A lawsuit inspired by a video in which Greg Heard, a homeless man, is tased while giving himself up to a Denver police officer is currently in the works. But Heard's attorney, John Holland, is releasing the video prior to the complaint's filing (see it below) because "it's a matter of public concern. It should be out there, so people can understand that they should be very, very careful when confronting police officers armed with tasers. Because they will be tased — and many people have died from tasing. It can be deadly."
Holland, who's working on the Heard case in conjunction with Dan Weiss and other colleagues at the law firm of Holland, Holland, Edwards & Grossman, previously represented Alex Landau, whose beating by Denver police officers after a minor traffic stop resulted in a $795,000 settlement. In addition, his practice is currently handling the case of Ryan Ronquillo, who was killed by Denver cops outside a Denver funeral home. The lawsuit in the Ronquillo matter contends that police opened fire on the unarmed man before he could surrender — a scenario similar to the one that led to Heard's tasing.
The DPD report in the Heard incident, also included in this post, dates to June 3 of last year. According to its synopsis, officers Greg Dulayev and Adrian Enriquez were dispatched to the corner of Park Avenue West and North Clarkson Street on a report of an assault in progress. A not quite completely redacted portion of the narrative maintains that "the officers observed an assault occurring in the bushes where a black man was punching a white male."
The report goes on to say, in another partly redacted but still legible portion of the report, that Heard was "active/aggressive" when he crawled out from under the bush "and did not comply with Officer Dulayev's commands to stop advancing on him. Officer Dulayev had to take several steps backwards to avoid being potentially assaulted by Heard. Heard did not stop walking towards Officer Dulayev, at which time he deployed his taser at the front of the suspect."
Does the video confirm this description? Opinions will differ about that, but Holland believes nine out of ten viewers will argue that it doesn't.
By the time Officer Dulayev's body-worn camera begins recording, as can be seen in the video, Heard is the only person under the bush. Once the audio kicks in (during the first thirty seconds of the clip, there's no sound because of a delay), Dulayev orders, "Crawl out. Crawl out on your hands and knees. I'll fucking tase you."
The first of several screen captures from the clip shared here shows that Heard moves as directed, displaying his hands in front of him in a way that makes it clear he doesn't have a weapon:
Heard extends his empty, open hands out from the bush in which he had been hiding.
After crawling out from behind the bush, Heard stands, but he appears to duck in order to avoid overhanging greenery from a tree:
After standing, Heard ducks to avoid an overhanging tree.
At that point, Dulayev snaps, "Stop!" However, Heard takes either one or two more steps — and the officer fires his taser:
An instant later, Heard cries out and clutches his midsection before toppling face first to the dirt-covered ground in front of him.
He seems completely disabled by the taser charge. Nonetheless, Dulayev tells him, "Stop resisting. Stop resisting. You'll get tased again!"
The officer handcuffing Heard, whose face is in the dirt.
In the immediate aftermath of the tasing, Heard gasps, "I can't breathe, man! I can't breathe!" Over subsequent repetitions of this phrase, he even uses the word "sir."
Dulayev mostly ignores these statements while trying to arrange for a paramedic to take a look at Heard. But finally, he says, "You're talking, so you can breathe. Relax now. It's over. It's done. Okay?"
A moment later, Dulayev asks, "Why you do that, man? All I asked you to do was come out. Was it a bad decision?"
For his part, Heard didn't think he'd done anything to deserve being tased, as he expressed in a letter to Holland's law office. Staffers responded by asking the DPD for the video through a Colorado Open Records Act request that was denied. "They said they were having an official investigation, which they probably weren't," Holland says. "I'm not aware of any Internal Affairs findings or investigation of the officers."
Heard seen after being rolled onto his back. He had been complaining about an inability to breathe.
In the end, however, the DPD supplied the video to Heard's public defender as part of the discovery process in the original assault prosecution — a separate case from any potential lawsuit.
Holland's focus is the video, and after his firm obtained a copy, he says, "We made a demand to the city and said, 'What are you doing with this? The net effect is, you didn't give him a chance to surrender. He was in mid-step. You didn't let him finish the step when you gave him the warning and then you tased him.'"
In the clip, Holland continues, "You can see his eyes looking right in the camera, and he looks friendly. His hands are down. He's obviously unarmed and he looks like he's giving up. He was under the bushes, and he has to get out, but he's doing what he's supposed to do. Then he gets tased, which is mean-spirited and unjustified, and the officer starts saying, 'Stop resisting,' which he's not doing at all. At that point, his head is down on the ground and he's semi-paralyzed. His arms are trapped underneath his body. They had to pull them out in order to handcuff him. His face is in the dirt, he isn't jumping or flailing, his feet aren't moving. He's hurting and says he's having trouble breathing, and the officer tells him that he can't be short of breath because he's talking. But just because you're short of breath doesn't mean you can't talk."
It could have been even worse, Holland acknowledges. "Greg Heard could have been killed by tasing. People are dying all over the country from tasers. Just Google 'death by police taser' and see what you get. And Greg didn't do anything to deserve the risk of deadly force. He was surrendering. His hands were out. Take a step back, officer."
Heard talking to an officer after regaining the ability to sit upright.
By the way, giving ground in such scenarios is actually suggested in the Denver Police Department's new use-of-force draft policy. During an interview on the subject published yesterday, DPD Deputy Chief of Administration Matt Murray said, "We have often taught, 'Don't give up ground. Don't retreat.' What happens, especially if you're dealing with someone — and we often are — who may have mental-health issues or alcohol issues or impairment issues, is that standing your ground may escalate the situation.... You don't just go home. It's really important that people realize we're not saying we're not going to enforce the law. We're not just driving away. But we may have moving perimeters. We're going to slow things down and get more resources in there, appropriate resources, so we can deal with the situation. There shouldn't be a line in the sand. If you need to move back a little bit, move back a little bit, or move forward. Use your head."
Despite this evolving philosophy, Holland says, "We've talked to the city, and they're not interested in resolving it without a lawsuit. So we're in the process of bringing a suit — and we think this society needs to continue to think very hard about the police's use of force. If we're ever to rebuild the relationship that people on both sides claim they want, it's going to require police to be much more respectful of citizens' rights and not always pretend that abuses of power like this are just or justifiable. Just because you get stopped by a policeman doesn't mean you get to be injured, and I'm afraid the law is heading in that direction — toward allowing injuries at will. People beware."
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Here's the video, followed by the incident report.