by Dave Waddell
posted Oct. 11
SACRAMENTO — A veteran police practices expert told a jury Thursday (Oct. 10) that it was “imaginary fear” that led Chico police to tase a seemingly incapacitated Tyler Rushing.
That consultant, Roger A. Clark of Santee, testified in federal court that Rushing “was no longer a credible threat” when officer Alex Fliehr jolted his body with a taser shot as Rushing lay semi-prone on the bloody floor of a downtown Chico business on July 23, 2017.
Tyler’s parents, Paula and Scott Rushing of Ventura, also testified emotionally Thursday. Jurors heard too from disagreeing experts about whether the burst of electricity from Fliehr’s taser could have contributed to Tyler’s death.
Testimony from the defense’s expert witnesses was expected to resume today (Oct. 11) and continue Tuesday in the U.S. District Court for the Eastern District of California at the Robert T. Matsui Federal Courthouse in Sacramento. Judge Dale Drozd told the five-man, three-woman jury that he expects their deliberations on a verdict in The Estate of Tyler Rushing v. City of Chico will begin Wednesday.
Clark, who worked 27 years for the Los Angeles County Sheriff’s Department, including 15 years as a lieutenant, said he has consulted on thousands of police practice cases since 1993. He said he consults only on cases in which he has found that officers violated professional standards for police performance, or in support of officers who upheld those standards.
Clark said he concluded the tasing of the 34-year-old Rushing after he had been shot three times, including twice by Chico police Sgt. Scott Ruppel, “should never have occurred.”
“It was not an objectively reasonable fear,” Clark said of officers’ stated worries that Rushing might unleash a sneak attack on them. “Imaginary fear is not justification for the use of force.”
“I’ve never seen [those tactics] in the entirety of my career. … ” — Roger Clark
During a siege involving several officers and a biting police dog, Rushing, with Ruppel grabbing his throat, stabbed the sergeant in the neck with a ballpoint pen that he probably pulled from an officer’s shirt pocket while flailing. Though his injury was minor, Ruppel responded with two bullets from his Glock, sending Rushing to the floor, apparently still clutching the pen.
“It’s not a typical weapon,” said Clark, displaying his own pen for the jury. “Even if he had a pen, you should not tase him. … I do not consider a pen in the hand a credible threat. Simply take it out of his hand and handcuff him.”
Clark was asked about claims by Chico officers and their attorneys that it is common for police to deal with suspects “playing possum” before an attack.
“I’ve heard such statements,” Clark said. “I’ve never seen [those tactics] in the entirety of my career. … I’ve never seen an individual shot three times get back on their feet and start fighting.”
Any resistance Rushing might offer, Clark said, could easily have been thwarted with “grappling methods.”
While the trial is primarily focused on whether Fliehr’s use of the taser was excessive force and, if so, whether officers Cedric Schwyzer and Jeremy Gagnebin should have intervened to stop it, Clark also was critical of Ruppel’s actions as the incident’s commanding sergeant.
On the night he died, Rushing was holed up in a restroom at Mid Valley Title & Escrow claiming, falsely as it turned out, to have a gun. Ruppel testified he rammed open the restroom’s door to get Rushing the medical attention he desperately needed.
“Why would you beat down a door when a guy announces he has a gun?” Clark said.
Clark also criticized Ruppel for leaving the building with a minor neck injury just prior to the tasing without putting someone else in charge.
“Sgt. Ruppel had command responsibility,” Clark said. “If he’s going to leave the scene, he has to designate a change in command.”
Paula Rushing’s testimony brought audible weeping at moments from among a half-dozen Chico residents in attendance at the trial Thursday. At one point, her husband hurried out of the courtroom in tears.
Paula told the jury of Tyler’s birth at a birthing center with “orange and yellow flower wallpaper,” and of the devastating news of his death.
“I feel a hole in my heart,” Paula said. “I counted on him for moral support; he counted on me for advice. We had frequent heart-to-heart conversations.”
Paula, a longtime elementary school teacher, said a return to teaching became impossible for her after Tyler’s death because she would see boys who reminded her of him.
Paula was asked by plaintiff’s attorney Robert Chalfant whether she and Scott had wanted grandchildren.
“We were hopeful of that, yes,” Paula replied.
Paula told the court she still experiences “flashbacks” from videos of the bloody scene of Tyler’s death and sees a psychiatrist for depression.
Scott Rushing followed his wife to the witness stand, at one point burying his face in a Kleenex for several seconds before he was able to tell the jury about his only son.
Scott said Tyler was “best friends” with his younger sister, Hillary, who has a disability.
Before his death, “we knew Tyler would be there to take care of Hillary” after her parents died, Scott said.
A low point in the proceeding came Thursday in testimony from defense expert witness Mark Kroll, described as biomedical scientist specializing in bioelectricity.
Kroll blurted out that Rushing might not have felt the pain of the tasing because he was under the influence of methamphetamine. Mark Merin, lead attorney for the Rushings, immediately called for a lawyerly discussion with the judge, after which Drozd told the jury Kroll was “completely mistaken,” that “there is no such evidence” of any illegal drug use by Rushing, and that Kroll’s remarks were stricken from the court record and not to be considered by the jury.
Kroll apologized profusely, saying he had confused the Rushing case with another of his consultancies.
Dave Waddell is a contributing writer to ChicoSol and is covering the civil rights trial over the tasing of the late Tyler Rushing.
When you enter the Butte County jail it’s shocking how old and dirty it looks . It feels like you’ve just entered a third world jail . Made me wonder where all the money Butte County jail has received is going because it certainly hasn’t gone into fixing the unhabitable conditions . To many inmates have died in this jail or were transferred out right before dying and Butte County rushed around to release the inmate right before so it wouldn’t be considered an in costody death but even when they do investigate it’s them investigating themselves. I’ve heard from hundreds of inmates of the Butte County jail over the years telling me about their civil rights being violated all the time as well as many inmates deaths that should have been investigated but Butte County jail covered it up . This jail needs to be shut down and the predators that work there held accountable for their actions.