A Boise Police officer who Tased a handcuffed man and threatened his genitals with further electric shock, is back on the beat after an unspecified disciplinary action sometime in May.
- Boise Police Department
- Boise Police Chief Mike Masterson
Boise Police Chief Mike Masterson, told BW this week that the officer's actions were "conduct unbecoming of an officer."
"It is one of the most serious charges that an officer can face," Masterson said. "It is an offense that is very likely to lead to termination."
But the officer was not charged with any crimes nor terminated in this case and is back on the street, Masterson said.
A few days after his arrest on charges that police refuse to release, citing a pending court case, the victim of the Tasing e-mailed Boise Community Ombudsman Pierce Murphy. He recounted the disturbing use of the Taser. Murphy met with the man 10 days later and within 24 hours had notified Masterson and the City Attorney's Office that he would be investigating the incident.
- Jeremy Lanningham
- Boise City Community Ombudsman Pierce Murphy
"I thought there was an indication of potential criminal activity, so that's when I notified the police department," Murphy said.
His notice initiated an internal investigation, assigned to the Idaho State Police. The State Police referred their investigation to the Ada County Prosecutor's Office, which declined to charge the officer.
On Wednesday, Murphy released his 51-page report, which describes in detail the Feb. 14 incident and its aftermath.
"At the time that he was Tased on the buttocks, the Complainant was handcuffed and lying face-down on the floor. Officer #1 was holding the Complainant's head and upper torso down with a knee across his shoulders. Officer #4 was positioned near the Complainant's waist preparing to search the Complainant, and Officer #3 was situated near the Complainant's legs and feet ... Based on what he observed, Officer #2 saw no need to assist Officer #1, Officer #3, and Officer #4 in controlling the Complainant. According to Officer #1, the Complainant "mellowed out" after being handcuffed," Murphy writes.
The report does not reveal the names of the complainant or of the police officers. Murphy said this is to ensure the public that if people come to his office with a complaint they will not be subject to public disclosure.
According to Mayor Dave Bieter, to whom Murphy reports, the process worked in this case.
"This incident came to light as the direct result of a citizen's complaint to the City. The outcome demonstrates that the system works and that we have appropriate safeguards in place to assure accountability from those sworn to uphold the law and protect the people," Bieter said in a written statement to BW.
But the complainant retained an attorney in April who disagrees that the officer has been held accountable.
Eagle Attorney Ron Coulter, who as a Deputy Attorney General assigned to the Department of Law Enforcement (the former Idaho State Police), trained officers in use of force, is preparing a suit against the Boise police.
"I don't think he should be back on the street, but then I'm not the chief of police," Coulter said. "When you do things like he did I'm not sure that person's even fit to wear a uniform."
Coulter would not divulge his client's name, nor the officers' names, but said Wednesday that a suit would be filed within four days.
The incident began on Feb. 14 as two Boise police officers were called out to a possible altercation between a man—the complainant—who was just out of jail, and a woman with whom he was acquainted. A 3-year-old boy was also present.
When they arrived at the home, the man refused to open the door and it took officers more than 80 seconds to barge in, according to the Ombudsman's report.
As they attempted to open the door more officers arrived, including Officer #3, who would eventually use the Taser.
Three officers rushed in and within nine seconds, had the man facedown on the floor and had deployed the Taser against the small of his back. Only after the first Tase did they order his hands behind his back, according to the report.
While Murphy does not exonerate Officer #3's use of the Taser in this first case, he does not find that it was excessive either.
"Here, too, I find myself unable to find that the preponderance weighs against the reasonableness of this use of the Taser. It is possible that Officer #3 honestly believed that the Complainant was resisting the officers' efforts to control him. Officer #3 was forced to make decisions about his use of force in a situation that was tense, uncertain, and rapidly evolving."
Masterson defends this first tase as reasonable, saying it was a tense, potentially violent situation and officers believed the safety of a woman and chile were involved.
But the second deployment of the Taser, after the suspect was handcuffed and begging for room to breathe, is more problematic, Murphy found.
"The use of the Taser on the buttocks is not, in and of itself, a violation of policy. Depending on the totality of the circumstances, a Taser may be used on the buttocks. The issue here is whether Officer #3's second use of the Taser on the Complainant in these circumstances was reasonable and necessary," the report states.
"Based on the preponderance of evidence, Officer #3's second use of the Taser on the Complainant while he was handcuffed was neither reasonable nor necessary," Murphy concludes.
While the Ombudsman demonstrates that policies were broken based on a "preponderance of evidence," the prosecutor must show that laws were broken "beyond a reasonable doubt," which is a different legal standard, Murphy said.
Bieter accepted the findings and also the actions of Masterson in his comments.
"I consider the officer's conduct to be completely unacceptable. The officer's actions were clearly unwarranted and without a doubt violated the standards of his professional training," he said. "Immediately upon making that determination, Chief Masterson acted to ensure that the officer and his supervisor receive[d] disciplinary action; under state law, such personnel actions are confidential."
The discipline was issued prior to Murphy's report and the Ombudsman has no power to enforce further discipline, though Murphy did make a confidential personnel recommendation to Masterson when he filed his report.
Another officer, Officer #3's supervisor was also disciplined in May for failing to file a use of force report and for erasing a taped interview with the complainant on the night of the incident. Murphy also found that the Boise police did not identify themselves as officers of the law prior to entering the house.