BRATTLEBORO - The town can expect another lawsuit to hit its attorney's desk soon.
"We will be naming all parties," said St. Johnsbury attorney David Sleigh, who is representing Jonathan Crowell and Samantha Kilmurray, two nonviolent protesters who were stunned with Tasers July 24, 2007, by Brattleboro police after they refused to leave private property.
Those parties include the town of Brattleboro, its police department and all the officers involved in the incident, said Sleigh.
On Tuesday, the town received a report on the July 24 use of Tasers from Gordon Black, an attorney from Bennington County. Black was hired by the town to conduct an investigation as to whether the use of force by the officers was justified within the department's old use of force policy, which has been revised since the incident.
"The decision in this case to use the Tasers on otherwise peaceful protesters who were chained to an object was hastily made, and was unnecessary and excessive," wrote Black.
"Tasers are not meant to enforce compliance," said Sleigh.
Lt. Robert Kirkpatrick and Officer Peter DiMarino were named in the Black report as the officers who administered the shocks to Crowell and Kilmurray. Officer Michael Gorman and Department of Public Works employees Rick Looman and Robert Murray were also present at the time, according to the Black report.
Any and all disciplinary action against the officers is a personnel issue and will be handled internally, wrote Town Manager Barbara Sondag in a memo attached to the report.
Crowell and Kilmurray were part of a small group of people protesting development on Putney Road. They had spent the night on a piece of private property on the corner of Black Mountain and Putney roads. When police arrived the morning of July 24 to evict them from the property, they found the pair had handcuffed themselves inside a device called a dragon, which is used to hinder police efforts to end a protest.
After Crowell and Kilmurray refused to unlock the cuffs, police used a Taser to get them to comply with their orders to leave the property. After being stunned several times, the pair unlocked the handcuffs and were arrested and charged with unlawful trespassing and disorderly conduct.
While the disorderly conduct charges were dropped, Kilmurray was entered into a diversion program for her charge of unlawful trespassing. Crowell is requesting a jury trial in the trespassing charges filed against him.
Tasers should only be used to end a dangerous situation quickly where the officer or another person is in physical danger, said Sleigh.
"(Police) figured this was a problem, reacted, didn't consider their options and went to the Taser," said Sleigh.
"(I) reviewed the situation with the question of whether I believed, as an 'independent reviewer,' that the use of the Taser was appropriate at the time it was used," wrote Black in an e-mail to the town manager and Bob Fisher, attorney for the town. "I came to the conclusion that it was not."
The e-mail was written after Sondag and Fisher questioned Black's methodology in reaching his conclusion.
Black reviewed reams of documents, including user manuals and suggested policies from the maker of the Taser device, sworn affidavits, arrest reports, supplemental statements from each officer involved, memoranda from supervising officers, e-mails, a sworn statement from a witness to the incident and "even a video of a portion of the incident circulating on YouTube."
"I trust that none of us can imagine that it would have been acceptable for the officers to shoot the protesters with a gun," wrote Black in his e-mail. "It is also hard to imagine the policemen pulling out billy clubs and using them against the protesters chained to the barrels, or the policemen hitting the protesters with their fists ... If these options are almost unimaginable, how can the intentional infliction of what has been consistently been described by subjects ... with words like 'intense pain' and 'like getting hit with a sledge hammer,' be acceptable?"
When should a Taser be used, asked Black in his e-mail. "Only when the officers are using the device to protect themselves or others. That was not the case here."
"There is no evidence that they were either threatening to harm others or harm themselves," wrote Black. "They were not described by anyone involved as being engaged in any activity that could conceivably be described as aggressive or particularly disruptive."
Black rendered further comments that echoed sentiments that have been expressed by some Selectboard members and town residents during the town's review of its use of force policy.
"The protest was little more than a nuisance and there seemed to be little reason to escalate matters to involve the use of pain compliance devices," wrote Black. "The protesters were occupying a vacant commercial lot. There was no urgency to resolve the matter quickly, as the protesters were not obstructing traffic, impeding pedestrians or interfering with adjacent business."
Black wrote that the town's old use of force policy contributed to the inappropriate use. He also appeared to absolve former Police Chief John Martin - who was fired by the town last fall, in part because of the July 24 incident - of any wrongdoing in the event.
While use of the Tasers "may theoretically comply with the broad language of the use of force policy, it clearly shows a lack of appropriate restraint, as had been encouraged the day before by Chief Martin," wrote Black. "The 'laid back,' 'take no action' approach suggested by Chief Martin ... seems, in retrospect, to have been the most appropriate under the circumstances."
Martin and Capt. Steve Rowell also allegedly told Kirkpatrick to not be "heavy handed" in his actions against the protesters, according to the report.
The report may find its way into court in a lawsuit filed by Martin against the town contesting his termination, said Burlington attorney Pietro Lynn, who is representing Martin in federal court.
"This (report) must have been a very unpleasant surprise for the town," said Lynn. "It's fair to say we will review the report and take it under consideration and choose whatever course of action that is appropriate."
Black's conclusions may also find their way into a report being written by Vermont Attorney General William Sorrell, the result of an investigation into use of force policies around the state.
"We would hope to be done soon," said Assistant Attorney General John Treadwell, about the AG's report.
Black suggested the town revise its new use of force policy to prevent just such an incident from happening again.
"This policy is an excellent step forward in better defining use of force," wrote Black. "The justification of nondeadly force, however, appears to contain the same wide grant of discretion that may have contributed to the underlying incident."
Black recommended a use of force policy allows officers to use a Taser only on suspects exhibiting "active aggression" and who are deemed likely to harm themselves or others. He recommended "active aggression" be defined as an assault or imminent assault.
Sondag is in the process of making those changes to the current use of force policy.
While police organizations around the country rely on Tasers to subdue violent suspects, Amnesty International has claimed police agencies are using the devices inappropriately "as a routine force option to subdue noncompliant or disturbed individuals who do not pose a serious danger to themselves or others," wrote Black in his report.
The police officers' "quick action fails to show appropriate patience and restraint in attempting to resolve the situation."
The Putney Road incident is the perfect example of "where officers eschew perhaps other slower solutions to a problem because they have 50,000 volts in their back pocket," said Sleigh.
"Black points out how hastily the officers handled the situation," he said. "He suggested an alternative which should have been readily available, a flash citation."
The flash citation could have been used to order the pair into court that afternoon, wrote Black. Their failure to appear in court could have conceivably been used to justify the use of the Taser, he added.
The complete report is available on www.reformer.com or by calling the town manager's office at 802-251-8100.
Bob Audette can be reached at email@example.com
© 2008 The Brattleboro Reformer