Thursday, January 28, 2010

Update on Tasing of Innocent UO Student

January 5

I wrote earlier about the Chinese Student who was tased by the police in his own home mistake as a trespasser. Here is a report I wrote when the Chief met with several APA community members before he went public with his decision.

"We met in Johnson Hall’s conference room with the Chief at about 10:20 this morning. Before sitting down with us, Chief Kerns had an 8 am with the EPD, a 9 pm with the Chinese students, Steve Durant, PhD and vice provost of the International Studies Dept and, apparently, translator, Greg Rickoff, community relations and others, and was late by 20 minutes to the meeting with concerned community. Present were the students advocate, Paul Shang, Marvy Schuman, Barbara Date, Mike Takahashi, Remie Calalang, Steve Morizumi, Reagan Le, Gen Nguyen, Pam Quan, David Tam, Divya Bheda and Misa Joo. From the city there was Chief Pete Kerns and City Manger Staff, Francisca Johnson.

The Chief began by saying he would present the facts of the case, his verdict and future plans. First he announced that his decision after weighing all the facts was that Judd Warren acted within the use of force policy regarding taser use.

The Verdict:
The Chief said this was a very challenging case. The challenge was that these were extraordinary circumstances, circumstances which may never happen again. He said that in the United States, we seem to want to know “who is at fault.” But in his career, he has never seen a case with such unusual circumstances and therefore, difficult to answer that question.

The Facts and Policies:
He reported that as Chief he was impressed that his officers immediately expressed regret to the students, that they both told internal affairs about the situation expressing regret and then apologized to the Chief, again expressing regret. He says that the EPD regrets that this happened. They are proud of their community and are very upset that this happened.

The 911 call was a routine trespassing call. And as often happens because of lack of staff the dispatcher scraped around to find an officer in the vicinity who could respond. It seemed routine, but again the Chief stressed, as the facts were learned, the situation became extraordinary.

The Property Management staff had come earlier to check on the cleanliness of the apartment, something she does before new apartments are rented. She was accompanied by her little son. The real estate lock box was in place so the agent had reason to believe it was a vacant apartment. The bottom level was empty except for water bottles on the counter which she thought the cleaning crew left behind. Her son was going upstairs. She followed and she saw one of the students sleeping on the floor. She called 911 and according to the dispatcher tape said something like “There’s a trespasser in the apartment.” When asked for a description, she said, “white male, asleep or passed out, no shirt” and gave the the location.

Then the chief said that a higher level management also came to the scene. They also left a message on the dispatcher tape quotes the higher level manager as saying “I am worried this is trespassing.” He mentioned that this is something which goes on several times. He expressed worry that because the first manager walked up the stairs, that the trespassers may even know that they were discovered and do damage.

With that second call, the officers were assured there was a trespassing situation. They and the manager looked up and noticed the upstairs window seemed to be compromised and could have been used as an entrance. Kerns said all of these things (two managers call, history of trespassing, and the window) verified to the officer there may be a trespassing situation going on. (Was it clear to you that the manager was on site with them?)

The manager had given the officer the key to the lock box. The officer unlocked the door and entered. The officer identified himself as the police and in a loud voice called for everyone in the house to come out and show their hands. The two officers carried flashlights and drawn pistols -- all of this which they always do.

They officers noticed there was no furniture and personal effects. Judd Warden led off. In seeing a student, he identified himself as an officer and demanded the student he saw sleeping come out and gave the student instructions to show his hand. Officer Judd said he never heard the student say one word so he did not know he was not English speaking.

The student seemed confused, did not comply, so the officers handcuffed him.

Officer Judd Warden continued on up the stairs. There he saw the second student in one of the bedrooms, Again no personal effects or furniture. And again, the officer identified himself and demanded the student show his hands. There was no response. The student just sat and stared. "It was weird," is what the Officer testified.
In making a verdict, the Chief, continued, he had to consider what the police knew and was aware at the time.

Since there was no response, he went on in the room with the flashlight to get another angle and said again who he was and demanded the student show his hands where he could see him. The student continued just to stare and say absolutely nothing. At that time, the Chief puts the flashlight away and picks up the tazer. He steps out where the student could see his uniform and again gives the verbal commands -- that he is an officer and to show his hands. He made sure the student could see the taser.

He decided to use physicality rather than a taser next and nudged the student’s shoulder with his shoe. The student still just stared and said absolutely nothing -- total silence. He sat there with his blanket clutched to his chest and one hand under the blanket.

The officer tries to pull the blanket away and falls to the floor with his legs tangled with the student’s legs and he does not know how that happened. He has no recollection.

The officer says that when he fell, the student moved suddenly toward him. (The student testifies he did not move.)

He orders the student back but the student is still in a forward movement when he tases him.

In the video, the Chief says, we will see the student is sitting with his glasses and we can hear Warden’s voice. The chief says Warden’s voice is calm and further says it was so normal that the officer downstairs thinks that Warden is just talking by himself as they are ordered to do -- just keep talking when you're separated -- and she assumes that no one is there.

When the officer downstairs hears the deployment of the taser, she takes the handcuffed student up with her so that she could assist Judd Warden. There are two handcuffed students and two officers.

The student from downstairs finally has the presence of mind to communicate in a non verbal manner, gesturing toward a paper bag. The officers pick up a bag and looks inside to find the signed rental agreement and passports.

They show the agreement to the manager, then they all realize they have made a horrible mistake. The manager said that the unit was rented to them at 5 pm, and the person on duty at that time put them in a different apartment than the one that was planned for them.

The officer had to call the Sgt to ask if they could have translation. Only an officer who is at least at the level of Sgt. can do that. They had difficulty finding someone but finally found a speaker of that particular dialect -- Mandarin.

Then things got sorted out.

The officer even called the medics to come -- something they are not required to do -- to see if the young student was ok.

At that point the police auditor is brought in and investigation is done with his knowledge. The Auditor and the Chief are both given the facts -- and for this case, the Chief wanted us to know that the Auditor is satisfied with the verdict. He agrees that there was enough corroboration as needed to take the action, . . . (I can’t read my notes regarding something about time considered in the report and the third point having to do with policy. Does someone else have that in their notes? It’s regarding the auditor and chief agreeing on three necessary points. (At a later meeting of the Human Rights Commission, the auditor told those assembled that he did not like the decision).

Then the chief told us about the policies which informs his decision:

The policy of the search warrant: The property management company gave the officers permission and the key, so they did not need probably cause, a search warrant.
Based on what they saw -- the lock box, the compromised second story window, the property manager’s concerns and with the policy being met, they felt they could continue.

There is a policy regarding English language: “Realization” is key and with the students not talking, there was no realization point.

Regarding the policy of the Sgt approving use of a translator, that was met.

There is Use of Force Policy: The department goes by Supreme Court decisions to inform when a taser can be used. One, the seriousness of the offense, and in this case, there is jail term, so it fit. Second, the imminent and credible threat to the officer’s physical safety, as it is presently written, can be used -- although Chief Kerns said, it is at the lowest threshold and the department is not really aiming for the lowest threshold to be used as the benchmark. Third, was there resistance? The movement forward of the student disregarding the officer’s instructions can be seen as resistance. (The student says he did not move.)

Lessons Learned according to the Chief:

Chief Kerns said these are the lessons learned:
*We do not have a policy of warrentless entry into residences
*We need to take the taser policy to another level -- but we must understand the former chief in drafting the tazer policy could not predict this situation; and Chief Kerns also cannot predict what situations will show that the policy is not broad enough.
The language will be changed and the use of taser upgraded so there are many more rules of behavior regulated.

*When taking a trespassing call, we must have paper to back up the allegations.

The Chief reported that the officers and the call takers will be debriefing this incident to come up with new policy

What’s being done about it:
The Chief said that Eugene is more and more diverse in population.
The Chief says because of that the EPD goes through cultural competence training and he believes his department exceeds in that more than others. However, he knows that more training is necessary.

He and his department see this as a very unfortunate even to have happened to the two students and the community. They want good to come of it. Therefore, they will formalize a relationship with the UO English Institute (under Steve Durant)
The Chief says that they also find it is important to have a relationship with the Asian Pacific American community.

Opened up for questions and responses:

David Tam described a scenario where an officer is dis-armed and threatened by someone. David asked the Chief if he were in such a position would he be able to remember how it is that he got into that situation? David explained saying that an ordinary person knows what made them trip. A trained professional in a perceived dangerous position ending up on the floor -- he has a hard time buying that the Officer does not have a memory of how he landed there. As for the Officer’s claim he may have had his feet swept out from under him, David said the little he knows about martial arts, there are a lot of physical clues of whether or not that could have happened. David had a hard time buying that lack of memory -- and in the light that it is critical to the verdict of excusing the use of taser, the perceived personal harm to the officer -- David has concerns. (Lots of nods around the table).

David also said Mandarin is the unifying language in China. It is not a dialect. Most people can communicate in it. It should not have been that difficult to find a Mandarin speaker.

Thirdly, David suggested that the officers should use more straightforward instructions. “STOP!” rather than show your hands where I can see them, for example.

Finally, David has had experiences with trespassers himself. He suggested that the policy for situations like this should include the manager accompanying the officer, knocking on the door and asking the business question -- “are you renting this place, etc. etc.” David said he has done that himself.

Misa asked that David’s insights be captured in notes to be used for training and education of the officers. She also said this situation has some hiring implications. The officer used the lack of furniture as being proof that the students were vagrants. EPD must include people with varied life experiences. For some people, a sleeping bag is furniture. The fact that the students were in separate bedrooms said to her that these may be tenants. That question would have been there. They were settling into a home. That would have stood out -- not the lack of furniture in the narrow definition of furniture.

The Chief shared that the students had only been in the country for FIVE HOURS. He himself considered that jet lag added to the way they stared and did not speak. His son when awakened on the weekend sometimes sits up with eyes open but still asleep.

Mike Takahashi asked for clarification. Is there anything the students did not do which they should have or did do which they shouldn’t have. The Chief said, “The students didn’t do anything wrong.”

Pam Quan pointed out that September is a very significant month for realtors -- the students are coming back looking for apartments. Perhaps the officers need to have that conversation with the UO so that they are more educated about the possibilities of when translators might be needced. Misa pointed out that Chief Kerns has a valuable resource also in the APA business people knowledgeable about realty AND culture -- Pam Quan, Marvy Schumann, David Tam.

Mike Takahashi asked could this happen again? The Chief said yes, unless some changes are made. Mike asked How do we avoid this?

Mike also asked What can we say to the students who are coming from other countries? These students did nothing wrong but still this can happen. Parents are going to stop sending their youth to Eugene.

Dr. Charles Martinez talked about the UO’s deep concern about this very subject and that there will be many conversations between the EPD and the UO. The Chief acknowledged there will be discussions with the English Studies Department, with OIED, etc.

Misa said that there are just as many clues that there was no criminal activity, that the students were innocent. The were wide-eyed, not speaking, not moving, holding a blanket to their chest. The fact they were sleeping in two different rooms should have caused some doubt about trespassing -- more than an open window. Tenants open windows, or open windows are left accidentally.

(Pam said something about what the EPD should have but I didn’t catch it. Did anyone else?)

Marvy Schumann says as a realtor, she often leaves the lock box on for awhile. It is not unusual for a rented apartment to have a lock box. She also said that she too goes to deal with possible trespassers and the police should have the property manager accompany them so the conversation can begin as a business conversation.

Steve asked the Chief if he could share some of the discrepancies between the police’s answers and the students’ which the Chief mentioned before. The Chief said he could not comment upon the students’ interview without their permission. This content of the investigation is protected by law, and they also have been advised by their attorneys not to talk about it.

Steve asked the Chief to speak further on the low threshold used by the officer. How would the department address change of Tazer policy? The Chief said that the language would change from “credible imminent threat to the physical safety of the officer” to “credible imminent threat of physical injury of an officer” because “injury” carries more specific definition.

Francisca reminded the Chief he had a meeting. Misa asked the Chief where would the press conference be and at what time. As a courtesy we are letting him know that there will be a statement given by us and we would like to attend his press conference and hear what he has to say. The Chief said there will not be a press conference of that nature. Instead he will be talking to the media one by one. Therefore, it seems we will not know what he says. And we will not be able to respond specifically what the Chief will say to the public."

We quickly adjourned to the MCC and realized how close to noon it was. We were told by the press front person, Bobby Lee, that the press will still be at City Hall and will be looking for Asian Community members, specifically Victor Lin there at 12.

Marvy, Pam, Misa, Steve and Mike went to city hall. Met by David Tam. The Chief was handling his individual meetings with each media entity there. We read prepared statements expressing our shock with the verdict, a description of the incident as without public danger, without emergency, an incident which called for thoughtful consideration, a lowering of combativeness and reminded people the student renters were in their apartment sleeping when the police entered. Misa gave a nod to the value City officials placed on Eugene’s diversity. The Officer’s actions and the constraint of policies that the Chief works within contradicts this value. She called upon city council and the mayor to take leadership to clarify with action “who is included as community, who is safe and where one can be safe in Eugene.”. David spoke in answer to “are we disappointed” (yes)_ and also said that the property management business people will have to take a look at this situation as a learning one too.

We talked to the three stations. Pam and Misa gave the prepared statement to the RG.

These statements came from the meeting at Victor and Pam’s after much conversation about exactly what all of us can agree upon so it will be with a unified voice. Things we couldn’t agree up on live with were left for individual conversations. The public statement came from what the group believed was the crux.

Reporters asked who we were -- concerned community. What was the name of our group? We are not an organization. We are speaking as concerned citizens who came together with the purpose of speaking with a unified voice about concerns around the recent tazer incident involving UO students.

They tried to ask us questions about Kerns and how many Asians were there, and what should the police have done -- all important in its own time, I suppose, but our message had a goal -- who’s running this city? Kerns constrained by policies? We do want our city leaders to step up and say where they stand on this. Two innocent renters, five hours new in the US, tazed because they do not understand English. We wanted control over what the story was about because the city officials and mayor are the only people in Eugene who can still do or say something about this at this point, and we must exhaust all avenues. Finally, the way most of us who are APA see the issue and the feeling we have for the students must be held up as Pam did as a reminder that it is the safety of community which is our concern, not the embarrassment of the officer who, according to his own Chief, used a very low threshold of the tazer policy to get into the predicament he finds himself.

The Chief will be meeting with APA people in the very near future. Please email Francisca if you want to receive meeting notifications. Thank you! Misa

Later in the evening.
Chief Kerns is televised to say that he has found justified use of the taser. He talks about the student moving, about the blanket, and that if the student were speaking a romance language he probably wouldn't have been tased!

January 6 the RG reports the student may be filing a lawsuit against the city.

Since then, a group has met with the Human Rights Center for a letter to the mayor and city council demanding they as elected officials for all of us say publicly they disagree with the decision. HRC is not cooperative. They need more information. Eventually 3 say they will write a letter which doesn't go that far but to say they think it is wrong that the student was tased. A human rights commissioner is peeved that they have to deal with this with so information. He says they are unpaid volunteers and should be able to have time with their family and to watch a football game.

We have gone to meet with the mayor. She will get back to us. She says she takes responsibility that she didn't meet with the Human Rights Commission. She depends on them to be her watchdog. I suggested she tell that to the new commissioners and staff. She says, I don't want them to agree with her. I repeated that I thought that maybe she should tell them that, that they don't seem to know that is their responsibility.

We have gone to the UO President. He was cordial. He has not met with the student expressing concern. He said he hadn't thought of it. He has not written a letter to the parents. He said he would meet with the student but we don't know. He will not publicly stand with the student because he needs to get along with the EPD in spite of the fact he is not happy with what they did or the decision because they need to prevent this kind of thing. He is cordial.

Allies: NAACP, Amigos coordinator, community group organized against tasers being introduced and APANO.

That's the update so far. In all cases, the institutions are sorely behind, un-educated, and for a large part, does not care. Lot of work to do. Another youth sacrificed. By the way, we have been from the beginning prevented from knowing who the student is, prevented from meeting him, prevented from offering our friendship by both the UO and the city and probably his lawyer.

We know this young man has been pushed into a corner. I have explained in a personal meeting with the police, talked to the auditor and the human rights commission how we see the facts of the case:

"A young student from China came to learn English, recruited by the university to the English Institute in one of the safest cities in America, our city. He picked up the keys to his apartment and on his very first day, even before setting up the apartment, before hanging his clothes, exhausted, he fell sleep. Five hours after touching down on American soil, he is awakened to shouting, and sitting up in his bedroll, holding his blanket to his chest, staying absolutely quiet rather than saying anything which may be construed as argument, he sees an officer shouting commands he can’t understand who then trips, falls and tases him.

An apology made privately while publicly a verdict of justifiable use of the taser leaves questions whether the student may have done something that caused the officer to fear for his life enough to get himself tased and has pushed the student into a corner of having to sue to clear up these questions. This young man and his parents in China far from their son’s side are waiting for someone in the city of Eugene to do something that brings them closure rather than push their son into a nightmare where he has no option but to sue his host city to prove he is unquestionably innocent.

I told them that when they asked the student if he wanted to file a complaint, they should have instructed him to file a "report" and that it would be to tell his side of the story. Culturally, the student will hesitate pushing anyone into a corner where they have no options. (Otherwise known as saving face. Saving face is about the Other, not about Self). Now, he probably wishes he did because every responsible adult has given up the responsibility and leaves him with a cloud over his name.

This is a human rights concern if ever there is one: does a person who is a guest here, who is in his own home, who is asleep have the right to safety? If he is a victim of a mistake, does he have the right to respect? Or is safety and respect something that must be earned by citizenship and language facility? I say that we come to them to speak for that son and his parents. Others have spoken for the officer, but we’ve come to ask for a strong letter from the HRC to the mayor and city council urging them disagree with the Chief’s decision and to make it clear by voice and action, who in our city has the right to be safe -- citizen only? non-citizens included? English speaking only? Are rights earned by privilege and circumstance or are these rights inalienable birthright."

At this point no one has stepped up.

We have the word of the EPD and the city that they will be in contact with what they call the APA community triage team. The UO doesn't seem to care or have the capacity to show caring in an adult responsible way. Mostly P.R. Vice-Presidents of color asked to write something to be published in the school paper that they disagree with the Chief. No one has talked with the student.

Is he safe? The UO has recruited and attracted 250 more Chinese students to the English Institute. Parents might need to reconsider to send a message that when they send their youth, they expect them to be treated as human beings, residents, neighbors, cared for by the city officials and by the highest office of the university.

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"from Outside the Belly" was also known as "TBAsian" from 2008-2010. Thank you for reading.

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Eugene, Oregon
I am a citizen of the Winnemem Wintu Tribe. I am a Nikkei descendant sansei (third generation);retired teacher, involved in the Winnemem tribal responsibility to Water, Salmon, and our belief that the Sacred is our Teacher. Working locally for human rights and supporting youth leadership.