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.”



  • 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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues