(NAME-MCE) Eugene Police Chief: Tasing of Chinese Student Was Within Policy

[Anselmo Villanueva]

To view video, go to:

http://kezi.com/page/157888

To send email to Chief Kerns:

pete.m.kerns at ci.eugene.or.us

Eugene Police Chief: Tasing of Chinese Student Was Within Policy

January 6, 2010

EUGENE, Ore. --  Eugene Police Chief Pete Kerns is publicly announcing his
adjudication decision regarding the internal investigation of a Chinese
student being tased in his own apartment in September.

On September 22, police received a report of trespassers at an apartment at
1070 W. 11th Avenue.  When officers arrived, they believed the two men to be
transients and tried to take them into custody.  The men didn't speak
English.  Officer Judson Warden used a taser to detain one man.

Shortly after they were taken in, police learned the two men were, in fact,
tenants in that apartment, and had just moved to that unit a few hours
earlier.

The man tased did not file a complaint.  Police Auditor Mark Gissiner
requested police launch an internal investigation.

 Chief Kerns sent the following memo Wednesday morning, January 6, 2010, to
Eugene Mayor Kitty Piercy and to the Eugene City Council.

---------------------------------

*MEMO*

*I am sharing with you my conclusions on the internal affairs case in which
an officer responded to a trespassing call on September 22, 2009, and used a
Taser during an incident with a UO student from China. I made the
adjudication on January 5, 2010, and have since notified our employees and
the two involved students.  I have also met with representatives of the
Asian-American community and University to listen to their concerns and
explain how I came to my decision.*

*The police department offers its sincerest regrets that this incident
occurred and for any trauma caused by our response to a call for service
from the property management company.  We find no fault with the students in
this incident.  We take seriously our responsibilities to serve and protect
our residents and visitors.  Annually, we respond to hundreds of thousands
of calls for service.  Not all of those responses have predictable
circumstances or outcomes.  For any police department, this would be a
highly unusual and unpredictable event.*

*I found this to be a difficult case to adjudicate. While this memo is
longer than I'd like, it will be beneficial for you to have more detail due
to the controversy surrounding the incident.  Also, it is important to
understand that in arriving at a finding I may only view the facts of any
case from the perspective of what the officer on scene knew at the time they
chose to use force.*

*An executive summary is contained in the following paragraph.*

*Summary
Officers were dispatched to a trespassing call, where the property
management asked them to enter the residence and make an arrest. Visually,
upon entry, the apartment unit's appearance was consistent with the call and
witness reports. Officers announced themselves repeatedly, encountered an
Asian man, and took him into custody without incident. Another officer
continued the search upstairs, before having heard the first subject speak.
He found another Asian man sitting on the floor, clutching a blanket to his
chest, with one hand covered by the blanket. Despite verbal commands,
turning on the light, and nudging the subject's shoulder the subject did not
respond, possibly due to 'jet lag.' This would still be consistent with the
appearance of a trespasser. The officer tried to pull the blanket from the
individual's hand, and unexpectedly fell to the floor. While the officer was
startled by the fall, the subject leaned toward him and when ordered to get
back, continued to move toward him. At this time the officer deployed the
Taser. The officers subsequently discovered during their investigation that
the men were Chinese students and at the apartment legally. A sergeant was
called to the scene and provided a translation service to the two men, who
spoke little English.*

*The officers acted within policy when they entered and searched the
apartment, conducted their trespassing investigation, and used force with
the Taser.  The policies at issue were Search Warrants (governing
warrantless entries), Preliminary Investigations, Arrests (probable cause),
Constitutional Rights, Use of Force, Authorized Use of the Taser, and
Limited English Proficiency.*

*Detail
The involved officers were dispatched to the scene to respond to reports of
a trespasser sleeping or passed out in a vacant apartment. There were recent
trespassing incidents at the apartment and according to the apartment's
manager; this appeared to be another similar case. Witnesses describing the
reported break-in were two employees of the property management firm; one
who had witnessed the alleged trespasser just before calling police. They
gave specific details as to how they believed the individual entered through
a window, including what they saw as evidence of the break-in. The officers
were asked to enter the apartment by the property's employees and arrest
that individual. The apartment appeared vacant when the officers entered. It
was without furniture or personal affects. They called out in loud voices
identifying themselves as police and asked anyone present to show themselves
when they conducted an initial ground level search with their flashlights
and pistols. As they climbed the stairs, still calling out, they encountered
an Asian man in his early 20s and handcuffed him.*

*One officer continued with the search, without having heard the first
subject speak, and found another Asian man in his early 20s in a bedroom,
sitting up on the floor, clutching a blanket to his chest, with one hand
covered by the blanket.
1)      The officer gave many commands to the man, asking that he show his
hands. The man never spoke, stared at the officer, and appeared
unresponsive.
2)      The officer turned on the bedroom light, placed his pistol in its
holster and withdrew the Taser.  He continued giving commands that did not
elicit any apparent response.
3)      Continuing to give commands, the officer nudged the subject's
shoulder, which also did not elicit any apparent response.
4)      Finally, while giving commands, the officer attempted to pull the
blanket from the subject's grasp.
5)      Unexpectedly and unaware of what caused it, the officer fell to the
floor next to the subject; perhaps with his legs tangled together with the
subject's legs.
6)      Over the course of a second or two the following happened:  while
the officer was startled by the fall, the subject leaned toward him. The
officer ordered him to get back and the subject apparently continued to move
toward him.
7)      The officer discharged the Taser, striking the subject in the chest.
8)      The officer can be heard on the Taser video calmly continuing to
give commands to the subject to show his hands.
9)      The officers found identification and a rental agreement in the
apartment and confirmed with the property management firm that the two men
had rented the apartment that day.
10)     A sergeant was called to the scene and provided a translation
service to the two men, who spoke little English.*

*Policies
The purpose of my review was to determine if the officers acted within
policy when they entered and searched the apartment, conducted their
Trespassing investigation, and used force with the Taser.  The policies at
issue were Search Warrants (governing warrantless entries), Preliminary
Investigations, Arrests (probable cause), Constitutional Rights, Use of
Force, Authorized Use of the Taser, and Limited English Proficiency.
1.      Search Warrants (warrantless entries): The officers acted in good
faith when they were asked by the credible employees of a local, reliable
property management firm to enter an apartment the employees believed they
were in control of, to arrest a reported trespasser.  The officers' entry
and search of the apartment was within policy.
2.      Preliminary Investigations: When the officers entered the apartment,
it appeared vacant. After handcuffing the two men, the officers found
identification and a rental agreement and questioned the employees again,
learning the two men were the renters. The officers conducted an
investigation that led to the conclusion the men were not committing the
crime of Trespass.
3.      Arrests and Constitutional Rights: Based on what had been reported
to them by agents of the property management firm, the officers had probable
cause to arrest or detain the men in the apartment. They handcuffed and
detained the men briefly, then released them when they discovered a crime
had not been committed.  The detention of the two men was within policy and
in compliance with our Constitutional Rights policy.
4.      Use of Force, and Authorized Use of the Taser: In the split second
the officer chose to use the Taser, he was in a vulnerable position with an
unresponsive and thus unpredictable individual whom the officer reasonably
believed to be a trespasser, outweighed him by about 40 pounds, and
potentially had a weapon in a hand out of view under a blanket.
a.      Officers had been calling to occupants in the apartment from the
moment they entered
b.      The officer attempted to use his visual presence to gain compliance
by turning on the room light
c.      He used verbal control by giving many clear commands
d.      He applied two low levels of physical control (nudged with foot,
attempted to pull blanket)
e.      He only used the Taser when he was in a vulnerable position,
immediately next to the subject, when the subject moved toward him and did
not get back.
Based on what the officer knew at that moment, the decision to use the Taser
was objectively reasonable under the circumstances and within policy.
5.      Limited English Proficiency: After learning the two men spoke a
dialect of Chinese and little English, the responding sergeant authorized
the use of a translation line to facilitate effective communication with the
two students.*

*Policies, Practices and Training*

*I am sorry that this incident occurred; however we can use it to improve
our policies, practices and training.*

*1.      While I believe our practices are sound, we do not have a
comprehensive policy on warrantless entries into homes, as some departments
across the country do. We will work with the Police Commission and Police
Auditor to significantly enhance both policy and training on this very
important issue.*

*2.      The threshold for the use of the Taser (threat to physical safety)
needs clarification through policy and training. We will continue to work
with the Police Commission on making improvements in our use of force
policies and in particular Taser deployment.*

*3.      As our demographic diversity increases, the department must
continue to improve in its level of cultural competence.  Our department
will reach out to the university community to better identify the different
cultures and languages served by the University of Oregon.  We will also
reach out to groups that represent the various culturally diverse residents
and visitors we serve, to become more aware and improve our cultural
competency.*