Boise ombudsman says police officer used excessive force in an arrest this year

BY KATY MOELLER,, July 22, 2009

Click here to listen to an audio recording of the Taser incident (warning: explicit language)

Click here to read Pierce Murphy's 43-page report on the incident

A report issued Wednesday by Boise Community Ombudsman Pierce Murphy found that a Boise police officer who used a Taser on a suspect's buttocks violated the police department's use-of-force policy.

Boise Police Chief Michael Masterson, in a release, said he agreed with Murphy's conclusion that serious policy violations were made by that officer and another officer who erased a recording of an interview with the suspect at the jail. The two officers, whose names were not released, were among eight officers who responded to the incident in early 2009.

The Boise Police Department did an internal investigation, and both employees were disciplined; details on the discipline were not released. It is considered an internal personnel matter, said police spokeswoman Lynn Hightower.

The use-of-force violation occurred during an arrest at a Boise home; the address and the names of the occupants have not been released. Police were called to the house after a report of a fight. While on their way, they learned that a man inside the woman's residence had just been released from jail. They were also told a 3-year-old boy in the home, according to details provided in Murphy's report.

Upon arrival, the officers heard the sounds of a struggle and voices coming from inside. The officers yelled for someone to open the door, and were greeted with a profane comment by a man in the residence. The officers had to kick and push the door open; the man inside was pushing against the door for more than 80 seconds. Once they gained entry, the officers said the suspect did not comply with their demands to get on the ground and stop resisting.

The suspect said that he was hit three times with a Taser after he was already handcuffed and face-down on the floor. Murphy's investigation found evidence that the suspect was hit twice with the Taser — once in the back before he was handcuffed and once in the buttocks after he was cuffed.

Murphy said the officer who used the Taser -— described as Officer #3 in the report — also coarsely threatened to use the Taser in the man's anus and genitals. Murphy's report says that use of Taser on a man's buttock's does not violate policy in and of itself; the question is whether it was "reasonable and necessary."

Upon Murphy’s request, Idaho State Police investigated the incident to determine if there was any criminal wrong-doing on the part of Officer #3. Idaho State Police forwarded a report to the Ada County Prosecutor’s Office, which did not pursue criminal charges against the officer.

The exchange between Officer #3 and the suspect during the incident was captured on a police officer's recorder. Murphy transcribed some of it in his report:

Officer #3: Do you feel this?

Complainant: Yes, sir.

Officer #3: Do you feel that? That’s my -

Complainant: Okay

Officer #3: -Taser up your ass.

Complainant: Okay

Officer #3: So don’t move.

Complainant: I’m trying not to. I can’t breathe.

"This exchange, especially the complainant’s response, strongly suggests that, at that moment anyway, the Taser was pressed between the Complainant’s buttocks and near his anal area," Murphy wrote in his report on the incident.

Two circular burn marks 1 to 2 centimeters in size were found on the suspect's buttocks, Murphy said.

Officer #3 also threatened to use the Taser on the suspect's genitalia.

Here's more of the transcribed recording of the exchange between Officer #3 and the suspect:

Officer #3: Now do you feel this in your balls?

Complainant: I do, sir. I’m not going to move. I’m not gonna move.

Officer #3 Now I’m gonna tase your balls if you move again.

A minute later, this exchange occurred:

Officer #3: Okay, I’m gonna take this Taser out of your asshole now. Are you going to fight with me?

Complainant: No, not at all, sir.

In the Boise police press release Wednesday, police department leaders said Officer #3's actions and language elevates the seriousness of the violation to conduct unbecoming an officer.

Department officials said they also agreed with the ombudsman's findings that another officer, described as Officer #10, acted improperly when he erased the audio recording of a jail interview with the suspect.

Officer #3 has been with the Boise Police Department five years, while Officer #10 is an 18-year veteran of the department.

At the end of his report, Murphy offered some policy and training recommendations to the Boise Police Department.

— Use-of-force investigation policy review. Establish specific standards and procedures needed for those tasked with investigating reportable uses of force by Boise police officers. "It is important that such acts be investigated and documented using consistent, best practices," he said.

— Training regarding positional asphyxia. During the arrest in question, the suspect was placed face-down on the ground and handcuffed with his hands behind his back and had the weight of three officers on his body. "None of the officers seemed to be aware of the possible danger posed by positional asphyxia," Murphy said.

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