Officers’ second use of taser was excessive, court finds

Police officers Austin Etienne and Cardiff Robinson were found guilty of common assault on Tuesday, following a trial in which they said they had used their tasers on a suspect because they feared for their safety and the safety of fellow officers.

Magistrate Philippa McFarlane said the issue was whether the degree of force used was unreasonable. She had to decide whether the officers had an honestly held belief that the suspect posed a significant risk of harm to them or their colleagues.

She noted that the incident began on the night of May 2, 2014, with the officers responding to a report of an occurrence in George Town. A female complainant was crying and in distress and the officers wanted to speak to the man suspected of hitting her.

They were not dealing with an armed robbery suspect or any “Class A” offense, the magistrate noted; it was a domestic violence dispute. The suspect drove off and the officers pursued him all the way to East End. Other officers and the police helicopter became involved.

Camera footage from the helicopter and from the taser devices showed what happened, and the magistrate indicated she had watched it numerous times.

When the suspect finally came to a dead end and the vehicle stopped, the officers’ actions were not in accordance with taser training, she said. There were things that should have happened, such as calling out “Taser, taser,” but even one of the defendants acknowledged he did not hear that being said.

The officers drew the tasers, and the cameras on the tasers started recording before the suspect got out of the vehicle. That meant the officers had a pre-determined state of mind, the magistrate said.

The officers had stated there was a machete in the car and the magistrate accepted this evidence, although she said she did not see a machete in any of the camera footage. She pointed out that there was no evidence of the man reaching for a machete; when the car door was pulled open from outside, she saw one of his hands on his leg and the other hand on the steering wheel.

Although she was not entirely satisfied that the use of tasers was necessary when the officers first approached the vehicle, there was a basis for the belief that they honestly believed things could become worse. She based this on the nature and duration of the pursuit and the suspect’s efforts to evade police. She did not see that the man had sufficient opportunity to get out of the car when commanded to do so before the officers used their tasers.

However, if the incident had stopped there, or if there had been no further evidence, that would have been the end of it, the magistrate commented. But the incident continued, as seen and heard from the camera footage, and things changed. Once the suspect was pulled out of the car, he was restrained by five officers, including Robinson and Etienne. Even if the man had one hand not yet cuffed, he was on the ground face down; clearly he was being restrained. But the officers used their tasers again.

“I do not accept that either of you honestly believed at that point that you were in fear of your life,” she told the defendants.

She did not know whether their actions at this stage were the result of adrenalin or anger or other officers saying “Burn him! Burn him again!” The magistrate said she did not want to use the term “police brutality” because that would over-sensationalize what happened, but it was “a shocking display of force.”

Having concluded that the force used was excessive on the second and third occasions on which the tasers were fired, the magistrate found the officers guilty.

Defense counsel asked for social inquiry reports before sentencing. Given this request and the conflicting schedules of everyone concerned, the magistrate set sentencing for March 8.

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