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2016-08-18

Garr’s investigation into tasering incident

By Judith Pannebaker BCC Editor

After much ado, the Bandera County Courier finally received a copy of an investigative report by City of Bandera Administrator Michael “Mike” Garr regarding a tasering incident of a 66-year-old woman. The tasering stemmed from a violation of a municipal sign ordinance.
The 30-page report was emailed to the Courier just prior to a complaint being filed with the Office of the Texas Attorney General regarding the alleged illegal withholding of the document.
During a special meeting on June 6, city council charged Garr with investigating the incident. The tasering of Mary Montes by City Marshal Will Dietrich occurred on May 16. During a regular meeting on Thursday, August 4, city council voted unanimously not to take any action “at this time” regarding the actions of either Dietrich or Deputy Marshal William “Willie” Smith.
‘No repeat of situation’
According to Garr’s report, Smith began double duty as a city code inspector on May 1. The controversial tasering episode arose after Montes immediately removed an illegal banner at Smith’s request.
Garr’s investigation offered the following: “If unable to resolve a violation on initial contact and seeing the potential during this intervention for an escalation to a verbal and-or physical confrontation, the Code Enforcement Officer will remove himself from the premises. Further follow-up will be done in consultation with the City Administrator, who shall have jurisdiction over events that cannot be resolved through the normal process.”
Garr asked council to implement that language while developing a full policy on separating the duties of code inspection from those of law enforcement.
Garr also floated the possibility of having an appointed Civilian Review Board oversee complaints filed against law enforcement officers. However, bowing to the inevitable, he also noted: “Given the difficulty the City has filling open positions on the P&Z and EDC, filling a five to seven person civilian review board might be problematic.”
In summary, Garr wrote: “This single incident should not derail the positive efforts being made in the community to enforce local ordinances. I find that Deputy Marshal Smith used poor judgment in this instance at the Gold and Silver Store. He stopped being a Code Enforcement Officer and fell back on his law enforcement training. I have spoken with him and Marshal Dietrich and see no possible repeat of this situation happening. At the time of this report, nearly six-weeks post event, there have been no formal complaints filed against either of the officers.”
Interestingly, while Garr references Smith’s “poor judgment,” he failed to address Dietrich’s actions – that of tasering a non-compliant senior citizen.
Originally, Montes was charged with resisting arrest and failure to identify. Both charges were later dropped due to insufficient evidence for prosecution.
Use-of-force report
In his use-of-force supplemental report, Dietrich described the tasering incident by writing: “Female subject refused repeated commands to stop resisting arrest and refused to allow the officer to place her in handcuffs. Subject was warned several times to stop resisting or she would be tased. The subject continued to refuse so I deployed my Department issued taser, striking her in the abdomen.”
He continued, “The subject kicked me in the shins several times as she was being tased. Once the taser shut off, I gave her commands to turn over on her stomach and place her hands behind her back. She then complied. EMS was summoned to the scene and she elected to be transported.”
The cycle on Dietrich’s taser is five seconds.
According to Garr’s report, Texas Department of Public Safety Trooper “Chip” Aragones arrived on the scene and spoke briefly with Montes, telling her, according to Dietrich, “Well we do have to know who you are.” The Courier had not previously reported on Aragones’ presence at the scene.
In a summary of attachments to his investigative report, Garr wrote of Aragones: “In listening to the recording, a DPS officer, who also responded to the call for assistance, told Mary Montes that she (was) required to give her name and personal information when requested to do so by a police officer.”
Pesky Sec. 28.02
Smith’s subsequent arrest of Montes was predicated on Sec. 38.02 of the Texas Penal Code, Failure to Identify, which states: “a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information. b) A person commits an offense if he intentionally gives a false or fictitious name, residence address or date of birth to a peace officer, who has:
(1) Lawfully arrested the person;
(2) Lawfully detained the person; or
(3) Requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.”
In Montes’ case, Smith considered her to be a “witness” to the crime of violating a city sign ordinance. However, since she was neither arrested nor detained during the incident, Montes had merely exercised her Consti-tutional right not to give Smith her name, place of residence and other personal information. Dietrich’s later actions confirmed this.
On May 23, he counseled Smith about the incident, noting in a written report: “Deputy Smith arrested a female subject for Fail to Identify, when in fact her actions did not constitute a violation of that statute.” Smith agreed with his supervisor’s assessment, according to Garr’s report.
Dietrich continued: “We discussed how important it was as a Bandera Deputy Marshal to be correct and fair in the application of the law. Deputy Smith went on to say that he did not want to arrest the subject and (if) she had just given her information, even after resisting arrest, he would probably have released her.”
To reiterate, Montes was not placed under arrest at the time of the incident. She later reported to the Bandera County Jail for booking and magistration after at-large warrants were filed against her.
Taser! Taser! Taser!
Garr also included in his report, City of Bandera Procedural Order 2013-01, regarding utilization of the X-26 Taser device, which stated, in part, “The decision to use the CEW is based on the same criteria a Deputy uses when selecting to deploy chemical spray or a baton. The decision must be made dependent on the action of the subject(s) or the threat facing the officer(s) and the totality of the circumstances surrounding the incident. In any event, the use of CEW must be reasonable and necessary.”
Additionally, the use of Taser X-26 is intended “solely as a control device to minimize injuries to officers and suspects, alike.”
Other factors to be taken into consideration when deploying a taser include disparities between an officer and a subject’s size, strength, skill, age and perception of immediate threat, among others.
Garr also included in his report a partial transcript of a lecture used by Tim Miller, a use-of-force expert for the legal division of the Federal Law Enforcement Training Center.
In 1989’s Graham v. Connor, the Supreme Court of the United States remanded the case back to a lower court with orders to judge the officers based on the Fourth Amendment’s objective reasonableness test. SCOTUS stated: “The reasonableness of a particular use of force must be judge [sic] from the perspective of a reasonable officer on the scene, rather than on 20/20 vision of hindsight.”
However, what Garr failed to take into consideration in Graham v. Connor are what are sometimes referred to as the “Graham Factors” – three questions that are said to form the backbone of deadly force law:
• What was the severity of the crime?
• Did the suspect pose an immediate threat to the officers or members of the public?
• Was the suspect actively resisting arrest or attempting to evade capture?
Code inspection,
alive & well
Interestingly, in his report, Garr lauded Smith for his dedication to code enforcement, writing, “I found it extremely interesting that immediately following the Taser Incident, Deputy Marshall Smith continued on to the adjoining business, Metro PCS, to conduct another code violation inspection. During that inspection, he was able to get compliance as well as the name and DOB of the employee at the store. It is also on the audio-video of the Taser Incident. I believe this demonstrates Deputy Marshall Smith’s commitment to Code Enforcement.”
When apprised of Garr’s observations, one city-watching wag observed, “Well, hell, I guess anyone would comply after seeing law enforcement officers and an ambulance converge at the last place Smith visited in his continued quest for code compliance.”