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HomeMy WebLinkAbout2019-cv-901 - Surat v. City of Fort Collins, et al. - 142-2 - Exhibit KExhibit KMark Ratner Hall and Evans, L.L.C. 1001 Seventeenth Street Suite 300 Denver, CO 80202 Dear Sir, Overview: March 5, 2020 I was contacted by yourself and asked to review an arrest and a use of force by Officer Klamser of the Fort Collins Police Department upon Michaella Surat. Of specific concern was a takedown executed by Officer Klamser upon Ms. Michaella Surat that was videotaped by an independent party with a cellphone. Information Reviewed and Considered I was provided with and have reviewed the following materials regarding this case: 1. Discovery documents provided by the District Attorney for the Eighth Judicial District, which include the case file of the Fort Collins Police Department, Case No. 17-5701 (83 pages). 2. Written witness statement of Kennedy Brooks, April 13, 2017. 3. Typed witness statement of Michael Findlay, April 13, 2017. 4. Fort Collins Police Department policies, procedures, and rules concerning the use of force (Fort Collins Police Department Instructor Manual, Updated July 8, 2016). (Five pages). 5. Fort Collins Police Department training material concerning the use of the, "Rowing Arm Takedown." (Five pages). 6. Body Cam Videos depicting the interactions between Officer Klamser and Ms. Surat, as well as the takedown of Ms. Surat. 7. Third party video depicting the interaction between Officer Klamser and Ms. Surat, as well as the takedown of Ms. Surat. 8. Video of the Fort Collins Police Department internal affairs interview of Officer Klamser, April 21, 2017. 9. Expert report prepared by Officer Al Brown of the Fort Collins Police Department, February 21, 2018. Case 1:19-cv-00901-WJM-NRN Document 142-2 Filed 01/04/21 USDC Colorado Page 1 of 7 10. Transcript of Officer Randall Klamser's sworn testimony, Larimer County, Colorado County Court, Case No. 2017M965, January 9, 2018. 11. Complaint, United States District Court, District of Colorado, 1: l 9-cv-00901-NRN. 12. Transcript of Officer Randall Klamser's sworn testimony, County Court, Larimer County, Colorado, 2017M965, August 21, 2018. 13. Transcript of Officer Al Brown's sworn testimony, County Court, Larimer County, Colorado, 2017M965, August 22, 2018. 14. Expert witness report by Mr. Dan Montgomery 15. Video of the Fort Collins Police Department internal affairs interview of Officer Al Brown, April 18, 2017 16. Trial transcript, County Court, Larimer County, Colorado, 2017M965, August 2018 Conclusions: According to the Plaintiff's Expert Witness Disclosure, Mr. Montgomery will testify that (1) the actions of the Defendant Officer Klamser during Plaintiff Surat's arrest were not prudent and in concert with established police practices and training guidelines, (2) the actions of Defendant Officer Klamser during Plaintiff's arrest constituted excessive force under the circumstances, (3) the Fort Collins Police Department's policies, practices, and training was the moving force behind the actions taken by Defendant Klamser, (4) the training and practices of the Fort Collins Police Department were not prudent and in concert with established police practices and training guidelines. After reviewing the above materials and the criminal trial testimony in the Surat matter, I have come to the following conclusions: (1) The actions taken by Officer Klamser during Plaintiff Surat's arrest were prudent and completely in concert with established police practice and training guidelines. First, I see nothing in Mr. Montgomery's CV to indicate that he has more than rudimentary use of force training. I see no certifications in any system of police use of force training nor any record of martial arts training. He has been a police executive for many years and undoubtedly has extensive management experience. The courses that he has attended on police use of force are the types geared to give general principles. Mr. Montgomery's alternatives to handling the encounter with Ms. Surat and Mr. Waltz and the subsequent takedown executed by Officer Klamser do not adequately address the "split-second judgments, in circumstances that are tense, uncertain, and rapidly evolving" that are articulated in Graham vs Connor. Further, Mr. Montgomery uses the 20/20 hindsight that the Supreme Court discouraged. The circumstances that required Officer Klamser to execute a takedown developed in less than a minute. Case 1:19-cv-00901-WJM-NRN Document 142-2 Filed 01/04/21 USDC Colorado Page 2 of 7 The ability to remove the parties from the area, to use persuasion, and to deescalate the situation, are often complicated by dealing with intoxicated persons who don't hear, or listen to, requests, explanations, commands, or warnings. Often, as in this case, the person is trying to move either toward the officer or away from the officer. Additionally, these types of confrontations often occur in areas where the officers must also watch others who may interfere. Mr. Montgomery talks about calling for assistance of a supervisor or another officer when dealing with Ms. Surat. There was no reason to initially call for a supervisor or another officer. This was, from the onset, a fairly routine contact. The primary focus was on Mr. Waltz as a possible suspect in a crime. Officers are taught to act from a contact and cover principle. In this case, Officer Pastor starts out as the contact officer dealing with Mr. Waltz. Officer Klamser's job as a cover officer is to protect Officer Pastor by watching the crowds and preventing interference by anyone else. In this case, there are many individuals, many who have been drinking, in close proximity. Additionally, there is a male party in an olive green jacket close by who appeared to be connected to Surat and Waltz. Ms. Surat is leading Mr. Waltz away when Officer Pastor stops Waltz. When Ms. Surat advances toward them, Officer Klamser has no option but to intervene and physically stop her. This happens, virtually immediately. There is no opportunity to move the individuals from the area. Nor was there any warning that the contact with the parties would escalate. To this point, there is not sufficient reason to request more assistance. It would be reasonable for Officer Klamser to assume that he could stop Ms. Surat by himself. The situation with Ms. Surat escalates in seconds. As the struggle with MS. Surat continues, Officer Pastor becomes the cover officer. His responsibility is now to keep others from intervening. In the bodycam FC2282 (Officer pastor's bodycam), you can clearly see that Officer Pastor is trying to keep Waltz and the male in the olive green coat from interfering while Officer Klamser struggles with Surat. After Officer Pastor joins the struggle with Surat, he is heard several times telling people (presumably Waltz and the male in the olive green coat) to "stay over there" and "back off'. In the cellphone video of the takedown, Officer Pastor and the bouncer push the male in the green coat away as he moves forward toward Officer Klamser and Ms. Surat after the takedown. A frame by frame examination of the body cams of Officer Klamser ad Officer Pastor shows clearly why the situation was handled as it was. Officer Klamser's attempt to verbally stop Surat escalates into physical resistance and assault by Surat within a matter of ten seconds. There is no reason to believe that a request to move across the street to another location would have had any success. (2) The actions of Officer Klamser during the encounter with Ms. Surat did not constitute excessive force and were, in fact, in concert with established police practices. Officer Klamser told Surat to "Back off' immediately as she approached. She ignored the command and continued moving forward as she told Officer Klamser that she was going to stay where she was. After being touched, Ms. Surat escalated to active or defensive resistance and then to active aggression. Mr. Montgomery states that he does not recall any evidence of any assault against Officer Klamser. In the bodycam video FC2278, the bouncer tells Officer Klamser that he saw Surat move toward the officers and also that the male wearing the green coat was encroaching. He also says that he heard officers tell Surat to step back. He further says that he saw Surat "pawing, clawing, and batting" at Klamser while he tried to restrain her. Case 1:19-cv-00901-WJM-NRN Document 142-2 Filed 01/04/21 USDC Colorado Page 3 of 7 Officer Klamser testified that Ms. Surat was striking at him and grabbing him. There are statements by witnesses Findlay and Brooks that Ms. Surat was striking at Officer Klamser. Ms. Surat's movements on Officer Klamser's bodycam are consistent with someone swinging and in one frame it is clear that she has grabbed Officer Klamser's wrist. Officer Klamser's actions are all in response to an escalation of resistance and force by Ms. Surat. Mr. Montgomery makes many statements that are not accurate. He says that Officer Klamser's takedown was not in concert with established police practices and guidelines. It is established that Officer Klamser was taught this takedown as a technique accepted by his department. Takedowns are normally considered on the same level as empty-hand control. Some agencies place takedowns on the same level as hard empty hand tactics. Further, takedowns to the front, where the suspect goes down head-first are taught and used on a regular basis by police agencies all over the country. I have taught this particular takedown to police recruits for many years. As an instructor, I have had other instructors take me down in the same way to demonstrate to recruits. Generally, in a takedown to the front, most of the impact is absorbed by the person's torso, followed by possible impact by the face. The landing is not pleasant. This technique and other techniques that put the suspect head-first toward the ground are shown in countless police manuals, to include those from the FBI. I have never heard of an agency stating that a takedown should only be used in circumstances where deadly force would be authorized. Officer Klamser did a takedown, not a throw. There are many throws taught by martial arts that send the subject flying, upside down, with great risk to the subject. Indeed, in one case, a New York Transit Officer, who was trained in judo, did such a throw. The victim of the throw became a quadriplegic. The difference is in how the person goes down. In a takedown, most of the time, the person uses their free hand to soften their impact with the ground. If you watch the video of the takedown on Ms. Surat, you will see her free hand reach out to the ground ahead of her body. From my prior studies, I learned that two things were instinctive, even in infants. One instinct was to flinch at a sudden loud noise. The other was to reach out with your hands when falling. In struggles on the street, suspects often strike the ground with their face. It is not a given. But, it is a definite possibility. It is common. The results are usually bruises, scrapes, and occasionally lacerations requiring stitches. Officers often refer to this occurrence as "road rash" or "carpet burn". Mr. Montgomery agrees that getting someone on the ground in the prone is the best possible way to control and handcuff them. As a former police officer, he cannot believe that all of these events of going to the ground are only justified in cases where deadly force would be authorized. Some systems that train officers in ground tactics advance their systems by saying "All fights go to the ground". The devil is in the details. Often, in resistances, two officers have ahold of the suspect by both arms. As a result, the suspect goes to the ground with less ability to protect himself. The speed at which a suspect goes down is usually not something that the officers can control well. The takedown must be executed quickly and forcefully so that the suspect does not have time to set himself and resist. There have been countless incidents where officers attempted takedowns but the suspects managed to stiffen and brace themselves and successfully resist the takedown. It is for that reason, that most instructors teach how to switch to a different technique when the takedown is countered. Mr. Montgomery's idea of gently lowering the suspect to the ground applies in only very rare cases. One situation mentioned by Mr. Montgomery is taking a handcuffed suspect to the ground head- first. There is a greater risk to the suspect in that situation. This is an area that needs more Case 1:19-cv-00901-WJM-NRN Document 142-2 Filed 01/04/21 USDC Colorado Page 4 of 7 training in most police agencies. We teach officers how to take a handcuffed suspect to the ground where their buttocks hit first. When we teach recruits, we explain that once a person is in custody, anything that happens to that person is the officer's responsibility. Further, the officer's ability to control a suspect should be much greater when the suspect is handcuffed. There have been many cases where cuffed suspects have pulled away and run into traffic, jumped out windows or otherwise injured themselves. This is the reason that Officer K.lamser had to keep a firm grip on Surat while taking her to the patrol car. He maintained a grip on Surat but was not using pain compliance to make her walk. He was being kind in his approach. Generally, we teach officers to walk suspects with a grip on their hand and elbow to facilitate pain compliance if they resist. The fact that Surat had bruises after strongly resisting arrest, being taken down, and later dropping to the ground should be no surprise. A later police report where she stated that she bruises easily would also have to be considered. Mr. Montgomery references the International Association of Chiefs of Police National Consensus Guidelines and uses his own opinion to expand upon definitions. He creates his own definition of deadly force by including punches and strikes to the head. I assume that he would include Ms. Surat's swipes as deadly force. He talks at length about blunt trauma to the head. He says that police officers are taught, or should be taught, to avoid striking and causing blunt trauma to an individual's head except in the most exceptional of cases where the officers may be engaged in a deadly force confrontation. The vast majority of police agencies across the country would take issue with his explanation. In Colorado, POST requires one hour of instruction be taught on personal weapons. Those weapons include fists, elbows, knees, and other parts of the body used to strike a suspect. Generally, you will not hear any prohibition against striking a suspect in the head. Krav Maga, makes liberal use of punches and elbows to the head in confrontations far short of a deadly force encounter. Krav Maga is an Israeli system, not Russian, as stated by Mr. Montgomery. PPCT uses strikes to the side of the neck to cause a brachia! stun at levels far below deadly force confrontations. One caution sometimes given by trainers is that the officer may break their hand hitting someone in the head. This would hinder the officer in any further struggle. There is always a caution to try to avoid striking a suspect in the head, neck, or spine with a baton or some projectile. When we teach, we try to elevate the officer's abilities to the point that they are able to obtain physical control without hitting the suspect. It is a lofty goal. Takedowns are a large part of accomplishing that goal. The reality is that many officers rely upon striking the suspect with their fists to gain control. I am attaching a 2009 University of South Carolina study. The study yielded results from 552 agencies across the country. Some scenarios were given to the agencies to see what level of force they allowed in each. In the first scenario where the suspect sits down and just says that he doesn't want to go to jail, about 10% of the agencies authorized strikes and punches (greater force than soft empty-hand tactics). In a second scenario where the suspect tenses and resists, over 60% of the agencies authorize hard empty-hand tactics (strikes and punches)(greater force than a takedown). In a third scenario, where the suspect runs away, more than 60% of the agencies authorize hard empty-hand tactics (again strikes and punches). It should be noted that if an officer tackled the suspect, it would never be considered excessive. In that case, the suspect is often going to the ground in a violent and uncontrolled manner. There is risk to their head and the officer's head hitting the ground. No one objects to the risk in that case. The prohibition against using a Taser on a running suspect is an administrative anomaly. In the last two scenarios where the suspect takes a fighting stance or swings at the officer, about 90% of the agencies authorize hard empty-hand tactics. The gist of Case 1:19-cv-00901-WJM-NRN Document 142-2 Filed 01/04/21 USDC Colorado Page 5 of 7 this study is that a majority of the agencies would have allowed Officer Klamser to strike Ms. Surat as soon as she actively resisted. Instead, Officer Klamser continued to try to get control and warned Ms. Surat of the impending takedown if she did not stop resisting. Further, there is ample testimony from Officer Klanser, witness Findlay, witness Brooks and the bouncer that Ms. Surat was striking at Officer Klamser. In that case, about 90% of the agencies would have authorized Officer Klamser to punch Ms. Surat. The vast majority of agencies would consider a takedown as soft empty-hand control. Even if an agency considered a takedown as hard empty- hand control, Officer Klamser would have been justified in using the takedown to gain control. Officer Klamser needed to stress to Ms. Surat that what was coming was going to be unpleasant and should be avoided by ceasing to resist. Therefore, threatening to throw her on the ground was more likely to get her attention than using the term "takedown". Mr. Montgomery criticizes Officer Brown for not taking into consideration the significant potential of death or serious bodily injury caused by the "rowing arm takedown". As I have stated, minor injuries to the face occur often. In a fight, it is very difficult to protect a wildly struggling suspect from the consequence of their own actions. If deaths or severe injuries were occurring regularly from this technique, it would have been out~awed long ago. Again, we are talking about thousands of similar arrests across the country. Even with the use of a Taser, the suspect is going to fall down. It is a risk one takes when one fights with the police. Mr. Montgomery says that it is easy to prevent an individual's head from striking the ground first and he references the martial arts. I do not believe that he knows much about the martial arts. I have studied many different martial arts over a period of fifty years. I have taught physical control techniques to thousands of officers and I have been involved in thousands of arrests on the street. I believe that I have a strong grasp on what is realistic and what is not. Gently lowering someone to the ground only occurs in rare circumstances. An officer has the most difficult goal in use of force. He must try to control without injuring. It would be far easier to simply beat the suspect. Testimony by witnesses indicate, as does Officer Klamser' s body cam, that he gave Ms. Surat ample opportunity to quit resisting before he executed the takedown. The suspect has the easiest job. They can simply tense, spin, twist, and strike at the officer. For male officers, struggling with a female is often a task they dread. Females, like some drunks, often exhibit extreme flexibility and/or relaxation. This makes it difficult to obtain the leverage or pain compliance that you would normally be able to establish. It is like the difference between manipulating a solid bar and trying to manipulate a floppy piece of twisted wire. Few people know that higher level martial artists aspire to the same ability to be soft and to give an opponent no feel of where to put their force. The other normal tendency is for a male officer to be very hesitant to hurt a female. So, while trying not to hurt a female, you are faced with a wildly twisting and often wildly swinging entity. In the process, a male officer often simply tries to catch the female's swinging or slapping arms. Another little known fact is that some advanced martial arts systems teach attacks that involve slapping movements like those often instinctively used by females. These rapid, slapping motions are hard to defend. I have been in a seminar where older males and females were able to break boards with slapping strikes similar to those encountered by a slapping female. Case 1:19-cv-00901-WJM-NRN Document 142-2 Filed 01/04/21 USDC Colorado Page 6 of 7 The takedown by Officer Klamser is dramatic for several reasons. The first is that he does it quickly and forcefully to avoid it being resisted. Second, Officer Klamser outweighs Ms. Surat by a substantial amount. Most importantly, Ms. Surat is standing on tall high heels that elevate her above the ground and make her center of gravity much higher than normal. Usually, when executing this type oftakedown, the officer uses the hand at the elbow to push upward initially and then forward and down. You will find reference to this fact in the description of the rowing arm takedown in the Fort Collins Police training materials. This upward push, or lifting, is to raise the suspect's center of gravity and basically uproot the suspect. In the process, the suspect's arm and shoulder hopefully begin to roll over. Ms. Surat already was basically standing on stilts and would have descended from there. I am certain that none of the officers were trained how to do the takedown on a female in high heels. I would imagine that it was a surprise to Officer Klamser how quickly Ms. Surat descended to the ground. (3) Mr. Montgomery is correct in his assertion that the Fort Collins Police Department's training, policies and practices were the moving force behind Officer Klamser's actions. Officer Klamser's actions were directly in line with his training and the policies and practices of the Department. From my experience, I found no deficiencies in the training, policies or practices of the Fort Collins Police Department. (4) Mr. Montgomery states that the training and practices of the Fort Collins Police Department were not in concert with established police practices and guidelines. I cannot agree with this assertion. The demeanor and actions demonstrated by the officers on their bodycams are controlled and very professional. Officer Klamser calmly escorts Ms. Surat to a female officer to try to deescalate Ms. Surat's behavior. He notifies a supervisor and calls for medical very quickly. The follow up investigation by internal affairs is thorough, recorded, and professional. As a former Subject Matter Expert for Arrest Control for Colorado Post, my review of the training records and materials showed the Fort Collins Police Department standards to be far higher than the average police department. In conclusion, I find that Officer Klamser's actions during the entire encounter with Ms. Surat were professional and the force that he used was reasonable, necessary, and appropriate. I believe that Officer Klamser showed great restraint in his physical encounter with Ms. Surat. Respectfully, Donald C. Black Case 1:19-cv-00901-WJM-NRN Document 142-2 Filed 01/04/21 USDC Colorado Page 7 of 7