Post by WaTcHeR on Jan 21, 2007 20:15:02 GMT -5
SARASOTA -- T.J. McNally was in the hot tub at his $2.3 million waterfront home, hosting an Independence Day weekend pool party, when a sheriff's deputy came to the door on a complaint that the music was too loud.
The music was turned down, but after a brief confrontation the deputy fired a Taser into McNally's chest and arrested him on a charge of resisting an officer without violence.
Deputy Mark Eve wrote in his report that he sent the disabling 50,000 volts of electricity through McNally's body -- twice -- because the homeowner had taken a "fighting stance" and wouldn't put his hands on a car.
Now McNally, 33, is suing the Sheriff's Office for excessive force and false arrest in the July 2 incident. McNally's charge was later dropped, and he says witnesses -- including friends, family and business associates -- all agree that the deputy overreacted.
The case highlights the ongoing national debate over when police should use Tasers to shock people into submission, especially when a person is not suspected in a crime and has not physically resisted an officer.
Tasers are becoming standard equipment at police agencies, where they are seen as effective tool for keeping officers and suspects from being injured in scuffles and fistfights.
In this case, the deputy made a mistake, said Drake Buckman, McNally's attorney.
"Even if you believe the police version word for word, it still in no way justifies what happens and it's completely unconstitutional," Buckman said.
Eve, the deputy, wrote in his report that he could smell alcohol on McNally's breath as they talked about the noise complaint, that McNally yelled at him and then walked away without answering a question about his birth date.
"I asked the defendant for his home address, and he again attempted to walk away," Eve's report states. "I advised the defendant to provide me with the information I asked for."
That's when McNally -- a local businessman who owns a shopping center on Stickney Point Road -- clenched his fists and took a fighting stance, the deputy wrote. Eve fired the Taser and then handcuffed McNally.
"I could tell in his eyes he was going to pull that trigger no matter what," said McNally, who has witnesses saying he cooperated with the deputy. "People in my house were calling 911 to report this lunatic officer."
One witness wrote in an e-mail to McNally's criminal attorney that McNally "was repeatedly tazed and fell into a pile of ants. The officer seemed to find this funny."
Attorneys and a law enforcement expert said once the music was turned down, the officer's investigation should have ended, leaving no reason for the deputy to keep McNally from rejoining his party.
Prosecutors dropped McNally's obstruction charge one month after his arrest, but their file contains no memo saying why.
Attorney Derek Byrd, who represented McNally in the criminal case, says the charges were dropped because prosecutors agreed that McNally had no obligation to provide his name, address or any other information to the deputy.
"It's one of the most blatent disregards of Taser use I've ever seen," Byrd said. "This isn't Nazi Germany, where everyone runs up and says, 'Let me see your papers.'"
W.T. Gaut, a law enforcement expert from Naples, said the key is that the deputy never told McNally he was under arrest for any crime. Unless he does, law officers shouldn't use the Taser, he said.
"You can't just issue an order to a citizen and then if the citizen doesn't comply, use the Taser on them," Gaut said. "A lot are treating the Taser like a cattle prod."
Eve was not disciplined, sheriff's spokesman Lt. Chuck Lesaltato said. His supervisors and a use-of-force reviewer with the Sheriff's Office signed off on his report about the incident without finding a violation of Sheriff's Office Taser policy.
Sheriff's Office policy says a deputy may use a Taser to defend himself, another person, or to "gain compliance with a subject in custody."
Lesaltato said that most of the time, a deputy merely has to take out the Taser to make a person stop resisting.
The sheriff's spokesman also defended Eve, saying that even when deputies are responding to routine calls like noise complaints, they still need to get basic information about who they talked to in case they are called back again.
Deputies also would look foolish if they were talking to someone wanted on a warrant, such as a murder warrant from another state, but didn't run their name through a computer and find it, Lesaltato said.
"Based on what we have, we believe the use of force is justified," said Rick Elbrecht, a lawyer with the county attorney's office who is representing the deputy.
McNally was arrested for a fight at a Siesta Key bar in 2003, but that charge also was dropped.
"Me being young and high-profile, it's been way worse," McNally said. "People put it on MySpace. ... We all grew up in Sarasota, this is one of the worst towns definitely when it comes to gossip and talking about people."
Buckman, his attorney in the federal lawsuit, says this time the deputy used force against someone who knows his rights.
"I think there is a segment of the population that is more likely to have their rights violated because when things like this happen they're not aware they have recourse," he said.
www.heraldtribune.com/apps/pbcs.dll/article?AID=/20070119/NEWS/701190404
The music was turned down, but after a brief confrontation the deputy fired a Taser into McNally's chest and arrested him on a charge of resisting an officer without violence.
Deputy Mark Eve wrote in his report that he sent the disabling 50,000 volts of electricity through McNally's body -- twice -- because the homeowner had taken a "fighting stance" and wouldn't put his hands on a car.
Now McNally, 33, is suing the Sheriff's Office for excessive force and false arrest in the July 2 incident. McNally's charge was later dropped, and he says witnesses -- including friends, family and business associates -- all agree that the deputy overreacted.
The case highlights the ongoing national debate over when police should use Tasers to shock people into submission, especially when a person is not suspected in a crime and has not physically resisted an officer.
Tasers are becoming standard equipment at police agencies, where they are seen as effective tool for keeping officers and suspects from being injured in scuffles and fistfights.
In this case, the deputy made a mistake, said Drake Buckman, McNally's attorney.
"Even if you believe the police version word for word, it still in no way justifies what happens and it's completely unconstitutional," Buckman said.
Eve, the deputy, wrote in his report that he could smell alcohol on McNally's breath as they talked about the noise complaint, that McNally yelled at him and then walked away without answering a question about his birth date.
"I asked the defendant for his home address, and he again attempted to walk away," Eve's report states. "I advised the defendant to provide me with the information I asked for."
That's when McNally -- a local businessman who owns a shopping center on Stickney Point Road -- clenched his fists and took a fighting stance, the deputy wrote. Eve fired the Taser and then handcuffed McNally.
"I could tell in his eyes he was going to pull that trigger no matter what," said McNally, who has witnesses saying he cooperated with the deputy. "People in my house were calling 911 to report this lunatic officer."
One witness wrote in an e-mail to McNally's criminal attorney that McNally "was repeatedly tazed and fell into a pile of ants. The officer seemed to find this funny."
Attorneys and a law enforcement expert said once the music was turned down, the officer's investigation should have ended, leaving no reason for the deputy to keep McNally from rejoining his party.
Prosecutors dropped McNally's obstruction charge one month after his arrest, but their file contains no memo saying why.
Attorney Derek Byrd, who represented McNally in the criminal case, says the charges were dropped because prosecutors agreed that McNally had no obligation to provide his name, address or any other information to the deputy.
"It's one of the most blatent disregards of Taser use I've ever seen," Byrd said. "This isn't Nazi Germany, where everyone runs up and says, 'Let me see your papers.'"
W.T. Gaut, a law enforcement expert from Naples, said the key is that the deputy never told McNally he was under arrest for any crime. Unless he does, law officers shouldn't use the Taser, he said.
"You can't just issue an order to a citizen and then if the citizen doesn't comply, use the Taser on them," Gaut said. "A lot are treating the Taser like a cattle prod."
Eve was not disciplined, sheriff's spokesman Lt. Chuck Lesaltato said. His supervisors and a use-of-force reviewer with the Sheriff's Office signed off on his report about the incident without finding a violation of Sheriff's Office Taser policy.
Sheriff's Office policy says a deputy may use a Taser to defend himself, another person, or to "gain compliance with a subject in custody."
Lesaltato said that most of the time, a deputy merely has to take out the Taser to make a person stop resisting.
The sheriff's spokesman also defended Eve, saying that even when deputies are responding to routine calls like noise complaints, they still need to get basic information about who they talked to in case they are called back again.
Deputies also would look foolish if they were talking to someone wanted on a warrant, such as a murder warrant from another state, but didn't run their name through a computer and find it, Lesaltato said.
"Based on what we have, we believe the use of force is justified," said Rick Elbrecht, a lawyer with the county attorney's office who is representing the deputy.
McNally was arrested for a fight at a Siesta Key bar in 2003, but that charge also was dropped.
"Me being young and high-profile, it's been way worse," McNally said. "People put it on MySpace. ... We all grew up in Sarasota, this is one of the worst towns definitely when it comes to gossip and talking about people."
Buckman, his attorney in the federal lawsuit, says this time the deputy used force against someone who knows his rights.
"I think there is a segment of the population that is more likely to have their rights violated because when things like this happen they're not aware they have recourse," he said.
www.heraldtribune.com/apps/pbcs.dll/article?AID=/20070119/NEWS/701190404