No Charges in Alan Kephart Taser Case - Mountain News : News

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No Charges in Alan Kephart Taser Case

Report Says Deputies Acted Reasonably

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Posted: Thursday, January 26, 2012 9:00 am

Criminal charges will not be filed against the four sheriff's deputies involved in the May 10, 2011, fatal Tasing of Crest Park resident Allen J. Kephart, the district attorney's office announced Monday.

In a 36-page officer-involved shooting memorandum released nearly eight and a half months after Kephart's death following a reported traffic violation, investigators said the tactics used by three deputies and a sergeant "were not unreasonable. Therefore, there is insufficient evidence to establish criminal liability on the part of these deputies."

The document also attributes the 392-pound Kephart's death to a heart attack, resulting from a diseased heart brought on by hypertension, but acknowledged that the physical stress caused by his struggle with deputies was "a significant factor" in his death.

"It was the unfortunate combination of Kephart's pre-existing health condition and the duress of the struggle that triggered a heart attack," the memorandum concludes.

NO COMMENT

Carol Kephart, Allen's mother, told The Mountain News that she and her husband, Jack, had been instructed by their attorney not to comment to the press concerning the finding.

Marc Goldstein, the family's lawyer, has filed a wrongful death lawsuit against the county. The memorandum notes that the Kepharts' attorneys were invited to submit information to the district attorney's office for use in preparing the memorandum, but declined.

Reached at his Newport Beach office Tuesday, Goldstein said the decision not to prosecute the deputies "was not unexpected. But we believe there is a significant amount of evidence that will demonstrate the conclusions reached by the district attorney were erroneous.

"We are actually looking forward to a trial in this matter,” he said. “The report leaves more questions than it does answers.”

Goldstein said the county has obtained a stay in proceedings in the civil case until March. “When it’s lifted we’ll go forward to take depositions,” he said.

The lawsuit does not seek a specific amount of monetary damages, though the claim the Kephart family filed earlier with the county requested $10 million.

Though Kephart’s family and attorney may not see the memorandum as conclusive, it resonated with a local sheriff’s official.

‘VERY DIFFICULT 

SITUATION’

Capt. Tony Nicassio, commanding officer at the Twin Peaks station, said “this is a very, very difficult situation for the county and the department. I’m just hoping this (the memorandum) answers a lot of questions people had.

“It does speak for itself,” he said. “It’s very clear. It’s going to go a long way toward letting people know what happened.”

Accompanying the district attorney’s memo was a 14-page transcript of a digital audio recording of the incident made by Deputy Ismael Diaz, who reported witnessing Kephart run a stop sign and initiated a traffic stop.

The report, directed by Deputy District Attorney William Lee to Assistant District Attorney Dennis Christy and Chief Deputy D.A Clark Hansen III, includes interviews with the four sheriff’s deputies who participated in the incident and several other law-enforcement officers involved at various stages.

It also includes summaries of interviews with 18 persons who witnessed at least part of the incident, which unfolded at the Valero station in Rimforest.

Though details differ from account to account, the overall picture that  emerges is one of a motorist who, after a deputy attempted to stop him, drove nine-tenths of a mile before stopping his vehicle and who, in the words of one witness, “was treating the matter like a joke.”

ORDER IGNORED

Eyewitnesses said when Deputy Diaz ordered Kephart to turn away from him, Kephart instead turned back toward the deputy, advancing toward him. Two witnesses told investigators Kephart at one point made a gesture with his middle finger toward Diaz.

Observers also said Kephart did not comply with deputies’ orders to get on the ground, put his hands behind him and stop resisting or he would be shot with a Taser gun.

After repeatedly firing their Tasers with no effect, deputies finally managed to restrain Kephart with plastic flex ties, the memo says. Once they did, they noticed he was not breathing, and cut the ties off, beginning cardiopulmonary resuscitation and summoning medical aid.

The memo also excerpts sections from Section 2670 of the California Criminal Jury Instructions, outlining the latitude a peace officer has in detaining someone and in using force to bring about compliance with his instructions.

“A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense,” that section is quoted as saying.

CODE SECTION CITED

“If a person knows, or reasonably should know, that a peace officer is arresting or detaining him, the person must not use force or any weapon to resist an officer’s use of reasonable force,” it adds, citing provisions of California Penal Code Section 834a.

Based on Diaz’ statement that he saw Kephart run a stop sign at Daley Canyon Road and Highway 189 and not yield the right-of-way to vehicles that had stopped before him, the report concluded his decision to detain or arrest Kephart was not unreasonable.

“The traffic stop was also warranted because Kephart’s failure to immediately pull over established probable cause that Kephart was evading,” the memorandum says.

Concerning the deputies’ use of Taser guns, the report says Kephart was possibly Tased 16 times. Eight were administered by Diaz, while Sgt. Bryan Lane, the first officer to come to his aid, used his Taser seven times and Deputy Michael Gardea fired once. Deputy Jerred Besheer, the final deputy to assist in controlling Kephart, did not fire his Taser, the report says.

Investigators noted that Taser guns have a mechanism that records the duration of their use, and none of the firings exceeded six seconds, with most being the minimum five seconds.

‘NOT UNREASONABLE’

Though a Taser’s use “stirs controversy if death results, the Taser was a means to avoid the use of greater force. Under these circumstances, the use of the Tasers was not unreasonable,” the investigators found.

In their conclusion, the report’s authors noted “Diaz, Lane, Gardea and Besheer are obligated to enforce the laws of the State. It was Kephart’s obligation to submit to their legal authority, to follow all reasonable commands and to cease any active resistance. Kephart failed to meet these obligations. Force was employed. However, no weapons were used other than Tasers.”

The report also notes that Kephart’s injuries, as assessed by the Riverside County pathologist who performed his autopsy, “confirm the conclusion that the deputies’ use of force was not unreasonable.”

The pathologist found abrasions “consistent with the face-down struggle Kephart endured” and noted there was no internal trauma attributable to use of force by the deputies. The broken ribs Kephart sustained were attributed to CPR’s use.

“Kephart’s injuries make clear that the deputies used only the force necessary to overcome Kephart’s resistance,” the report says.

After noting that during the incident “Kephart was defiant and resistant” and “the force used by the deputies was limited to overcoming that resistance,” the report concludes that there is insufficient evidence to establish criminal liability by the deputies, and that no charges will be filed.

  • Discuss

Welcome to the discussion.

3 comments:

  • The Greens posted at 3:58 pm on Tue, Feb 26, 2013.

    The Greens Posts: 3

    Now add 10 more tazes to that!

     
  • The Greens posted at 3:58 pm on Tue, Feb 26, 2013.

    The Greens Posts: 3

    Oh my god is NO one adding here! One Deputy shoots for 4 seconds then the next shoots for 4 second then the next and you have 12 seconds of uninterrupted taze! More than twice what is allowed!

     
  • ihaveitman posted at 3:48 am on Sun, Jan 27, 2013.

    ihaveitman Posts: 1

    they will never win they will just wear them down but Alan is in heaven just waiting for those jerks. I believe in KARMA and there will be justice by the law in the land or up there ....see you up there big man someday kept the music playing for us... love alwas sherry {belcher} elsey[wink]

     

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