As we previewed in a January post, Greg Heard, a homeless man, has filed a lawsuit against a Denver police officer and the City and County of Denver over a June 2016 arrest during which he was tased in the act of surrendering, even though he was unarmed. The complaint, accessible below, bolsters its argument with a video also shared here and references to a Westword post from March in which a police trainer harshly criticized the officer's decision to tase first and ask questions later.
The lead lawyer in the case is Erica Grossman, a principal in Holland, Holland, Edwards & Grossman. The firm, launched by attorney John Holland, previously represented Alex Landau, whose beating by Denver police officers after a minor traffic stop resulted in a $795,000 settlement. In addition, the practice is currently handling the case of Ryan Ronquillo, who was killed by Denver cops outside a funeral home. The lawsuit in the Ronquillo matter contends that police opened fire on the unarmed car thief before he could give himself up — a scenario similar to the one that led to Heard's tasing.
The DPD report in the Heard incident, another document linked in this post, dates to June 3 of last year. According to its synopsis, officers Adrian Enriquez and Greg Dulayev, the named defendant in the suit, 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, who spoke to us in January, 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."
In response, Heard moves as directed, displaying his hands in front of him in a way that makes it clear he doesn't have a weapon. After crawling out from behind the bush, Heard stands, but he appears to duck in order to avoid overhanging greenery from a 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!"
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?"
Holland thinks the poor choice was made by Dulayev. After obtaining the video from the Denver Police Department, he concluded that the officer "didn't give [Heard] 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.'"
Decide for yourself. Here's the video:
Michael Berry, a retired police officer who currently trains law enforcers, who spoke to us for a post headlined "The Link Between Cops' F-Bombs and Police Brutality," certainly didn't like what he saw in this clip. Here are the Berry comments to Westword that are republished in the lawsuit:
But this guy [Heard] wasn’t trying to fight the officer, he wasn’t arguing with the officer. His facial expression, his body movement, didn’t display any preassaultive indicators. He was getting his balance, coming out of a leaned position, and even if he wasn’t tripping outright, he wasn’t on solid footing. And he’s a big man. It looks like he’s just trying to stand straight up, and he’s talking while he’s walking, kind of trying to explain himself – like ‘I didn’t start it’ or something like that. So he’s doing a lot of things – he’s multi-tasking and trying to process all of this information. But the officer didn’t give him time to process it.
His arms are at his sides, he’s unarmed, his chest isn’t expanded, his shoulders aren’t back, his eyebrows aren’t in a frowning position. He doesn’t curse the officer. He’s giving all of these cues that he doesn’t want conflict. And then, when he gets tased, you can see by the way his body and face react that he’s like ‘What the hell just happened?’ If you’d have shot him with a gun, he wouldn’t have been more surprised.
Nonetheless, as the suit divulges, "the Denver Police Department determined that Officer Dulayev’s conduct was consistent with policy and his training as a Denver Police Officer." The author of a report on the situation concluded: "The force used against Heard was appropriate due to his level of aggression. The less lethal system incapacitated Heard quickly and prevented further injuries to both the suspect and officers. The force was both reasonable and necessary as well as within department policy regarding the use of force."
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The suit contends otherwise, stating that the tasing "is yet another example of the overwhelmingly common use of excessive force by Denver law enforcement throughout the past months and years that has been tolerated by Denver. Denver’s failure to train and discipline Officer Dulayev with respect to this use of force is indicative of a broader pattern in the Denver Police Department."
Grossman reiterates this assertion in her own statement about the lawsuit. In her words, "The video shows another disturbing example of the cultural pattern present in part of DPD that condones officers giving false reports to investigators and in official records to cover up abuses – a practice that continues to be tolerated by our city’s top officials."