Screw The Jury (and pass the Taser)

Richard Pacheco was having a bad day.  First, he suffered a couple of seizures in his Bronx apartment. That was no fun. Then his girlfriend tried to help by calling 911 for an ambulance to get him to the hospital for medical treatment. That's where Pacheco's day got really bad. 

From the Appellate Division, First Department decision:

The evidence adduced at trial disclosed that, in response to an emergency 911 call from plaintiff's girlfriend that he had suffered one or more seizures, two police officers, two emergency medical technicians, two paramedics, and several fire fighters arrived at plaintiff's apartment to aid him. After the EMTs examined plaintiff and informed him that he needed to be hospitalized, he became uncooperative. His girlfriend testified that this was the result of another seizure. The police officers testified and other evidence indicates that plaintiff refused to go to the hospital, became extremely violent and agitated, and attacked the personnel trying to help him. The officers further testified that, while kicking out at them, plaintiff broke a dresser in the room.

Whether Pacheco's reaction was due to his medical condition or that he didn't want to go to the hospital isn't clear.  But there were more than six (since it can't be determined how many "several" fire fighters were present) for a guy who was in need of medical care in the apartment, which is a testament to how little crime there is in the Bronx these days.  What the broken dresser has to do with this is anyone's guess.

Thereafter, six or seven responders were needed to restrain plaintiff, handcuff him behind his back, and strap him across his lap and chest into an EMT transport chair. The officers testified that while strapped in the chair, plaintiff still kicked out at them, tried to stand, and bit one officer's arm and broke his skin. After the officers called for additional assistance, a police sergeant arrived who, after unsuccessfully trying to calm plaintiff down with words, subdued him with a Taser. Thereafter, EMTs were able to transport plaintiff from his upstairs apartment into an ambulance on the street.

Bearing in mind that this was a call for medical aid, one has to wonder why the cops didn't just leave if Pacheco refused care. He's allowed. One also has to wonder whether the sergeant tried to "calm" him down by ordering him to stop or be tased, the usual method.

But regardless, Pacheco was tased into compliance, despite the fact that he had committed no crime, suffered an unknown medical condition making him an extremely poor candidate for tasing in any event, and the police were there only because of a call for medical assistance.

A Bronx jury awarded Pacheco more than $2 million for the use of excessive force.  The Appellate Division not only reversed the award, but dismissed the action.

"Viewing the evidence in the light most favorable to plaintiff and according [him] the benefit of every reasonable inference . . . we find that it was insufficient as a matter of law to permit the jury to find that the officers used excessive force" (Koeiman, 36 AD3d at 453). Here, given plaintiff's repeated outbursts and the police officers' testimony that he was emotionally disturbed, it was reasonable to taser him so that he could be hospitalized. Since the Patrol Guide of the New York City Police Department permits an officer to use a Taser to restrain an emotionally disturbed person who threatens injury to himself or others (Procedure No. 216-05 at 5), the officer's action comported with acceptable police practice.

Not only is it remarkable that the panel of judges thought so little of the determination of the trial judge to submit the case to the jury, but of the jury itself who found in favor of the plaintiff and gave him such a substantial award, but that they did so on the strength of the Patrol Guide.

Jury? Feh. Just something cases have to pass through on the way to the important decision-makers on the appellate bench, whose assessment of what constitutes excessive force is not only guided by the law, but the Patrol Guide.  After all, if the cop book says it's cool, then it's cool. What would a jury have to do with it.

But even reliance on the Patrol Guide is misplaced. This was not a case where Pacheco went out on the street of his own volition to harm anyone. He was in his own apartment, where no one was threatened with harm if they had just left him alone.  To the extent harm was threatened to the cops, it was at the cops' instigation, not Pacheco's. If the Patrol Guide said cops could have put a bullet in his head for his own good, would that have been similarly fine with the court?

In determining whether the use of force was reasonable, the trier of fact must allow for police officers' frequent need to make "split-second" judgments about how much force is necessary "in circumstances that are tense, uncertain, and rapidly evolving" (Graham, 490 US at 396-397). Other important considerations include whether the suspect actively resisted arrest and posed an immediate threat to the officers' safety (Vizzari v Hernandez, 1 AD3d 431, 432 [2d Dept 2003], citing Graham, 490 US at 396).

The emptiness of the decision is best reflected here, where there was no "split-second" judgment to be made, one of the regular fall-back excuses for cops to escape responsibility for their monumentally poor judgment. They had all the time in the world. Indeed, they could have just as well walked away. Better still, why did the police respond when the call was for an ambulance? 

More importantly, Pacheco was not a "suspect" but an ill man. Reference to procedures to subdue a criminal is an outrageous conflation of responsibility when the only justification for the police to be present in Pacheco's apartment was to aid someone suffering from a medical issue.  He wasn't "resisting arrest," but sick. Yes, that makes a difference.

But the cops tased him anyway. And the court disregarded the jury. And the new rule of the Bronx is that cops can tase a person who has committed no crime and poses no threat of harm to anyone except the cop who is there supposedly to help him.  Ultimately, it appears that the police can employ force at will as long as there is a section in the Patrol Guide to approve it, and the Appellate Division has elevated it to the status of law.

And the next time you get a jury summons in the Bronx, don't bother showing. It's not like the judges think enough of your time and effort to make it worth your while anyway.

H/T Appellate Squawk and Andrew Stoll




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