Short Circuited 

Tepid Ruling in Police Taser Misconduct Case

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THE CITIZEN PANEL charged with hearing appeals of cop misconduct cases has decided that the Portland Police Bureau was wrong when it exonerated an officer accused of improperly Tasering a man in the back in 2007.

"The bureau's decision is based on taking the officer's statement at face value, and there are many reasons why we can't do that with the evidence here," Jamie Troy, chairman of the panel, said near the end of a tense four-hour hearing last Wednesday, May 30.

But in a tangled decision, the Citizen Review Committee (CRC) stopped short of urging the bureau to find the officer, Jennifer Thompson, guilty of misconduct. Instead, in a 7-2 vote, the CRC agreed that the Tasering claim should merely be ruled "unproven."

In the end, after the cops produced new physical evidence apparently in Thompson's favor, and after stories from witnesses had changed and grown hazier nearly five years later, the waters were too muddy for the CRC to go any further.

It's now up to Police Chief Mike Reese to accept or reject the CRC's recommendation. If he says no, that could set the stage for a rare city council hearing on a police misconduct claim. But most observers expect he'll agree and let the case quietly drop.

That outcome will be bittersweet for the man Tasered by Thompson, Hung Tran, and his attorney, Matthew McHenry. Both men were hoping for a legal trifecta in a case that began with an argument outside the Cheerful Tortoise near Portland State University and eventually worked its way into the court system.

Tran prevailed in a criminal trial nearly four years ago, fending off charges including disorderly conduct and interfering with a police officer ["Taser Eraser," News, Sept 4, 2008]. And later, after Tran filed a civil rights lawsuit against the city, an arbitrator awarded him $50,000.

In both of those cases, McHenry successfully argued that Thompson was incorrect when she said Tran fought with her outside the bar, thereby forcing her to drive her Taser into Tran's chest. Instead, backed up by witnesses, McHenry argued that an overwhelmed Thompson had forcefully pulled Tran from the bar after arguing with him, barked confusing orders at him, and then Tasered him in the back twice while he was on his knees.

McHenry also implied Thompson was lying when she attempted to explain away computer records showing she fired her Taser twice that night. Thompson claimed she mistakenly fired her Taser into her own holster before using it on Tran.

But the CRC hearing was different. It wasn't a referendum on what happened in 2007. Because of the panel's relatively modest oversight powers, it was merely a referendum on the police bureau's internal investigation of the incident and whether police brass could "reasonably" cite that investigation to argue Thompson didn't break any rules.

McHenry pointed to the court cases as proof the cops' investigation—by favoring Thompson's flawed recollections over other witnesses'—was biased. Especially since she kept arguing she Tasered Tran in the chest, even though court photos clearly showed he was hit in the back.

"It appears to me that [Internal Affairs] has credited the account from its officer and discredited or outright ignored evidence that didn't match up with that account," he said during the hearing.

But McHenry was undercut by surprise evidence first produced at the hearing: a punctured holster and spent Taser probes, purportedly from the night of the incident. That clearly showed Thompson misfired before using her Taser on Tran just once, the bureau said, never mind what most witnesses saw. Moreover, when interviewing witnesses again, investigators also turned up doubt about whether Tran was struggling or not before he was Tasered.

Some CRC members, when discussing the case, clearly wished they could go further than saying Tran's accusation was "unproven." But city council, when tweaking police oversight protocols this winter, refused a chance to give the CRC more power over misconduct cases.

McHenry said he hoped enough of the conflicting evidence was in Tran's favor.

"If there's any evidence to support the cops' view of what occurred," McHenry said, "the CRC's hands are tied."

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