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Eugene Weekly : News : 10.8.09




Taser Review

Oversight review board backs cops

by Alan Pittman

The Eugene Civilian Review Board recommended against disciplining any officers for an incident last year in which police twice Tasered a jaywalking environmental protester as he lay face down on the pavement with one or both hands behind his back. 

The 4-2 vote Oct. 1 came after the Eugene mayor and City Council recently expanded and packed the CRB with appointees that appear opposed to the concept of civilian review that voters passed overwhelmingly.

Taser victim Ian Van Ornum said he was disappointed and surprised that the majority of the review board appeared to have decided his case based on their personal biases before even considering the evidence. “It didn’t seem like they really wanted to be here,” he said. “A lot of them had their idea, and that was it.”

In July the council voted unanimously and 6-1 to appoint Bernadette Conover and Marisa Mendoza to the CRB. Conover served a decade as a deputy district attorney working closely with the Eugene police. Conover’s husband also worked as a deputy district attorney and previously as a lawyer defending police against use-of-force lawsuits. 

Mendoza works for the Oregon Judicial Department and interned two years at the Yamhill County jail. 

In the spring, the council appointed Tim Laue to the CRB. Laue is a pro-police critic of the oversight body and advocate of increased police funding. 

Mendoza had little to say at the CRB meeting other than that she agreed entirely with the police chief that his officers should not be disciplined.

Conover and Laue argued Oct. 1 that the CRB should generally not engage in “Monday morning quarterbacking” of police use of force.  

But an apparently flabbergasted Richard Brissenden, a municipal judge in Florence and Cottage Grove and founding member of the CRB, noted that such civilian review of police is the entire point of the CRB. “If you don’t want to be involved in any Monday morning quarterbacking, you don’t want to be involved in the police oversight system,” the judge said. “That’s what police oversight is.”

Appointing members to the CRB who oppose civilian review of police appears to violate city law. City code requires CRB members to have “a demonstrated commitment to the purpose of the [oversight] ordinance” and an “absence of any real or perceived bias.”

In recent months the mayor and council have appeared more concerned about police officer complaints against the auditor and review board than about actual complaints of police officer abuse. The council ignored a June annual report from the previous acting auditor Dawn Reynolds documenting numerous instances of police misconduct. The council rejected Reynolds for the permanent auditor job and instead hired Mark Gissiner two months ago. 

Gissiner quickly sided with the police chief against calls to reform police Taser use at a City Club talk and said Oct. 1 that he also agreed with the chief that no officers should be disciplined. Gissiner said in an interview that he will not publicly disagree with the police chief, contrary to his apparent job description. 

In reviewing the police use of force at the environmental protest, the CRB majority, auditor and police chief appeared to ignore the central complaint against police about the incident — that choosing to violently arrest rather than ticket a jaywalking protester was poor judgment that precipitated the incident.

Police officers can be disciplined for poor judgment under their operations manual. But CRB members Conover, Mendoza and Laue argued that the CRB should not consider the judgment complaint because the chief did not.

Brissenden and Kate Wilkinson, a local attorney and founding CRB member, disagreed. 

“Let us not pretend that nothing went wrong here,” said Judge Brissenden, arguing that a police sergeant should have ticketed or talked to Van Ornum before wrenching his arm and violently arresting him for jaywalking. 

“This was largely the result of choices made and actions taken by police officers that day,” said Brissenden. The rally by 10 to 20 people was peaceful before the police action, Brissenden said. “It was the use of force that inflamed the crowd.”

Brissenden noted that the jury foreman in the criminal trial publicly faulted police and agreed with that assessment.

Wilkinson said a ticket would have been a lot cheaper for the city than the ensuing trial and year of investigations. “From a fiscally conservative point of view, I don’t think this is how we should spend police resources.”

Even some of those who opposed disciplining the officers faulted the police decision to violently arrest Van Ornum rather than ticketing him. Snell Fontus, a medical doctor, said police made the “wrong choice” in the arrest. “We see it over and over again. It’s always an escalation; it’s never a de-escalation.”

“In hindsight, perhaps the decision to arrest was not a good thing,” Laue said.

Auditor Gissiner said the arrest decision made by Sgt. Bill Solesbee “flew in the face of diplomatically negotiating a situation.” Gissiner said, “We ought to hold our watch commander to a higher standard,” but then be recommended against holding Solesbee accountable. 

Gissiner said the Eugene police should change their policy of having sergeants as watch commanders rather than more experienced lieutenants. 

But Conover blamed the escalation on protesters. Because one protester called it a “boring rally,” Conover said, “It seemed to me they were trying to have something happen a lot more than a peaceful protest.”

“That’s ridiculous,” said protester Day Owen. “No one wanted to provoke a police response. That’s pure fantasy.” The CRB also voted that police should not discipline police for pushing Owen to the ground, injuring his head and arresting him, although charges against Owen were later dropped. 

Laue, Conover and the police chief appeared to rely heavily on the testimony of a Taco Time worker that the protest wasn’t peaceful. But Brissenden said he found the testimony biased, inconsistent and contradicted by many other witnesses. At Van Ornum’s criminal trial, the Taco Time worker admitted to a prior drug problem and 17 identity theft convictions.

Laue and Gissiner argued that police officer Judd Warden was justified in Tasering Van Ornum because the protester could have used a handcuff on one wrist as a weapon while lying face down with his arms behind him.  

“How is that physically possible?” Wilkinson asked of such a contortion. She noted there was no testimony that Van Ornum actually attempted to strike an officer. 

 “It doesn’t make any sense,” said Brissenden. The judge argued that such a remote possibility of harm should not justify repeatedly using a 50,000-volt Taser. 

Conover argued that while Van Ornum “perhaps” wasn’t a threat, the crowd of advancing angry protesters was. Because of the “scary” crowd, police had to use the Taser to quickly arrest Van Ornum, she and Laue argued. “They had to do it right then to somehow keep these people away,” Conover said.

But Brissenden said using the Taser made the situation more dangerous, not less. “It was the use of force that inflamed the crowd.”

Gissiner said the crowd saw the “intense amount of pain” delivered by the Taser to Van Ornum. “It’s reasonable for anyone to have a reaction.”

Brissenden noted that Tasers have been linked to deaths. “You have to take that real seriously.” If police actually feared the crowd so much, why didn’t they call for backup before Tasering Van Ornum, the judge questioned. 

Laue, Conover and Gissiner argued that the police did not violate their policy of not using Tasers at demonstrations without police chief approval because they took Van Ornum a few feet away and did not use the Taser to directly break up the demonstration. 

“That’s not what the policy says,” said Brissenden. 

The Eugene Police Commission is considering recommending that the police chief change the Taser policy. But in the past, the Commission and chief have often opposed clearly binding policies that actually limit police actions.