JEFFREY L. ASHTON STATE ATTORNEY LinbA DRANe BURDICR NINTH JUDICIAL CIRCUIT ORANGE AND OSCEOLA COUNTY, FLORIDA car sceenmnalinno October 2, 2015 Reference: Investigation type: Use of Force Case Review SAO Use of Force Case Numbers: 2015-UF-00014 & 00015 SAO Investigative Review Case Number: 2015-IN-000043 FDLE Investigation Number: OR-27-0222 SAO Criminal Court Case Number: 48-2015-CF-007576-A-O OPD Criminal Case Number: 2015-00230095 Officers Involved: OPD Officer David A. Crvz (UF-00014) OPD Officer Charles L. Mays (UF-00015) Suspect Noel Oliver Carter Reporter: Chief Investigator Wim. Eric Edwards Office of the State Atlorney, Ninth Judicial Cireuit of Florida Recormendation~ Forward to State Atlomey Jeffrey Ashton for his review On August 26, 20/5, the 51 Attorney's Office received a Use of Force case investigation report authored by Special Agent Stephen A. Brenton of the Florida Department of Law Enforcement (FDLE). A thorough review was conducted of the investigative packet submitted by Special Agent Brenton. The following excerpt is taken from his report narration This investigation revealed that on June 4, 2015 at approximately 21:50 hows, OPD Officer David Craz, while warking an off-duty detail at Club Venue S78 (378 N. Orange Avenue), was informed of an altercation benveen Noel Carter and Joanie Espejo, on N. Orange Avenue just north of Concord Sireet. Officer Crus, began investigating this inciden: uy u domestic related disturbance. as «result of their investigation, Officer Cru: end Officer Mays, wha was «also working off- duty at Ciah Venue $78, atempted ta tke Carter info custody. During the attempi, several use of force techniques were utilized by Officer Cruz and Officer Mays, including ley strikes. buton, and eleetronic control device (Taser), and chemical spray .. (Emphasis added) Page tof 15 415 NORTH ORANGE AVENUE - PO, BOX 1673 - ORLANDO, FLORIDA 32801This writer reviewed the applicable sworn police reports, in the order in which they were authored by Officer Cruz and Officer Mays by date. In the ICJIS Arrest Affidavit authored and submitted by Officer Cruz, which is dated 06/04/2015, he reported, “ witnessed Carter grabbing and pulling Espejo while she was attempting to walk away from him.” (Emphasis added) According to the arrest affidavit, Officer Cruz provided Mr. Carter with a verbal instruction, “... to not go over to Espejo.” Mr. Carter purportedly failed to comply with the instruction as he stated, “! am going fo speak with her and your [sic] not going to stop me.” The following excerpts are taken from the charging affidavit: At that point I grabbed Carters (sic] left arm and placed it behind his back and stated to him he was under arrest. Carter tensed up and failed to listen to my and Officer Mays lawful commands. Officer Mays and I were in our issued Orlando Police Uniform displaying badge and insignia |sic}. Carter physically resisted our commands which resulted in a foot pursuit and officer Mays being battered by Carter. Officer Mays and I used force in order to counter Carters [sic] resistance and to arrest him, (Emphasis added) Sgt. Gillespie (13679) was notified of the incident and responded to complete a response to resistance report. (Victim Joanne] Espejo, [witness] Vaughan Daley and [witness] Paul Thomas all completed sworn written statements. This report was generated without the assistance of review of surveillance video. Officer Cruz clearly inforinied of the fact there was force”utilized while taking Mt. Carter into. custody.” Officer Cruz also memorialized the fact Orlando Police Sergeant Gillespie was notified and responded to the scene. Members of the Orlando Police Department collected sworn written statements from the aforementioned victim and witnesses. In the sworn written statement provided to the Orlando Police Department by Mr. Vaughan Daley on June 4, 2015, he reported, “/ witnessed a male and a female arguing at the corner of Concord and Orange, I notified the officer (Officer Cruz] of what seemed to be an altercation.” In the sworn written statement provided to the Orlando Police Department by Mr. Paul Samuel ‘Thomas on June 4, 2015, he reported, “/ seen [sic] the officer tell kim to back upl.] The guy did not{.| He stared to fight back{.] The officer masced {sic] him{.] He still was fighting back(.] Then he tazed his an [sic] the guy started running| In the swom written statement provided to the Orlando Police Department by Miss Joanne Espejo on June 4, 2015, she reposted, “My friend did not cooperate but it was because of Lwas arguing with him to leave me alone and he didn't listen.” (Emphasis Page 2 of 15Note: On June 8, 2015, Mr. Andrew Owens Taylor provided the Orlando Police Department with video taken, via a cellular telephone, while he witnessed portions of the aforementioned events. Mr. Taylor also provided a sworn written statement. ‘The following excerpts are taken from his statement: As I was on the patio I saw the white female walk out of the club followed by the black male a few steps behind, They seemed to be having a disagreement, The black male jogged after the female across Concord Street. A few minutes went by without seeing the male or the female, Then I heard a commanding voice say back up. I noticed the voice was coming from a Orlando Police Officer standing in between the white female and the black male. .. .. The white officer went to detain tke suspect and the suspect pulled away. The officer went to grab the suspects [sic] hands that were on top of his head. As the white officer grabbed the suspects hand the suspect pulled away and the officer went to take the suspect to the ground, The officer almost had the suspect to the ground when the suspect hopped away from the officer. ... (Emphasis added) I started another video just as the white officer went to deploy his taser. The suspect seemed not effected by the taser and went and ran away from the white officer east toward Orange Ave. As the suspect ran toward Orange Ave the black police officer used his night stick [expandable baton] on the suspect striking him across the upper arm near the shoulder. The suspect was not phased (sic} by the officers (sic) strike. Both officer[s] were commanding the suspect to the ground, The suspect still refused to obey officers [sic] commands, The white officer deployed his pepper spray on the suspect and the suspect continued to ignore officers [sic] commands. ... I saw the suspect take off running past both officers north down Orange Ave. ... (Emphasis added) In the Orlando Police Department Mield Report authored and submitted by Officer Cruz, which is dated June 9, 2015, Officer Cruz provided more detailed information regarding the events surrounding the arrest Mr. Carter on June 4, 2015, ‘The following excerpts are taken from the document: I was notified by Club Staff Vaughan Daley there was an altercation occurring down the street... I witnessed Carter grabbing and pulling Espejo while she was attempting to walk away from him. ... 1 spoke with Espejo, who stated Carter was intoxicated and they had been arguing because they had just broken up after being together for the last two years. ... asked Espejo why Carter was grabbing her, Espejo stated because he was intoxicated and did not want her to leave. (Emphasis added) Officer Mays (6702), who was in the back parking lot walked up to assist me. After 1 was done speaking with Espejo, 1 went over to Carter to speak with him. Carter attempted to walk back over to Espejo. 1 stated to Carter to not go over to Espejo. Carter stated “I am going to speak with her.” I stated to Carter he could Page 3 of 15not, and Carter again stated I am going to speak with her and you re {sic not going to stop me”. [sic] At that point I grabbed Carter's left arm and placed it behind his back and told kim he was under arrest. Carter tensed up and failed to listen to my and Officer Mayss lawful commands. J attempted to place Carters {sic] left arm behind his back 10 secure him with my handcuffs. Carter tensed up and attempted to pull his arm away from me while I tried to handcuff him I heard Officer Mays yell “Spray.” “I bear hugged Carter and turned my face down and away in order to not be affected by the spray. I then released Carter and Officer Mays conducted a burst of spray on Carter. ... 1 again attempted 10 grab hold of Carters [sic] arm, which he forcefully pulled away. I pushed Carter’s body down to the ground by using my shoulder and body to move him to the ground in order to stop him from walking away and to arrest him. I knocked Carter on his buttock and again yelled at him 10 stay on the ground and to place his hands behind his back. I attempted to grab hold of Carter, but he pulled away. (Emphasis added) Carter then stood back up. I un holstered |sic] my issued Orlando Police Taser +#X00-591354 and pointed it at Carter. Carter turned to the side while I deployed my Taser. The Taser did not have the desired effect, Carter continued to walk away. Ireloaded my Taser Cartridge and again attempted to deploy my Taser at Carter but it once again did not have the desired effect. Carter walked over to the corner of Concord St and Orange Ave. I attempted to conduct a contact Tasering {sic] on Carter but it did not have the desired effect. Carter turned towards me and attempted to grab my Taser. (Emphasis added) Note: As Mr. Carter resisted Officer Cruz, witness Andrew Owens Taylor was recording portions of the event with his cellular telephone. This still image was taken from the video provided by Mr. Taylor. Page 4 of 15I then un holstered (sie] my Orlando Police issued Saber Red spray. I conducted a 2-3 second burst towards Carter's head. The spray made Carter lower his head, and I again attempteil to grab Carter and pull his body towards the ground in order to secure and arrest kim, When I attempted to pull Carter's body towards the ground he used momentum to swing his body around, break loose away from me and take headlong flight running northbound on Orange Ave. (Emphasis added) Officer Mays and I pursued him on foot, While I was running, I could feel the effects of the Saber Red spray in my eves and was feeling a painful burning sensation in my eyes. Carter ran approximately 100 yards, bumped into a car and crossed Orange Ave onto the east side of the street and sat on the curb. Officer Mays and I caught up and yelled at him to place his hands behind his back, Carter was sitting up with his head down and failed to comply with our lawful orders to place his hands behind his back and to get on his stomach. Carter lunged towards Officer Mays and I then extended my Orlando Police issued baton and struck Carter on his right arm between his triceps and shoulder approximauely five times, Two strikes struck him on his forearm due to him moving his arm. I then re holstered [sic] my baton since it did not have any effect on Carter. . (Emphasis added) I continued yelling at Carter to place his hands behind his back and to get on his stomach, I feared Carter would regain power and get back up and attempt to fight Officer Mays and me. I'was also feeling the effects of Sabre Red in my eyes, possibly rendering me defenseless if the effects became too strong. 1 lowered my body behind Carter and attempted to restrain him using my legs and arms so he would not get up and fight us, and also allowing time for backup to arrive and help us. Iwas able to hold Carter down but he then broke away from my grasp and attempted to siand up but sat back down on the curb, Iseraped my left arm near my elbow and my left knee on the concrete when he broke away from my grasp, My arms ancl legs were also smothered in Sabre Red, which was on Carter and had transferred to me. (Emphasis added) At this point Taser, baton strikes and chemical agent did not have any effect on Carter. Due to Carters [sic] upper body strength he could nor be detained and was still actively resisting us, 1 decided to deliver foot strikes using the top of my foot, in order to maintain distance and in hopes Carter would comply. I stood up and began delivering several kicks with my right foot to Carters [sie] right arm in benween his elbow and shoulder white telling him “Stop Resisting”. (sic] The kicks did not have any effect on Carter, Officer Mays then Tasered {sic] Carter and he then laid [sic] on the ground, .., Carter finally listen [sic] to my commands and I was able to handcuff him using the prone handcuffing position. . (Emphasis added) Page 5 of 15The aforementioned kicks/strikes were recorded by another witness utilizing a cellular telephone. This video also captured Officer Mays deploying his Taser, at which time Officer Cruz provided verbal commands for Mr. Carter. Mr. Carter then rolled to his stomach, at which time Officer Cruz secured him in handcuffs. In the Orlando Police Department Field Report-Narration Supplement report authored and submitted by Officer Mays, which is dated June 15, 2015, he provided additional information, The following excerpts are taken from the document: .. Upon my arrival I observed Officer Cruz speaking with an [sic] Hispanic female, Officer Cruz stated to me he observed the male using physical force against the Hispanic femaie. .. Officer Cruz asked the male (o leave the area of Verue 578. The male replied, “I’m going to talk to her”, while moving between myself and Officer Cruz towards the Hispanic female. ... Officer Cruz with an open left hand prevented the mate from going in between us toward the Hispanic female. ... Officer Cruz then told the male, “Put your hands behind your back ‘you've under arrest”. [sic] The male didn’t comply by tensing his arm and refusing fo follow Officer Cruz's verbal commands. ... The male then pulled his arms away from Ofe. Cruz. I deployed Sabre Red chemical agent for approximately 1 second. The male did not seem to be affected by the chemical agent, The male then walked away from us, (Emphasis added) Ofe. Cruz deployed his Taser on the male, which did not take effect. The male walked towards me, and I became concerned that he was going to batter me, I extended my ASP baton, and struck him on his lefi bicep. I attempted to strike him again, and he raised his left arm and blocked the strike. Ofe. Cruz reloaded his Taser and deployed it again, striking the male. Again, it had no effect. (Emphasis added) The male attempted to walk away from us, and Ofe. Cruz deployed his chemical agent. Ofe. Cruz then tackled the male, The male pushed Ofe. Cruz off of him, and began running northbound on Orange Av, The male ran northbound on the west sidewalk approximately 75 yards, and then crossed Orange to the east sidewalk. Ofe. Cruz and I continued to give verbal commands, which the male did not comply with. Ofe. Cruz again attempted to handeuff the male, who again resisted by tensing and moving his arms in an attempt to escape from Ofe, Cruz’ grasp. Ofe. Cruz and the male fell onto the sidewalk, and the male was on top of Ofe. Cruz. I got on top of the male in an attempt to get him off of Ofe. Cruz, by grabbing his arms. The male then punched me in the chest with a right open hand, The male sat up, and I stood up. (Emphasis added) Page 6 of 15Ltold Ofe. Cruz that I was going to deploy my Taser, and I Tasered [sic] the male. He laid on the sidewalk and attempted to pull the prongs from his chest, I then deployed the Taser for a second cycle in order to keep him from ripping the prongs out. The male was able to pull the prongs out, I then reloaded, and Tasered [sic] the male again. He laid back down, sat back up, and attempted to pull the prongs out again. I then deployed my Taser for a second cycle. (Emphasis added) Ofe. Cruz then kicked the male several times in the arm, while giving verbal commands. The male still did not comply, and I deployed my Taser for a third ayele, and the male finally followed commands and got on his stomach. He was then handeufjed .. On June 17, 2015, FDLE Special Agent Brenton collected a swom recorded statement from Orlando Police Sergeant Andrew Gillespie, Sergeant Gillespie responded to the scene of the aforementioned incident on June 4, 2015. He conducted the initial investigation regarding the officer’s responses to resistance/use of force, Special Agent Brenton and Sergeant Gillespie methodically discussed each of the response to resistance/use of force events. Sergeant Gillespie recalled observing eight (8) identifiable “puncture wounds” he believed were caused by Taser prongs striking Mr. Carter during the course of the overall encounter. Sergeant Gillespie was very articulate and portrayed a clear understanding of each of the response to resistance/use of force occurrences he was tasked to review. ‘The following information is taken from an investigative report supplement authored by Special Agent Brenton: SA Brenton asked Sergeant Gillespie about the chronological order of each response to resistance in this case. Sergeant Gillespie indicated the following as to the order of the response io resistance on Carter by each officer: Officer Cruz 1) Use of Taser electronic control device 2) Use of Sabre Red chemical spray 3). Use of ASP baton 4) Use of leg strikes Officer Mays 1) Use of Sabre Red Chemical Spray, in response to resistance by [sic] 2). Use of ASP baton, in response to resistance by Carter 3) Use of Taser electronic conirol device (multiple times) Sergeant Gillespie approved of each response to resistance event by Officer Cruz and Officer Mays. ... SA Brenton asked Sergeant Gillespie how he based his decision on the justification of Officer Cruz and Officer Mays actions, and Sergeant Gillespie stated “basically it's a policy and the objective reasonableness of the actions performed by the officers.” ... (Emphasis added) Page 7 of 15(On June 23, 2015, FDLE Special Agent Brenton collected a lengthy sworn recorded statement from Noel Carter. During the course of the interview Mr. Carter reported, “Officer Cruz approached us and requested, or essentially demanded that we come back across the street to the venue. Um... was kinda reluetant to do so, Uh, he kinda grabbed my arm and pulled me along a little bit.” (Emphasis added) ‘The following are relevant quotes of statements made by Mr. Carter during the course of the FDLE investigative interview. 09:42 — “Ar that moment Ojjicer Cruz put my arm behind my back, um, and I said, ‘we're just talking, ya know, can you let me just talk to her?’ Um, he released my arm and at that moment I put my hands up just to show that I'm not a threat. Um, I didn’t want them 10 escalate the situation beyond what it was. I was just having a conversation with my ex- girlfriend, um, about a disagreement we were having that particular night,” (Emphasis added) 10:50 ~ “I was disoriented; J was struggling to regain my senses. They attempted to throw me to the ground. Ldidn’t go to the ground, Fortunately enough I was still able to regain my balance. Um, and then I approached the woman Joanne who was standing, ah, close to the VIP entrance. Just wanted to talk to her and just finish the conversation at that point. Um, when I went back over to her, Officer Cruz got between us and when he got between us, I continued to try and go towards Joanne. That's when he pulled his Taser out.” (Emphasis added) 15:22 ~ “I don’t remember telling them to stop, I was being compliant, I had my hands up. And he continued to kick me, I just remember telling him to, ‘Stop, man, stop.’ Like, I'm done. I gave up.” (Emphasis added) 19:08 ~ “Was I drunk? No, Was I intoxicated? No. Was I aware of what was going on? Yes, And once I was pepper sprayed ! was completely ... Iwas completely, surprised, By how quickly the situation had escalated, especially when I was being compliant.” (Emphasis added) 27:35 ~ When asked if there was ever a point in his conversation with Joanne Espejo that may have been perceived by others as being a heated argument or altercation, Mr. Carter informed, “Um...to my knowledge, no. But, I'm in the moment and I'm talking 10 her. Um, she’s very animated, um, when it comes to disagreement and in situations of that nature, I try to be subdued and not raise my voice, so on the outside to somebody, yeah, Umi, it definitely, it probaiily looked like we were having a disagreement, Um, but to me, it was just a conversation I was trying to have with my ex-girlfriend, um, just to kind of come fo a conclusion of what's going on? Why am I here?” (Emphasis added) 32:02 — “Um, I think in this particular instance, um, I think that the officer interjected in the conversation that he didn’t necessarily need to be involved in." Page 8 of 1538:22 ~ “Uh yeah, He [Officer Cruz] had to coax me along, just because I didn't, at that point, when the officer became involved, I didn't wanna have the conversation with her anymore. But he kinda pulled my arm and kinda pulled me across the street, Didn't pull me across the street, but kinda coaxed me to go back across the street. So, I went back across the street and stood by the pole,” (Emphasis added) 39:10 ~ “I'm like, ‘What are you doing?’ I think is what I asked him. I'm like, it was a conversation between her and 1. I didn't feel at that point that we needed any, um, interjection from a 3™ party." 43:15 - Mr. Carter was asked what he thought Officer Cruz was doing as he attempted to place his hands behind his back; Mr. Carter stated, “Um, just restraining me so I couldn’t go over there to talk to her (Joanne Espejo}. ” (Emphasis added) 44:44 ~ When asked if he believed he was being arrested, Mr. Carter stated, “No, definitely not. For having a conversation with my ex-girlfriend outside of a club? Um, no. I don't think I could be arrested for that. 1 didn’t think 1 could be arrested for that.” 48:15 — When asked if he ever pushed, tried to get away from, or resisted Officer Cruz, Mr. Carter replied, “No. I had my hands up. If they wanted, if their goal was to arrest me, they could've came up, put the cuff on me. I don’t know the procedure, but if I have my hands up and i'm being compliant, why am I being shoved? Why am I being bear hugged?” 49:56 — “Because I wasn’t drunk, I wasn’t intoxicated. I was coherent to the point where Pm realicing that this guy (Officer Cruz] is mying to throw me to the ground. And 1 didn't lose my balance because I wasn’t drunk and I wasn't intoxicated,” (Emphasis added) 50:20~ "had my arms up, and [ remember he went to grab my arm and then he lei go of my arm and I felt his right arm come around me so I kinda tensed up, just because 1 didn't know what he was gonna do at that point. And then he wrapped both of his arms around me ~ my arms are still up ~ and he attempted to sling me down,” (Emphasis added) 50:45 — “Um... I’m sure when I put my arm up, um and he {Officer Cruz] grabbed my arm... anytime someone grabs you, you're gonna have a flinch, And I flinched, and 1 guess that kind of gave him reason to let go, But other than that I didn’t fight him 0 get ‘my arm free, he let go. And from there, I put both of my arms up instead of just having my right arm up.” (Emphasis added) 54:38 - FDLE Agent Brenton asked Mr. Carter, "Would you say that you were resisting the fact that, of being taken to the ground?" [sic] Mr. Carter responded, “Ummmm .. (very long pause) at that moment, I wasn't aware ~ after I was pepper sprayed, I just know I needed to stay on my feet because I know the situation could've gotten @ lot Page 9 of 15worse, I wouldnt say I was going to resist going to the ground, I was resisting going to the ground in the manner that he was attempting to put me onto the ground ... wouldn't say I was resisting. I would say I was still compliant, um, to what they were asking me with my hands in the air." (Emphasis added) 1:02:35 - When FDLE Agent Gill asked Mr. Carter if Officer Cruz or Officer Mays made any statements to him, Carter replied, "Get on the ground.’ That’s when they started to tell me to get on the ground. ... That's when they both started to tell me to get on the ground. ... Cruz a lot more aggressively then Mays. Mays was a little more subdued. Cruz was heightened and aggressive and was telling me ~ yelling - ‘Get on the ground!"” 1:04:26 -“ got back up after Officer Mays hit me a few times with the baton...I was being pepper sprayed by Officer Cruz as I was going to the ground and I was on the ground. He continued to pepper spray me. I was thinking the whole time, ‘Why am I being pepper sprayed if they're asking me to get on the ground, and I'm on the ground?" Once he stopped pepper spraying me, Officer Mays approached and hit me with the baton a few times. I don't remember exactly know how many, but at that moment, that’s when I knew I was definitely in fear of my life and I got up and I ran.” (Emphi added) 1:12:55 - When asked why he ran, Mr, Carter stated, “Because Officer Mays was striking ‘me with the baton. Um, I was already on the ground. I was being compliant and in that moment I was in fear for my life. I had been pepper sprayed; I had been shoved; I had been pushed; I had been hit with a baton, or blunt object, And if I'm on the ground complying and you're gonna beat me more, um, as a human being I'm strictly opposed to getting beat in the street by anybody. It doesn't matter if you're an officer, or it doesn’t matter ifyou're another citizen. If you're gonna stand over me and beat me, I'm gonna do everything I can to protect my livelihood, to protect myself, and to rid myself of that situation." (Emphasis added) 1:13:57 - “When I was running and I heard them chasing me, that's when I stopped. Because I realized, ‘Oh shoot!” they are chasing me. Um, and I stopped. Simply because, um, at that moment I had already known, um, that I had been hit multiple times with a forceful object. Um, they had attempted to taze me; I heard the crackling sound, Um, they had pepper sprayed me; I was disoriented enough and irying to catch my breath, um, that I didn't wanna get further down the street and for them to assume that I was drawing them in or putting them in some type of situation where they were gonna draw their gun and shoot me, Um, so at that moment I came to my senses and I decided to just get on the ground, comply, put my hands in the air so didn’t get shot." (Emphasis added) 01:40:59 - “They saw that I wasn’t going to be shoved to the ground, um, so yeah, they wanted 10 continue to brutalize me. It's not necessarily gaining the upper hand; it was just kind of slowly brutalizing me. Um, pepper spray me a little, Beat me a little. Pepper spray me a little more, Taze me a little more. Beat me a litle more. It was a long, drawn out process, There was no attempt to arrest me, There was no attempt to detain me or Page 10 of 15restrain me. Um, they could have easily done that numerous times with my hand in the air. They made an attempt to provoke me by shoving me and by slinging me to the ground, and if you want to use the term by, ‘getting an upper hand,’ by using the devices they used against me. You understand the clarification I'm making here? There was no attempt to arrest me, There was an attempt to brutalize me and beat me in the street (Emphasis added) CONCLUSIO! This review was conducted in order to determine if the actions of Orlando Police Officers David A. Cruz and Charles L. Mays violated any Florida State Statutes, pertaining to the manner in which the officers utilized force while responding to the resistance presented by Mr. Noel Oliver Carter, at the time of his arrest on June 4, 2015. Note: The State Attorney's Office of the Ninth Judicial Circuit of Florida presently has seventeen (17) swom law enforcement officers. The Orange County Sheriff's Office Training Division provides State Attorney’s Office Investigators with up-to-date high liability training within the current guidelines established by the Florida Department of Law Enforcement, training such as defensive tactics and use of force techniques. Each State Attorney’s Office Investigator is required to have a clear understanding of the eurriculum pertaining to the Orange County Sheriff's Office Use of Force Matrix, and apply the same if and when faced with a defensive tactics use of force scenario; therefore, this Use of Force Matrix information is being referenced for the purpose of comparable clarification in the following narration. ‘The following information is taken from the Use of Force Matrix! and utilized in an effort to interoperate the reported actions of Mr. Carter, Officer Cruz and Officer Mays on June 4, 2015. This following information is comparable to that of the Orlando Police Department’s Response 10 Resistance and Apprehension Techniques Policy and Procedure, which is also within the current guidelines established by the Florida Department of Law Enforcement. Subject Resistance Levels (x6) Level 3: Passive Physical Resistance ~ slight physical harm: A subject physically refuuses to comply or respond to an investigator’s command. He/she does not make any attempt to physically defeat the actions of the investigator but forces the investigator to employ physical maneuvers, chemical agent to establish control Note: Based on the information available, this includes reports, statements and video footage of portions of this use of force/response to resistance event; initially, Mr. Carter was Passively Physically Resisting Officer Cruz as he provided verbal instructions, (Emphasis added) The aforementioned document is memorialized as attachment number one (1). Page 11 of 15Level makes Active Physical Resistance ~ slight to moderate physical harm: A subject physically evasive movements to defeat an investigator’s attempt at control, This may be in the form of bracing or tensing, attempis to push/pull away or not allowing the investigator to get close to hinvher. (Emphasis added) Note: Based on the information available, this includes reports, statements and video footage of portions of this use of force/response to resistance event; on several occasions Mr. Carter was Actively Physically Resisting the uniformed officer’s attempts to take him into custody. (Emphasis added) Mr. Carter braced, tensed and pulled away. Mr. Carter reportedly pulled Electronic Control Device (Taser) prongs from his person during the course of this event. Level 5: Aggressive Physical Resistance ~ moderate physical harm: A subject makes overt, hostile, attacking movements which may cause injury, but are not likely to cause death or great bodily harm to the investigator or others. Note: Based on the information available, this includes reports, statements and video footage of portions of this use of force/response to resistance event; on several occasions Mr. Carter was Aggressively Physically Resisting the uniformed officer’s attempts to take him into custody. (Emphasis added) Mr. Carter attempted to grab the Electronic Control Device (Taser) being utilized by Officer Cruz. (See page four (4) of this report narration) At one point Mr. Carter was on top of Officer Cruz, at which time he struck Officer Mays with an open hand. Officer Response Levels (x6) Level 3: Physical Control ~ slight potential for physical harm: Chemical Agent Individual Protection Deviee: Aerosol spray agent used to subdue a subject. Take Downs: Techniques that redirect, in a controlled manner, a subject to the ground in order to limit his/her physical resistance and to facilitate the application of a restraint device. Counter Moves: Techniques that impede a subject’s movement, such as blocking, striking, distracting, kicking, parrying, dodging, weaving, re- directing, ot avoiding, followed by appropriate controlling techniques. Level 4: Intermediate Weapons/ECW — slight to moderate potential for physical harm: Impact Weapons that are primarily used to contro] a subject such as an expandable baton or side handle baton. (Emphasis added) Page 12 of 15Level 5: Ineapacitation - moderate potential for physical harm: Techniques that are intended to stun or render a subject temporarily unconscious or unable to resist. These techniques may be delivered with or without an impact weapon, such as a strike to a major nerve area. (Emphasis added) Note: The Level of force utilized by arresting offiver(s) should be at a Level equal to or less than the Level of resistance being presented by a suspect(s). Officers are required to constantly evaluate/re-assess and adjust their level of force/response to resistance based on the actions of the suspect(s). Graham v. Connor, (U.S. 1989), provides several fundamental topics to consider which are referred to as the “Graham Factors.” The “Graham Factors” were taken into consideration while conducting this review. The following excerpts are taken from a relevant article’ Graham v. Connor (US 1989) [sic] is the landmark US Supreme Court case that defines reasonable use of force by police officers in the line of duty, All officers are taught about this case in the academy; most are periodically reminded of it throughout their careers. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the “20/20 vision of hindsight." BL.) The severity of the crime at issue, #2.) Whether the suspect poses an immediate threat to the safety of the officers or others, and #3.) Whether ke is actively resisting arvest or attempting to evade arrest by flight. The question is whether the ‘totality of the circumstances’ justifies a particular use of force applied irt the situation. The most important factor is #2—whether the suspect poses an immediate threat to the safety of the officer or others.” ... (Emphasis added) Note: “... SA Brenion asked Sergeant Gillespie how he based his decision on the justification of Officer Cruz and Officer Mays actions, and Sergeant Gillespie stated ‘basically it’s a policy and the objective reasonableness of the actions performed by the officers.’ ...” (Emphasis added) (See page seven (7) of this report narration) 2 The aforementioned article is memorialized as attachment number two (2) and can be located by visiting: hutp:/Mlanfuluse.com/graham-v-conner-the-graham-factors/ Page 13 of 15‘The following Florida State Statutes were taken into consideration by this writer. FSS, 843.01. Resisting officer with violence to his or her person Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.101), 2), 8). (8). 7). (8). or (9): member of the Parole Commission or any administrative aide or supervisor employed by the commission; parole and probation supervisor; county probation officer; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s, 775.082, s. 775.083, or 8, 775.084. (Emphasis added) F.S.S. 776.05, Law enforcement officers; use of force in making an arrest. A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force: (1) Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest; (Emphasis added) FSS. 776,051. Use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition, (1) A person is not justified in the use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer. (Emphasis added) On June 4, 2015, Orlando Police Officer David A. Cruz was working in an off-duty capacity when he was called upon to respond to a disturbance. Officer Cruz was in his issued police uniform when he made contact with Noel Carter and Joanne Espejo. Officer Cruz later documented in his arrest affidavit, “I wimessed Carter grabbing and pulling Espejo while she was attempting to walk away from him.” (Emphasis added) Officer Cruz provided Mr. Carter with verbal directives in an effort to keep him away from Miss Espejo. Officer Mays, also in an issued police uniform, responded to assist Officer Cruz, During the course of his investigation, Officer Cruz determined he was going to arrest Mr. Carter. Officer Cruz grabbed Mr. Carter in an effort to place his hands behind his back and informed him of the fact he was being placed under arrest. Mr. Carter resisted the officer's attempts to take him into custody. Page 14 of 15‘The manner in which Mr. Carter actively and aggressively physically resisted is memorialized collectively by sworn statements, sworn police reports and video footage. The actions of Mr. Carter led to Officer Cruz and Officer Mays utilizing several use of force/response to resistance techniques. In the opinion of this writer, each of the aforementioned use of force/response to resistance techniques was utilized as a direct result of Mr. Carter’s actions, Given the totality of the circumstances at the time of this incident, each use of force by Officer David A. Cruz and Officer Charles L. Mays were reasonable and justified, and therefore, lawful. The findings of this review will be forwarded to State Attomey Jeffrey Ashton for his review and consideration. 1 swear that the above statements are true and correct: Uy. Ga Ebxant——~ to/a)r016~ Wm. Eric Edwards, Chief Investigator Daté robiowed/signed Office of the State Attorney, Ninth Judicial Circuit 415 North Orange Avenue Orlando, Florida 32801 407-836-2400 Page 15 of 15