Monday, September 29, 2008

Veteran Officer Theodore Dixon Jr Charged With Pointing Weapon at Prisoner

A veteran McKeesport police officer was arrested and charged yesterday with threatening the life of a prisoner and pointing a gun at him.

Theodore R. Dixon Jr., 55, was placed on administrative leave by Police Chief Joseph Pero after he surrendered to detectives. He was charged with simple assault, terroristic threats, reckless endangerment and official oppression.

Early Saturday morning, shots were fired through Officer Dixon's living room window while his wife and child were inside the house. Though no suspects were named, Officer Dixon became convinced that the attack was related to Sakarr Bray, 30, whom Officer Dixon had arrested for aggravated assault and was awaiting arraignment at the McKeesport police station.

Officer Dixon became agitated after the shots were fired at his home, according to a criminal complaint, telling other officers that "someone was gonna die."

Upon returning to the police station, Officer Dixon pointed his service revolver into Mr. Bray's holding cell.

Mr. Bray told investigators that Officer Dixon said, "I should kill you right now. I'm going to handle this my way. I'm gonna kill you and your brother. You tell your mom I'm gonna kill both of you all."

A surveillance camera captured Officer Dixon pointing the gun into the cell and Mr. Bray backing up with his hands in the air, according to the criminal complaint.

Officer Dixon was released and ordered to stay away from the Bray family. A preliminary hearing is scheduled for Monday before District Judge Eugene Riazzi, who once was a McKeesport police sergeant, serving with Officer Dixon.

Calls to Chief Pero and McKeesport Mayor Jim Brewster were not returned.

Officer Dixon, a former lieutenant who ran unsuccessfully for district judge last year against Judge Riazzi, was dismissed from the McKeesport Police Department in February 1994 for violating a protection-from-abuse order obtained by his ex-girlfriend, Paula Cauley. Later that year, after spending a few months in jail, Officer Dixon was acquitted of assault and reckless endangerment charges, though he was convicted of harassment.

He was reinstated in 1999 and later won $176,000 in back pay for unjust termination.

Officer Dixon also was accused in July 1994 of asking a fellow police officer to kill Ms. Cauley. But the district attorney dismissed those charges in April 1995 because two key witnesses could not be found.

City of New Orleans Settles Lawsuit Against Officers Accused of Planting Drugs

The raid on Russell's Tire Shop had the look of a successful garden-variety drug bust.

Acting on an informant's tip, police stormed the building on North Galvez Street and hauled out three suspects, a bag of heroin, a quarter-ounce of crack cocaine and more than $4,000 in cash. Police say they found the evidence in plain sight.

But 11 months after the August 2002 bust, prosecutors dropped the charges. And this June, attorneys for the city offered the men accused of dealing the drugs $85,000 to settle a lawsuit that alleged the four New Orleans police detectives involved in the raid planted the drugs -- and uprooted the lives of innocent people.

Prosecutors had a problem: In the years since the bust, the police officers involved ran into legal troubles of their own.

One detective tested positive for cocaine and another was caught using a stolen Social Security number to lease a Corvette. A third officer was pulled over in Illinois driving an unauthorized New Orleans Police Department squad car; authorities found him with some marijuana and a woman wanted for prostitution. The fourth detective resigned as police were investigating a stolen gun found in his squad car. All four officers were ultimately fired or quit.

Sharply diverging claims surrounding the 2002 drug bust may never be put to rest; no judge or jury rendered a final judgment. But a look at the raid and its aftermath offers a window into the tactics of one team of narcotics officers -- the kinds of alleged abuses that critics say foster suspicion toward police.

The three drug suspects -- Leo Hammond, his son Gregory Hammond and Tyrone Taylor -- say they were the victims of rogue cops who were willing to frame innocent men after a bust turned up empty. None of the accused had outstanding warrants or prior arrests at the time of the raid. All passed court-ordered drug tests, court documents show.

The city attorney who defended the officers, Jim Mullaly, still stands behind them, asking: Why would anyone plant so much heroin, more than 30 grams? Why frame men they didn't know?

None of the officers involved in the case could be reached to comment for this article, and NOPD superiors declined to discuss the matter until completing a records search. The officers' accounts come from sworn depositions in the civil case, as does the account of the unnamed police informant. Information about the officers' alleged subsequent misconduct was documented in internal police memoranda that turned up during the civil case.

Russell's Tire Shop is a tiny, one-story building tucked into the 100 block of North Galvez. Russell Taylor, Tyrone Taylor's father, bought the property in the late 1970s and the stoop out front became a hangout for acquaintances.

Leo Hammond, 48, an air-conditioning repairman, said the shop has long served as a place to rest between jobs since he has no office of his own. Tyrone Taylor, 41, was the shop's manager at the time and a lifelong friend of Hammond's. Gregory Hammond, a 23-year-old administrative assistant for the Recovery School District, spent time at the tire shop as a small child.

Detectives involved in the case -- Steven Payne, Eric Smith and Earl Razor -- testified during civil proceedings that they had heard rumors of drug dealing at the tire shop but didn't act on them until they were transferred to that part of town. It was around July 2002 that the officers were moved from the 5th District to the 1st, which includes the Galvez Street business. In the 1st District, they worked under the narcotics unit's supervisor, William Marks.

In his application for a search warrant, Payne said a longtime informant told him a man known as Cadillac was dealing crack cocaine and marijuana just outside the shop.

Payne said he conducted surveillance on the shop twice, watching with a pair of binoculars from an unmarked car.

Payne said he witnessed a man matching Cadillac's description selling narcotics. He said that he followed up with a controlled purchase, giving the informant cash to buy crack at the shop. During a stakeout, hours before the raid, he said two men later identified as Gregory Hammond and Tyrone Taylor made a similar sale.

Brett Prendergast, an attorney for the Hammonds and Taylor, says there were significant discrepancies in the police and informant accounts. He argues that Payne's surveillance probably never happened.

Payne wrote in his warrant application that Cadillac "will not let anyone else inside the tire shop with him." Instead, Payne said, Cadillac would make contact with customers outside and retrieve the drugs from inside the shop.

But the informant told lawyers otherwise during a discovery hearing: "I've never given Cadillac money on the outside. He would not accept money on the outside. . . . Every time I went there, I went in."

In the hours before the raid, Payne said, the informant contacted him again to say that Cadillac was in the tire shop. The informant testified that such a tip-off never happened.

Weeks later, the informant said, Payne turned up and warned against talking to investigators about the tire shop case: "He said in the event someone should come, I know nothing, I didn't see anything."

--- 'All I saw was their guns' ---

Police said that when they stormed the tire shop on Aug. 1, 2002, Cadillac was not there.

As police arrived, they saw Gregory Hammond dash inside. Razor, the fastest man in the unit, chased him inside, followed by Payne and Smith.

Gregory Hammond said he had reason to bolt: A spate of shootings in the neighborhood had left him anxious. He said when police pulled up in unmarked cars, "All I saw was their guns." Police said he ran to flush the drugs.

Razor grabbed Gregory Hammond when he fell, while Smith and Payne handcuffed his father and Taylor.

When Payne came inside the shop, he was angry and asked to see the man who ran, Hammond testified. When he saw the younger Hammond, the detective punched him in the eye, Taylor and Gregory Hammond said. The detectives maintained that Hammond had hit something on the ground or the edge of the desk as he fell. Hammond was taken to Charity Hospital before booking because of swelling under his eye.

Also in dispute is the exact placement of the drugs detectives said they found.

In his arrest report and in a hearing in criminal court weeks after the raid, Payne said he found the drugs in plain view on the desk, giving police cause to arrest all three men. But Razor and Marks both said Payne had the heroin and crack in his hand the first time they saw it. Another officer, Smith, testified that the drugs were found on Gregory Hammond.

"I don't know where, it may have been in the waist -- in his waistband," Smith said.

Gregory Hammond and Taylor filed a formal complaint with the NOPD Public Integrity Bureau, denying they sold drugs and alleging Payne had struck Gregory and stole money found on the shop desk. The investigation concluded there was not enough evidence to prove the claims.

--- Legal trouble ---

All three men were booked with possession and intent to distribute heroin and crack. Each pleaded innocent. But as they awaited trial, the detectives who arrested them ran into legal problems.

Smith resigned from the NOPD in March 2003, 11 days before he was indicted on identity theft charges. Investigators accused him of using a fraudulent Social Security number to lease a Corvette. He pleaded guilty to one count of identity fraud.

Two months later, in May 2003, the NOPD began investigating Razor for allegedly stealing heroin from a suspected drug dealer in police custody. During that investigation, Razor tested positive for cocaine. Investigators also found two plastic bags with drug residue in the glove compartment of his squad car. Razor was fired but maintained his innocence.

In July 2003, the Orleans Parish district attorney's office dropped the tire shop case. In a written statement outlining its rationale, the office noted that the case relied too heavily on Payne's word. And that testimony, the office wrote, "will lack credibility due to his close working relationship with Det. Razor and Det. Smith."

With the criminal case scuttled, the subjects of the raid filed a wrongful arrest suit in federal court on Aug. 1, 2003.

Within months, the detective in charge of the police unit, Marks, had his own run-in with law enforcement.

An Illinois state trooper pulled Marks over in November 2003 for speeding. Marks had borrowed an NOPD squad car from Payne to make a trip to Milwaukee. The state trooper reported finding two women in the car. One was a convicted felon with an outstanding warrant for prostitution in Chicago. Under her seat, the trooper found a small bag of marijuana, "a partially burned marijuana stuffed cigar and a smoking pipe," according to police documents. A stolen 9 mm handgun was found in the trunk, documents show.

Marks begged the trooper not to contact the NOPD, fearing he would be fired for taking the car out of state, police documents show. He was fired less than a year later.

Payne denied any knowledge of a gun in the trunk and testified that he took a dim view of Marks, calling him "a lazy pig." An internal police investigation sustained charges of possession of a stolen gun against Payne, who resigned for "personal reasons, and medical reasons" while awaiting a disciplinary hearing, documents show.

As for the accused, Leo Hammond said that when police accused him of dealing drugs, "that's when I knew they were dirty cops. Anyone who knows me, knows better."

"Drugs is something I never affiliated with, never," he said. "I said, 'You know what, I'm going to fight this all the way.' I couldn't live with just letting it go like that."

. . . . . . .

New Ruling Will Allow Officers to Taser Handcuffed Suspects

A case involving the stun-drive Tasering of a handcuffed arrestee was decided this month by a federal Court of Appeals panel in Florida, with some instructive language regarding what’s permissible in the handling of passively resisting subjects by an officer working alone.

In assessing a deputy’s actions in delivering Taser shocks to an arrestee who would not get off the ground to be moved to a patrol car, the panel ruled 2-1 on Sept. 9 that:

• applying Taser prongs in an effort to motivate a nonviolent subject to stand up was not excessive force under Section 1983 of the federal Civil Rights Act;

• to conserve valuable police time and energy, “the government has an interest in arrests being completed efficiently and without waste of limited resources”;

• an officer’s call for backup “does not make the use of force before reinforcements arrive unreasonable” per se;

• indeed, a single officer confronting a non-compliant suspect “need not…wait idly for backup to arrive to complete an otherwise lawful arrest.”

With its ruling, written by Chief Judge J. L. Edmondson, the 11th circuit appellate court reversed a U.S. District Court decision that had judged the deputy guilty of “grossly disproportionate and unnecessary” force for applying the Taser in a pain-compliance mode.

“The language in this decision is outstanding in its importance to law enforcement,” says Wayne Schmidt, executive director of Americans for Effective Law Enforcement, the nonprofit organization that monitors police- and corrections-related cases and provides legal guidance through its popular training seminars. “This decision goes beyond mere commentary on Taser use.

“Single officers faced with uncooperative subjects are often uncertain about what constitutes reasonable force in their situations. This court shows a realistic understanding of the challenges they face.”

Like many appellate actions, this decision is unpublished, which means it is not binding on lower courts, Schmidt explained to Force Science News. “But I believe it will still be cited for the moral and persuasive authority of its reasonable arguments.”


The case grew out of a traffic stop by Deputy Jonathan Rackard of the Washington County (FL) S.O., initiated on a speeder named Jesse Buckley on a dark, rural 2-lane highway one March night nearly 5 years ago. The incident was captured on in-car video and can be viewed here.

The 23-year-old violator, “financially destitute and homeless,” became agitated and “began to sob” over getting a ticket. Despite repeated requests, he refused to sign the citation, as required by state law. “Arrest me,” he said.

Rackard did. Buckley submitted to handcuffing without resistance, wrists behind his back. But as Rackard started to walk him toward the patrol car, Buckley “dropped to the ground behind his car, crossed his legs, and continued to sob,” according to the appellate court’s recounting of the incident.

Rackard cautioned him about the danger of getting hit by traffic on the nearby roadway. “My life would be better if I was dead,” Buckley responded. Rackard asked him “several times” to stand up. Buckley wouldn’t. The deputy tried to lift the 6 ft., 180 lb. subject to his feet. Buckley went limp and wouldn’t get up. Rackard repeatedly warned him that unless he cooperated, a Taser would be used against him. “I don’t care any more,” Buckley shouted. “Tase me!”

After allowing further time for compliance, the deputy pressed the Taser against Buckley’s clothed back in stun-gun fashion and initiated a 5-second burst. Buckley slumped forward and moved around, causing Rackard to struggle to maintain contact with the prongs…but the suspect still would not get off the ground. A second Tasing resulted in the same continued resistance.

Rackard walked to his patrol car and radioed for backup. In the 5 minutes before another deputy pulled up, Rackard issued more commands for Buckley to stand, tried again unsuccessfully to lift him to his feet, and finally applied the Taser a third time after a plain warning. Nothing worked—until the backup arrived. Then Buckley “promptly relented” and was escorted to the patrol car “without incident.”

Buckley’s physical injuries consisted 16 “small burn marks,” with some scarring and keloid growth around some of them. (The total reflected the fact that Taser contact was broken by Buckley’s movement and had to be reestablished several times across the 3 zappings to complete the cycles.) Buckley also alleged emotional suffering, claiming that he “now finds it difficult to trust police officers and to ask for their assistance.”

Although he pleaded no contest to charges of refusing to sign the speeding ticket and to resisting arrest and “does not quarrel with his lawful conviction” on those counts, he filed suit against Rackard and Sheriff Bobby Haddock for violating his constitutional rights under the 4th Amendment.


The U.S. District Court for northern Florida denied Rackard’s motion for summary judgment on the basis of qualified immunity and held that he had used excessive force.

If the deputy had used his Taser just once, that “might arguably have been reasonable,” the lower court said, but the additional applications “were grossly disproportionate and unnecessary, especially given that the arrestee had been ‘fully secured’ and given that backup was en route.” If Rackard had “simply waited for backup, 2 officers could have lifted [Buckley] and carried him to the [patrol] car without any application of force,” the court declared.

In addition to the repeated Tasing, the court “placed considerable stress” on the fact that Buckley was handcuffed and resisted only passively. Indeed, it described the situation as “analogous” to the circumstances in a 2002 11th Circuit case, Lee v. Ferraro (284 F.3d 1188). The officer in that case had pulled over a young woman for a minor traffic violation, forced her out of her car, handcuffed her, and led her to the back of the vehicle where he spread her legs with his foot and slammed her head against the trunk lid, although she did not resist the officer at any time.

Like her, the District Court said, Buckley “posed no threat to the deputy or anyone else and…never actively resisted or attempted to evade arrest by flight.” Buckley’s attorney had relied heavily on Lee in arguing his case.


The Lee decision “does not control” the Buckley case, the Court of Appeals ruled emphatically in reversing the District Court’s judgment. Lee pertained where force that was “wholly uncalled for” was used against a subject who was “resisting arrest in no way.”

Buckley, in contrast, “did resist,” albeit passively, by dropping to the ground, refusing to comply with reasonable orders, ignoring warnings that he would be Tased, and refusing to stand when lifted. The differences are “easily distinguishable” and Lee “decides nothing” about the gamut of force options appropriate for dealing with arrestee intransigence.

The appellate court was not judging whether Rackard used the best option for carrying out the arrest—only whether his conduct was “reasonable in the constitutional sense,” the decision noted. Chief Judge Edmondson cited several compelling factors in Rackard’s support.

• Safety was an issue. “[T]he incident occurred at night on the side of a highway with considerable passing traffic,” the decision pointed out. “[S]ome 14 vehicles passed nearby…during the approximately 8 minutes that the deputy and [Buckley] were both exposed on the roadside…not inside a car.” The government’s “legitimate interest” in the safety of the deputy, the violator, “and even passing motorists” would have been “advanced by putting [Buckley] in the patrol car.”

• Buckley’s resistance delayed completion of the arrest. Even though his refusal to sign the citation was relatively minor, “the government [has] a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee,” the decision declared. Arrests need to be “completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment.”

• Although handcuffed, the suspect remained a potential threat. Buckley “refused repeatedly to comply with the most minimal of police instructions—to stand up and to walk to the patrol car.” That he “did not attack or menace the deputy does not shield [him] from the use of force, even if it might result in pain….

“Never was [he] fully secured until after the second officer arrived. [He] was not bound at the feet (so, he could both run and kick),” he remained at risk near the highway, and he continued his defiance, despite Rackard’s pleas and warnings. “An objectively reasonable police officer could rightly believe that force was therefore necessary to…complete the arrest.”

• Availability of backup was not an issue. “The federal courts must not dictate…how the police should allocate their limited resources….No constitutional basis exists for requiring 2 or more officers to make routine arrests, even if deploying more officers might result in less force actually being used…. That an officer has requested more police assistance does not make the use of force before reinforcements arrive unreasonable….

“A single officer in the deputy’s situation, confronting a non-compliant arrestee like [Buckley], need not—as a matter of federal constitutional law—wait idly for backup to arrive to complete an otherwise lawful arrest….

“[O]fficers acting alone may not always use any and all force necessary to complete an arrest without assistance. If Deputy Rackard had used more severe techniques (beaten [Buckley’s] head with a club or shot him, for example), this case would be a different case.

“[But] Rackard only used moderate, non-lethal force; and he did so only after reasoning with [Buckley], then after trying to lift [him], and finally after repeatedly warning [him]—a warning given before each use of the Taser—that a Taser would be used….Even then, [Buckley’s] injury was not great….”

In conclusion, the Court noted: “We must always recall that police officers are making hard decisions under difficult circumstances and within severe time constraints. Such decisions are easy to criticize later….

“[But] this case is not one where a compliant arrestee was abused for no good reason….In the light of all the circumstances, therefore, we conclude that Deputy Rackard’s use of force was not constitutionally excessive.”

A heated, 17-page dissent was written by Judge Beverly Martin, a member of the appellate panel from Georgia. She argued that Rackard could have used “any number of less injurious, more effective and safer forms of pain-compliance techniques” and that his employment of “an electric prod” (the Taser) “repeatedly against a peaceful individual” was nothing other than “the infliction of gratuitous pain and injury” in violation of the 4th Amendment.

If you Google Deputy Rackard’s name, you’ll find more about the case on the Internet, including a number of commentators in the blogosphere who agree with Judge Martin’s dissent.

To read the full decision of the Court of Appeals, click here.

NOTE: Although unrelated to the issues of the Buckley/Rackard case, AELE has an enlightening article in its current Monthly Law Journal about litigation and liability related to claims of excessive force caused by “overly tight” handcuffing. The Journal can be accessed free of charge here.

Special note:

Are you up to date on critical lethal and less-lethal force issues?

A thorough updating on court cases and guidelines regarding the reasonable use of force will be presented at the renowned Lethal and Less-Lethal Force Workshop, sponsored by Americans for Effective Law Enforcement Oct. 20-22 in Las Vegas.

Faculty members will include attorney Michael Brave, the nation’s leading authority on Taser-related legal matters; Greg Meyer, an advisory board member of the Force Science Research Center and an expert on lethal and less-lethal force options; Dr. John Peters, noted authority on excited delirium and in-custody deaths; and Judge Emory Plitt Jr., well-known for his expertise in police liability issues.

Also on the program will be Dr. Bill Lewinski, executive director of the Force Science Research Center and Dr. Alexis Artwohl, an FSRC board member and former police psychologist. Lewinski and Artwohl will address the latest research in biological, physiological, and psychological aspects of deadly force encounters.

For more information or for registration for this cutting-edge conference, contact AELE’s Law Enforcement Legal Center at 800-763-2802 or visit the AELE website at