=20
of<BR>private property on the corner of Black Mountain and Putney =
roads.<BR>When=20
police arrived the morning of July 24 to evict them from =
the<BR>property, they=20
found the pair had handcuffed themselves inside a<BR>device called a =
dragon,=20
which is used to hinder police efforts to end<BR>a protest.<BR><BR>After =
Crowell=20
and Kilmurray refused to unlock the cuffs, police used a<BR>Taser to get =
them to=20
comply with their orders to leave the property.<BR>After being stunned =
several=20
times, the pair unlocked the handcuffs and<BR>were arrested and charged =
with=20
unlawful trespassing and disorderly<BR>conduct.<BR><BR>While the =
disorderly=20
conduct charges were dropped, Kilmurray was<BR>entered into a diversion =
program=20
for her charge of unlawful<BR>trespassing. Crowell is requesting a jury =
trial in=20
the trespassing<BR>charges filed against him.<BR><BR>Tasers should only =
be used=20
to end a dangerous situation quickly where<BR>the officer or another =
person is=20
in physical danger, said Sleigh.<BR><BR>"(Police) figured this was a =
problem,=20
reacted, didn't consider their<BR>options and went to the Taser," said=20
Sleigh.<BR><BR>"(I) reviewed the situation with the question of whether =
I=20
believed,<BR>as an 'independent reviewer,' that the use of the Taser=20
was<BR>appropriate at the time it was used," wrote Black in an e-mail to =

the<BR>town manager and Bob Fisher, attorney for the town. "I came to=20
the<BR>conclusion that it was not."<BR><BR>The e-mail was written after =
Sondag=20
and Fisher questioned Black's<BR>methodology in reaching his=20
conclusion.<BR><BR>Black reviewed reams of documents, including user =
manuals=20
and<BR>suggested policies from the maker of the Taser device,=20
sworn<BR>affidavits, arrest reports, supplemental statements from each=20
officer<BR>involved, memoranda from supervising officers, e-mails, a=20
sworn<BR>statement from a witness to the incident and "even a video of=20
a<BR>portion of the incident circulating on YouTube."<BR><BR>See the =
video [ <A=20
href=3D"http://www.youtube.com/watch?v=3DU9hL9Hy00pI">http://www.youtube.=
com/watch?v=3DU9hL9Hy00pI</A>=20
].<BR><BR>"I trust that none of us can imagine that it would have=20
been<BR>acceptable for the officers to shoot the protesters with a gun," =

wrote<BR>Black in his e-mail. "It is also hard to imagine the policemen=20
pulling<BR>out billy clubs and using them against the protesters chained =
to=20
the<BR>barrels, or the policemen hitting the protesters with their fists =

...<BR>If these options are almost unimaginable, how can the=20
intentional<BR>infliction of what has been consistently been described =
by=20
subjects<BR>... with words like 'intense pain' and 'like getting hit =
with a=20
sledge<BR>hammer,' be acceptable?"<BR><BR>When should a Taser be used, =
asked=20
Black in his e-mail. "Only when the<BR>officers are using the device to =
protect=20
themselves or others. That<BR>was not the case here."<BR><BR>"There is =
no=20
evidence that they were either threatening to harm others<BR>or harm=20
themselves," wrote Black. "They were not described by anyone<BR>involved =
as=20
being engaged in any activity that could conceivably be<BR>described as=20
aggressive or particularly disruptive."<BR><BR>Black rendered further =
comments=20
that echoed sentiments that have been<BR>expressed by some Selectboard =
members=20
and town residents during the<BR>town's review of its use of force=20
policy.<BR><BR>"The protest was little more than a nuisance and there =
seemed to=20
be<BR>little reason to escalate matters to involve the use of =
pain<BR>compliance=20
devices," wrote Black. "The protesters were occupying a<BR>vacant =
commercial=20
lot. There was no urgency to resolve the matter<BR>quickly, as the =
protesters=20
were not obstructing traffic, impeding<BR>pedestrians or interfering =
with=20
adjacent business."<BR><BR>Black wrote that the town's old use of force =
policy=20
contributed to the<BR>inappropriate use. He also appeared to absolve =
former=20
Police Chief<BR>John Martin - who was fired by the town last fall, in =
part=20
because of<BR>the July 24 incident - of any wrongdoing in the=20
event.<BR><BR>While use of the Tasers "may theoretically comply with the =

broad<BR>language of the use of force policy, it clearly shows a lack=20
of<BR>appropriate restraint, as had been encouraged the day before by=20
Chief<BR>Martin," wrote Black. "The 'laid back,' 'take no action'=20
approach<BR>suggested by Chief Martin ... seems, in retrospect, to have =
been=20
the<BR>most appropriate under the circumstances."<BR><BR>Martin and =
Capt. Steve=20
Rowell also allegedly told Kirkpatrick to not<BR>be "heavy handed" in =
his=20
actions against the protesters, according to<BR>the report.<BR><BR>The =
report=20
may find its way into court in a lawsuit filed by Martin<BR>against the =
town=20
contesting his termination, said Burlington attorney<BR>Pietro Lynn, who =
is=20
representing Martin in federal court.<BR><BR>"This (report) must have =
been a=20
very unpleasant surprise for the<BR>town," said Lynn. "It's fair to say =
we will=20
review the report and take<BR>it under consideration and choose whatever =
course=20
of action that is<BR>appropriate."<BR><BR>Black's conclusions may also =
find=20
their way into a report being<BR>written by Vermont Attorney General =
William=20
Sorrell, the result of an<BR>investigation into use of force policies =
around the=20
state.<BR><BR>"We would hope to be done soon," said Assistant Attorney =
General=20
John<BR>Treadwell, about the AG's report.<BR><BR>Black suggested the =
town revise=20
its new use of force policy to prevent<BR>just such an incident from =
happening=20
again.<BR><BR>"This policy is an excellent step forward in better =
defining use=20
of<BR>force," wrote Black. "The justification of nondeadly force,=20
however,<BR>appears to contain the same wide grant of discretion that =
may=20
have<BR>contributed to the underlying incident."<BR><BR>Black =
recommended a use=20
of force policy allows officers to use a Taser<BR>only on suspects =
exhibiting=20
"active aggression" and who are deemed<BR>likely to harm themselves or =
others.=20
He recommended "active<BR>aggression" be defined as an assault or =
imminent=20
assault.<BR><BR>Sondag is in the process of making those changes to the =
current=20
use of<BR>force policy.<BR><BR>While police organizations around the =
country=20
rely on Tasers to subdue<BR>violent suspects, Amnesty International has =
claimed=20
police agencies<BR>are using the devices inappropriately "as a routine =
force=20
option to<BR>subdue noncompliant or disturbed individuals who do not =
pose a=20
serious<BR>danger to themselves or others," wrote Black in his=20
report.<BR><BR>The police officers' "quick action fails to show =
appropriate=20
patience<BR>and restraint in attempting to resolve the =
situation."<BR><BR>The=20
Putney Road incident is the perfect example of "where officers<BR>eschew =
perhaps=20
other slower solutions to a problem because they have<BR>50,000 volts in =
their=20
back pocket," said Sleigh.<BR><BR>"Black points out how hastily the =
officers=20
handled the situation," he<BR>said. "He suggested an alternative which =
should=20
have been readily<BR>available, a flash citation."<BR><BR>The flash =
citation=20
could have been used to order the pair into court<BR>that afternoon, =
wrote=20
Black. Their failure to appear in court could<BR>have conceivably been =
used to=20
justify the use of the Taser, he added.<BR><BR>The complete report is =
available=20
on <A href=3D"http://www.reformer.com">www.reformer.com</A> or by =
calling=20
the<BR>town manager's office at 802-251-8100.<BR><BR>Bob Audette can be =
reached=20
at <A href=3D"mailto:raudette@reformer.com">raudette@reformer.com</A> or =

802-254-2311, ext. 273.<BR></DIV>
<DIV><FONT face=3DArial size=3D2>William Charles Tinker, Sr.<BR>New =
Hampshire=20
Homeless<BR>Founded 11-28-99<BR>25 Granite Street<BR>Northfield,N.H. =
03276-1640=20
USA<BR>Advocates,activists for disabled,displaced human=20
rights.<BR>1-603-286-2492<BR><A=20
href=3D"http://www.missingkids.com">http://www.missingkids.com</A><BR><A =

href=3D"http://www.nationalhomeless.org">http://www.nationalhomeless.org<=
/A><BR><A=20
href=3D"http://www.newhampshirehomeless.org">http://www.newhampshirehomel=
ess.org</A><BR><A=20
href=3D"mailto:newhampshirehomeless-subscribe@topica.com">newhampshirehom=
eless-subscribe@topica.com</A><BR></FONT></DIV></BODY></HTML>

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