(As originally published with bells and whistles, Sun, September 11th 2022, 8:43 AM EDT)
BOYNTON BEACH, Fla. (CBS12) — Tasers may be less lethal than bullets for police officers, but what should it take to get an officer to fire one? Or fire a taser at somebody twice?
Those were some, but not all, of the questions asked in a recent Internal Affairs investigation at the Boynton Beach Police Department.
A sergeant had deployed his taser during a call for service on Jan. 16, 2022.
The subject stated ‘no.’
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The review of the complaint in the case summary said, “Probable cause was established to arrest a male subject for simple battery related to domestic violence. [Two other officers] informed the subject that he was under arrest and ordered him to put his hands behind his back. The subject stated ‘no.’ [Those officers] each began to take hold of the subject’s arms in attempt to secure him in handcuffs. The subject appears to tense or pull his arm away from the officers.”
That’s when the subject of this investigation, “Sgt. Evan Esteves tased the subject and the subject fell to the ground with his arms under his chest. Officers gave additional orders for the subject to comply and put his arms behind his back. Sgt. Esteves tased the subject a second time and the subject immediately complied.”
concerns that the subject wasn’t given enough time to comply
Later, a major with the police department noted “he had concerns that the subject wasn’t given enough time to comply with orders prior to the taser being deployed.” The assistant chief agreed with the concerns “and requested Internal Affairs and the training unit review the incident … to determine if the taser deployment by Sgt. Esteves possibly violated [the rule on] appropriate use of force.”
what level of resistance the subject was displaying
One expert witness looked at reports and body worn camera videos “and found that Esteves deployed his taser twice with each tasing lasting the entire cycle of five seconds.” He couldn’t say “what level of resistance the subject was displaying because he was not one of the officers holding/attempting to take the subject to custody. [Also], he couldn’t tell if the subject was attempting to pull away from officers or if the officers were the ones moving his arms for handcuffing.
“[The witness] stated the taser is to be deployed at active resistance,” according to the report. “Pulling away, running away or any efforts/actions to prevent an officer from taking a subject to custody. The slightest amount of pulling away is considered active resistance. [He stated] it would depend on what Esteves saw and perceived.”
He also said “it is not policy” to announce “that the taser is going to be deployed prior to the deployment.” Boynton Beach “officers are trained to give an announcement if it is feasible.”
that would be determined by what Esteves perceived
He stated “after deploying the taser the officer should attempt to handcuff the subject. If the subject were to continue to actively resist, then the officer should tase the subject a second time.” As for “an opportunity to comply before a second tasing is executed he said yes, if feasible. [In this case], that would be determined by what Esteves perceived and there was approximately five to six seconds between the first and second deployments.”
it is very difficult to determine
In this case, “The other officers on scene would need to be interviewed to determine if they felt or experienced the subject pulling away,” and that “it is very difficult to determine if the subject is pulling away or if the officer is moving their arm, unless you are the officer holding the subject.”
One of the other officers at the scene “stated the subject was verbally aggressive and belligerent during the call for service. [He] was asked to describe the subject’s actions that were active resistance” and mentioned “the subject stated ‘no,’ and pulled away” when told he was under arrest. The officer “said the subject began backing up towards the bed. [Then], he was attempting to grab one of the subject’s arms while [another officer] attempted to grab the other arm, [and] the subject tensed and pulled away as soon as he grabbed the subject’s arm.”
I didn’t even know that was coming
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This officer seemed surprised, saying, “I didn’t even know that was coming out of anywhere so right when I grabbed onto the arm, the taser deployed.”
After, “[The officer] stated he was trying to pull one arm from underneath the subject but he wouldn’t comply. [He] was asked if the subject was given verbal commands and he stated he was. [He] was asked if the subject was still actively resisting, and he said yes.
the subject was definitely given time comply
“[He] was asked if he felt the subject was given time to comply with orders prior to the taser deployments. [He] stated he did not believe the subject was given time to comply prior to the first tasing. [He] said during the first teaser deployment he didn’t even know it was coming. [He] stated he didn’t even have a good chance to get hold of the subject’s arm before the subject started to pull away. [He] stated the subject was definitely given time comply prior to the second taser deployment.
able to handcuff the subject without taser deployment
“He was asked if attempts were made to de-escalate prior to the subject being tased, and he said yes. … [He] stated [the other officer] spoke to the subject in an attempt to calm him but it did not work. … [He] was asked if he felt he and [the second officer] would have been able to handcuff the subject without taser deployment and he said he believed they could have.”
Finally, he described two methods that “are taught for de-escalating with the taser. … ‘Painting’ is when an officer turns on the taser and points the red and green lights at the area below the subject’s feet to make them aware that a taser will be used if they don’t comply. ‘Arching’ is turning the taser on and cycling the taser so the audible sound a taser makes can be heard, without actually deploying the taser.”
The report said the other officer at the scene “was asked what resistance level the subject was displaying … and stated ‘it’s kind of hard to really. … At this point, I barely went hands on him.. I mean, you know what I mean it was could I say that there would have been resistance from this guy yeah, but could I say to what degree I can’t.”
at the point he was tased for the first time
He said the suspect was using passive resistance “at the point he was tased for the first time [and] it was barely at the point where it would have been transitioning from passive to active. [He] was asked if he felt the subject could have been taken into custody without the taser deployment and he said yes, without a doubt.”
Then, the officer was shown video and “asked if the subject was given the opportunity to comply between the first and second taser deployment. [He] said ‘based on what I saw, no.’ [He] followed by saying he recalled from training that if a subject is trying to remove/pull out a probe, second tasing was justified.
“[He] was asked if he was aware the taser was going to be deployed and he stated no. [He] was asked if any announcement had been given prior to the taser being deployed, and he said no. [He] was asked if an announcement is supposed to be made prior to a taser deployment, and he said ideally. [And he] described active resistance as tensing up or pushing/pulling away from an officer’s attempt to detain/arrest them.”
Finally, there was Sgt. Evan Esteves who the report said “was afforded the opportunity to review all witness statements and evidence related to the case; however, he chose not to review any of the information.”
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A summary of his testimony said he read department rules including, “Whenever possible and when such delay will not compromise the safety of the officer or another, and will not result in the destruction of evidence, escape of a suspect, or commission of a crime, an officer shall allow an individual time and opportunity to submit to verbal commands before force is used.”
Later, “Esteves was asked what level of resistance a subject must present to justify the use of a taser. Esteves stated active resistance.”
The report continues with Esteves being “asked what actions an officer should take prior to deploying a taser” and “what officers are trained to do with their taser regarding de-escalation.”
he could feel how the situation was going to go
Then, asked about the incident in question, “Esteves said he could feel how the situation was going to go based off the comments the subject was making.” He asked one of the other officers to join him inside the apartment, “and felt the subject was going to resist, so he pulled out his taser. Esteves said he does this often in anticipation of stuff going wrong because he is not going to go hands-on to affect an arrest. Esteves stated the moment [the other two officers] attempted to go ‘hands-on’ with the subject, the subject stated no, braced his arms together and pulled away. Esteves was asked if the other officers had their hands on the subject at that point and he stated that he believed they did. Esteves stated he deployed his taser because he felt the subject was at the active resistance level and he did not want officers getting hurt. Esteves stated the subject dropped to the ground after the taser deployment. Esteves stated [the other officers] were trying to get the subject’s arms behind his back, but the subject continued to not put his arms behind his back while the officers were still hands on. Esteves stated he deployed his taser a second time to gain compliance and the subject immediately complied.”
if he ‘painted’ or ‘arched’ his taser to gain compliance
Then, “Esteves was asked if he or any of the officers communicated with the subject in an attempt to gain compliance prior to deploying his taser. Esteves stated ‘in my eyes the compliance is my two officers are going to handcuff him and he is saying and they are telling him you are under arrest and he is saying no.’ Esteves was asked if any officers communicated anything to the subject after the subject said no and Esteves said no. Esteves was asked if he ‘painted’ or ‘arched’ his taser to gain compliance and he said he did not. Esteves followed by saying he knows that officers often get hurt when subjects pull away from them. Esteves was asked to describe the level of resistance the subject was displaying at the point he deployed the taser a second time. Esteves stated the subject continued to refuse to submit to handcuffing by pinning his arms under his body. Esteves was asked if the subject was given orders to comply and allowed time to comply. Esteves stated that he believed he was.”
At the end came findings “based upon the preponderance of the evidence.”
The subject responds by saying no each time.
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The investigator wrote, “Probable cause was established to arrest the subject for simple battery. [The two other officers] approach the subject, tell him three times to put his hands behind his back. The subject responds by saying no each time. The subject also lowers his hands, which were at chest level, down to his sides (open palms) and took one step backward. [The two officers] approach the subject and each grab one of the subject’s arms. It is at this point that Esteves deploys the taser for the first time. Both [officers] release their hold on the subject and the subject balls back on a bed and then rolls onto the floor. The subject lies on the floor face down with his hands underneath him. Officers give several verbal commands for the subject to put his hands behind his back and [one] attempts to pull one of the subject’s arms out from underneath him. It is at this point that the subject is tased a second time. The subject immediately complies and puts his hands behind his back.
he felt the subject was at active resistance
“Esteves stated he felt the subject was at active resistance due to the subject bracing and pulling away from officers. … Esteves stated that subject fell to the ground and continued to not comply with officers’ commands to put his hands behind his back and was pinning his arms underneath himself. Esteves stated this was when he deployed his taser the second time. Esteves did not make any announcements prior to deploying the taser.
“[The other officers] both stated that the subject tensed and pulled away which is part of the definition of active resistance. [One] stated he felt the subject was at passive resistance and [the other] said he felt the subject was at active resistance. [One] stated he did not feel subject was afforded time to comply prior to the first days of deployment but felt the subject had time to comply prior to the second deployment. [The other] stated he did not think, based upon the body-worn camera, that the subject had time to comply prior to the second tasing. Both [names] stated they felt the subject could have been taken into custody without the taser deployment. Both [names] were surprised by the taser deployment because no announcement was made prior to the taser deployment.
“Based upon the totality of the circumstances, lack of attempts to communicate, de-escalate or allow time to comply with commands prior to the taser deployment, it is more like than not that amount of force used by Esteves was not reasonably necessary for the purpose of controlling, defending himself or defending another; therefore, the allegation of appropriate use of force is SUSTAINED.”
Sgt. Evan Esteves was given verbal discipline and retraining on the use of force.
