Nearly four months after a Bend police officer's confrontation with a combative patient outside St. Charles Medical Center-Bend, Deschutes County District Attorney Patrick Flaherty ruled Tuesday that despite an autopsy finding that the man's later death was a "homicide," the officer's action were "lawful and justified."
The DA issued a three-page report on his investigation into the use of force by Officer Steve Craig on Aug. 12 outside the hospital's ER as he was confronted by Jerry Nichols, 64, of Bend.
The ineffective use of a Taser on the advancing patient, followed by what police called an "open hand strike" with the back of his hand, led to him falling to the ground and more struggling for a time before he went into cardiac arrest.
"With the assistance of the Oregon State Police, the State Medical Examiner’s Office and the Bend Police Department, the district attorney has concluded that the use of physical force by Officer Craig was lawful and justified in this matter," a brief statement said. "The district attorney makes that determination based upon the facts in this matter and the applicable law."
Here is his three-page report, in full:
DISTRICT ATTORNEY’S REPORT
Because this matter involved the use of force by a police officer which may have contributed to Mr. Nichols’ death and the State Medical Examiner determined that the “manner of death” was “homicide”, this matter has been referred to the Deschutes County District Attorney’s Office for a determination whether the use of force was lawful.
At the outset, it is imperative to understand the distinction between “homicide” and “criminal homicide.” “Criminal homicide” is committed where a person, without justification or excuse, “intentionally, knowingly, recklessly or with criminal negligence causes the death of another person.” “Criminal homicide” is murder, manslaughter, criminally negligent homicide or aggravated vehicular homicide. ORS 163.005.
“Homicide” as that term is used by the State Medical Examiner is a neutral term that refers to the act of one person being the “probable mode of production of the cause of death” and does not pronounce judgment on the moral or legal quality of the act. See ORS 146.003(9); Black’s Law Dictionary, 6th Ed., p. 734.
In this case, there is absolutely no evidence of criminal homicide and therefore no need to determine whether the police officer’s use of force was legally justified. However, because of the understandable ambiguity caused by the use of the term “homicide” in the State Medical Examiner’s autopsy report, the District Attorney’s Office is issuing this report.
Oregon Revised Statute 161.209 defines the limitations on the use of physical force in defense of a person. This statute applies to police officers and citizens alike. A person can use physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force. The person may use a degree of force which the person reasonably believes to be necessary for the purpose of self-defense or defense of a third person.
The Deschutes County District Attorney has concluded that the use of physical force by Officer Craig was lawful and justified in this matter.
The District Attorney makes that determination based upon the facts in this matter and the applicable law. The facts are summarized below.
FACTS AND INVESTIGATION:
On August 12, 2012, at approximately 6:13 p.m., Jerry Nichols entered St. Charles Medical Center and complained of shortness of breath to medical staff. While a nurse was starting an IV on him, Mr. Nichols became combative with and assaultive toward the nurse and other hospital staff who described Mr. Nichols as “out of control.” Mr. Nichols’ oxygen saturation was low (87% on 2 liters of oxygen).
Mr. Nichols left the emergency department, going outside to sit on a picnic table. One of the nurses commented that Mr. Nichols was about to “code,” meaning about to have a cardiac or respiratory arrest, based on his current medical status.
Hospital staff called 911. The dispatch advised available police officers that St. Charles Emergency Room had a patient who was out of control, had assaulted a nurse, was threatening to stab hospital staff and who claimed to be a professional fighter.
City of Bend Police Officer Steve Craig responded to St. Charles. Officer Craig drove his patrol car near to the place where Mr. Nichols was sitting, at which time Mr. Nichols immediately stood up and walked toward Officer Craig. Mr. Nichols verbally challenged the officer. Officer Craig verbally tried to calm Mr. Nichols and backed away from Mr. Nichols. When he got near, Mr. Nichols tried to strike the officer. As Mr. Nichols continued advancing, Officer Craig deployed his Taser on Mr. Nichols. The Taser was ineffective because it was too close to Mr. Nichols and it did not disable him, although it did discharge electricity. Officer Craig then struck Mr. Nichols and attempted to subdue him. Mr. Nichols physically resisted that attempt, continued fighting on the ground for a short period and then went into cardiac arrest.
Medical staff from St. Charles successfully performed CPR on Mr. Nichols. He was admitted to St. Charles and remained a patient there for 8 days. At that time, a decision was made to remove him from life-support and he died soon thereafter.
Mr. Nichols had a number of medical difficulties prior to this event. Those included severe chronic obstructive pulmonary disease, dementia, uncontrolled diabetes, hypertension, cardiovascular disease and he had failed to comply with his physician’s directive to take certain medications. This was Mr. Nichols’ fifth hospital admission since October 2011.
An autopsy was performed on Mr. Nichols at the State Medical Examiner’s Office. The Medical Examiner determined that the “cause of death” was “anoxic brain injury due to chronic obstructive pulmonary disease, hypertensive and atherosclerotic cardiovascular disease and physiologic stress due to an altercation” and that the “manner of death” was homicide.
The question presented is whether Officer Craig’s use of force was lawful and justified in this matter. Officer Craig reasonably believed Mr. Nichols was about to use unlawful physical force against him and the degree of force used by Officer Craig was commensurate with the threat he perceived. Officer Craig did not know Mr. Nichols’ medical history nor is there any evidence suggesting that he should have been aware of Mr. Nichol’s medical history. He did know Mr. Nichols had been assaultive and threatening toward Emergency Room staff, that Mr. Nichols claimed to be a professional fighter and that Emergency Room staff were alarmed enough by Mr. Nichols’ behavior that they had called 911 to request police assistance rather than relying upon hospital security staff.
Officer Craig is well-trained, experienced and disciplined in this type of situation. Officer Craig responded to the perceived threat posed by Mr. Nichols as he was trained to do. Under the circumstances presented, his use of physical force was legally justified.
Dated this 4th day of December, 2012.
Patrick J. Flaherty