City Intervened for Stiffer Penalty in Taser Case

San Diego police officials wanted simply to reprimand a sergeant for improperly shooting a drug suspect with a Taser gun, but instead placed him on a weeklong suspension without pay after the city manager’s office urged the stiffer penalty out of concern that police were not properly disciplining errant officers.

That picture emerged Wednesday during a Civil Service Commission hearing on an appeal by Sgt. Charles Mattingly of his five-day suspension for using the electronic stun gun. The suspect, Mario Gastelum, died three days after he was shot with the Taser in November, 1987.

According to testimony from several police officials and the opening statement from Mattingly’s attorney, the Police Department had hoped to give Mattingly a written reprimand for his “mistake” in shooting Gastelum with the Taser while the 24-year-old man was hogtied and lying in the back of a police car.

But James Gattey, the lawyer representing Mattingly at the commission hearing, said the city manager’s office stepped in and urged a 30-day suspension without pay for the police sergeant.

He said officials in the city manager’s office, worried about media accounts of police abuse cases and public criticism of the police review board, wanted to make sure that discipline in the Taser case was severe.

Found Thrashing About

The incident occurred Nov. 2 last year when police were called to a house in an Encanto neighborhood and found Gastelum, apparently strung out on drugs, thrashing about inside a crawl space. Attempts to remove him were unsuccessful, according to accounts, so Mattingly shot Gastelum with the Taser, and police removed him from the crawl space and placed him in a police car. Gastelum was reportedly dirty, muddy and screaming. He appeared to witnesses to be confused and disoriented and under the influence of PCP. He was handcuffed and placed in leg restraints.

“He said a couple of times, ‘Please don’t kill me, please don’t kill me!’ ” said Officer Calvin A. Flores Jr.

Flores and Officer Edward Ferko drove Gastelum to San Diego Physicians & Surgeons Hospital. En route, Flores radioed that Gastelum was continuing to act violently in the back seat and requested that Mattingly go to the hospital with the Taser.

Conflicting Testimony

Ferko testified that Gastelum was acting violently on the way to the hospital but calmed down when the patrol car arrived at the emergency entrance.

However, testimony also showed that Mattingly was not aware that Gastelum may have calmed down. And witnesses said that, as soon as the police car arrived, Mattingly shot Gastelum again in the back of the patrol car.

The victim died three days later. An autopsy stated that the Taser shooting was not the direct cause of death.

The police Internal Affairs unit determined that Mattingly erred in not checking on Gastelum’s behavior before he fired the stun gun. And Internal Affairs Sgt. John Madigan said department policies prohibit officers from firing Taser guns at people who are handcuffed or already have been taken into custody.

But, under cross-examination, Madigan acknowledged that there was no written policy for using the Taser on a person who is handcuffed.

Case Sent to Supervisors

The Internal Affairs case then was sent to Mattingly’s supervisors for a decision on discipline.

Lt. Francis L. Kenney said he recommended in May that Mattingly only be formally reprimanded because the sergeant “had suffered enough” by working for six months on light duty and worrying about whether the district attorney would file criminal charges against him. No charges were filed.

Kenney’s recommendation was sent to then-Acting Capt. Ronald J. Seden, who said he concurred that a reprimand was appropriate.

“My feeling was that this was a mistake of the heart rather than a mistake of the head,” Seden testified. “It was not deliberate misconduct. I felt that, under the circumstances, a reprimand was proper.”

Seden and Kenney testified that the department’s discipline manual stipulates that reprimands are to be reviewed only as high as a police commander. Seden said Cmdr. Jim Kennedy reviewed the recommendation for a reprimand and “signed off” in agreement.

Told of Reprimand

Seden said he told Mattingly that he would soon be receiving a formal reprimand. But Seden said he then was told by Kennedy that “the matter was still under investigation and not to proceed at that time” with the reprimand.

Seden said he was also informed that the case “had been discussed on the same floor where the City Manager is located” at City Hall, and that soon thereafter he was directed by Cmdr. Kennedy to place Mattingly on a five-day suspension without pay.

Mattingly’s attorney, Gattey, said that the harsher punishment was meted out only after Deputy City Manager Jack McGrory met with top police officials and urged a 30-day suspension without pay. Gattey said the city manager’s office was concerned because of public criticism about a number of alleged police abuse cases last spring, and allegations that police officers were not being properly punished.

Gattey said that, when McGrory intervened in the case, then-Assistant Chief Bob Burgreen demanded to review the discipline package against Mattingly, and that the five-day suspension was negotiated as a compromise.