African-American News & Issues reporter Tuala Williams wrote recently that Pastor Kyev Tatum, president of the Fort Worth SCLC, is leading the charge amid cries of wrongful death in the matter of Michael Patrick Jacobs, Jr., 24.  See, Tuala, Williams, “Getting Away With Murder!” African-American News & Issues, Vol. 15, Issue 4, 2/24 - 3/2/10, p. 1.  According to the article, Jacobs, who suffered from bi-polar disorder, had stopped taking his medication because it was making him feel sick and began having difficulties inside his parents’ home, so his parents called 911 to request an ambulance.  Police, fire department officers and paramedics arrived, but the police decided to send the fire department and paramedics away, deciding to handle the call as a criminal issue.  As stated in the article, Jacobs continued to behave aggressively and was shot with a taser.  In all, he was reportedly tasered a total of 54 seconds in the presence of witnesses.  It was ruled a homicide by Dr. Nizam Peerwani of the Tarrant County Medical Examiner’s office, who, according to the article, wrote in his report that Jacobs’ died of “sudden death during neuromuscular incapacitation due to the application of a conducted energy device.”  Additionally, an electrical engineer with TASER International testified before a grand jury that the two jolts of 50,000 volts exceeded the limits of use set by the manufacturer since TASER International contends that the weapons are not to be discharged for more than 5 seconds.  While Dr. Peerwani called it a homicide, the grand jury and the internal affairs department of the Fort Worth Police Department did not see it that way.  For his own part, Pastor Tatum was quoted as saying that “In Fort Worth, you can kill a Black man and nobody’ll say anything about it.”  Tatum has asked the U.S. Attorney’s office to pursue a federal civil rights investigation against the police department and Jacobs’ family has filed a federal court excessive force lawsuit.

In a January 21, 2010 posting at www.justice.org , the American Association for Justice (AAJ) reports that the federal Ninth Circuit Court of Appeals has held that police use of a Taser must be justified by a “strong government interest [that] compels the employment of such force.”  The lawsuit giving rise to the decision alleges that by shooting Carl Bryan with a Taser stun gun, a police officer, Brian McPherson, used excessive force in violation of Bryan’s Fourth Amendment rights.  The Ninth Circuit agreed with Bryan.  See, Bryan v. McPherson, 2009 WL 5064477 (9th Cir. Dec. 28, 2009).  In this regard, the plaintiff’s attorney stated that “This is the first case to set some clear limits on the use of Tasers.” 

As stated in the AAJ posting, a judge writing for the three judge panel stated that Tasers and similar devices “constitute an intermediate, significant level of force” that may be used only under limited circumstances that meet the “strong government interest” standard.  To determine whether McPherson used excessive force, the court applied the Supreme Court’s test in Graham v. Connor (490 U.S. 386 (1989)) and considered the severity of the crime, whether the suspect posed an immediate threat, and whether the suspect was actively resisting or attempting to flee.  Under the facts of this case, the court concluded that “the totality of the circumstances here did not justify the deployment of the Taser X26.” 

For his own part, McPherson relied upon an Eleventh Circuit decision holding that the police use of a Taser did not constitute excessive force.  See, Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).  But the Ninth Circuit said the Bryan case was clearly distinguishable from Draper, because the alleged victim being arrested in Draper  heard the police officer’s commands, refused to comply, and argued with the officer. 

According to a spokesperson for Amnesty International quoted in the posting, the decision should cause law enforcement agencies and individual officers to think more carefully about when and how to use these types of weapons.

A Houston newspaper reported on January 17, 2010 that shootings by police officers in agencies across Harris County reached the highest level in nearly two decades in 2009, with 60 civilians being shot - 27 of whom were killed.  See, Olsen, Lise and James Pinkerton, “The Rise of Deadly Force,” Houston Chronicle, 1/17/10, p. 1.  As reported in the article, that amount is nearly twice as many shootings as the area’s annual average, based on the last five years of reports.  While most of the people shot were armed, the article states that, in December, a man was shot and wounded by a rookie Houston Police Department officer who believed the man was wielding a gun.  However, the man held a hairbrush.  In addition, the article states that in several other shootings, people initiated confrontations with police and drew weapons after being surrounded by officers or SWAT teams in what family members described as attempts to “commit suicide by cop.” 

As further reported in the article, Houston Police Department Interim Police Chief Charles McClelland stated that the Houston Police Department (HPD) responds to over a million calls a year and has 3,600 men and women in uniform on patrol.  He added that officers do not want to have to shoot.

According to the news report, HPD officers participated in 29 shootings in 2009, involving 15 deaths and 13 injuries.  In this regard, the article stated that the total for HPD is about the same as reported by the far larger Los Angeles Police Department, which had 27 shootings, resulting in 12 deaths. 

Questions over 2009’s record shootings mirror issues raised in the past by lawyers and civil rights activists.  According to one Houston lawyer, Houston leaders have failed to keep promises to prevent deaths of unarmed citizens.  The founder of Civilians Down, a citizens rights group focused on shootings of the mentally ill, added that shootings of the mentally ill are troubling and if there is no change then unnecessary and unjustified shootings will continue to occur.

Whether excessive use of force and use of unjustified deadly force by police officers occurs in Houston or Harris County, Texas, victims of police mistreatment may contact local law enforcement or the United States Department of Justice to determine if further action is warranted.  In addition, excessive and deadly force victims may contact a lawyer to determine if a civil rights lawsuit is ultimately appropriate under the facts and circumstances of the potential civil rights violation claim.

In a case investigated by the San Antonio Division of the FBI with assistance from the Bexar County Sheriff’s Office, lawyers with the United States Department of Justice (”DOJ”) announced in a DOJ Press Release at http://www.justice.gov/opa/pr/2009/November/09-crt-1244.html that a Bexar County, Texas Corrections Officer has been charged in a four count federal indictment with violating the civil rights of two detainees and obstructing justice.  According to the November 17, 2009 Press Release, trial lawyers with the DOJ Civil Rights Division contend that the charges stem from two December 2004 incidents in which the Bexar County Corrections Officer from San Antonio allegedly assaulted inmates at the Bexar County Detention Center by kicking and striking them.  As stated in the DOJ Press Release, the indictment also charges the Corrections Officer with obstructing justice by providing false statements about the assaults.  In this regard, an indictment is a formal accusation of criminal conduct, not evidence of guilt, so a defendant is presumed innocent unless and until proven guilty.  If convicted on the civil rights charges, the defendant faces a maximum penalty of 10 years imprisonment on each civil rights charge and 20 years imprisonment on each obstruction charge.

The United States Department of Justice Civil Rights Division (”DOJ”) enforces federal criminal civil rights statutes, including those laws that prohibit the willful use of excessive force or other acts of misconduct by law enforcement or other government officials.  In an October 26, 2009 DOJ Press Release found at http://www.justice.gov/opa/pr/2009/October/09-crt-1153.html , the Civil Rights Division announced that a former corrections officer with the Federal Bureau of Prisons has been sentenced on federal civil rights charges related to the fatal assault of an inmate.  According to the DOJ Press Release, the former corrections officer was sentenced to serve a term of life in prison, three years post-release supervision and 75 hours of community service.  A United States Attorney was quoted in the Press Release as saying that “When correction officers make the corrupt choice to act as judge, jury and executioner, the United States will prosecute such actions aggressively, just as it did here.”  As stated in the Press Release, a federal jury in Orlando found the former correction officer guilty of two felony federal civil rights charges related to the fatal assault of a federal inmate.

In an article at http://www.kfdm.com/articles/simon-34250-police-nederland.html , KFDM News reports that a former deputy constable filed a federal lawsuit against the City of Nederland and one of its police officers, alleging he was the victim of police brutality.  According to the September 21, 2009 article, the 65-year-old former deputy constable spent a night in jail after being arrested for aggravated assault as a result of attempting to get inside a burning home in Nederland because he thought his grandson might be inside.  During the March 2008 home fire, the man panicked because his grandson was missing and he feared he might be trapped inside.  As stated in the article, a fire fighter grabbed him and pulled him back before he reached the door but he pushed him away and continued trying to get inside the house until police allegedly used a taser and peppar spray on him.  The article further reports that he was allegedly tackled, struck in the face with a baton, and had his head held under water in a drainage ditch, as well as hit on the head.  At the conclusion of the criminal trial, he was found not guilty and other charges were dropped.  He contends that he filed the police brutality lawsuit, hoping the City of Nedeland will become more ”conscious in the hiring of police officers and training them properly.”  For their own part, the Nederland City Attorney and Police Chief reportedly could not comment on the pending litigation.

On September 24, 2009, the U. S. Deaprtment of Justice (”DOJ”) issued a Press Release announcing that a former Choctaw County, Oklahoma deputy sheriff was found guilty by a federal jury in Muskogee, Oklahoma of violating the civil rights of three men by assaulting them without legal justification.  See, http://www.usdoj.gov/opa/pr/2009/September/09-crt-1025.html .  According to the DOJ Press Release, in one incident, which took place in October of 2005, the former deputy sheriff physically abused a truck driver following a traffic stop, and, in a second incident, which occurred during October of 2007, the former deputy sheriff assaulted two inmates at the Choctaw County Jail.  As described in the Press Release, the former deputy sheriff was convicted on three counts of violating the civil rights of his victims and two counts of falsifying official reports.  The DOJ stated that he faces a maximum sentence of ten years in prison for each civil rights offense and 20 years for each obstruction offense.  Acting Assistant Attorney General Loretta King was quoted in the Press Release as saying that the DOJ will continue to prosecute vigorously law enforcement officers who violate the public trust.

In a Press Release at http://www.usdoj.gov/opa/pr/2009/September/09-crt-938.html , the U. S. Department of Justice (”DOJ”) announced that a former deputy with the Shelby County, Tennessee Sheriff’s Office has been sentenced by a federal court in Memphis to 18 months in prison and two years of supervised release for using excessive force during an encounter with a citizen.  According to the September 8, 2009 DOJ Press Release, the former deputy pleaded guilty on April 9, 2009 to unnecessarily striking the head of a man he encountered outside a residence in Cordova, Tennessee while conducting an investigation in March or April of 2006.  As stated in the Press Release, the former deputy acknowledged that he abused his authority as a law enforcement officer and agreed that his conduct violated federal law and the constitutional rights of the man he struck.  A U.S. attorney was quoted in the Press Release saying that “The sentence should serve as a reminder and message to those law enforcement officers who violate the protections of the Fourth Amendment that their actions are unnacceptable, they will be prosecuted and they will serve time.”  The excessive force case was investigated by a multiagency task force led by the FBI and staffed with investigators from a Memphis Field Office, the Shelby County Sheriff’s Office and the Memphis Police Department.  Acting Assistant Attorney General Loretta King stated in the Press Release that “The Civil Rights Division will continue to investigate and prosecute rogue police officers who abuse the rights of those they are sworn to protect and serve.”

In a July 22, 2009 Press Release, the United States Department of Justice (”DOJ”) announced that a police officer in the East St. Louis, Illinois Police Department was charged in a two count federal indictment stemming from a January 2006 incident in which the officer allegedly punched a handcuffed arrestee in the mouth.  See, DOJ Press Releases, 7/22/09, www.usdoj.gov .  According to the DOJ Press Release, the indictment charges the police officer with a felony civil rights violation and with making alse statements to the FBI.  In this regard, the indictment alleges that on January 30, 2006 the police officer assaulted an arrestee by punching him in the mouth while he was handcuffed at the East St. Louis Police Department station.  As stated in the Press Release, an indictment is a formal accusation of criminal conduct, not evidence of guilt, and the defendant is presumed innocent unless and until proven guilty.  If convicted, the defendant faces a maximum penalty of ten years in prison on the civil rights charge and five years on the false statement charge.

The United States Department of Justice (”DOJ”) announced in a July 29, 2009 Press Release that a federal jury in Orlando, Florida found a Bureau of Prisons corrections officer guilty on felony federal civil rights charges related to a fatal assault on an inmate in March 2005.  According to the DOJ Press Release, the corrections officer was convicted on two charges, one count of conspiring to violate the federal civil rights of an inmate and a second count of violating the inmate’s civil rights by arranging for another inmate to conduct an assault on the inmate.  Each count carries a sentence of up to life imprisonment and a $250,000.00 fine.  See, DOJ Press Releases, July 29, 2009, www.usdoj.gov .