Forceful Complaint

From: Modesto Bee - Modesto,CA,USA - Apr 23, 2007

By SUSAN HERENDEEN
sherendeen@modbee.com

One rainy night last spring, a swarm of Modesto police cars descended on a truck that was heading north on McHenry Avenue. The pickup stopped and the officers ordered the driver to get out with his hands up.
Modestan Harry "Dan" Tessien sat in his truck, waiting.

Officer Daniel Starr repeated his order several times.

Tessien sat in his truck, waiting.

Starr gave his order in Spanish.

Tessien sat in his truck, waiting.

Officer Yair Oaxaca fired a beanbag shotgun at the pickup's back window, sending a spray of shattered glass throughout the cab.

Tessien leapt out of his seat, and Oaxaca fired a beanbag into his abdomen. Officer Rodney Garcia delivered two more rounds because Tessien still had not raised his hands.

Oaxaca and Garcia delivered six more rounds, according to their reports, hitting the man in the torso and legs as he ran for cover and ducked under the front bumper of his truck.

Tessien — who has sued the city in federal court alleging the officers violated his civil rights by using excessive force — said he was screaming the whole time.

"I am deaf," he recalls shouting. "I am deaf."

Months after the incident, Tessien pleaded no contest to a misdemeanor charge of driving under the influence of alcohol, but police reports show he was pulled over in a case of mistaken identity.

Just before 1 a.m. on March 11, 2006, Starr spotted Tessien's 2004 black Nissan Frontier and believed he might have an armed suspect in sight.

The police were looking for a late-model red Toyota truck that might have been heading toward the Five Points intersection after an incident downtown in which shots may have been fired.

In his report, which Tessien's lawyer provided to The Bee, Starr said he noticed Tessien's truck because its lights weren't on, and it bumped a concrete gutter twice. Tessien denies those allegations.

Starr made a U-turn, advised dispatchers of his location and waited until other patrol cars arrived to back him up. Tessien was driving about 30 mph.

One unit sped in front of Tessien to put stop sticks in the road and block traffic coming from the north on McHenry. Other units blocked traffic coming from the south, shutting the road down.

40 grams of lead shot

Tessien, a pizza deliveryman who has been deaf for 25 years, saw flashing police lights. He pulled over in front of City Tire Sales, after a pursuit that lasted eight-tenths of a mile.

Then he was pelted with nylon beanbags, which contain 40 grams of lead shot and are meant to stun a suspect. Officer Michael Hicks deployed his Taser as well, but its prongs fell 2 feet short.

"The police opened fire on me," said Tessien, 45, who was heading home after a few beers at The Fat Cat nightclub. "I was unarmed and I put my hands out in front, saying over and over, 'I'm deaf, stop shooting.'"

Tessien, who spoke to The Bee through his lawyer and a telephone-relay device, said the police started shooting no more than 60 seconds after he was pulled over.

He filed a lawsuit in U.S. District Court in Fresno on March 22, seeking unspecified damages. The Police Department has not answered the complaint.

The lawsuit names as defendants Police Chief Roy Wasden and sixofficers: Oaxaca, Garcia, Hicks, Starr, Robert Laxton and Brian Findlen.

Tessien alleges that the officers used excessive force and violated the Americans With Disabilities Act by not providing him with a qualified sign language interpreter after he was taken into custody.

He further alleges that the chief failed to properly train and supervise the officers.

Walnut Creek attorney Paul Strange, who represents Tessien, said his client would have a strong case even if he were not deaf.

He said the officers' use of force was not justified because they faced no imminent danger.

He said the officers made no attempt to determine why Tessien was not getting out of his pickup, as ordered, and shot out his window without provocation.

He said the officers kept shooting because the unarmed man did not comply with verbal commands.

When the officers finally used hand motions to make the deaf man lie on the ground, they were able to take Tessien into custody.

"They overreacted and used excessive force, no matter who was in the car," Strange said.

According to the Police Department's use-of-force policy, officers may use only the amount of force necessary, given the facts and circumstances perceived by the officer, to bring an incident under control.

Officers who fire beanbag rounds are supposed to avoid the neck, head, spleen, liver and kidney. And the officer in charge is supposed to form a plan before firing, whenever possible.

Police add training

Police spokesman Sgt. Craig Gundlach said supervisors review every incident in which force is used and sometimes require further training. Last spring, the department began offering training so officers can deal effectively with people who are deaf or hard of hearing.

Gundlach said the class was not the result of the incident with Tessien. He said he cannot respond to Tessien's allegations because "there's pending litigation."

Once Tessien was in handcuffs, Laxton, an officer who arrived at the scene just before the shooting started, spoke to Tessien in sign language.

Taken to the hospital

In his report, Laxton said he heard Tessien yelling, "Why are you shooting at me?" but did not hear him say he is deaf.

After the incident, Laxton noticed a sticker that said "Stoned Deaf" on the back of Tessien's truck. "To me, the sticker looked like a possible rock band sticker," Laxton said in his report.

Tessien said the sticker is a play on words, not an official notification of his disability.

Tessien was taken to Doctors Medical Center in Modesto because a medical clearance is needed whenever officers use force.

At the hospital, Starr administered a sobriety test and Tessien consented to have his blood drawn. They communicated through Laxton and, after Tessien's hands were uncuffed, through written notes.

According to police, his blood-alcohol level was 0.11 percent, over the legal limit of 0.08 percent.

He was cited for misdemeanor driving under the influence and released to the custody of a friend. Later, he faced the standard punishment for a first-time DUI offender — fees, fines and a class. Deaf people face no special driving restrictions in California.

The night was not over when Tessien was released. Officers forgot to get Tessien's keys when they towed his truck, making it impossible for Tessien to get into his apartment.

The officers made a special trip to an impound lot in Ceres to get the keys, then delivered them to Tessien's friend's house in Riverbank.

The next day, Tessien's mother came from Oregon and they went to the Police Department to talk about the incident.

They met with Laxton, who translated for two supervisors. Tessien said the officers laughed the incident off, even as they took photos of his injuries.

"They seemed to think this was funny and no big deal," Tessien said, adding that Laxton had poor sign language skills and was difficult to understand.

Guidelines published by the U.S. Department of Justice say law enforcement agencies must provide interpreters who are effective and impartial.

The city has a list of certified sign language interpreters who can be called in emergencies.

Gundlach said he did not know whether the department has employed interpreters from the list. He said officials would do so in a serious case that is likely to go to trial, but probably would handle other matters in-house.

Advocates back lawsuit

Jennifer Pesek, an attorney for the California Center for Law and the Deaf in San Leandro, said negative interactions between police and deaf people are not uncommon.

The center is backing Tessien's lawsuit, in hopes that his story will persuade police departments to train officers so they know how to modify their interactions with hearing-impaired people.

"When somebody is blind, it's sometimes apparent that they're blind," Pesek said. "But when people are deaf, it's usually not visible."

Strange said he hit a roadblock when he tried to negotiate a settlement with the city. Tessien said the lawsuit is the only way to get officials' attention.

"I realize there was a shooter out there," Tessien said. "I want them to be aware that there are deaf people out there."

To comment, click on the link with this story at www.modbee.com. Bee staff writer Susan Herendeen can be contacted at sherendeen@modbee.com or 578-2338.

© 2007 The Modesto Bee.