Key West The Newspaper

by Naja and Arnaud Girard…

OIG Investigation Report just in…

In February we reported on the shocking tasing of an older gentleman by a state trooper on US 1 near the 18-mile stretch.

Before a bystander’s cell phone video was made public, the trooper, Eloy Arias, had written in his incident report that he had tased the man because he “attempted to run into the oncoming southbound traffic.”

The video footage previously published by The Blue Paper [above], however, clearly shows the man,  Mr. Marc Freedman of Santa Monica, California, standing still with both arms extended in the air just before the trooper fires his Taser into the man’s back.

The Florida Highway Patrol and the State’s Office of Inspector General have just released their findings. There is an abundance of dashcam video and audio, which The Blue Paper will review and post for readers in the coming weeks.

The facts, however are disturbing:

On his way from an automobile crash site, Miami-Dade Deputy Christian Huete notices a van stopped on the shoulder of the northbound lane which had been closed to traffic due to the accident. Inside the van is Mr. Freedman. The deputy tells Freedman to follow him and to pull up behind him once they get to his destination where Trooper Arias awaits him, stating he would be able to guide him safely back onto the southbound lane from there. Freedman follows the deputy but becomes confused about the instructions and begins pulling in front of the Deputy’s car.

State Trooper Arias, seeing the unauthorized vehicle in the closed lane, yells at Freedman in a commanding voice to “Stop!” Freedman stops but closes his windows, locks the doors, removes the keys from the ignition, moves out of the driver’s seat, and refuses to engage with the officers. Arias becomes agitated, yelling at the man repeatedly to, “Open up!” Finally, he just smashes the man’s window, cutting his hand in the process.

He continues to order Freedman to come out of the car.  Freedman says, “I am being threatened with death, I am getting threatened with getting stunned!” Arias opens the driver door and tells Freedman to come out of the car or he will tase him. Freedman says he will come out of the car and to record it.

Huete opens the passenger side door and Freedman comes out with his hands raised.  Arias and Huete tell him to get on the ground. Arias runs around from the driver side to the passengers side.  Huete takes a hold of Freedman’s right arm. At this point, depending on who you talk to, it appears either Freedman stumbles or attempts to pull away from the officer.

Arias yells to Huete, “Let him go!” and Huete says, “Tase him!”

Arias tases Freedman. Freedman screams and falls to the ground. Even though the man is lying still on the ground, Arias shouts repeatedly, “Stop resisting! Stop resisting!” Arias gives Huete his handcuffs and Huete secures Freedman’s hands behind his back.

Freedman is then walked over to the trooper’s patrol car where the Taser prongs are removed with the help of EMS. Freedman is then told to get inside the patrol car. Freedman begins yelling, “Wait a minute, why do I have to go inside the car?!”

Arias walks back over to the rear passenger side of his patrol car where Freedman, Huete, and another officer are standing.  Arias grabs the handcuffed Freedman and pushes him against the car, and says, “One more time, stop resisting or you’re gonna get tased!” as he simultaneously drive stuns him.

Now, with Freedman still handcuffed and back on the ground after being tased for the second time, Arias orders Freedman to “Stop resisting!” and he is drive stunned again. Freedman stops screaming and says, “O.K. I’ll stop, Please don’t sir.” This all takes place even though Freedman has already made everyone aware that he suffers from a neurological disorder (a form of Tourette’s Syndrome that causes spontaneous outbursts).

To justify the third use of the Taser, Arias would later write in his report that Freedman had attempted to kick the officers while he was lying on the ground, but the others who were there say that didn’t happen.

The Florida Highway Patrol ultimately found that the trooper’s actions were in line with his training and with Florida Highway Patrol policies, despite the fact that the OIG, after conducting a full investigation on behalf of the FHP, had concluded that Trooper Arias had used excessive force while detaining Mr. Freedman.

The following is taken from a prepared statement sent to The Blue Paper by Sergeant Mark G. Wysocky, Public Affairs Officer for the Florida Highway Patrol:

“Based on the trooper’s actions and given the totality of the circumstances, the Florida Highway Patrol (FHP) determined the situation was handled within the guidelines of his training and policy.”

For the Full Report of the OIG click here.

For Trooper Eloy Arias’ Incident Report click here.

What follows is the Conclusion from the OIG [verbatim]:

Conclusion

On Saturday, February 14, 2015, Florida Highway Patrol (FHP) investigated a serious traffic crash on US Highway 1 (US 1) at the 117 mile marker in Miami-Dade County. Trooper Eloy Arias responded to assist with traffic control at the 112 mile marker, by redirecting northbound traffic on US 1 to the southbound lanes.

Miami-Dade Police Officer Christian Huete responded to assist Arias. As Huete drove to Arias’ location from the crash scene, he encountered Mark Freedman, parked in his mini-van, on the shoulder of the road. Huete instructed Freedman to follow him to Arias’ location so they could direct him out of the closed portion of the road.

As they approached Arias’ location, Huete stopped his patrol car and Freedman drove around Huete. Arias instructed Freedman to stop and roll his window down, attempting to give him instructions on where to go. Freedman rolled the window up, took the keys out of the ignition, and began screaming he was calling 9-1-1. Arias and Huete told Freedman numerous times to open the door, but he refused. Arias warned Freedman if he did not open the window, he would break it out and get him out of the vehicle.

After 4 minutes of Arias ordering Freedman to open the door, Arias broke the driver side window out, causing injury to his right hand (strong side). Arias told Freedman to come out of the vehicle or he would be tased. Arias unlocked the doors, allowing Huete to open the passenger side door. Freedman came out of the vehicle with his hands raised. Huete took ahold of his right arm and told him to get onto the ground as Arias came over from the driver side with his TASER X-26 Conducted Electrical Weapon (CEW) in hand. Freedman began pulling away from Huete and Arias yelled “let him go, let him go.” Huete released Freedman from his grasp and Arias deployed his CEW, striking Freedman in the center and lower back. Freedman fell to the ground and was handcuffed by Huete, then escorted to the rear of Arias’ patrol car without incident.

Monroe County Sheriff’s Deputy Edward Askins, FHP supervisor, Sergeant James Lane, and Key Largo Emergency Medical Service (EMS) arrived on scene at the request of Arias.

Paramedic Charles Sommers told Arias “he [Freedman] got a medical condition; he’s got Tourette’s [Syndrome] that’s why he’s acting like this, that’s why he is shaking.” Freedman was told to have a seat in the back of Arias’ patrol car, but then told to wait a minute while Arias moved items from his backseat. Freedman began yelling “No, I don’t want to, wait a minute, why do I have to go inside the car.” Askins told him to relax as Arias walked back from the other side of the car. Arias grabbed ahold of Freedman, pushed him against the car and said “one more time, stop resisting or you’re gonna get tased” as he delivered a drive stun to Freedman’s leg for 4 seconds.   Freedman was never given any verbal commands to do anything prior to getting drive stunned. He was only told to stop resisting during the drive stun and immediately after.

Freedman began to fall, so Askins guided him to the ground. Freedman yelled “don’t let this happen”, while Ar ias continued to yell “stop resisting”. Ar ias tased Freedman again in the back for 5 seconds in the drive stun mode. Freedman said, “OK, I’ll stop .” and was put into the backseat of Arias’ patrol car without further incident. Freedman was committed to the Marathon Crisis Center in lieu of being charged with a crime.

According to FHP policy, Members of FHP shall in every instance seek to employ the minimum amount of control required to successfully overcome physical resistance. A member’s decision to deploy the CEW shall involve an arrest or custodial situation during which the person who is the subject of the arrest or custody escalates resistance to the member from passive physical resistance to active physical resistance, and has the apparent ability to physically threaten the member, or is preparing to flee or escape.

Examples of active physical resistance include bracing, tensing, pushing, or pulling, to prevent the member from establishing control over the subject. Unless exigent circumstances exist, members shall not use the CEW on a handcuffed or secured prisoner. In those cases, the use of the CEW must be based on justifiable facts and are subject to “Use of Control” supervisory review.

Sergeant Pedro Reinoso, who was the on call supervisor for Monroe County, and responded to Arias’ Taser deployment to conduct a use of control investigation stated he thought Arias did a poor job of de-escalating the incident with Freedman initially. Because Arias drive stunned Freedman while he was handcuffed, Reinoso expressed his concerns of excessive use of force to Lieutenant Kathleen McKinney and Captain Waxler Bright.   The decision to document the concerns on a Complaint Intake and Inquiry Form was made by Major Sammie Thomas, after a citizen video of the incident appeared in the media.

During Huete’s sworn statement, he said Freedman pulled away from him as he attempted to take him into custody. Huete thought Freedman was trying to run away from him. During the drive stun CEW deployment, Huete said Freedman began shaking and pulling away when the officers tried to get him into Arias’ patrol car. Huete said there were an ample amount of officers to control Freedman.

During Lane’s sworn statement, he said when the officers tried to put Freedman inside the patrol car, he began resisting. Lane described the resistance as standing up and pushing back. He said Arias warned Freedman several times that if he did not comply he was going to tase him; however, the video contradicts this. The officers were not trying to get Freedman in the car at the time of the drive stun and Arias never gave Freedman commands prior to the drive stun. After the first drive stun Lane said Freedman continued to yell and scream while on the ground, but Lane did not see him physically resist. Lane described Arias as using a commanding voice, but not angry or out of control. Lane said Freedman did not have the apparent physical ability to harm Arias or the officers because he was handcuffed and was not trying to flee.

In Askins’ sworn statement, he said when told to get into the back of Arias’ patrol car, Freedman began passively resisting and did not want to get into the car. Askins said he had a firm grip on Freedman’s arm and said Freedman “wasn’t going anywhere.” Arias’ response to the resistance was to drive stun Freedman. Askins did not know why Arias took his CEW out because there were three officers present. Freedman began to lose his balance, so Askins helped him to the ground. Once on the ground, Askins said Freedman was not resisting, only squirming from being drive stunned. Askins never saw Freedman throw a kick while he was on the ground, as reported by Arias in his offense report. Askins described Arias as being “amped up” but not angry. Askins thought the officers could have successfully put Freedman in the vehicle without the use of the CEW.

The OIG consulted with FHP Training Academy Instructor Sergeant Belarmino Martinez, who is a CEW instructor for FHP. In his sworn statement he said in the initial CEW deployment, Freedman’s resistance was active physical which justified a CEW deployment. It was Martinez’s opinion, based on the MVR of the incident, and the officer’s reports, that the subsequent drive stuns to Freedman were not excessive. His opinion was based upon the MVR audio of the incident and the officers’ reports, since the resistance could not be seen on the MVR recording.

He thought Arias’ use of the drive stun was justified because of the exigent circumstances; however said he would have probably used the bent wrist technique or pressure points. Martinez described the exigent circumstances in this situation as “he was not compliant, they had to get him into the car and he was at least at active physical resistance.”

During Arias’ sworn statement he said after he broke Freedman’s window he saw blood on his hand and did not know how bad his wound was. As Arias walked over to the passenger side, he kept the CEW in his hand because of the injury. Arias thought he would not be able to use both of his hands to secure Freedman because he was bleeding and did not want to expose himself to potential bloodborne pathogens. Arias saw Huete struggling with Freedman and wanted to prevent Freedman from running into oncoming traffic so he deployd his CEW. Arias thought the CEW would be the least force necessary to gain compliance over Freedman.

As Arias tried to get Freedman in the backseat of his patrol car, he said Freedman began to actively resist by tensing up and pushing himself toward Arias. Arias did not want to forcib ly put Freedman in the car because of the risk of injury to him or other officers. Arias told Freedman to stop resisting and attempted to drive stun him. The CEW touched Freedman on his thigh, but because he was pulling away it had no effect on him. While Freedman was on the ground, Arias said he continued to resist by attempting to stand back up, and would not listen. After the second drive stun, Freedman stopped resisting. Arias said he thinks he used the least amount of force to accomplish the task.

In Arias’ Offense Report, he says once on the ground, Freedman threw a kick. None of the other officers interviewed saw him kick. In Arias’ sworn statement he said it might have occurred while Freedman was on his way to the ground. Based on witness testimony and the MVR, the OIG found no evidence that Freedman tried to kick at anyone.

FHP policy states that in order to deploy the CEW, regardless of whether it’s a cartridge deployment or in the drive stun mode, the subject’s resistance must escalate from passive physical resistance to active physical resistance, and the person has to have the apparent ability to physically threaten the member or others; or, is preparing or attempting to flee or escape.

In the initial CEW deployment, after being physically removed from the vehicle, Freedman was pulling away from Huete. Freedman was not handcuffed yet, which gave him the ability to physically harm Arias or Huete, and the ability to flee; therefore the use of the CEW was justified.

However, in the subsequent first drive stun, Freedman did not have the apparent ability to harm the officers. Freedman was handcuffed behind his back with Askins holding onto his arm. Huete was a few feet away with two other officers nearby. Askins told Freedman to calm down, but there were no other commands given to him before he was tased by Arias. Arias told Freedman to stop resisting, but only as he was tasing him.

In the second drive stun, Freedman was on the ground and handcuffed behind his back. Askins and Lane said Freedman was not physically resisting. Arias said he thought Freedman was trying to get up; however, he never gave any verbal commands to Freedman other than to stop resisting. Freedman did not have the apparent ability to physically threaten Arias or the other officers and did not have the ability to flee; therefore, the use of the taser was an excessive use of force.

Based on all available evidence and statements associated with this investigation, the allegation that Trooper Eloy Arias used excessive force is classified as SUSTAINED.

Statement of Accordance

This work product was prepared pursuant to Section 20.055, Florida Statutes, in accordance with the applicable Principles and Standards for Offices of Inspectors General as published by the Association of Inspectors General.

This report is intended for the use of the agency to which it was disseminated and may contain information that is exempt from disclosure under applicable law. Do not release without prior coordination with the Office of Inspector General.

Approved by:

/S_______________________

Julie M. Leftheris, Inspector General

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