As the Portland Police Bureau grapples with how to update its Taser policy, two federal lawsuits stemming from inappropriate Taser use suggest some city police aren't familiar with the current restrictions on their use.

The city settled both lawsuits, paying a total of $138,073 to two men who were Tased by police after they had surrendered. In each incident, the men were on their knees with their hands locked behind, or on their heads when they were tased.

One man's back was to the officer when he was shot with no warning, an arbitrator found based on witness statements, although the officer said she had shot him in the stomach.

Both men were charged with misdemeanors ranging from interfering with police to harassment. Separate juries cleared both of them and some charges were dismissed.

The officers violated bureau policy by using the Taser against people who were "passively resisting," according to testimony from the criminal trials and civil depositions. But no discipline was issued.

Portland attorney Matthew McHenry represented both men in their lawsuits.

"These cases exemplify why law enforcement needs new and better training on Taser use," McHenry said. "They both struck me as a case in which the Taser was used against people who were not a threat."

Portland's current policy -- which allows police to use a Taser when someone physically resists or displays the intent to physically resist – is more permissive than other cities' and model guidelines. The city auditor's office has recommended a more restrictive policy.

A federal appeals court ruled in December that police can be held liable for using a stun gun against an unarmed person who poses no immediate threat. Deputy City Attorney Dave Woboril said that Portland's current guidelines on Taser use are not precise enough and need to be improved to better guide officers.

In late January, the city paid $81,766to settle a federal civil rights suit filed by Hung Minh Tran, a commercial insurance broker, against Officer Jennifer Thompson.

The settlement came after a stinging rebuke from an arbitrator, who found that the officer's sworn testimony conflicted with that of four witnesses and Tran.

"Officer Thompson denies deploying her Taser against Tran while he was on his knees, facing away from her, but based upon the testimony of several witnesses, I find that she did," arbitrator Alan Bonebrake wrote, adding she deployed probes into Tran's back.

"This was unnecessary, unreasonable and an excessive use of force," he wrote. Tran proved he was deprived of his civil rights from the use of the Taser, assault and Thompson's negligence, the arbitrator found.

The encounter between Tran and Thompson happened Nov. 24, 2007 when the officer responded to the report of a woman assaulted at the Cheerful Tortoise bar, near Portland State University.

When Thompson arrived, the victim and her boyfriend were outside. As the officer was talking to them, Tran stepped out of the bar. The boyfriend accused some of Tran's friends of being involved in the assault, and two began arguing.

Thompson ordered Tran back into the bar. Tran admitted that at first he refused in order to defend his friends, who the boyfriend claimed were involved. "He says it wasn't me. It wasn't my friends, then goes back in," Tran's attorney told jurors.

The officer testified that Tran pushed her and then went inside. She followed to arrest him. Thompson said Tran struggled and knocked her into a stack of chairs.

Tran testified that he didn't know who was grabbing him from behind, and he struggled to get away. When he realized it was a police officer, he said he complied with Thompson's requests and she dragged him back outside. He said the officer knocked him into the chairs.

Once outside, the officer's account drastically differed from Tran and witnesses.

Tran said Thompson was giving him confusing commands, such as go against the wall, back up against the wall, and back away from the wall. He didn't understand what she wanted so he did what he's seen on TV: got down on his knees, with his hands locked behind his head, facing away from her, "so I'm not a threat."

"I did not ever see a Taser. I was not warned about a Taser," Tran testified. "All I remember is getting Tased in the back, and I didn't know where that was coming from."

At the trial, he showed photos of bruises to his back. Police didn't take photos.

Thompson wrote in her report that once outside with Tran, she pulled her Taser. In her deposition, she said she probably did not warn Tran she was going to fire it, as policy requires. Her report said Tran had his hands up in the air, saying "OK, OK."

"After the physical contact, twice pushing me, I decided to pull my Taser to get some compliance because he wasn't complying with me physically. It wasn't specifically at that second. It was everything to that point."

Not until her cross-examination did Thompson say anything about drawing her Taser, reholstering it and accidentally firing probes into her holster when she reached to draw it out again. Thompson testified she probably didn't put the safety on. She testified that Sgt. Cory Roberts told her to leave the accidental discharge out of her report since it wasn't used against Tran then.

She said she then used the stun gun against Tran's stomach and handcuffed him.

As a result of their encounter, Thompson never talked to a witness who saw the bar assault she was sent to investigate.

McHenry, who also represented Tran during his criminal trial, argued that Thompson lied on the stand. "She Tased him against her training, and she's trying to cover for that," he told a jury, who acquitted his client of disorderly conduct and interfering with an officer.

Woboril said police managers are aware of the settlement.

In her deposition, Thompson said she received a de-briefing from then–Central Precinct Sgt. Kyle Nice. (A police review board this month found he acted inappropriately for drawing his firearm during an off-duty road rage encounter.)

In a confidential memo Nice wrote to then-Precinct Cmdr. Mike Reese, he said the Tran case had caused Thompson anguish, she had reviewed it and would learn from it.

Woboril said he didn't know if police internal affairs has reviewed the case. If not, the city's "tort review group will certainly look at that result and see if the bureau needs to open one up."

Last spring, the city paid out $56,306 to settle a federal suit brought by Christophe Clay, 24, against Officer John Hughes and Michelle Tafoya.

Also on Nov. 24, 2007 coincidentally, Clay had gone to the Game Crazy store in North Portland to buy an XBOX 360 controller. After an argument with a clerk, Clay asked the manager for the business' corporate number. The business called police.

Officer Michelle Tafoya arrived and saw Clay walk out of the store. She immediately shouted commands and pointed her Taser at him. Officer John Hughes, who responded next, drew his Taser as well. Clay, both said, had his hands on his head.

Hughes testified that he told Clay to go to his knees and turn away from them. Clay got to his knees, kept his hands on his head and turned sideways to the police. "I said they can come and arrest me," Clay said.

Because Clay would not put his face to the ground or turn fully away from police, Hughes fired his Taser at him twice. Police also threatened to Taser Clay's friend who was videotaping them. Police said having a suspect lie face to the ground allows for a safer approach for officers.

At Clay's criminal trial, Hughes acknowledged Clay was passively resisting, not moving toward him, not reaching for anything. When questioned by Clay's criminal defense attorney Stephanie Engelsman, Hughes admitted he violated bureau policy.

"I don't think there was any dispute dramatically as to what Clay was doing at the moment he was Tasered," said deputy city attorney Scott Moede, who represented the officers in the civil suit.

Clay said he sued Tafoya because she started the encounter "yelling at me like a mad person," without ever trying to talk, and Hughes for shooting him.

"I shouldn't have to sue to look for justice," Clay said.

The city settled these cases, and no discipline followed. The plaintiffs' attorney isn't surprised.

"That's why we have to file these cases because that's the only way there's any type of satisfaction," McHenry said.

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