The fact that this guy is a former FBI agent…a politically corrupt bureau……makes no difference. He’s a former cop and his judgment concerning the police SHOULD BE SUSPECT BY THE PRESS….how can this reporter and her editor not know this?
FCPD auditor--a former FBI agent--finds no violation in police officer’s use of Taser on suspected pot dealer that led to broken nose, dislodged teeth
· By Angela Woolsey/Fairfax County Times
· Jan 12, 2018 Updated Jan 12, 2018
A Fairfax County police officer who used an electronic control weapon when confronting a man suspected of planning to sell marijuana did not violate any laws or department policies, Fairfax County Independent Police Auditor Richard Schott concluded in a review of the Fairfax County Police Department’s (FCPD) internal investigation.
Published on the independent police auditor’s webpage on Dec. 29, Schott’s report of the Apr. 14, 2017 incident is the first one that his office has released since the veteran FBI officer officially assumed the newly created position on Apr. 17 of last year.
The public report’s conclusion is in line with an FCPD internal affairs bureau investigation that determined the officer, identified as Sgt. David Giacio, had complied with the department’s use-of-force policy when he administered an electric shock to a man identified in the report as Sean Smith.
“I agree with the findings of the FCPD that Giacio’s deployment of his ECW [electronic control weapon] against Smith was reasonably necessary to lawfully effect the arrest of Smith and to defend himself; and, therefore, complied with departmental policy,” Schott said in the 14-page report.
According to the auditor report, the FCPD organized crime and narcotics unit had planned to arrest Smith on Apr. 14 after learning that he had agreed to sell two pounds of marijuana to an individual at Sweetwater Tavern in Falls Church.
The police department’s street crimes unit initiated an arrest after positively identifying Smith when he arrived at a parking lot next to the tavern.
When one of the unit’s members verbally identified himself as a police officer, Smith ran away from him and toward Giacio, another member of the arrest team.
After attempting to stop Smith by aiming his electronic control weapon and flashing red lasers as a warning, Giacio hit the other man in the front torso with one five-second cycle of the device, which deploys a burst of battery-powered electrical energy strong enough to cause sensory and neuromuscular incapacitation.
Smith, who was within five to eight feet of the officer when he was shocked, lost physical control and fell forward in the parking lot. His nose was broken in the fall and he also sustained a laceration on his forehead. Three of his teeth were also dislodged from the impact of his face hitting concrete, according to police records.
Fairfax County Fire and Rescue personnel arrived within approximately 10 minutes to provide medical treatment and later transported him to Inova Fairfax Hospital after Smith momentarily lost consciousness upon hitting the ground.
Smith did not sustain any debilitating injuries, according to the report.
Fairfax County police served Smith a warrant charging him with the possession of marijuana with intent to distribute on Apr. 15.
The FCPD’s internal administrative investigation, which launched on Apr. 14, found that Giacio acted in compliance with the department’s general order regarding the use of force, which says “force is to be used only to the extent it is objectively reasonable to defend oneself or another, to control an individual during an investigative or mental detention, or to lawfully effect an arrest.”
Schott agreed with the FCPD’s assessment that Giaco’s deployment of his electronic control weapon was reasonable based on the Graham factors, the standard commonly used to determine whether force used by a law enforcement officer was reasonable.
With its 1989 decision in the case Graham v. Connor, the U.S. Supreme Court established safety threats posed to the officer or others, the severity of the crime, and whether the individual was actively resisting or attempting to evade arrest as the primary criteria to be considered when assessing a use-of-force incident.
Schott’s report cites Smith’s 6-foot-2, 210-pound frame in addition to his apparent attempt to run away when police approached to arrest him for a crime classified in Virginia as a Class 5 felony.
According to Virginia Code Section 18.2-10, conviction of a Class 5 felony carries a potential prison term between one and 10 years, or jail confinement up to 12 months and a maximum fine of $2,500, depending on the discretion of the jury or the court if the case is tried without a jury.
Established by the Fairfax County Board of Supervisors on Sept. 20, 2016, the Fairfax County Office of the Independent Police Auditor is charged with monitoring and reviewing internal investigations of FCPD officer-involved shootings, in-custody deaths, and use-of-force incidents where an individual is killed or seriously injured.
The auditor also monitors and reviews administrative investigations into public complaints regarding uses of force.
However, the independent auditor’s office does not have the authority to conduct its own investigations, so as the public report states, Schott’s account of the encounter between Smith and Giacio is based on information given to FCPD investigators by those who were directly involved or who witnessed the incident.
According to the report, Smith told investigators that he had no memory of the incident other than arriving at Sweetwater Tavern before waking up in the hospital the next day.
Schott says that the inability to conduct his own interviews or hear testimony separately did not hinder his ability to evaluate the FCPD’s work.
“My responsibility is to help ensure that their investigation is thorough and accurate and objective,” Schott said. “In this case, I was clearly satisfied that their investigation was thorough and accurate and objective.”
Schott monitored the FCPD’s administrative investigation as it unfolded, which made it easier for him to compile his report and release it promptly.
Though he declined to give the exact date when the internal affairs bureau finished its internal investigation of the Apr. 14 incident, Schott says that the office of the independent police auditor has to release a public report of each investigation within 60 days of its completion.
“I think the way the board set up my ability to monitor the investigation while it’s actually being conducted was very helpful,” Schott said. “Otherwise, I would be reviewing an already completed investigation from scratch. When the investigation was complete, I was already very familiar with it, because I had been monitoring it all along.”
According to Fairfax County Police Chief Edwin Roessler Jr., Schott shared a final draft of the report with him before publishing it online to give him an opportunity to express potential concerns and write a rebuttal, but he had no concerns in this particular instance.
“The officer did no wrong,” the police chief said. “The officer used the appropriate level of force to mitigate the threat of harm, and that’s what Mr. Schott reached as a conclusion, that the force used here was legal and appropriate in accordance with department policy.”
Gaicio remains employed by the Fairfax County Police Department, according to Roessler.
In addition to evaluating the FCPD’s internal investigation, Schott included a pair of policy recommendations in his report but emphasizes that they were not directly related to the specific incident in question.
The independent auditor report recommends that the police department tweak its training to acknowledge that deploying an electronic control weapon against an individual while they are running could cause significant injury.
The report also says that the FCPD should consider developing policies that outline how to determine the reasonableness of an officer’s use of force when the subject was not involved in criminal activity.
“Nationwide, we’re seeing more and more situations where law enforcement officers are employing force in what I would call a non-criminal context,” Schott said. “Hopefully, this doesn’t occur in Fairfax County any time soon, but should it, I think it’s important to at least have the ability for officers to consider…factors other than those Graham factors.”
Schott plans to elaborate on his recommendation in a separate public report titled “Use of Force Policy Recommendations for the Non-Criminal Context,” though he does not yet have a timeline for when it will be completed.
Roessler says that the FCPD’s policy, General Order 540, already covers these circumstances, but he has directed his staff to enhance the existing policy to more specifically address possible incidents such as using an electronic control weapon on passive subjects or people experiencing a medical emergency.
“Although we are under no legal obligation to do that, it’s something that’s important to do,” Roessler said. “I agree with the recommendation to enhance the policy, but again, those recommendations are not based upon [Giacio’s] actions, and I want that to be clear.”