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 Houston News Release at http://www.dol.gov/opa/media/press/osha/osha20091557.htm , the United States Department of Labor’s Occupational Safety and Health Administration (”OSHA”) announced on January 4, 2010 that it issued an environmental services company willful and serious citations after an investigation into a fatal explosion at the company’s Griggs Road facility in Houston.  The proposed penalties announced by OSHA total $1,477,500.  According to the OSHA News Release, in July 2009, an employee cleaning a tank was killed in an explosion when an altered piece of equipment ignited flammable vapors inside the tank.  OSHA further stated that the fatality was the third death in less than a year at this employer’s facilities.  In this regard, OSHA issued 15 willful citations, alleging that 15 pieces of electrical equipment were unsafe to use in the tank wash area due to the presence of flammable and combustible vapors.  In addition, OSHA issued two other willful citations along with 54 serious violations. 

OSHA’s mission is, according to its News Release, to promote safe and healthful working conditions for America’s working men and women by setting and enforcing standards, and providing training, outreach and education.  More information about OSHA is available at http://www.osha.gov .

When employment related personal injury or death occurs in Houston, victims may contact OSHA’s Houston South Area Office at 281-286-0583, OSHA’s North Area Office at 281-591-2438 or the OSHA hotline at 1(800)321-6742.  In addition, victims of job site personal injury or death may contact a lawyer.

The U. S. Department of Labor’s Occupational Safety and Health Administration (”OSHA”) announced in an October 1, 2009 Press Release that it has cited a company with alleged serious, repeat and other-than-serious violations following an inspection at the company’s crude oil refinery in Big Spring, Texas.  According to the OSHA Press Release found at www.OSHA.gov , proposed penalties total $237,500.  As stated in the Press Release, OSHA’s Lubbock Area Office began its investigation April 2 at the company’s facility as part of the agency’s National Emphasis Program on Petroleum Refineries, which has mandated inspections across the nation.  The agency’s regional administrator in Dallas was quoted in the Press Release as saying that “Failure to effectively implement OSHA’s process safety management regulations to protect workers from potential hazards at high risk facilities, such as petrochemical refineries, will not be tolerated.”  In this regard, OSHA provides a hotline at 1(800)321-6742 to report workplace accidents, fatalities and imminent dangers.

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.

In a September 22, 2009 Press Release, the U. S. Department of Labor’s Occupational Safety and Health Administration (”OSHA”) Englewood Area Office announced that OSHA has cited to Texas companies with penalties of $59,000.00 and $38,750.00, respectively, for alleged violations of the Occupational Safety and Health Act related to fall hazards disclosed at an Aurora, Colorado worksite.  The OSHA Regional News Release found at www.osha.gov or www.dol.gov states that OSHA’s investigation led to one alleged willful and two alleged serious citations against a Carrolton, Texas renovation company, and one alleged willful, two alleged serious and one alleged other-than-serious citations against a roofing company based out of Euless, Texas.  An OSHA Area Director quoted in the Press Release described fall hazards as the biggest killers in the construction industry, adding that OSHA will be stepping up its enforcement of fall hazards, especially in areas where OSHA expects to see an influx in roofing work.  As stated in the Press Release, the alleged willful violations stem from a lack of fall protection for workers performing roof work and failing to use fall protection while workers were being machine lifted to the roof.  In this regard, OSHA issues a willful citation when an employer exhibits plain indifference to or intentional disregard for employee safety and health.  In addition, OSHA issues a serious citation when death or serious physical harm is likely to result from a hazard about which an employer knew or should have known.

Whether fall hazard and fall protection violations, personal injury and death occur at construction jobsites in Texas or elsewhere, employees may contact OSHA regarding enforcement actions and complaints and consult an attorney to determine if a civil lawsuit may ultimately be appropriate under the particular facts and circumstances of the potential OSHA violation claim.

In an August 17, 2009 Press Release at http://www.osha.gov , the U. S. Department of Labor (”DOL”) announced that its Occupational Safety and Health Administration (”OSHA”) cited a Tyler, Texas based construction contractor with two alleged willful and 10 alleged serious violations following the electrocution of a Hispanic worker at the company’s worksite in Tyler.  According to the DOL OSHA Press Release, OSHA’s Dallas Area Office began its inspection on February 18th in Tyler where eight employees were upgrading underground energized power lines and pad-mounted transformers.  As stated in the Press Release, the employer damaged the underground power line while digging in front of a pad-mounted transformer.  OSHA contends that an Hispanic worker was unaware and uninformed that the power line was energized and was electrocuted.  In addition, OSHA claims its investigation revealed that the worker was wearing a glove with a hole in the index finger which had not been tested for insulation qualities.  An OSHA Director in Dallas was quoted in the Press Release as saying that “All workers, regardless of whether they speak English, deserve a safe workplace [and] had this company implemented the requirements in their own safety and health program this tragedy could have been avoided.”  In this regard, OSHA defines a willful violation as one committed with intentional disregard of, or plain indifference to, the requirements of the Occupational Safety and Health Act, and OSHA defines a serious violation as one in which there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.  Proposed penalties for the citation total $133,000.00.  Employers and employees with questions about workplace safety and health were referred in the Press Release to OSHA’s Dallas Area Office at 214-320-2400 and a toll free number at 1-800-321-6742.

A Houston Community Newspapers’ Humble Observer news article by Stefanie Thomas discusses a lawsuit recently filed by a Kingwood woman in which the woman alleges that a Houston Police officer sexually assaulted her on a dark and lonely stretch of Hamblen Road.  Citing court records pertaining to the lawsuit, the article states that the woman filed a federal lawsuit against the City of Houston and the former Houston police officer, claiming the City of Houston is responsible for the police officer’s actions by negligently training and supervising him.  The lawsuit was filed by the woman’s attorney while criminal proceedings against the former Houston Police Department Officer are still pending.  In this regard, the article states that the former HPD officer was charged with sexual assault and an improper sexual act with a person in custody after the conclusion of an extensive internal affairs investigation, and, after much rescheduling, was set to begin trial August 17th.  The woman’s attorney reportedly said he researched similar lawsuits against the City of Houston, involving sexual assault by a police officer, and found nearly a handful of them just within the last few years.  The attorney was quoted in the article as saying “This is not the first of its kind.”  In the sexual assault lawsuit, the woman and her attorney are seeking actual and punitive damages against the City of Houston and the former police officer, according to the article.  Houston Police Department officials were referenced in the article as saying that the officer retired from the department in September of 2007 after nearly 24 years of service.  The woman’s attorney hopes the civil case will go in front of a jury toward the end of the year. 

See, http://www.hcnonline.com/articles/2009/05/26/humble_observer/news/2209hpdrapeho.txt  or the Humble Observer news archive at www.hcnonline.com , 5/26/09 “Woman Sues City of Houston In Alleged Sexual Assault By Police Officer,” by Stefanie Thomas.

According to the Centers for Disease Control and Prevention, swimming is the second most popular sports activity in the United States, with approximately 339 million swimming visits to recreational water venues.  Pool chemical injuries account for as many as 5,200 emergency room visitis each year.  As stated in a CDC Press release at http://www.cdc.gov/media/pressrel/2009/r090514.htm , a new study by the CDC published in the CDC’s Morbidity and Mortality Weekly Report shows that these injuries are preventable.  The study states that persons can be injured by inhaling fumes when they open pool chemical containers, attempting to pre-dissolve chemicals, or handling them improperly.  Persons can also be injured when chemicals splash into their eyes.  Public pool operators and residential pool owners can protect themselves and swimmers by always securing pool chemicals, reading product names and manufacturer’s directions before each use, using appropriate protective gear, including safety gloves and glasses, and never mixing chlorine products with each other, with acid, or with any other substance.  Further information in this regard is at http://www.cdc.gov/healthyswimming/pdf/pool_chem_assoc_inj.pdf .

In a June 22, 2009 U.S. Department of Justice (”DOJ”) Press Release, the DOJ announced that a two-count federal grand jury indictment returned against a Spokane, Washington police officer has been unsealed.  According to the DOJ Press Release, the indictment charges the police officer with the deprivation of a victim’s civil rights on March 18, 2006 by repeatedly striking him with a baton and tasering him, resulting in bodily injury.  See, http://www.usdoj.gov/opa/pr/2009/June/09-crt-613.html .  The indictment also charges the police officer with making a false entry in a record in a matter investigated by a federal agency.  As stated in the Press Release, the civil rights charge carries a maximum penalty of 10 years imprisonment, a $250,000 fine, up to three years of court supervision after release and restitution.  The falsification of records in a matter investigated by a federal agency carries a maximum penalty of 20 years imprisonment, a $250,000 fine, and up to three years of court supervision after release.  However, an indictment is merely an accusation, and the defendant is presumed innocent unless proven guilty. 

Whether alleged civil rights violations by law enforcement occur in Baytown, Freeport, Port Lavaca or elsewhere, victims of police misconduct or abuse may contact the DOJ and an attorney or lawyer to determine if criminal charges and a civil rights lawsuit may ultimately be appropriate under the particular circumstances and facts of the potential police brutality claim.