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Firing of officer who stunned nursing home patient was supported by evidence

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A police chief and city review board were within their rights to terminate the employment of an officer who repeatedly used a Taser on a 64-year-old nursing home patient. An appellate panel Monday reversed a trial court order that had thrown out the officer’s firing.

Peru Police Chief Steve Hoover recommended dismissal of Officer Gregory Martin for excessive use of force against James Howard, a resident of the Alzheimer’s ward of Miller’s Merry Manor. The city’s Board of Works and Public Safety conducted a hearing and agreed Martin used excessive force and was fired.

Police had been called to the nursing home to assist transporting a patient to the hospital after he became combative toward a roommate and staff, but staff testified Howard had been medicated and somewhat subdued when police arrived. Howard was sitting naked in a chair and staring straight ahead when Martin and another officer arrived, according to the opinion in Peru City Police Department and City of Peru v. Gregory Martin,  52A02-1304-PL-350.

Nursing home staff believed Howard could have been controlled without the use of a Taser, but officers and paramedics, including Martin’s fiancée, disagreed, according to the record. Officer Jeremy Brindle, who accompanied Martin, conceded that he and Martin likely could have gained control over Howard had each grabbed a wrist.

But when Brindle attempted to grab one of Howard’s wrists, he resisted and began “shuffling” toward Martin, who yelled “Taser.” Martin used the Taser device on Howard five times, according to the Taser’s data printout. The record indicates that Howard was exposed to 31 seconds of Taser force in one minute with five separate deployments lasting five to 11 seconds each.

“Chief Hoover recommended Martin’s dismissal due to his opinion that Martin had used excessive force and due to alleged inconsistencies between Martin’s initial report and his statements during the internal investigation,” Judge Mark Bailey wrote for the panel, noting a report said no “touch stuns” were administered.

Martin appealed, and the trial court threw out his firing. Miami Superior Special Judge Richard Maughmer entered more than 100 “reasons that the decision should not be affirmed,” finding the termination unsupported by the evidence and the firing arbitrary and capricious.

But the panel found that the trial court erred in substituting its judgment for that of the city police chief and board and that it disregarded ample evidence that supported the firing for cause. The panel focused on training Martin received that limits someone’s exposure to Taser force, which can be deadly when used for extended periods or in repeated bursts in which the subject isn’t allowed time to comply.  

“Although greater (cumulative) duration than 15 seconds is not absolutely prohibited, the training materials repeatedly reference 15 seconds as an important benchmark,” Bailey wrote. “… Here, the benchmark time was more than doubled – in five applications inflicted upon an elderly naked man in a nursing home, imminently destined for a hospital. Intervals to achieve compliance were very short, with only a two-second interval between the third and fourth deployments. Moreover, it is noteworthy that Howard was handcuffed after the third Taser application.

“In sum, there is substantial evidence supporting the Board’s decision. … The trial court disregarded evidence favorable to that decision, credited the testimony of witnesses that the trial court did not personally hear, and misstated evidence regarding the scope of Martin’s training,” Bailey wrote. “In short, the trial court reweighed the evidence and reassessed the credibility of witnesses. Substantial evidence supports the Board’s findings, and its decision to terminate Martin for use of excessive force and conduct unbecoming an officer was not arbitrary and capricious.”

 

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  • Katie bar the door!
    Someone has not been paying attention to the comments here. Katie, you cannot say such things about an Indiana judge! Do you want to end up in Room 101 with Paul Ogden?
  • Mistakes
    There are 22 mistakes/inconsistencies in this decision. The biggest inconsistency Judge Bailey errored on is the fact the Mr. Howard was Never handcuffed while tased. Not one person testified to this. Mr. Howard was never tased after handcuffs were applied due to he was restrained at that point in time. Second largest error is Judge Bailey states that Mr. Howard "shuffled" toward police. Testimony proves that Mr. Howard violently attempted to kick, hit and bite all individuals that came into contact with him. This entire order needs to be reviewed with correct information.

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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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