ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.”

 

ADVERTISEMENT

  • 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.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT