Evidence extracted with repeated use of taser ordered suppressed by Amarillo Court of Appeals
“One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one-thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument’s log. At the time, appellant was handcuffed and being held down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his mouth. When appellant did not comply after Arp’s first foray, the tasings resumed. No one viewed appellant as a threat to others during the episode. Nor had he attacked anyone. Arp simply wanted to comply. When asked if “repeated taser use [was] acceptable” and whether “20 seconds worth of tasering” was “okay,” the policeman answered “yes” to both.”
So begins the Seventh Court of Appeals’ opinion in Anthony Hereford, Jr. v. State of Texas, No. 07-08-0315-CR, handed down yesterday. Chief Justice Quinn, writing for a unanimous panel, concluded that the manner in which crack cocaine was extracted from Appellant’s mouth, namely the repeated administration of taser shocks, was unreasonable, excessive and constituted a violation of due process. The trial court’s denial of Appellant’s motion to suppress was reversed and the case remanded for new trial.
Judge Quinn breaks no new ground here. Rather, the judicious, well-written opinion addresses established constitutional principles, primary among them the proposition that methods utilized by law enforcement run afoul of the Fourth Amendment when evidence is 1) secured by forceful means which threaten the suspect’s health or safety, 2) fail to conform to accepted medical practices, 3) are not performed by adequately trained professionals and 4) unduly intrude upon a suspect’s dignitary interests in personal privacy. In concluding that officers with the Lubbock Police Department violated all of these considerations, Judge Quinn found the following:
No one accused Appellant of being violent or physically aggressive toward anyone throughout the entire encounter yet, when arrested, he was removed from the squad car, put in a throat hold, thrown back into the squad car, tased repeatedly on the back and leg and then dragged to the ground, all the while remaining handcuffed.
After determining that their efforts had not resulted in Appellant’s spitting out the contraband, the officers conferred and decided to take him to the emergency room where medical personnel were unable to get Appellant to dislodge whatever, if anything, was in his mouth. It was at this juncture that Officer Arp decided to tase Appellant in a “sensitive” area. He was then tased in the groin area for twenty seconds. Medical personnel confirmed that Appellant screamed and moaned in pain from the application of the taser.
The officers who administered these repeated tasings perceived no problem with “continuously” or “repeatedly” discharging a taser on individuals within their custody who were “non-complaint.” In this case, the officers considered Appellant non-complaint because he refused to spit out whatever he had in his mouth.
The two police officers involved in the tasing testified under repeated direct and cross-examination that they only tased Appellant four times when, in fact, the taser’s log indicated eight separate tasings.
There was no evidence that either officer had been adequately trained on the use of a taser nor did the State establish what guidelines the Lubbock Police Department had established for acceptable use of a taser or that either officer’s use of the taser even came close to comporting with departmental policy.
Application of the record to the indicia of factors outlined in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611 (1985) and consideration of similar cases having found due process violations (suppression of evidence or confession warranted when officers used cattle prod on defendant, beating of suspect while handcuffed or pepper spray on accused immobilized with hobbling device) compelled the appellate court to conclude that the State failed to prove that force administered here was reasonable and the trial court erred in so finding. With that holding, Judge Quinn then dropped a footnote to caution all the naysayers:
“It may well be that those guilty often find protection in what some deem to be the “technicalities” created by our constitutions. Those “technicalities” though exist to protect the innocent as well as to preserve minimum concepts of decency and acceptability in a civilized society. That the guilty also benefit from them is not reason for their rejection. Throughout life we are told we must accept the good with the bad. This is especially so when the former greatly outweighs the latter as it does here.”
Congrats to appellate ace Paul Mansur of Denver City for yet another reversal.