Even Police Chief Rosie Sizer testified against Officer Frashour at Waterhouse's civil trial last September. She ruled that his use of a Taser against Waterhouse was "in policy," but ruled against the officer for not giving a warning to Waterhouse before using the less-lethal weapon.
Waterhouse has been challenging that finding—that the Tasering itself was "in policy," this evening.
- Logan Perkins, a law student at Lewis and Clark, with Frank Waterhouse (center), and his civil attorney, Benjamin Haile
“At least in my reading of the case, Mr.Waterhouse was defiant and not compliant, but he didn’t verbalize an intention to act—or to act aggressively," said Chief Sizer in court last year, according to the court transcript obtained by the Mercury this afternoon. "So he wasn’t saying, “I’m going to kill you,” or “Step back, I’m going to kill you.” Nor did he appear, from my reading of the investigation, to have been brandishing the video camera as a weapon. Rather he failed to comply to officers’ direction to put the video camera down.”
But that testimony presents a contradiction with the chief's finding about the Tasering being "in policy." The problem is, that Officer Frashour gave the fact that he thought Waterhouse might have been about to use the video as a weapon as justification for his decision to Taser Waterhouse.
Update, 9:10pm: The CRC recommended overturning the chief and the bureau's finding on the use of the Taser,
6-2 Update, 11:22am, Feb 18: 6-0 (the two were abstentions). They said that Officer Frashour's use of the Taser was excessive, on top of his failure to give a warning about the Taser.
“I don’t understand why the Taser was used. I don’t see a big difference in my mind between the beanbag and the Taser," said CRC member Jamie Troy. "I don’t think he was mean, I don’t think he was menacing to the police. I’m going on a video that is available on YouTube if the public want to see it. I still can’t find that the use of that Taser was appropriate.”
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"The chief has said in her testimony in the civil trial that it was clear that Mr.Waterhouse was not about to use the camera as a weapon," said Perkins, advocating for Waterhouse at this evening's hearing.
Perkins also said that because Waterhouse was standing on an embankment and presented no threat to the officers, that his Tasering was probably outside the cops' Taser policies.
"Part of the problem there is that things were moving too fast," said Perkins. "I think we’re seeing this with a larger pattern in the bureau at this point—where officers, the situation is escalated, and officers are moving too quickly to actually slow down and communicate between officers and plan for what their next steps are going to be. It’s possible that [Officer Frashour] didn’t even notice that there was potential for other options, because he didn’t slow down and evaluate the cautionary circumstances."
"Mr.Waterhouse is looking for the process to vindicate his rights so that these things don't keep happening to other people," said Haile. "He's not looking for the officers to be fired."
Chief Brian Martinek responded to the Taser issue.
“That particular finding is not final, and it has not been presented to the officers in the form of discipline. It is pending, and part of the reason it is pending is for this review process,” he said. "We are in a holding pattern for this review to take place."
“The operator of the Taser should have given a warning, we believe there was enough time and cover for it to happen,” he said.
"I don't feel like I can answer all of the tremendous amount of information that I've just heard," Martinek continued. "Some of which is new to me, and some of which, frankly, I don't think is accurate. But you will have to make that determination."
Martinek added that the use of force board's review of the case had been thorough. "We landed where we did because we made good, thorough evaluation of the information that we had at the time," he said. "We don't want to have situations where our officers aren't using the right amount of force necessary, and at the same time we have to remember that these things unfold at an incredibly rapid pace. We're not perfect, we make mistakes, we're human beings. But having said that, we're going to continue holding our employees accountable."
"Why was the beanbag inappropriate but the Taser was okay?" asked a CRC board member.
"That's a good question to ask, and it's one that we are asking ourselves right now with our levels of control," said Martinek. "With the Taser, passive physical resistance is appropriate. As our policy currently stands, somebody who is exhibiting passive resistance, which indicates that they might run away, then the Taser is appropriate. But that's currently under review, as you know there was recent case law passed by the ninth circuit court of appeals that ruled on point on that, and we are currently reviewing that."
"Explain why the investigation into this case took three years?" asked another CRC member.
"We're in a situation where memories do fade, and this is a test case for how we need to do things differently, clearly," said IPR director Mary-Beth Baptista.
"You heard tonight from the Assistant Chief that the Taser policy is under review," said David Fidanque with the ACLU of Oregon. "I would encourage the CRC to involve itself in that review. The Eugene policy, I believe, will be significantly tighter than what the Portland policy is, currently."
Perkins highlighted the use of the Taser in her closing statement. "It seems very clear to me, and the logical train is pretty short, that if the chief said the officer did in fact fail to issue a verbal warning, the purpose is to give the subject an opportunity to comply with an order. If a subject doesn't have the opportunity to comply, they're not resisting. If they're not resisting, then the Taser is not appropriate. He wasn't resisting because he hadn't resisted an order. I really want to ask you to look hard at that issue. It's an extreme use of force. I think you have to reason through those steps, it's an inevitable end result of the chief saying that he failed to issue that warning."
Haile said the officers probably arrested Waterhouse on a pretext because "it was an embarrassing moment for them." Nobody told Waterhouse that he was under arrest, said Haile. "It's not just the failure to warn that was unreasonable here, it was the use of the Taser."
Other issues also came up during the appeal, including whether officers should be able to turn up the music in their patrol cars when transporting suspects to jail. Questions were also raised about what level of discrepancy is acceptable in police reports, and whether the CRC should be able to hear constitutional concerns instead of the courts. A civil rights attorney also commented that cops using tightness of handcuffs "as a negotiating technique" raises constitutional concerns.
"I think you all know that the press are here tonight because this case has resonance in the Aaron Campbell shooting," said Dan Handelman with Portland Copwatch.