Jury’s Out on Rev. Phil Taser Case

Originally posted 12:10PM, moved up to now with the verdict!

One night last June, Portland bike activist Phil Sano was stopped by police for not having a bike light and wound up on the ground, tasered five times and cited for resisting arrest. Today, the jury heard the closing statements in the case against him. To catch up on the case, check out our previous coverage here and here.

Every witness who took the stand during this trial agreed on one thing: after Sergeant Smith pulled Sano off his bike, things turned ugly quickly. In Sergeant Smith’s words, “He’s standing there, cursing at us, yelling and screaming, he’s out of control, foaming at the mouth.” Witness Diana Spartis was so scared of the police’s reaction that she called her roommate on her cell phone — he could hear Sano’s screams even over the phone. But some big points of contention came out during the testimony of the police officers and defense witnesses.

The first is whether Sano knew that the guy who yelled, “Hey buddy, could you come over here for a second!” at him from the sidewalk was a police officer. Sano says he didn’t recognize Sergeant Smith’s uniform in the night and didn’t see the police car with lights flashing before he decided to keep riding past the man. When he was pulled off his bike, Sano’s glasses fell off.

Another disagreement is how aggressive Sano and the officers were with each other — were the cops justified in tasering him or could they have just lectured him quickly about bike safety? Sergeant Smith says Sano turned around while straddling his bike and was in “an aggressive fighting stance.” Several witnesses said that Phil was flailing his arms wildly — one guy described it as a “tantrum.” The police and Sano both acknowledge that he didn’t throw any punches, bite the cops or kick them in a way that would traditionally be “fighting.”

“You said you had your hands up, is that any kind of martial arts move you know?” quizzed Sano’s lawyer. “No,” replied Phil, “I had my hands up because I was trying to show my passivity.”

Pretty much every moment of Sano and the cop’s short scuffle is contested: Sano says Seargeant Smith pushed him against a wall so hard he bounced off it, Smith says he definitely wasn’t that forceful. While Smith was testifying that he pulled Sano off his bike (not “tackling” him as Sano stated) Diana Spartis leaned over to me in the audience pews and whispered, “That’s bullshit! The bike went flying!”

The questions the jury is mulling over right now are big: Can someone be resisting arrest if they don’t recognize the person as an officer? Does flailing one’s arms in a child-like tantrum qualify as “physically resisting arrest”?

Sergeant Smith’s Side
Outside the courtroom, Sergeant Smith and I talked for a bit and he explained why he yelled “Hey Buddy!” at Sano instead of immediately identifying himself as an officer.
“I tried to do it in a really friendly, non-hostile way,” he said. Sergeant Smith is a transit officer who rides a bike himself on the job and helps organize special bike events like Sunday Parkways. He lamented the tension in Portland between cops and bikers. “There is no agenda in the police bureau or traffic division to target bicyclists specifically,” he said. “I’m not going out there to grab onto people if they’re not wearing a bike light… my intention wasn’t to pull him off the bike. My idea was to stop him and talk to him. When he turned on me, well, I’m not going to wait for him to punch me.”

Sergeant Smith says he decided tase Sano because it was option he felt would cause the least long-term damage. This was the second time Smith decided to use a taser in the seven years since they came into use on the force. “He might not look it, but [Sano] is a pretty strong guy… I know that this person is aggressive, I know this person is aggressive against police. When someone is obviously physically resisting arrest, I have limited options.” In a situation where an officer feels he needs to use force, he can baton the suspect, pepper spray him, mace him or take him to the ground. “We’ve seen recently, with Chasse’s death, taking someone to the ground can have lasting effects,” said Smith, “After the taser shuts off, the effects are essentially gone.”

Closing Statements

For his final words, Sano’s attorney Gutbezahl reiterated that Sano didn’t recognize the cops, so there’s no reason why he should have stopped. He also drove home the point that flailing around on the ground in pain should not qualify as resisting arrest. “He wasn’t resisting arrest,” said Gutbezahl, “He was on the ground getting juiced the taser!” Gutbezahl also said the only reason why they were in court now over a bike light is because of the police overreaction to a tiny bike light infraction.
Prosecution attorney Lufkin argued that WHY the officers wanted to stop Sano is irrelevant. Whether it’s because you’re missing a bike light or because you’re cruising on your Bianci lighting molotov cocktails with American flags, if a police officer says STOP, you’re legally obligated to stop. “An officer is authorized to use force to make his arrest. You’re not going to have a society of people making their own decisions about when an officer is pulling them over for something too small and they’re going to keep on going.”

The jury’s been out for about 40 minutes now and Sano and his friends are just cooling time while everyone waits for the jury to reach a verdict. “I have a feeling that they’re going to want to get out for lunch,” says Sano hopefully.

2:10PM – After just over two hours of deliberation, the jury filed back into the courtroom. The spokesman handed a piece of paper to Judge Yoo who swiftly read, “Count 1: Resisting Arrest. NOT GUILTY.” Sano is acquitted on the charge and doesn’t have any “release conditions” (aka “punishment”). “I feel great! It was a lot of work, but I had a great lawyer and he did a great job,” gushed Sano as he left the courtroom with public defender John Gutbezahl. “Whenever a member of the population doesn’t take the time to fight for certain causes, those causes get lost,” continued Sano, “Police need to identify themselves and treat the people they’re dealing with with respect.”

ALSO P.S. One of the witnesses the prosecution called was a guy who commented about the incident on BikePortland.org. Prosecuting attorney Ryan Lufkin found the witness by subpoenaing the commentor’s IP address and info from bikeportland — but a few weeks earlier the Merc and WW had won anonymity protection for blog commentors under Oregon shield law. Matt wrote about the whole controversy in October. At the beginning of the trial, Sano’s attorney filed a motion to suppress the witness, arguing that the court order Lufkin used to obtain the info was illegal. However, Judge Yoo denied the motion, allowing the witness to testify. What this all means for the precedent of protecting blog commentors info under shield law is unclear, but it seems like a strike against the protection the papers won in court.