Connect with us

What are you looking for?

Watchdog

Frequent, improper use of stun gun on suspects earned MPD officer nickname: taser face

MPD fails to refer this and other excessive force cases to prosecutors, yet exonerates more officers

Joshua Cortez sits outside his home in East Memphis where MPD patrolman Colin Berryhill used a Taser on him for “pain compliance’' as he was held by four other officers.  (Houston Cofield/Special to The Daily Memphian)
Joshua Cortez sits outside his home in East Memphis where MPD patrolman Colin Berryhill used a Taser on him for “pain compliance’’ as he was held by four other officers. (Houston Cofield/Special to The Daily Memphian)

He had a nickname: “Taser Face’’.

Memphis Police Officer Colin Berryhill picked up the moniker last year from a lieutenant after the patrolman used his department-issued electroshock Taser gun on a series of suspects. But as supervisors began exploring those incidents, a trail of questions emerged:

Berryhill deployed his Taser on a handcuffed motorist during what appeared to be an otherwise minor traffic stop; he zapped a juvenile in the back following a dispute; he used it again to stun a troubled young adult as he was held by four other officers during a domestic disturbance.

“They tased him. I’m thinking, why?’’ said Jose Cortez, whose son Joshua was stunned by Berryhill as he was surrounded by officers during an April 2019 incident at the Cortez family’s ranch house in Memphis’ Colonial Acres area. “Why? I mean, he’s a kid.’’

Though internal investigators found Berryhill violated department regulations governing use of force in each of the three incidents, the Memphis Police Department did not seek prosecutorial review of his actions to determine if they might have violated criminal laws.

His is the sixth such use-of-force case identified by the Institute for Public Service Reporting and The Daily Memphian in which prosecutors say they didn’t receive a referral despite questions of possible criminal conduct by officers.

“I’d love to give you my side’’ of the story, said Berryhill, 31, an 11-year police veteran who remains on the force. The disciplinary case against him is still pending, however, and he said he can’t discuss it without his bosses’ approval.

Cases identified in the Institute and Daily Memphian’s running investigation include a  opens in a new window2015 incident reported earlier this month in which officers repeatedly hit, kicked and humiliated a prisoner who was handcuffed behind his back. Three cases from 2019 — reported here for the first time — include one involving an  opens in a new windowenraged patrolman who repeatedly pepper-sprayed a handcuffed prisoner in the face.

Owen Buzzard sits in his carport near the scene where MPD patrolman Colin Berryhill stunned him with a Taser as he was restrained in handcuffs. (Houston Cofield/Special to The Daily Memphian)

“Just send it to us. Let us look at it,’’ said District Attorney Amy Weirich, who said the six cases are the sort her office should review.

“Not every case that meets the standards for a violation of policy is going to rise to the level of criminal prosecution because of our high-standard approach. But send them to us, let us look at it.’’

After weeks of silence on the issue, MPD issued a statement late Monday, July 27, confirming that the three cases from 2019 had not been referred for criminal review.

“Currently, being in line with other local law enforcement agencies, there is no formal process in place for submitting use of force complaints to the District Attorney General’s Office,” MPD said in an email from spokeswoman Karen Rudolph.

 Citizens are advised they may submit a criminal complaint if they want, and internal investigators in MPD’s Inspectional Services Bureau (ISB) also make criminal referrals at times, the statement said.

<strong>Owen Buzzard</strong>
Owen Buzzard

“During any administrative investigation, if an ISB investigator determines that there may have been criminal misconduct on the behalf of an officer, the ISB investigator should notify the ISB commanding officer immediately,” the statement said. “The ISB commanding officer is then required to notify the Command Staff for further direction.”

Answers have been slow in coming as the Institute and Daily Memphian continue to dig through records documenting MPD’s internal investigations into use of force between 2015 and 2020. The city has released some but not all of those records following a June 1  opens in a new windowrequest for information.

Those records are bringing one trend into focus: Body camera footage is resulting in the dismissal of a number of citizen complaints alleging excessive force. Among 21 excessive force investigations launched in 2019, allegations were not sustained in four. In another 12 other cases, officers were listed as “exonerated’’ — a term virtually absent from reports in 2015 prior to the advent of bodycam video.

“People are making accusations that aren’t necessarily true,’’ said Mike Williams, president of the  opens in a new windowMemphis Police Association, a labor union representing the city’s 2,100 commissioned police officers.

“(But) once they look at the bodycam footage, it shows that the police officers were actually courteous. It shows that they didn’t do anything wrong, that they assisted the person, and even a lot of times let the person go.’’

‘I popped him’

Owen Buzzard backed his pickup truck out of his driveway that warm April night in 2019. As he shifted into drive and headed down his quiet residential street in Memphis’ Parkway Village section, a neighbor shouted he was dragging a strap from the trailer he was pulling. So, he stopped in the opposite lane to adjust his rig.

That’s when the trouble started.

A patrol car pulled up behind him flashing its blue lights.

Officer Colin Berryhill asked for Buzzard’s driver’s license. When he found it had been suspended, he placed the motorist under arrest, handcuffing him behind his back.

As video on Berryhill’s body camera rolled, the officer accused Buzzard of reaching into his back pocket. The officer then pulled Buzzard to the ground and, as he later told internal investigators, zapped the motorist in the abdomen with his Taser gun in self-defense.

”The only thing that was available to me was my Taser, because I was down on this side,’’ Berryhill said. “So, I popped him.”

Buzzard offered a less sinister explanation for his reaching for his pockets: His pants were falling down and he was trying to pull them up.

“I said, “I ain’t reaching for nothing, man,’ ’’ Buzzard, 40, said in an interview last week. “I’m taking my pants up so I don’t lose them here right in the middle of the street.’’

After investigators reviewed the body camera footage they sided with Buzzard.

“According to Officer Berryhill’s Body Worn Camera footage, Mr. Buzzard’s hands were secured in handcuffs behind his back as Officer Berryhill pulled him to the ground,’’ an internal report says. “As (the suspect) began to lean forward, he was tased on the abdominal area by Officer Berryhill.’’

The report by MPD’s Inspectional Services Bureau continued:

“The evidence obtained during this investigation supports the allegation that excessive force/ unnecessary force was used against Mr. Buzzard. Mr. Buzzard did not resist arrest at any time. He willingly stepped out of his vehicle and allowed Officer Berryhill to place him into handcuffs. … According to Officer Berryhill’s Body Worn Camera, Mr. Buzzard’s hands and handcuffs could be seen as Officer Berryhill pulled Mr. Buzzard to the ground. Mr. Buzzard fell on his back onto the asphalt, while handcuffed, with his hands outside of his pants.’’

Buzzard suffered a cut on his right palm that required three stitches to close.

Video also shows a supervisor, Lt. Kam Wong, made the scene shortly after the incident.

”Hey, by the way. You got a new nickname,’’ Wong tells Berryhill, according to the internal report. “It’s Taser Face.”

Two more Taser incidents

If the comment was directed at Berryhill’s prolificacy with a Taser it’s not clear in reports. But investigators decided to review the officer’s Response to Resistance reports — records that police are required to file when they use force during an arrest. They soon uncovered more concerns.

Investigators found Berryhill had used his Taser just six days earlier. It happened when numbers of officers responded to a domestic disturbance call. The parents of Joshua Cortez, then 21, complained he’d been drinking and had damaged their front door. According to police, the young man told them he’d been depressed. A decision was made to make an emergency commitment for evaluation.

Joshua Cortez sits outside his home in East Memphis where he was stunned with a Taser as four officers held him. (Houston Cofield/Special to The Daily Memphian)

“According to Officer Berryhill’s (bodycam footage), there were a minimum of four officers on the scene that had full control of Mr. Cortez’s arms and hands. He did not demonstrate any overt intentions to use violence or any uncontrollable force against the officers on the scene,’’ said an internal report that called Berryhill’s actions “unnecessary and needless.’’

Berryhill told investigators that Cortez allowed officers to cuff his right arm, but resisted when they tried to cuff his left.

”I felt that a simple pain compliance for a second would get him to comply long enough to where we could get him into cuffs,’’ Berryhill said, explaining his decision to use his Taser. “I drive stunned him for about two seconds, which it immediately worked.”

MPD issues yellow-colored TASER X2 stun guns to certain trained officers that allow two methods of use. One is called probe deployment. In this mode the device — also called a Conducted Electronic Weapon — fires two barbed darts intended to penetrate the skin and deliver a modulated electric current that can incapacitate a subject by disrupting the body’s neurological communication from the brain to muscles.

This is the mode Berryhill used on motorist Buzzard.

But the officer used a second mode — drive stun — on Cortez. In this mode the device is placed in immediate contact with the subject, without firing darts, to create discomfort but not necessarily override the body’s motor functions.

opens in a new windowGuidelines issued in 2011 by the U.S. Department of Justice recommended against the use of drive stun to control a subject because it may actually “exacerbate the situation by inducing rage in the subject.’’ The U.S. Fourth Circuit Court of Appeals in Richmond, Virginia,  opens in a new windowbanned drive stun techniques to control a subject absent immediate danger to officers or others.

Additionally, MPD procedures prohibit use of a Conducted Electronic Weapon “in drive stun mode for pain compliance to prod or escort persons’’ or “solely as a compliance technique to overcome passive resistance’’ by an individual “who does not demonstrate an overt intention to use violence or force.’’

In an interview last week, Cortez admitted he’d been drinking and had become loud and belligerent, but said he’d calmed down and was cooperative when officers arrived. He admitted to some resistance, saying he didn’t want to be taken from his home, but said the Tasing was unnecessary.

“He shouldn’t have pulled out a Taser. There was enough officers there. They have enough strength to get me, to get me down,’’ Cortez said. “I don’t know why he tased me. That just was just uncalled for. And that wasn’t cool. He needs to be (demoted) or he needs to be fired.’’

“He shouldn’t have pulled out a Taser,” Joshua Cotez said. “There was enough officers there. They have enough strength to get me, to get me down.” (Houston Cofield/Special to The Daily Memphian)

Berryhill’s Response to Resistance reports revealed a third incident in May 2018 in which he used his Taser on a juvenile suspect. He and other officers had responded to a call to Wooddale Middle School. An administrator there reported an auto burglary and pointed toward a group of teens walking nearby.

When officers detained one teenager his friends got mouthy, an internal report says. The youths shouted profanity. Berryhill told the youths to leave.

“According to Officer Berryhill’s (body camera) Footage (one teen) was walking away as Officer Berryhill requested. (The teen) stated, ‘I am walking away.’ ’’ an internal report says. But Berryhill then pursued the youth and “went hands on with’’ him, sparking a “tussle.’’

”You see I was walking away, right? You didn’t give me time,” the youth is heard saying on the video.

Berryhill told investigators he rushed the teen from behind because the youth was bigger than him.

“I wanted to have the upper hands, surprise him, detain him, while we went further into our investigation.,’’ he said.

Body camera footage depicts a desperate struggle.

At one point, “Officer Berryhill had one hand on his (baton) as his right arm was around (the youth’s) neck,’’ the report said. The teen is heard pleading, “Stop choking me, Cuz!’’

At another point the teen reaches for Berryhill’s baton, but then breaks free.

“As (the teen) got off the ground and attempted to walk away, he was tased in the back twice by Officer Berryhill,’’ the report said, describing how the teen was then taken into custody.

Again, Berryhill fired his Taser in drive stun mode, telling personnel on the scene that night there was no need to take the youth to a hospital.

”No, no we ain’t got to do all of that,’’ Berryhill said as his body camera rolled. “I didn’t shoot him with the full Taser. I just did a drive stun. I didn’t ‘tase him’ tase him.”

Analysis of use of force

“The amount of force used in this particular event was unnecessary,’’ the report said, noting the youth “was walking away after being ordered by Officer Berryhill. These actions place Officer Berryhill in violation of the Memphis Police Department’s DR 301 Excessive Force/Unnecessary Force Policy.’’

DR 301 — the departmental regulation governing use of force — prohibits unprovoked or unnecessary force. Internal investigations rely on the landmark U.S. Supreme Court decision,  opens in a new windowGraham vs. Connor, which weighs several factors in determining if force is reasonable, including 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 resisting or attempting to flee.

The low-level nature of the offenses — a suspended driver’s license in on instance and a dispute among parents and their child in another — weighed into the finding of unnecessary force against Berryhill.

Under MPD protocol, internal investigations are conducted by the Inspectional Services Bureau, which issues findings that are then used to guide the disciplinary process. If ISB sustains allegations, a statement of administrative charges typically is issued that can lead to consequences ranging from a written reprimand to suspension without pay or termination in severe cases. Officers may also appeal.

It’s unclear where Berrryhill is in that process.

MPD spokesman Louis Brownlee called a journalist recently to say the police agency made a mistake when it released a 23-page case summary detailing the investigation of the officer. More than a year after Berryhill arrested motorist Buzzard, the disciplinary case against him is not complete, Brownlee said.

“I’m going to ask if you would hold off on (writing about the case) until the investigation and the hearings and everything are complete,’’ Brownlee said.

Buzzard said he believes Berryhill should be charged with a crime.

“I don’t know if it should just be assault. To me, it was a weapon whether he was authorized to use it or not. I would say aggravated assault. Or battery,’’ said Buzzard, who said he pleaded guilty to resisting arrest two days after his encounter with Berryhill because he needed to get out of jail to make a court hearing on another case in Mississippi. “I had no choice,’’ he said.

A notation in an internal summary said the investigation into Berryhill’s actions was not submitted to the District Attorney’s Office for review.

Weirich said the case appears to be one her office “should’’ take a look at.

Police labor union president Williams said he was unfamiliar with Berryhill’s case but said officers often are pushed to use force because citizens won’t cooperate with police.

“I would have to read (Berryhill’s) whole file,’’ Williams said. But situations often “escalate because you have people intervening or you have people that don’t necessarily want to comply,’’ he said.

Internal investigators also found Berryhill in violation of compliance of regulations, which forbids the use of Conducted Electronic Weapons on “handcuffed or secured’’ individuals who aren’t “overly combative”.

Oddities and exonerations

Internal files reveal two cases from 2019 with seemingly stunning reversals:

  • Police arrested Officer Ralph Confer last October charging him with assault following a confrontation with a medical technician in a kitchen area at The Regional Medical Center. Confer had put handcuffs on tech April Chaney and placed her in a holding cell after she allegedly persisted in helping herself to a hot dog he’d bought. Chaney told investigators Confer threw her into a cabinet door at one point. Investigators found Confer in violation of MPD’s use-of-force policy. But General Sessions Judge Loyce Lambert Ryan later dismissed the criminal charge against Confer. The status of the administrative case against Confer, 48, is unclear. MPD spokesman Brownlee said the matter remains open and that the case summary was inadvertently released.
  • Officer Christopher Brunson was found in violation of the use-of-force policy after surveillance footage showed him hitting a mental patient at the Crisis Assessment Center last September. A statement of charges said the patient first punched Brunson, who then knocked the patient to the floor and hit him “six to seven times in the area of his face, head, and shoulders.’’ Though internal investigators said Brunson’s action “showed a lack of self-restraint and was viewed to be excessive,’’ hearing officer Col. Gloria Bullock dismissed the charge, saying Brunson “immediately restrained himself.’’ Bullock in turn issued written reprimands to Brunson for failing to comply with regulations and failing to file a use-of-force form.

In 12 of of 21 of the 2019 cases, investigators in the Inspectional Services Bureau concluded that officers should be exonerated of excessive force claims, a finding typically grounded in video and audio evidence found on body camera footage.

In one case, officers Leployer Franklin and Adam Bittick were exonerated when body camera footage contradicted a suspect’s claims his nose was broken when police broke through his window and beat him with handheld radios in January 2019.

According to an internal report, body camera footage showed the window in question was already broken when officers Franklin and Bittick caught up with the man, who was wanted for aggravated kidnapping. When Officer Franklin knocked on his door the man answered then attempted to close the door, retreating to his sofa where he had a gun, reports says.

“Per the officer(s) body worn camera, officers advised the suspect for almost a minute that if he did not comply that hard hands would be used. The suspect refused to comply and officers struck him several times in the face with closed fists,’’ the internal report said.

In another case, investigators exonerated officer Jermaine Ezell, who’d been accused by a woman of injuring her wrist while twisting her arm behind her back during an arrest following an April 2019 domestic disturbance. However, body camera footage showed the woman “being very argumentative, and refusing to cooperate,’’ the internal report said.

The officers “gave multiple warnings to calm down, in an attempt to de-escalate her behavior, and allow the handcuffs to be applied. Though she torqued her body back and forth, they kept a firm hold on both of her arms. It was obvious that she attempted to pull away from their control,’’ the internal report said.

MPD said in its statement Monday that footage from Body Worn Cameras (BWC) and In Car Video (ICV) is adding “clarity and transparency’’ to policing:

“The BWC/ICV program has the potential to improve community relations by providing an objective record that can be used to confirm valid allegations while providing an unbiased record that may assist in disproving false allegations. Furthermore, the ICV/BWC program improves accountability by providing objective data for review.”

District Attorney Weirich agrees.

“The body cameras have gone a long way in helping us prove someone’s innocent, show that somebody’s innocent or more times than not prove their guilt — establish that exactly what is written up in this report and exactly what these witnesses are saying is exactly as it played out on the camera,’’ Weirich said.

“People can call up, here or anywhere, and complain about a number of things. And they do. And sometimes there’s some truth to it. And oftentimes it’s just complete hooey when you start looking at the facts and looking at the evidence. And the body cameras have really changed that.’’

This story first appeared at dailymemphis.com under an exclusive use agreement with The Institute. Photos reprinted with permission of the Daily Memphian.

Marc Perrusquia
Written By

Marc Perrusquia is the director of the Institute for Public Service Reporting at the University of Memphis, where graduate students learn investigative and explanatory journalism skills working alongside professionals. He has won numerous state and national awards for government watchdog, social justice and political reporting.

You May Also Like

Audio Story

For years in Memphis, sexual assault victims didn't get the justice they deserved or the law required.

The Pandemic

Pastor couple finds new ways to worship, serve, grieve

Stuck in the Middle

'Demolition Day' a welcome sign of Binghampton's promise

© Copyright 2020, The Institute for Public Service Reporting | Memphis