New & Noteworthy...

Tasering protesters was undue

February 9, 2008, By Susan Smallheer Herald Staff

BRATTLEBORO — Brattleboro police officers used excessive force last year when they Tasered two peaceful protesters, who were protesting the possible development of a vacant lot into a truck stop, according to a report prepared by an independent consultant hired by the town.

The report, made public late Friday afternoon, was written by Gordon Black, a Bennington lawyer, who the town hired to evaluate the controversial July 24 arrest and Tasering of Jonathan Crowell, 32, and Samantha Kilmurray, 32, both of West Dummerston.

"The use of Tasers was, in my judgment, unwise and unreasonable under the circumstances," wrote Black, adding the police action was "hasty … unwise and unreasonable. While the officers were acting within the then-existing policy, the use of force by the officers was excessive."

He faulted the police for lack of patience in dealing with Crowell and Kilmurray, noting two of the officers, including one of the two officers who used a Taser, were on the scene for less than 20 minutes.

"This quick action fails to show appropriate patience and restraint in attempting to resolve the situation," he added. "There was no urgency to resolve the matter quickly … as the protesters were not obstructing traffic, impeding pedestrians or interfering to an adjacent business," he concluded.

But Black noted the town policy governing the use of force at the time of the incident was vague and needed further revision.

"The lack of a clear articulation of when the Taser device is authorized … unquestionably contributed to the incident," Black said in his 13-page report.

"The protest was little more than a nuisance," he noted. "There seemed to be little reason to escalate matters to involve the use of pain compliance devices."

But Black said the bigger issue was whether it was appropriate to use the device on peaceful protesters. He said it was not.

The officers involved in the incident were Lt. Robert Kirkpatrick and Officer Peter DiMarino, who both used the Tasers, and Lt. Charles Aleck and Officer Michael Gorman. All four are experienced officers, and DiMarino is president of the local police union.

Black noted the police were very successful in reducing the size of the protest, since about 20 people were on the site on the first day of the protest, and the number had dwindled to two by 7 a.m.

"Further discussion, combined with the passage of time, might very likely have resolved the standoff," he added. "There was no urgency to resolve the matter quickly."

The town received the report Tuesday, but released it after 5 p.m. Friday. Attempts to reach town officials were unsuccessful Friday evening. Neither Crowell nor Kilmurray, nor their attorney, David C. Sleigh of St. Johnsbury, could be reached.

Acting Town Manager Barbara Sondag did post a comment on the town's Web site, noting town officials were reworking the police department's use-of-force policy.

"Acting Chief Wrinn and I have already begun this work and will have a new policy ready within the week. Retraining of all officers on the new policy will then occur," Sondag wrote.

"While this incident has been upsetting for the whole community, it did serve to bring citizens and officers together to discuss use of force," she added.

Crowell and Kilmurray were the last remaining protesters of a group of about 20 people who had met at the Putney Road site the day before to plant flowers and trees in an act of defiance of rumored plans by Cheshire Oil to build a convenience store and truck stop.

Cheshire Oil has denied the plans and while the company agreed to let the protesters remain overnight, they had asked police to remove the protesters the next day.

Crowell and Kilmurray were the only protesters remaining by the next morning, and because they had chained themselves to an empty barrel filled with concrete, rebar and dirt, Brattleboro police resorted to using Tasers, Black's report stated.

Both Crowell and Kilmurray were first Tasered on their forearms for one to two seconds, with the police escalating the treatment to two to three seconds. At that point, Kilmurray let go.

Police then placed the device on Crowell's bicep, and Tasered him for three to four seconds. Crowell then told police that if they left him alone, he would "quit from dehydration and hunger."

But DiMarino used the Taser again, Black noted, and ended up Tasering him in three different areas, a result of Crowell trying to move out of the way, the report stated.

The couple was arrested and charged with disorderly conduct. They have pleaded innocent to the charges and have hired a lawyer to sue the town for what they said was excessive force.

Black stated the officers on site that morning apparently ignored the advice given to them the day before by former Police Chief John Martin, who had told the officers "not to be heavy-handed," and to be "flexible."

Martin lost his job in November after the incident, in large part because of the Taser incident, according to the findings of fact issued by the town after his disciplinary hearings. The Select Board voted 3-2 to fire Martin, and cited interviews with all four officers directly involved in the Taser incident, among others.

Sondag, who had at first placed Martin on administration leave, couldn't be reached for comment Friday evening.

Martin emerges as a voice of restraint in Black's report, noting that Martin, who was not at the scene of the protest when the arrests took place, had urged his officers the day before not to be "heavy-handed."

The town received the Tasers after the shooting death of a distraught man in the local Unitarian Church in December 2001. A local credit union donated the funds for the Tasers.

But the Brattleboro police have been officially criticized by a state advocacy group for using the Tasers to deal with juveniles at the Brattleboro Retreat, a private psychiatric hospital in downtown Brattleboro, and others who have been Tasered have criticized police as well.

According to the memorandum issued by Sondag, the officers involved in the incident could face disciplinary action, but she noted that that would be confidential.

In an interesting footnote, Black's report noted that Taser, which is a brand name for the electronic device, is actually named for science fiction hero Tom Swift. Taser stands for Thomas A. Swift's Electric Rifle, according to the Taser's inventor, a man named Jack Cover.