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Phil Sano taser trial: Live updates from day two

Posted by Elly Blue (Columnist) on February 10th, 2009 at 12:38 pm

Phil Sano and his lawyer
John Gutbezahl faced Judge
Youlee Yim You for day two of the trial.
(Photo © Elly Blue)

It's day two of the Phil Sano Taser Trial and I've been in the courtroom since about 8:30am. Yesterday, I took notes using the email program on my phone and Jonathan was able to edit and post them as they came through.

Today, Jonathan is in the air somewhere between here and Guadalajara (read why he's there all week). We have a long lunch break, which I'll be using to post and edit my notes from the free wi-fi in the lobby of the City Hall atrium -- not quite live blogging, but close. I'll post the afternoon's notes as soon as court gets out for the evening.

For more background on the trial, see our original story from the time of the incident, and our "Phil Sano Tasering Incident" tag.

The proceedings are open to the public. The trial is in room 548 of the Multnomah County Courthouse at SW 4th and Main, with Judge Youlee Yim You presiding.

9:01 A.M.:
Snowy ride to court.

Judge goes on record at 8:50. The defense has three witnesses, and the DA plans to contest one, a Mr. Donner. He was not present at scene but on phone with another witness, Diana Spartis. DA unsure of relevance of that testimony.

Defense: Donner could hear Mr. Sano in pain over phone. So would only testify to heard evidence not hearsay.

Story continues below

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DA objects.
Judge to Defense: What will he testify about?
Defense: That Sano was in pain, screaming, asking to stop.

[Officer] Smith said "Hey buddy, stop for a second, I need to talk to you," as he crossed the street towards Sano.

Judge will allow the witness at this point as excited evidence and state of mind. DA can object if needed during witness testimony.

(The judge asks about photos. I ask if I can just take some right now and of the audience during recess, she says fine so I snap away in the awful courtroom light).

9:07 A.M.:
Judge and lawyers are grappling about jury instruction. Should they say resisting arrest, or attempting to not be taken into custody? DA says resisting is about conduct, i.e., resisting, towards a particular intention, i.e., not to be taken into custody.

Defense: definition of resist implies intent. Can't have been intentional towards that result if Sano didn't know it was a police officer.

Judge will think about it.

Calling in the jury now.

9:42 A.M.:
Today is going to be like molasses...court doesn't rush for anything.

DA calls its first witness of the day, Sergeant Smith of the Portland Police Traffic Division.

On June 10, 9:20pm Smith and Hoesly were working under Dewey warrant service grant, in an unmarked Crown Vic, looking for people who didn't turn up for their drunk driving court dates and the like.

It was dusk, around solstice, lights required for cars and bikes at that time.

Were just finishing shift, ready to head back to office, saw bicyclist zipping down street, dark clothes, no light, not using bike lane (she was in the lane reserved for vehicles, he says), they had to brake suddenly. This was Diana Spartis. They stopped her. Hoesly went back to car to get ticket machine. Smith looks south, sees two more bikers with no lights. He points them out to Spartis. One guy turned left, another, who turned out to be Sano, continued straight. Smith decided to stop him and talk to him, maybe issue ticket.

Smith said "Hey buddy, stop for a second, I need to talk to you," as he crossed the street towards Sano. At this point he was about 30 feet away.

Sano was riding upright with no hands. He looked at Smith, kept pedaling.

Sano didn't stop, so Smith said "stop stop! stop!", raising voice each time. Sano ignored him, but wasn't alarmed or accelerating, and didn't reach for his handlebars. "He was ignoring my existence and not heeding my commands." Now Smith was 10 feet away. Smith runs to stop him, grabs him and bicycle. Sano rears up like he was trying to get away.

DA asks about re-creation photos that he, Smith, and Hoesly went out to take afterwards. They waited for dusk and for the streetlights to go on to simulate lighting conditions of the event.

The Crown Vic police lights (inside the car, near rear view mirror) were on already because of the Spartis traffic stop.

Defense asks was there a flash on the camera? DA and Smith not sure for this pic. They took several each way. Defense objects to photo being used as evidence, but is overruled.

DA asks if Smith was wearing same uniform as wearing now, points out reflective badge and patches. Smith says he's usually on motorcycle, reflective is for safety and general visibility.

Another picture. Smith says Sano was not in bike lane but in "lane of traffic."

Describes again how he grabbed Sano's left arm with right hand and the bicycle's front handlebar.

DA: "Was he committing an offense for which he'd be subject to arrest?"
Smith: "Yes, failure to obey a police officer."

Sano then "rared back," "squared off," took an aggressive posture, flailed. Smith thought he was getting ready to throw punches. Smith then pulled him off his bicycle, commanded him to stop resisting. Pushed him up against wall of building at 7th and Alder. This was not effective. He kept trying to get away. Hoesly saw all this and also tried to grab Sano, cuff him. Gave him repeated commands to stop resisting. The two of him could not control him, he was like a cornered animal basically, kept tensing up and pulling away. Had to physically overcome him by wrestling. Hoesly asked want to use the Taser? Smith said yeah, stand back, and used the Taser on Sano's back.

A photo of where one of the
tasers entered Sano's body.
(Photo courtesy Phil Sano)

DA prompts these responses: Risks of injury to tackling someone to ground are large for officer and Sano. Also risk of someone grabbing his gun or baton.

Smith drew his Taser, told Hoesly to step back, and shot probes into Sano's back but his thick jacket prevented good contact. A person being tased directly would have a huge muscle contraction, go to ground, but Sano stays upright, yelled that it hurts, was still able to talk, and spun around and ripped out the taser cords.

Smith changed his Taser cartridge. Sano still ignored commands to stop resisting. Both officers fired their Tasers at once ("we triangulated him"), Smith into Sano's chest and Hoesly into his back. He went to the ground but was still able to talk coherently and struggle, which impressed Smith as very unusual. "It was quite alarming."

They then tried to get him onto his belly with his arms behind his back so they could handcuff him. This proved to be futile so they cuffed him in front, which Smith said he can't recall ever having had to do before. They called for code three cover which is "get here now"

The jury looks wide awake by this point.

Sano's facial muscles were clenched, he was enraged, yelling profanities, he never really calmed down until well after cuffed behind back, probes removed by medical people, put in cage at back of police car. He still refused to give name, or say whether he had identification on him.

Later Smith asked Sano why didnt he stop? Sano replied that he didn't know Smith was cop but said he did see him coming from near the vicinity of the police car.

10:08 A.M.:
Defense's turn to question Sergeant Smith.

Discussing lighting, Smith says he doesn't find it too hard to see at dusk. Defence tries to get him to admit light can be strange at dusk, streetlights and natural light are strange mix. Smith disagrees.

On to reflectivity of badges. Depends on angles of light and viewer. And shape of badge. Smith says shapes are different but badges are always worn in same place by all law enforcement.

Back and forth about badge shape to little effect.

No, Smith did not identify himself as a police officer -- he thought was clear because he was walking from a police car with lights.

First was seen by Sano when was ten feet or so from police car.

Defense: You never said "Stop, police?"
Smith: That's a little passé.

Judge has to mediate minor argument resulting from this line of questioning.

Sano didn't accelerate or change direction or avoid Smith in any way. "He completely ignored me." Smith grabbed him only once Sano had proceeded past him.

Sano going about 5mph.

Was he zipping up his jacket? Smith doesn't know.

What's the risk when you grab someone who's rising a bicycle? Smith doesn't see any risk, because he didn't tackle him, just stopped his momentum.

Never said the word police.

Did Sano try to throw a punch? Smith never gave him the chance. When Sano raised his arms after the stop Smith "knew he was going to do something that was not cooperative" but not necessarily a punch.

Never uttered words "you're under arrest." Did say "stop resisting, stop resisting put your arms behind your back."

Says Sano was in a fighting posture.

Defense: You and Officer Hoesly couldn't control his arms. When they were free, such as before you tased him, did he try to punch or attack you?
Smith: No.

How long were his arms unrestrained? Smith thinks a minute.

No attacks from Sano during that minute.

Smith has been tasered before, in training. "Your muscles tense up?" Defense asks, "Yes, like an all over your body charley horse." Muscles tense up more the wider the separation between the probes.

Sano's effort to not put his arms behind his back to be handcuffed must be a conscious effort, because of muscle control. Sano is balled up with arms clenched in front of him, not attacking but rolling around on the ground.

Defense is establishing that Sano never at any point attacked or attempted to.

And that at no point during the encounter did Smith tell Sano he was a police officer or that he was placing him under arrest.
Smith: No, didn't use those words.

Redirect: DA asks why, when approaching a cyclist for minor violation like not having lights, would you not say "stop, police?"
Smith: It helps to be friendly, not adversarial, when the occasion warrants it. Part of his job is to educate. He's a friendly guy.

Describes Sano's arms as clenched up (his right arm was in a fist, his left was being held by Smith) and thrown back.

DA: How much do you weigh?
Smith: Nervous laugh, 220.
DA: And Hoesly?
Smith: More than me. Laughs. 230? Thanks for the question I appreciate that.
DA: So the two of you couldn't restrain him?
Smith: Yes.

Smith is asked about the affects of tasing: immediate relief from pain once cycle is turned off. No long term effects despite stigma. Very little blood when you pull out probes unless you pull them out wrong, because they cauterize their own wounds.

10 minute break, badly needed, this is intense.

10:58 A.M.
- Back from break -

Officer Hoesly is the next witness. A couple of Phil supporters just came in, took seats.

Hoesly was driving car that night. Was pulling out of gas station and nearly hit Diana Spartis, so stopped her even though was nearly end of shift. Then heard horn to the south, then heard Smith yelling. Looked up and saw Sano riding, no light, hard to see. Saw Smith yell more, then reach out and grab Sano off his bike. Hoesly continued citing Spartis. Thought Sano's resistance was just momentary he thought it was no big deal. Hoesly decided to go to the scene once he saw Sano up against the wall.

Saw Sano clenching arms, yelling loudly. Didn't know why, didn't expect, hadn't seen that sort of behavior out of someone in years. Hoesly helped hold him, Sano broke free, they regained control of arms at one point, but couldn't restrain. Hoesly said, do you want to tase him? Smith tased him while Hoesly was trying to remove own taser, but it was new and had an extra snap he wasn't used to and couldn't get it out right away.

Hoesly saw Smith tase Sano, saw Sano spin and broke the cords. Hoesly got his own taser free, aimed for Sano's buttocks to avoid the thick coat that stopped the full force of the first tase. Smith tased Sano in the chest at the same time. Thought it was odd that Sano could still attempt to fight through the tase, that's usually something only people drunk or on drugs could do. Hoesly cycled his taser at least three times while they were trying to handcuff Sano. Sano was still resisting it so they cuffed him in front, which Hoesly thinks is only time in his career he's ever done that.

Stopped taser cycle once Sano's arms were restrained.

Crowd had gathered, including backup police, a passing ambulance, and someone videotaping them he thinks?

Didn't smell alcohol so suspected mental illness, disability, or drugs.

Hoesly tried to identify Sano to see if he was flagged in the system as mentally ill, but Sano wouldn't give him any information. Another officer talked to him, got his details. Hoesly read him his rights, asked why didn't stop. Sano said didn't recognize Smith as cop, just as a guy in black running at him. Said he had seen cop car but that didn't mean anything. Sano said he knew it was a cop by the time he was off bike and up on sidewalk but by that time what had happened had happened.

DA now plays parts of transcript from Sano's traffic court date:

Transcript: Sano saying he had a bike light on his person which he showed the officer. His mount had been stolen. Recalls zipping up his jacket, sitting upright. Saw police car pulled over but assumed was engaged and not causing problems for anyone. Suddenly he was being attacked by pedestrians, which has happened to him before. Heard a guy say "hey buddy" and looked over, just saw a guy in black coming towards him. Suddenly tackled, pushed against wall, tasered. He complied by dropping to his knees, and was tasered again repeatedly.

A group of schoolchildren has just entered the courtroom, they appear to be about 13... They're sitting and watching eagerly.

Recording continues.,, After this incident did you give any media interviews with news papers or blogs where you said you thought they were cops?
Phil: I did, would you like to hear more about that? No, that's sufficient.

Sano saying Smith was about half a block away from police car when he first saw him. Says was confused because Smith was wearing motorcycle officer uniform which is all black and different from regular blue patrol office uniform. Just saw a guy in black, backlit.

The school group has been ushered out by their escorts.

Sano on tape is framing the incident as an attack by pedestrians. Doesn't think "hey buddy I want to talk to you" is a direct command a police officer would give.

Confused discussion on tape about the light bracket theft. Defense asks to approach bench. Lots of whispering between judge and lawyers. Jury steps out. Judge agrees to skip next part of tape. But will any other parts be objected to? So no more delays? Please look at transcript. Gutbezahl says there is no transcript only Mr Lufkin's notes. Judge impatient, says please look at those.

This proceeds.

11:35 A.M.
Continuing DA's time with Hoesly, which currently consists of playing tape of Sano's traffic court hearing about this same event.

Hoesly has a bad cold and asthma, keeps adjusting his bullet proof vest.

On tape, Sano is being asked to explain why he said he didn't need lights because it was not that dark, but it was so dark that he couldn't identify the officer?

Recording done.

DA: Officer Hoesly, how much do you weigh? Hoesly has trouble with question, probably about 238, 237. More with my uniform, vest, equipment.

Going back over lighting, photos, type of car and lights.

Hoesly believes flash was used in the glowing badge photo, the flash gave them a darker picture for some reason, which was more accurate to his memory of lighting conditions. (Smith's badge in the photo recreation of the scene is glowing like a beacon, the brightest thing in the picture.)

DA: When you joined Sergeant Smith at the sidewalk, was your hand to hand combat training effective? Hoesly: Only a little. Doesn't recall ever using his taser before, didn't want to taser him especially not as many times as he had to be tased before they could get him in handcuffs

Defense's turn. Back to photos, light condition. The flash reflects the badge? Hoesly thinks so. Defense asks to the best of your knowledge Mr Sano didn't have a flash on him? Ha.

Defense asks, so Sergeant Smith was in motion, not stationary in photo? Yes. And he wasn't smiling the way he was in the picture? Probably not.

And doesn't a traffic stop usually happen in a marked police vehicle with lights and with the officer actually in the vehicle? No, most traffic division cars are not marked, though motorcycles are marked. Hoesly has stood next to those unmarked cars and pulled people over before and never had anything like this happen.

Do people generally expect to be pulled over by officers in marked police cars? Yes.

Was Smith in a marked or unmarked patrol vehicle or on a police motorcycle when attempting to stop Sano? No.

Hoesly never told Sano he was under arrest.

One of the jurors appears to be having a hard time staying awake.

No, Sano was never able to attack them but that may be because of their own defensive skills.

Probably 15 seconds between suggestion to tase and tasing. There was no way it was a minute in between the two.

But he was tased again, could have been a minute until second tasing.

Did take any urine tests? No we probably should have. It was obvious he had been drinking and that his behavior was affected by this, but it's our fault for not testing.

Hoesly keeps trying to volunteer more info about this, but judge, defense stop him.

When you were tased in training what was it like? Extremely painful, couldn't yell, lost all control of muscles and fell to ground. Was tased for five seconds. Immediately gained control of muscles again. Stood up, felt normal.

Officer Hoesly asks Gutbezahl, have you ever been tased?
Judge: Officer, you have to let the attorney ask the questions.
Hoesly: Sorry. I forgot.

Redirect: Can you be arrested for obeying a lawful order by a peace officer?
Hoesly: Yes. No doubt in my mind he knew exactly who we were.

Defense objects to this speculation, which is sustained.

Sano acted as though he was being attacked by a wild beast, it was very strange behavior.

Encounter at wall lasted a minute to a minute and a half.

Done. Counsel approaches to talk about scheduling.

11:44 A.M.
Jury sent out.

State has rested. Defense moves for acquittal because state has not met burden of proof. Can't prove physical resistance, no evidence that Sano attacked or attempted to. Sano was tensed but not in motion, this was not an act of resistance but rather passive resistance, which is not illegal. He was clearly upset but that's not illegal either, he did not use force when has the chance to.

State also fails to prove that Sano knew the individuals were police officers or that he knew he was under arrest. You can't resist arrest if you don't know you're being arrested.

DA responds: A jury could find Sano's actions are intent when his minute and a half struggle was enough to cause the officers to use tasers when they have never done so before. His actions placed self and officers in physical danger. Definition of arrest is being placed in custody and also having committed arrestable offense. Requests motion be denied.

Judge finds evidence most convincing from the state, therefore will continue to allow jury to decide.

12:06 P.M.
Jury returns.

Defense's first witness is Diana Spartis.

Bicycle and Trimet are her primary modes of transportation. She did not know Sano at the time of the incident, but she does now.

She was pulled over on bike right before Sano. Was riding from North Portland to Sellwood, on 7th Ave. She saw a car coming out of parking lot too quickly, so she swerved out into the lane and then back into the bike lane. Half a block later she saw red and blue flashing lights, was pulled over. Didn't pay attention to how they were dressed because they came out of cop car so she assumed were police. Definitely not pressed blue uniform.

She had light on bike, it wasn't turned on yet.

During contact, she was mainly talking to Officer Hoesly, but at one point Smith walked into southbound lane of traffic and was telling her it was unsafe to ride without a light, she had on black sweater, he said, and it's hard to see bikers in general. He pointed out two more bikers and said it's hard to see them, too. He was maybe 20 feet away from car. Standing in traffic lane. Then Smith began interaction with Sano. She never heard Smith say he was police officer.

Picture. She says that looked like it was towards end of the time period. She majored in photography, and thinks the picture was taken with an on-camera flash -- you can tell by the dots in Smith's eyeballs.

No, she says, Smith's badge was not glowing at the time of the encounter the way it looks in the photo.

The police should have used a timed exposure to get an accurate depiction of the lighting conditions at the time. She thinks that the photo is not an accurate depiction of circumstances at that time.

Smith said hey buddy... Sano looked like he'd heard someone speak but kept riding, not very fast, probably 8mph, below average bike speed. Was zipping jacket.

Spartis saw Smith take 4 sprinting steps as Sano passed him. Grabbed him off his bike, ran with him up to building, slammed him against the building, and almost immediately tased him. Sano did not make any theatening moves. She did not see him resisting the officer in any way.

Never heard officer identify self as police. Didn't say you're under arrest at least until after tasing.

After they let go of him before tasing, Sano was about five feet away. Force of the bounce? Was no punching or shoving.

Within a second or two she heard the tasers clicking. She heard this while Hoesly was running over. Phil sounded like he was in a lot of pain and was saying why are you doing this, this hurts. Was tased, dropped to his knees, and then continued to be tased for several minutes.

Defense: How did you know it was several minutes?
Spartis: She was terrified. She went to her bike bag, got her cell phone, and called her roommate, Mr. Donner.

Now we break for lunch until 1:30.

2:12
Back in courtroom. 8 spectators now. Wet snow coming down outside. Spartis back on witness stand. Judge asks jurors to speak up if any concerns about getting home in the snow.

Defense Exhibit 101 is Spartis' phone statement from period of event. The 3 minute phone call to her roommate began at 9:24pm. In background officers continued to tase. Sano screamed. Tasing began before phone call and was reason for it. She was scared and didn't know what to do and wanted to let someone know. Tasing went on for a minute or so after call ended.

She was watching the whole time. He wasn't attacking or jumping forward at all. He was screaming a lot saying that hurt why are you doing this.

Afterwards she asked officers for names and badge numbers, she wanted to report what she had seen. Hoesly came back and printed her ticket, she asked for his name and info. He said was on ticket an then said wait no, printed a new one with both. Then he said you have to give me your phone number, she said no why, he said because I gave you our information. She knew she didn't have to. And he was being condescending. She wanted their info why? So she could report the assault.

DA now questions her.

Why did you leave the bike lane? Couldn't you have slowed down to let the vehicle pass? She isn't sure she could have slowed in time. She moved so they could see her because there was a wall in their line of view.

Did you feel a light was not necessary? Not when she left home. But by that point she remembers thinking she needed to wait for a stop light and then pull over and put it on.

She didn't feel like she was in imminent danger, felt like she could wait for light.

Is yr relationship with Mr Sano friendly? We're not enemies. Do you speak on a regular basis? No.

Statements to media. And testimony in traffic trial. Asked to explain her past descriptions of the incident. Did he ever fall to the ground when he was taken off the bike? She's not sure. Bike was flung forward, he staggered.

DA takes out past witness's drawing. She thinks it's not quite accurate, draws on it.

Did he do anything that constituted physical resistance?

She was quoted on BikePortland saying he wasn't cooperating fully but wasn't doing anything that could be taken as physical resistance. Means what? He didn't go limp. She didn't see his arms flail. Didn't see him push.

Again about how she identified officers based on car, uniform.

Sano had hands on handlebars when Smith first pointed him out. Took hands off later.

I think DA is trying to establish that the light was good enough to see a lot of details, use the defense witness to prove Sano should have identified the officer.

DA did you actually see him zip up his jacket? No, she realizes now she knows he was doing it because of later testimony in the traffic court case.

Back to the photos...she thinks they're all close to accurate except for the flash.

She thinks Sano was in the bike lane the entire time.

She posted something on Portland Indymedia saying she was a witness. She was concerned about what she'd seen and wanted to be a witness. He shows her another post and asks if it changed her position. She doesn't remember seeing it. It isn't read aloud.

Was she instructed at any time not to speak with officers or DA office? No.

Did she refuse to give officer her phone number? Yes.

Did she ever hear Mr Sano curse? Yes.
What tone of voice? Upset, pain, frustration.

How long were they against wall before Taser used? They hit wall and left it there was no struggle against wall.

There was no time before tasing where both officers were struggling with Sano, she says.

Did you hear Smith order Sano to stop his bicycle? She heard him say hey buddy I want to talk to you and then maybe one time heard him say hey stop.

Redirect: Uniform identification again. And Smith never identified himself as an officer to Sano.

When Smith tackled Sano off bicycle did it look like he had Sano under control? No lots of momentum and pushing, he didn't have Sano in wrestling hold. Didn't see Sano square off. It looked like they flew off the bike. Sano wasn't incapacitated but not under his own control because he was being thrown into the wall.

She didn't give Hoesly her phone number because she knows her rights, and the police already had enough info to contact her as a witness based on the traffic stop. She felt Hoesly was bullying and condescending to her.

2:15
Tim Donner testimony

Tim is Diana Spartis' roommate now and at time of event. Received phone call from Spartis. Can't ask what Spartis said because hearsay. What did be hear in background?

He heard screaming like someone was in great physical pain. Can't remember any of the words. Didn't sound like fight, was clearly someone getting hurt.

That's it. Short recess. Sano is next witness.

3:00
Next witness is Phil Sano, he's wearing a suit and knit fingerless gloves with stars.

Lives in southeast Portland, rides his bike as primary mode

Where were you before this incident? At a bar with friends planning free bike ride. Had two beers over two hours, was not intoxicated. Was not on any kind of drugs.

Have you previously been assaulted by a non police off on your bike? Yes in 2002. Person was on foot, said "hey buddy, I'd like to talk to you come over here" was eerily similar. Sano filed police report in response.

Does he think about this as he rides? Tries to be optimistic but needs to be aware.

Did you have light? Yes. On bike? No. Bike light had been stolen while was in bar. Decided he could just go straight home, would probably be safe.

Was tired from full day of working at free geek and video editing for a foundation.

Eyesight has been pretty bad since he was a kid. Has new glasses now. Is about to produce his old ones from time of incident. They are now defendants exhibit 102.

DA objects that this is going on too long.
Overruled. Defense says will tie up in a minute.

Was riding on 7th, thought about light being off bike but assumed police were busy and wouldn't stop him.

Was fidgeting with jacket zipper, was a little stuck which was frustrating, heard someone say hey buddy can I talk to for a minute, saw person all in black standing in middle of street, wondered if was police but decided was not.

What would he have done if knew was a cop? Pulled over. Has been pulled over before and cooperated for bike violation.

Was cold tired it was no one he knew so didn't stop. Next thing he knows guy is saying "I said stop" at the same time as he was being grabbed and pulled off the bike.

That's when my glasses flew off my face. I had a hard time seeing anything at that point, is very disoriented when not wearing them.

Did you feel vulnerable? Very. Large person in black tackled me off my bike and I couldn't see.

Sano plays bicycle polo so he knows how to fall.

This made him think they weren't police because had never been assaulted by police before. Thought was being mugged, bike stolen. Wasn't trying to fight, was just trying to get away from them.

Then is pushed against wall, breaks free, can't see much. Sees other dark fugue running towards him, hears crackle of taser. Flung back because it was very painful, it hurts a lot. Didn't paralyze him because didn't go through all layers of jacket. Yelled in pain, said "what the fuck!" a lot.

This made him think they weren't police because had never been assaulted by police before. Thought was being mugged, bike stolen. Wasn't trying to fight, was just trying to get away from them.

He didn't hear them saying anything until they tased him. His hand caught the wire and he yelled who whoa whoa! And they yelled get down! And back and forth for a while. At this time it began to dawn on him that they are police

He get down on knees and has hands in air and they tase him again. It's very humiliating when you give yourself up and say please do not hurt me, and they hurt you anyway without cause

Phil very agitated, voice getting louder...

He's been pulled over his share of times "and I've never had them hey buddy me". Was disconcerting because of resemblance to 2002 incident.

Joseph rose quoted him in the Oregonian saying that he knew these were police once up on sidewalk. This was out of context Sano says he started to realize they were cops because of tasering.

Was most painful experience of life. Felt like he was writhing on ground for tens of minutes, the cycles are waves that constrict you. Incredibly painful. He rolled and grabbed the boot of an officer (was originally cited for assaulting an officer) and at this point the tasering stopped. Felt frozen, clinched, couldn't move.

3:28
Sano continues on witness stand

DA is now questioning him.

Light conditions were dusk. (Going over all details).

Phil talking about proper behavior towards police.

Thinks Smith was forty or fifty feet from Sano when Sano first saw him, was three or four car lengths ahead of car and off in middle of lane.

More drawing on the diagram.

Sano remembers looking to see if guy was a police officer, if was cop he would want to stop.
DA: But you have testified that you know police officers have black uniforms but you didn't recognize that as a police officer from less than 20 feet away?

Smith grabbed his arm but Sano doesn't remember him grabbing his bike.

So this was similar to 2002 incident where you were assaulted but you didn't even accelerate? Yeah.

Angle of being pulled off bike. Had inertia going straight but officer was approaching from angle from behind.

First step landed hard on right foot, was going fast, continued to take steps away out of inertia. Officer is pushing him to the side while Sano's inertia kept him going straight.

Hit wall, bounced off, saw another person running towards him. Then tased. There was no point at which both officers had restrained him by the arms at once as they testified.

First tase doesn't make him fall to ground but is very painful.

He keeps asking why they're doing this. They don't answer. He doesn't remember them saying stop resisting in those terms, which might have clues him in that they're police.

Interviews with media. Told The Oregonian he didn't stop because hands were on the brakes, but stopped pedaling. Said he scuffled to separate him and stood in a defensive position?

DA: Today you said you bounced off the wall. Do you recall saying this?
Sano: No, I --
DA: Thank you that was my question

Brings out photo with Smith, asks if he's seen that uniform before. Yes

Redirect is about media. Anything more you want to say? Yeah, scuffling is bad word to use, he meant moving around a lot, not fighting. His defensive position was passive not active, now he knows the terms.

Sano says he doesn't know any martial arts, put up hands not to fight but to show passivity, defend self if attacked again.

Why didn't you accelerate when heard hey buddy?
Sano: tries not to be suspicious of everyone he sees.

Defense rests.

4:11 P.M.:
The DA is allowed a rebuttal -- he calls Sergeant Smith again to rebut Sano testimony.

DA: After you fired first taser shot, what happened?

Smith: Sano said "that hurt, stop it." Was still on his feet, turned, grabbed taser wires, breaking them.

Was he ever on his knees yielding to your will and then you shot him point blank? No. He only went to knees after tased the second time.

How about when you grabbed him on his bike? Did you ever careen out of control after grabbing him with no break and push him into the wall? No. First tried to wrestle his arm behind him, then I did push him into the wall but only after it was clear he was not going to comply.

Did you push him against wall with enough force for him to bounce? No

Was there a struggle? Yes.

Both Smith and Hoesly had grabbed Sano at once, prior to the first taser shot.

How long does taser cycle last? 5 seconds max.

So how many seconds total? First taser deployment was one cycle, wires snapped during first or second cycle. Oh yeah (looks at report), he cycled it a second time. So less than ten seconds the first time. On second deployment, Smith only cycled once, so five seconds. Hoesly cycled three times but at same time as Smith's shot (he snaps his fingers).

Any way he could have been tased for more than a minute? In this instance no.

Goes back to what he said where he was yelling stop. After that, he made contact.

At the wall -- Sano pushed himself off, was using physical resistance to pull his arms away, get away.

Defense:
Brings up the glasses. Smith not sure when they came off, but noticed that they did at some point.

Defense asks again if Sano ever attempted to punch, kick, headbutt etc. No never.

More going over grisly details of tasing. This must be for the jury's benefit.

Redirect: Before first and second taser deployment what was Sano doing? Standing there in aggressive fighting stance. Out of control, enraged, foaming at mouth.

State rests. That's all for today. We begin again at 9am tomorrow with closing arguments and jury instruction. Then the jurors will deliberate.

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Comments
  • Tasers escalate situations February 10, 2009 at 2:44 pm

    The officers violated several rules in the PPB policy manual.

    The manual clearly states: "The Taser shall not be used on subjects engaging in passive resistance."

    The manual also says that before using the taser officers should take into account the severity of the crime, in this case riding without a bike light.

    Tasers kill people and they shouldn't be issued to cops because they get used in situations like this where the event is escalated by an out of control cop who is not following department policy.

    I also wonder if since the testimony indicates the taser was used more than 3 times if a supervisor filled out the forms required in such an incident around the taser use?

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  • Icarus Falling February 10, 2009 at 3:22 pm

    I just recalled that when I was tackled off of my bike, in order to supposedly protect me from someone they had pulled over, it was Smith who tackled me, in a scenario much like this one.

    He was standing in the middle of the crosswalk, yelling at me after I had passed him, when I slowed, they tackled me.

    I rolled and ended up on my feet, only to be tackled again.

    I was then thrown sober into Hooper's Center for the night.

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  • gabriel amadeus February 10, 2009 at 3:42 pm

    Whew, sounds intense. A few misc points:

    The cops saying the tasers leaving no marks and drawing little blood is total BS. I saw Phil's scars weeks after the incident, still red and purple.

    Matt Davis dug up this interesting tidbit awhile back:
    " Tasers Linked To Rise In In-Custody Deaths "
    http://blogtown.portlandmercury.com/BlogtownPDX/archives/2009/01/24/tasers_linked_to_rise_in_in_cu

    Another disturbing taser study:
    "Mounties review Tasers, conclude that they're dangerous, misused and under-researched"
    http://www.boingboing.net/2008/09/13/mounties-review-tase.html

    One of Taser Inc's new and exciting crowd control devices which is absolutely disgusting and terrifyingly big-brother-ish:
    http://www.taser.com/products/law/Pages/TASERShockwave.aspx

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  • ignatz February 10, 2009 at 3:43 pm

    I was stopped by police (in a busy left turn lane?!) with a group of cyclists because a motorists dialed 911 to report bicycles taking up a lane of traffic. (Of all the nerve!) The hostility the police brought to the situation was alarming and was compounded by their poor decision making. They began writing tickets for anything they could find, including issuing one to my girlfriend for no headlight when, in fact, she was using a $400 light-n-motion and turned it off after our stop to save juice for the long ride home. When I protested, the cops tried separating us. They said, "go stand over there" pointing to where another rider was being tackled by other cops. I said I felt safer over here and I was arrested for disobeying a police officer. This catchall charge is CRAP and only serves to insulate the police from responsibility.
    I was jailed for the night, fined $500 and the cops dented my frame. I thought the whole thing so absurd that I did not hire a lawyer for my trial. Live and learn.
    Go Phil.

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  • Kt February 10, 2009 at 4:01 pm

    This is pretty intense... and interesting.

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  • Blah Blah Blah February 10, 2009 at 4:17 pm

    Moral of story...When the police tell you to stop, you stop. If you don't stop then pay the consequences.

    I'll give him the benefit of doubt that he didn't know immediately that they were cops but at some point soon after being grabbed by the copper he had to know what was going on.

    I don't feel sorry for Mr Sano.

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  • velo February 10, 2009 at 4:21 pm

    If Phil gets off, I hope that he sues the pants of these two idiot cops and the PPB. I want to see the PPB be held accountable for this and these two cops should be charged as criminals. I mean, they didn't identify themselves as police? Now that is just stupid.

    PPB - We the citizens are going to strip you of your badges, your guns, and your right to violence. Your blatant disregard for process, competence and proportional response is appalling. At the end of the day, some of you are decent people, but too many of you are merely criminals with guns and badges.

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  • a.O February 10, 2009 at 4:26 pm

    All the officer had to say was the word "police" and there would be no trial. Very simple.

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  • Zaphod February 10, 2009 at 4:33 pm

    Wow... I hope Sano wins this one... for all of us.

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  • Brian February 10, 2009 at 4:54 pm

    Sounds like all involved are punks. Cops where being asses. Sano was being an ass. Would be cool if all involved owned up to their idiocy.

    Looks like Sano has paid the price for his action.

    Now let's finish this up and tackle the cops of a moving bicycle for no reason, and then taze them.

    I abhor unwarranted police violence as much as the next guy. But I believe there is a lot of history between cyclist and the police that this trial will do nothing to alleviate.

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  • K'Tesh February 10, 2009 at 4:58 pm

    Good Luck Phil!

    Thanks Elly for the reporting!

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  • Spencer Boomhower February 10, 2009 at 5:10 pm

    #8

    "All the officer had to say was the word "police" and there would be no trial. Very simple."

    Apparently, saying "stop, police" is "passé."

    Passé?

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  • Joe Anon February 10, 2009 at 5:10 pm

    Sano should have listened and stopped. His ears were plugged with resentment of authority. His judgment was clouded by victim mentality. It's all justified, however, because white guys can never get a break.

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  • PdxMark February 10, 2009 at 5:12 pm

    The irony - the police testify that's it's difficult to see cyclists dressed in black but that they are supposedly easy to see in their black uniforms...

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  • vanessa February 10, 2009 at 6:24 pm

    Is the header photo of Bikeportland the future for some cyclists : behind bars?

    I am hoping that some justice is served for Phil Sano.

    I am hoping police stop tasering.
    I have also been accosted by a police man who did not identify himself.
    This has got to stop.

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  • KWW February 10, 2009 at 7:04 pm

    Observations:
    Sano's testimony to the defense was as good as it could get, good for him

    The police photos without an accurate timestamp should of been inadmissable.

    This case should be thrown out, I mean the Police don't identify themselves as such?

    I still note the difference between the NE Ainsworth instance and this. A skilled citizen can talk his way out of anything, well almost anything and most certainly a taser.

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  • Stig February 10, 2009 at 7:43 pm

    Thanks for the coverage! The defense lawyer would do well to read through the comments posted on this forum before forming his closing arguments.

    Dark enough to warrant a bike light, yet police in black don't need to identify themselves verbally?

    Identifying yourself as the police is 'passé'? 'Police' is somehow antiquated? Out of fashion? What would Officer Smith like the modern police of 2009 to be called? The Dudes in Blue? The Tasering Terrors? The police also didn't announce he was under arrest? Maybe that would have been passé, too.

    Sano coasted at low speed while he was trying to identify the police. Does this justify tackling him from the bike over a light?

    Sano never assaulted or attempted to assault the officers. The officers never felt threatened. So how can they justify tasering the guy? Non-compliance, I suspect, is the misguided reasoning. If that were somehow reasonable, maybe people should just be shocked on the spot for running a stop sign or failing to have their lights on.

    All this over a bike light. The DA is only prosecuting because (1) he fears a civil suit from Sano and (2) he thinks he can win the case.

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  • a.O February 10, 2009 at 8:05 pm

    Elly, Alice called. She said this is fantastic reporting.

    No way the State wins this case.

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  • Joe Rowe February 10, 2009 at 8:34 pm

    By the cops own testimony they could barely see Ms. Spartis in her dark cycling outfit.

    How could they rationally argue that a cop in dark clothing can ....( as the Oxford Eng. Dict. states )

    "make a prominent exhibition of (a badge) in a place where it can be easily seen"

    to a moving cyclist....

    in a matter of 2 seconds....

    at dusk......

    Can someone describe the badge in the photos? Is it a sewn on patch? Metal badge? What size?

    The law does not state the badge has to be worn. The law states "displayed"

    Does anyone know what burden of proof is for the prosecution in this case?

    a) "preponderance" ( Balance of probabilities )
    Low, aka 50%

    b) "clear and convincing"
    medium

    c) "beyond reasonable doubt"
    high

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  • John Reinhold February 10, 2009 at 8:37 pm

    Sounds like all involved are punks. Cops where being asses. Sano was being an ass.

    When you have a taser, a gun, and the backing of the law and courts - it is not "being asses". It is abuse of power.

    Police HAVE to be held to a higher standard for the very fact that they DO have tasers, guns, and the backing of the law and courts.

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  • Drewid February 10, 2009 at 8:39 pm

    Good bike lights would have prevented fiascoes like this.

    Bikes that are sold as actual road worthy vehicles should have them as standard equipment; and turned on all the time.

    The technology finally exists; hub generators, LED lamps. Expensive as add ons, but the cost would come down if every bike sold had them as standard equipment. Bike manufacturers have to wake up: we need lights integrated in our bikes! A "racing" bike without lights is a just toy that's hard to see in the fog, overcast, or when the sun sets.

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  • Elly Blue February 10, 2009 at 8:44 pm

    About the "that's passe" comment -- that whole exchange was in a bantering, if mutually antagonistic tone that didn't come across well in my notes. Yeah, it's still telling but keep that context in mind. "Stop, police!" was said fairly theatrically.

    I honestly can't guess what the jury will decide. This one's a nail biter.

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  • gabriel amadeus February 10, 2009 at 9:12 pm

    "Out of control, enraged, foaming at mouth."

    What?! Really?

    Great job Elly. Best wishes for Phil.

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  • chris February 10, 2009 at 9:46 pm

    I have noaxe to grind against cops. LAPD are part of my family. But after voilent and near violent run ins with them at several nonconfrontational bike events (MMR, Pedalpalooza, etc), the evidence is clear...

    PPB are ego punks.

    I hope the court sees this.

    And I hope the PPB starts taking this seriously.

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  • Elly Blue February 10, 2009 at 9:49 pm

    Folks -- I just was skimming over this and realized I skipped one of my emails.

    It's up now. And one of the most interesting parts -- the bulk of the testimony from Diana Spartis. A lot of what she says contradicts much of the testimony from the police officers. Check it out under the 2:12 time stamp. Sorry about that.

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  • Krampus February 10, 2009 at 9:50 pm

    I said yesterday I wasn't taking sides. After reading this, I'm taking sides: Phil is innocent of these ridiculous charges. They didn't even identify themselves as police! I would've done the exact same thing Phil did, no way I'd stop for some random guy in black saying "hey buddy" after dark.

    Ridiculous. If Phil loses this case then I'll be absolutely stunned. Cops need to identify themselves and not assume everyone knows who they are.

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  • SkidMark February 10, 2009 at 10:51 pm

    OK you're you've been tased once and you are yelling in pain, will the second round of tasering cause you to "foam at the mouth"? What else will it cause? Loss of "bodily functions" perhaps?

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  • Todd B February 10, 2009 at 11:06 pm

    One thing I have not heard discussed by either side is the effect of bright lights (flashing headlights/ police lights) on a bicyclist's eyes and thus the ability to see pedestrians in black. And if the officer's badge was in shadow - if his back/ side was facing the flashing lights.

    Where as the approaching traffic (bicyclist) would be brightly lit up by these same flashing lights while contrasted by the black background.

    Has a witness been called for either side who has some minimal professional experience with night time photography and or human vision response in tough light scenarios? (combination of low light dusk with bright flashing artificial lighting - like riding fast across the Interstate bridge facing traffic between patches of street lights). Or did I miss it?

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  • wsbob February 11, 2009 at 1:22 am

    " Redirect: DA asks why, when approaching a cyclist for minor violation like not having lights, would you not say “stop, police?”
    Smith: It helps to be friendly, not adversarial, when the occasion warrants it. Part of his job is to educate. He’s a friendly guy. " elly blue/bikeportland

    It seems as though that when Sano didn't stop, the occasion no longer warranted quite such a friendly approach. At that point, Smith, even as he proceeded to grab hold of Sano's bike handlebars and his arm, maybe should have called out 'POLICE!!'. This would have been at least worth a try (Sano might actually have stopped)before resorting to the taser.

    Gathering from elly blues notes, defense seemed to do a pretty good job of countering any idea that the recreation photos were a reliable representation of badge visibility. A photo, even one taken without a flash, depending on the length of the exposure, might cause a highly reflective surface to 'glow'.

    The only way you could really replicate the appearance of the badge under those lighting conditions in a photo would be make a side by side comparison of photo and officer/badge at the location in those lighting conditions, checking to see that the badge appeared the same in both photo and in real life. Even then, as defense pointed out, unlike in the picture, the officer was moving as he ran up to Sano...that would likely have some effect on a person's ability to identify a badge.

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  • E February 11, 2009 at 8:28 am

    When I first heard about this incident, I was skeptical. The police have a hard job and a lot of punks out there do their best to make it harder.

    Having read this testimony, I fully support Mr. Sano in this case and in his lawsuit to follow. The officer absolutely should have identified himself immediately, he had no reason not to, and their expectations that Sano should have known are ridiculous. If I were on the jury, I would never vote to convict with this evidence.

    I don't know if the judge and jury will see it that way. But whether they do or not, Mr Sano must proceed with his lawsuit, and officers MUST ALWAYS identify themselves IMMEDIATELY. So much pain could have been so easily avoided.

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  • Paul Tay February 11, 2009 at 8:38 am

    Don't count chickens before they hatch. Juries are CRAZY people who usually drive CARS, not bikes.

    There's NOT one juror who's a bicycle driver.

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  • a.O February 11, 2009 at 8:52 am

    "[M]aybe should have called out 'POLICE!!'"

    Maybe? Are you effin kidding, Bob?! Sano's whole defense is that he didn't know the guy was police. The cop says that one word - as he's trained to do - and there is no defense, no trial, no debate. No waste of State resources. Once you know their identity, you cannot resist.

    And, fortunately for Sano, he's got what seems to be a very credible witness contradicting what the cops say.

    Again, no way the State can prove resisting beyond a reasonable doubt here.

    See you in federal court.

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  • Kt February 11, 2009 at 9:03 am

    I would be interested to see the picture the police took to corroborate their postition that the badge was easily seen.

    Elly, could you describe it a little better?

    Did they take a full frontal shot?

    Did they take a side shot, as the cyclist would have seen approaching a man walking across the street?

    And yeah, no time stamp, and using a flash? That picture is worthless as evidence.

    Oh, and Elly? Good job. Very interesting stuff.

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  • Kt February 11, 2009 at 9:05 am

    One more comment:

    A person's sense of time is all kinds of not accurate. Something that seems to be a minute could really only be about 15-20 seconds. Not trying to take sides here, just pointing something out.

    Try it sometime, when stuck in traffic. Sure, it seems like you're sitting at that red light for a coupld of minutes or more, but really, it's only like 30-45 seconds. Weird, eh?

    15 seconds is a long time.

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  • DaHoos February 11, 2009 at 9:06 am

    Paul Tay,

    Hopefully there is someone on the jury who is bike-friendly. The lawyers have some say as to who is chosen to serve and the prosecution may have been able to get someone who enjoys riding.
    I served last Nov. and rode to the courthouse everyday.

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  • Paul Tay February 11, 2009 at 9:21 am

    DaHoos, too bad none of us are on da jury. But, I am just a tad bit BIASED. FREE REV. PHIL, DAMMIT!

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  • Rhiannon February 11, 2009 at 10:06 am

    You know, the interesting thing about Taser "knowledge" is that, as far as I know, there have been zero safety studies on Tasering while someone has adrenaline (a chemical, induced by surprise or fear) coursing through their blood.

    And I've done the lit search -- I did it for a news story in 2007 after a man died in Vancouver International Airport after being Tasered. There is an amazing paucity of non-industry sponsored safety tests into many things, the Taser being one of them. (Like, it's good to know that a pregnant pig didn't miscarry when it was Tased... but that one study doesn't exactly convince me that's its safe to Tase pregnant women, yet I don't know of a single police force that bans it.)

    And the testimony from an officer about what it feels like being Tased? When police are trained and opt to get Tasered to know what it feels like -- often so that they can testify in court they know what it feels like (this comes from two RCMP trainers I interviewed) -- they are ready for it and expecting it, and they often have other officers there to break their fall. (They actually banned manadatory training-tasing in Canada in some jurisdictions, because of a worker's compensation case where an officer suffered spine fractures from a Taser-induced fall.)

    How can the experience of controlled Tasing compare to out-in-the-field Tasing? Yet the controlled environment is all that the scientific studies have captured. Maybe there's enough field data by now for an epidemiologist to take a look at the outcomes of all recorded U.S. Tasings.

    I'm mad at this incident... I would be so mad if it happened to me... and I'm absolutely relieved that no one died in this case.

    But it sounds like police laziness and misjudgment, and those two things sometimes do kill.

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  • Bjorn February 11, 2009 at 10:19 am

    Actually the PPB policy manual says not to tasers on pregnant women:

    Prohibited Use of the Taser (1051.00)
    The Taser shall not be used on the following persons or circumstances, unless one of the exceptions following this list is met:
    a.
    Children, who are known to be, or are obviously under the age of 12.
    b.
    Persons, who are known to be, or are obviously older than 60 years of age.
    c.
    A woman who is known to be, or is obviously pregnant.
    d.
    A person known to be, or is obviously medically fragile.
    -552-
    POLICY AND PROCEDURE
    Exceptions that would permit the use of the Taser on the above persons or circumstances:
    a.
    The person is armed with a dangerous weapon.
    b.
    The person is engaging in suicidal behavior.
    c.
    The person cannot safely be controlled with other force options.
    The Taser shall not be used on handcuffed suspects unless the subject is actively engaging in aggressive physical resistance. Members should obtain, when time permits, supervisory authorization before deploying the Taser on a handcuffed suspect. If used, a supervisor will be notified immediately.
    In addition, the use of the Taser is prohibited:
    a.
    For horseplay or practical jokes.
    b.
    At demonstrations or protests without the permission of the Incident Commander.
    c.
    To harass or unduly influence a person under any circumstances.
    The Taser shall not be used on subjects engaging in passive resistance.
    The Taser shall not be aimed at the head or face.
    The Taser shall not be used on subjects who are known to have come in contact with flammables or those in areas where flammables are present. The Bureau currently authorizes the use of a water based oleoresin capsicum spray that is not flammable. However, some police agencies use an alcohol based oleoresin capsicum that is flammable. This should be considered when working with outside agencies.

    Of course it also says not to use it on persons who are passively resisting, so the issue is more that they don't follow their policy rather than the policy itself...

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  • One Less :( February 11, 2009 at 10:56 am

    I absolutely LOVE how the DA can ask all the questions he wants and then a few minutes into Sano's testimony the DA objects and says this is taking too long. I love it when the DA slams the door in his own face. Thank God the Judge shut him down. Let him have his chance.

    From the transcript and watching some of this trial, I say Sano has a good shot of being acquitted of the charges. The phone call does the most damage to length of tasering being different from what the police "believe" the length of time it to be. Not only that, but the photography being what it is, the flash really brings out the badge and the cop has a big fat grin on his face. That is definitely not the correct reconstruction.

    Lets hope the Jury knows what its doing on this one.

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  • amanda February 11, 2009 at 11:30 am

    There's two things that I think about with this. The first is that riding your bike is about keeping an eye one everything and when lots of input is coming at once, it can be incredibly difficult to assess everything equally. Your priority is to ride safely so that you don't hurt yourself or others. I would never stop on a dime for someone rushing out at me, in fact, I would be evasive. In this situation, I would have probably slowed, looked back, assessed that they were cops and returned or stopped. But, stopping on a dime for someone rushing out at you in the street? Never ever ever.

    The other thing I think about is that cops really do have a tough job. People are less and less respectful. When a cop tells you to do something, you're supposed to do it. End of story. I see people get in to all sorts of trouble because they think the cop isn't in the right or they shouldn't have to do what they are asking. But, they are in the same situation as cyclists -- they are trying to assess a mountain of information and the easiest way to deal with it is to get compliance. Like, don't argue with them. Raise your complaints later. I know that cops can come across as incredibly disrespectful and condescending but if you think about how many idiots they deal with a day and how little respect they get, then maybe it makes sense.

    However, this all wraps up for me in how oversized the consequences were to the crime. No matter what, that was very, very wrong. Nobody should get thrown to the ground and tased for riding a bike at dusk. The police here made a very bad set of decisions. They should learn from it and Phil should not suffer further consequences.

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  • Argentius February 11, 2009 at 11:50 am

    I wasn't at either the incident or the trial, and I'm not a lawyer, or even in law school, so what do I know?

    But, I'd be quite surprised if Sano gets off.

    I'm pretty opposed to tasers, in a visceral, "this is terror," sort of way, but I've got to say that I think the "
    passive resistance" in the PPB manual here means things like sit-ins...

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  • Elly Blue February 11, 2009 at 11:54 am

    About the picture... I never got a super close look at it as I was sitting at the back. It basically depicts the middle of 7th Ave at night, with Sgt Smith standing to one side, facing the camera and smiling. His badge and shoulder medallions are glowing like they are lit up from within and are brighter by far than anything in the picture.

    The only witness with any photographic expertise was Diana Spartis who majored in photography in college. She testified that the reflective badges were lit up so brightly because of the light from the flash bouncing directly off the badge material.

    They said it was taken of Sgt Smith standing where he would have been standing

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  • Elly Blue February 11, 2009 at 12:04 pm

    Sorry, to finish the sentence: where he would have been standing at the time he asked Phil to stop, *i think*.

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  • wsbob February 11, 2009 at 12:17 pm

    Elly Blues notes of Officer Smith's testimony suggest that he believed that with the unmarked police car across the street, and he in his uniform with it's reflective name tag and badge approaching, would have been sufficient for someone such as Sano to recognize that he was a police officer.

    Most people probably would be able and or willing to recognize a police officer under those conditions. Assuming that people will recognize police officers without the officers backing up other identification indicators with a vocal identification of who they are seems needlessly risky.

    " Redirect: Can you be arrested for obeying a lawful order by a peace officer?
    Hoesly: Yes. No doubt in my mind he knew exactly who we were.

    Defense objects to this speculation, which is sustained. " elly blue/bike portland

    There's something about the exchange above...the redirect question and the response...that doesn't make sense, but what really stood out to me was the response part of it; that the officers were absolutely convinced Sano knew exactly that they were police officers. And he might of, but considering his behavior towards them, it seems as though the officers assumption that Sano knew they were police officers was highly speculative.

    So far, this looks bad for the police. They don't unequivocally identify themselves. They don't tell him he's under arrest or what for. They tase him for seemingly doing nothing more than not calming down. When Sano failed to stop at Smith's order for him to do so, at that point, Smith, upon grabbing Sano's handlebars and arm could have said 'Stop or I'll arrest your for failing to obey the order of a police officer!' Didn't do that. Why? Saying that would have unequivocally told Sano a)these guys are cops. b)I'd better stop or I'll be under arrest.

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  • John Russell February 11, 2009 at 12:40 pm

    "You can’t resist arrest if you don’t know you’re being arrested."

    I rest my case.

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  • steve February 11, 2009 at 2:49 pm

    Verdict is in!

    NOT GUILTY!!

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  • matt picio February 11, 2009 at 3:25 pm

    Best wishes for Phil. As to the comments of "Sano was being an ass" - um... how?

    At worst, assuming the cop version was right, he ignored a cop's instruction to pull over, and then was subjected to incredible pain which he tried to stop by removing the taser darts. He then flailed around without attacking the cops, and then collapsed to the ground and was cuffed. Please explain where being an "ass" (i.e. deliberate actions against the cops rather than passive) applies.

    While we're at it, even had Phil realized that the man approaching him was a cop, he could (depending on speed) still have to pass the guy to safely stop his bicycle. Cyclists can't always stop on a dime, nor is it always safe to do so.

    I find it a travesty that the DA is criminally prosecuting someone for failing to obey an instruction to stop for a bike light violation. Yes, failing to obey a police officer is a crime. I think Phil suffered enough punishment for the crime when he was tased repeatedly.

    If these are the priorities of Portland's DA's office, then I know who I'm voting and campaigning against in the next election. Let's deal with crimes on 82nd Avenue, or outer Portland, which always gets short shrift in any city service, or deal with the traffic problems in the 10 most deadly intersections, none of which are near where Phil was arrested.

    This town's police force and the DA's office have a misplaced sense of priorities, and that comes from the (former) mayor, the police chief, the DA, and other senior officials who set and implement policy. It's hard to have effective, appropriate-use-of-force police officers with the current failure of leadership, planning and implementation that currently exists in this city.

    Elly, brilliant reporting, very comprehensive, keep up the great work!

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