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Thursday, July 12, 2012

Arbitrator Overturns Suspensions for Cops in Chasse Death

Posted by Denis C. Theriault on Thu, Jul 12, 2012 at 12:14 PM

An arbitrator has told the Portland Police Bureau it must overturn two-week suspensions handed out to two police officers—Sergeant Kyle Nice and Officer Christopher Humphreys—who were involved in the fatal 2006 beating of James Chasse Jr.

Update 12:55 PM: Click here for a PDF of the 60-page ruling.

The decision was confirmed by Dan Saltzman's office, which has so far just seen an email synopsis of the finding and declined to comment without reviewing the full ruling. Saltzman, as police commissioner in 2009, suspended both officers because he thought they botched the medical care of Chasse, a man suffering from schizophrenia who was tackled, Tasered, and pummeled by officers who incorrectly accused of him of public urination and carrying drugs

Saltzman argued that the officers should have insisted that an ambulance take Chasse to a hospital, not drive him in their patrol car. And he also said, after the seriously injured Chasse passed out at the jail for the second time, that the officers again should have called an ambulance.

Update 1:05 PM: Here's Saltzman testifying about his decision:

To me it’s really quite clear. It says if the Taser is used and one of certain circumstances apply to the individual, then EMS transport, that that person shall be transported by EMS. And there are two circumstances under which I felt that applied; one was sort of the excited delirium. The other was potentially the hyperstimulation. So there was two paragraphs in there as part of the directive that says EMS will transport. And I felt that both of those applied.

And just their [Nice and Humphreys] observations, too, that not only did they think he was high on drugs but they felt he had mental issues too, and I think that that’s also cited under rule 1051 as a basis for requiring EMS transport....

I felt that 80 hours was a minimally appropriate amount of suspension, and that’s what I went with.

The city attorney's office says it doesn't have a copy of the ruling it can send out, but the Oregonian, in a post this morning, quoted from a copy it obtained, presumably from the Portland Police Association. According to the paper and others familiar with the ruling, the arbitrator decided that even if Humphreys and Nice had more forcefully argued for an ambulance, that paramedics still would have made the call to let the police try to take Chasse to jail.

Update 1:20 PM: Here's the arbitrator, Timothy Williams, explaining his thinking. He relies on the testimony of lead paramedic Tamara Hergert—but not as much from the arbitration hearing as from her deposition in a civil case filed over Chasse's death:

There is no dispute between the Parties that Sergeant Nice and Officer Humphreys could have provided substantially more information to the paramedics. Moreover, in this Arbitrator’s view, the efforts by the City, since the Chasse incident, to require better communication between officers and paramedics is prudent and reasonable. Dotting all the i’s and crossing all the t’s makes good sense when dealing with medical emergencies and certainly is essential regarding risk management and the potential for civil liability.

However, the Arbitrator emphasizes the fact that in the instant case Sergeant Nice and Officer Humphreys are not being disciplined for their poor communication. The City is emphasizing the communication deficiency as a way of disarming the fact that the lead paramedic twice indicated that it was safe to transport Mr. Chasse to jail. The basic question the Arbitrator asks is what difference would it have made if Sergeant Nice and/or Officer Humphreys had given more information to paramedic Hergert. A quick review of Hergert’s testimony at the arbitration hearing provides the following:

Q. BY [DEPUTY CITY ATTORNEY STEPHANIE] HARPER: I know it’s a hypothetical question, but if you had been told that the Taser had been used, what, if any, different steps would you have taken?

A. I’m not sure, quite honestly. There is the, if they had been tasered and they’re acting completely abnormal to the situation, you transport them in case they have or develop the excited delirium stuff. But other than refusing to talk to us much of what Mr. Chasse did was seemingly appropriate. He saw people standing around him. He saw what he thought was his backpack. He yelled when people picked him up. I would like to say positively I would have transported him, but honestly, I can’t say that for sure. I wish I had known so we could have added in. It may have made a difference. It may not I wish I had known.

Q BY MS. HARPER: Do you wish you had known that he had fallen to the ground hard?

A. Yes. (Tr 165, 166)

Paramedic Hergert is more specific in her deposition given for the civil litigation. There she provides the following statement:

Q: And what was the conversation that you had at the scene when you were clearing the scene?

A: After we had left the scene he mentioned one of the officers told him that Mr. Chasse had been Tased. And when I asked him about what do you mean Tased, he says, well, no, they said he – they tried to Tase him but it hadn’t taken.

Q: And did that cause you to change anything that you had thought about in terms of your care and treatment of the patient?

A: No. It was a piece of information I would have liked to have at the – at the time, but it didn’t change the vital signs or exam I had done on Mr. Chasse [emphasis added by arbitrator]. (J 24, P 10)

The suspensions, coming more than three years after Chasse's September 2006 death, were controversial both because they were handed down so long after the incident and because Saltzman overruled then-Police Chief Rosie Sizer, who initially proposed just a one-week suspension, for Nice. The arbitration hearing came earlier this year and was still listed as unsettled this spring, back when the Mercury reviewed 10 years of police grievances. Humphreys was also suspended for bean-bagging a 12-year-old girl at a MAX stop, and Nice was found "out of policy" after pulling out his gun during an off-duty road-rage incident. He was then suspended.

One question now is whether the city will fight the ruling, just as it's fighting an arbitrator's order to reinstate Ron Frashour, the officer who shot and killed Aaron Campbell in the back in 2010. I've not heard back from Mayor Sam Adams' office in regards to that question, but sources say Saltzman, for one, isn't planning on pushing this to the state Employment Relations Board.

In both the Chasse and the Campbell death, the city agreed to pay out large settlements in federal court, $1.6 million and $1.2 million, respectively.

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