Use of excessive force causes woman to lose sight

Last week, a former Beaumont, California police officer faced trial on criminal charges stemming from his use of a “less-than-lethal” weapon during the arrest of Monique Hernandez.  In February 2012, the officer, Enoch Clark, pulled Ms. Hernandez over on suspicion that she was driving under the influence of alcohol.  As the stop progressed, the officer decided that he would arrest Ms. Hernandez.  Witnesses reported that when Officer Clark told Ms. Hernandez she was under arrest, she placed her hands behind her back and said that she was not resisting arrest but questioned the reason for her arrest.  According to the deputy district attorney prosecuting the case, Clark later told detectives who investigated the case that Hernandez was attempting to get away from him, that he was afraid for his life and that he was afraid Ms. Hernandez would gouge his eyes out.  However, the deputy district attorney questioned the accuracy of those statements and indicated that video of the incident tells a different tale.  The Daily Bulletin quotes Deputy District Attorney Mike Carney as saying, “Officer Clark was not having to fight her off. He was losing patience with her.  He was getting annoyed with this woman because she would not submit to his will.”

According to reports on the case, Officer Clark told Hernandez to stop resisting or he would “JPX” her, and when Hernandez said she was not resisting, Clark pointed a JPX Jet Protector Pepper Gun at her face and fired.  According to the JPX Pepper Gun manufacturer’s website, the JPX Jet Protector Pepper Gun is a double-barreled pistol which fires an OC solution (a gel form of pepper spray) at 405 miles per hour and has an effective range of up to 23 feet.  According to reports, testimony in the case revealed that the JPX user’s manual states that the minimum safe distance to fire the weapon at a target is 1.5 meters, about 5 feet, away from the target, yet Officer Clark fired the weapon at Ms. Hernandez’s face from a distance of about 10 inches away.  The results from firing the weapon at such a close proximity were disastrous.  Reports indicate that the blast of OC gel sliced Ms. Hernandez’s right eye in half, damaging her right cornea, fractured her right orbital bone and severed the optical nerve in her left eye, rendering her permanently blind.  Ms. Hernandez has reportedly filed suit against both Officer Clark and the police department which employed him at the time of the incident.

With the recent development of frequent use of “less-than-lethal” weapons by police departments, courts are deciding questions of whether the force used to make arrests was excessive under a new set of circumstances.  Past court decisions have held that officers are permitted to use “reasonable” force to secure the arrest of a suspect.  In each case, determining whether the force used by police officers was “reasonable” is a largely fact-based issue.  Courts make an objective determination of whether the force used to seize a suspect was reasonable by balancing several factors, including the nature and scope of the force used against the suspect, the government’s interests in making the arrest, the facts and circumstances of each case, the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether the suspect is actively resisting arrest or attempting to flee.  Past decisions have also made clear that officers may use deadly force to prevent the escape of a fleeing suspect where the officers have probable cause to believe that the suspect poses a threat of death or serious physical harm to the officers or others.  As with other uses of force, the use of OC spray and other less-than-lethal weapons has been held to be excessive under certain circumstances.  Certainly, there is a valid question as to whether the officer’s use of the JPX gun, in this case, amounted to an excessive use of force.  It will be interesting to see whether Officer Clark is convicted of crimes for his actions in this case and whether Ms. Hernandez’s suit against Officer Clark and the police department will be successful.