Florida Criminal Defense Lawyer Blog

Suit filed by fired officer who declined shock draws divided reactions

Should a sheriff be able to reassign an officer to a different, less desirable position if the officer refuses to undergo a training exercise?
What if that training exercise required the officer to receive a shock from a Taser?
And what if that officer had a note from his doctor advising against it?
Those are among the provocative questions at the center of a lawsuit filed this week by Ray F. Robert against the Hamilton County Sheriff's Department, and how those questions are answered depends greatly on who is being asked.
Robert, who spoke with The Indianapolis Star on Wednesday, said he can't fathom being fired for basically taking his doctor's advice.

"I'd been in law enforcement for more than 31 years, and (when I was terminated), it felt like it was all for nothing," Robert, 54, said. "Just because I can't be Tased doesn't mean I can't do my job."
Robert said two doctors -- including a physician chosen by the Sheriff's Department -- advised him against being Tased. He feared the electrical jolt and ensuing muscle spasms could further injure a damaged vertebra and a metal plate in his back.

"What happens if I become paralyzed? How long is the county going to pay me?" he asked. "What would I be able to do with my life if that happens?"
But Hamilton County Sheriff Doug Carter said other officers, including a 73-year-old employee and another officer with severe back problems, each received a two-second Taser jolt with no ill effects.

"Every single person who underwent the training found value in the exposure," Carter said. "I would never put one of my officers in danger. The vast majority of Taser injuries come from falls, which is why we have the training on a mat with people holding the person (getting Tased)."
Both sides agree that after Robert refused to be shocked in December, the department offered to create a position for him at the Hamilton County Jail.
But Robert's attorney, Daniel Lapointe Kent, called the gesture inadequate.

"They offered another position with a substantial reduction in the overall compensation package, with not as many benefits," he said. "He would have to work weekends and holidays and no longer have use of a squad car."
After Robert refused the position in the jail, Carter said he had no alternative but to fire him.
The issue drew divided reaction Wednesday.
Dalia Hashad, a policy director with human rights watchdog Amnesty International, praised Robert for his refusal and chastised the sheriff's decision.

"It seems they (the Sheriff's Department) lack a strong understanding how dangerous a Taser really is," Hashad said. "Given his medical history and the two doctor's notes, it's obvious he wasn't an appropriate person to be Tased. With that attitude, I'm curious how they're using the weapon on the street. Is there anyone they think shouldn't be Tased?"
Amnesty International is a longtime critic of Taser use. The organization attributes 335 deaths from July 2001 to August 2008 to the device, but Noblesville Police Lt. Bruce Barnes said that if an officer can't be Tased, it may raise other questions.

"You have to question if someone is fit for duty if they say they can't train for a situation that might occur in real life," said Barnes, whose department is among several in Central Indiana, including Indianapolis police that require such training. "What happens if you're wrestling with a suspect, and he grabs your Taser (and shoots you)? If you can't perform your duties, you're putting everyone else at risk."

Lapointe Kent said Robert didn't need a Taser because he had other weapons at his disposal, such as a nightstick and his firearm. Carter, however, said Tasers have become integral tools in police officers' nonlethal arsenals.
"The presence of Tasers has quickly de-escalated many violent situations," Carter said. "In five seconds, the situation is brought under control with no injury to the person or the officer. (If you were a suspect,) would you rather be hit in the head with a nightstick or stunned with a Taser with no injuries afterward?"

Tasers temporarily incapacitate suspects by delivering five seconds of 50,000 volts of low-amperage electricity through two barbs shot into the body from up to 21 feet away.
Most training programs give officers the choice of being shot with the barbs or receiving a shorter jolt through a pair of alligator clips attached to a pant leg.
Many agencies believe it is imperative for officers to understand what a Taser shock feels like, in part so they will show restraint before using the device.
In a written statement, Taser company spokesman Steve Tuttle said fewer than 100 injuries have occurred during more than 625,000 training exposures.
Greenwood Police Chief Joe Pitcher said he has had a couple of officers with heart issues who were cleared by their doctors to be Tased.

"Their doctors told them there was no evidence that it would be harmful, so to go ahead and do it," Pitcher said. The training "gives us a good lesson that if we do have to resort to these instruments, we know how painful they are to the people we have to use them on."
"Tasers are very painful but not lethal," he said. "They are subject to abuse if you are not familiar with how painful they are."

Robert's suit, filed in federal court, alleges his constitutional rights were violated and seeks reinstatement, back wages and punitive damages.

As criminal defense attorney’s, we frequently hear the same question: “How can you defend those guilty people?” Erroneously presupposed by those who ask this questions is that all the people that we represent are all guilty. We have different responses when asked this question depending on who asks and how they ask it. Sometimes, I’ll remind and/or inform those people about the instances over the past several years, about which I’ve read where innocent people in the United States have been falsely accused of crimes. Their nightmares serve as, among many other things, reminders of the importance of our role as criminal defense lawyers. I try to share true stories to those who inquire to remind them that people, just like you and I, can have their liberty stripped at any moment even though they have done nothing wrong.

I make sure to remind them about what happened to Wilbert Lee and Freddie Pitts. Thirty six years ago, two gas station attendants were murdered in a segregated town in the Florida Panhandle. Lee and Pitts were arrested and later stood trial for the murders. Feelings against them ran high during their trials. The crucial piece of evidence was that one of their friends had argued with a gas station attendant about using the whites-only bathroom. The all-white jury sent the two black men to Death Row. Their conviction was based largely on the testimony of a witness who was threatened by interrogators and “hypnotized” by prosecutors. They spent 12 years in prison, nine of them on Death Row, before being freed. Another man confessed to the killings.

More recently, there was the arrest in Tampa, Florida of Johnny Golden, who was charged with bank robbery. Even though he had a pay slip showing he had worked for a labor pool in North Carolina the day Tampa police accused him of robbing the bank and had his supervisor and four other people vouch for his alibi, he still was held by authorities who were certain that they had the right man. On December 8, 1997, the day Golden’s trial was to start, the primary witness, a bank teller who was robbed, came into court and took a look at Golden and said that he wasn’t the robber. Prosecutors dropped the charges. Golden spent six months in jail, losing his truck and his home. He also lost spending precious time with his wife and infant son who was 3 months old when he was arrested.

Another case of innocence occurred in Orlando in late 1998. Kenneth Taylor was about to take his wife and 2 year old daughter to breakfast when he was arrested by hooded officers from the fugitive squad who surrounded Taylor with their guns drawn. With his family and neighbors stunned and watching in disbelief, he was handcuffed and placed into a sheriff’s van. Four weeks later, after 12 days in jail and 16 days confined to his home with an electronic monitoring bracelet, the state attorney’s office announced to the court that they had no case against Taylor. All along Taylor claimed he was innocent of raping the female victim. Police and prosecutors were not persuaded even though the victim had contracted gonorrhea during the assault and tests showed that Taylor didn’t have it. Also, Taylor had an alibi proving that he was working 500 miles away at the time of the crime.

These are just several examples of cases where injustices have taken place over the past several years. Thankfully, they happen infrequently. Most of the time, law enforcement officers and prosecutors work diligently to safeguard against horror stories like the above mentioned. However, they do take place. That’s why our role in the process is so critical. It’s so important that we continue to fight zealously on every case. Let’s continue to remind the countless people who inquire how we can “do what we do” that they’re “not” all guilty.