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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT