RIFLE - Watching his nephew getting Tased in the back by police, Brett Smith got upset.

Upset enough that he swiped at the Taser wires to pull out the barbs lodged in the skin of Travis Dice's back.

"I admit maybe I shouldn't have done that, but there was no reason for it," Smith said Thursday of the officers' actions. "They just started Tasing and asking questions later, more or less."

Smith was Tased. Dice was Tased a second time in the back. The men were arrested.

Fast forward from that Aug. 15, 2004 incident; a jury in Rifle Municipal Court acquitted Dice of obstructing a peace officer and his uncle, Brett Smith, of resisting arrest.

In defense of self-defense

A 9th Judicial District Court judge last week upheld a 2005 municipal court finding during the trial that part of Rifle's municipal code defining self-defense violated the Colorado and U.S. constitutions. Rifle had appealed some of the municipal judge's findings.

Walter Brown, an attorney who represented Smith and Dice, praised last week's ruling.

"It essentially means that for the first time in Rifle's history, self-defense is a defense one can raise against resisting arrest, and that Rifle did not have the right to restrict that defense by their ordinance as they have for the last 25 years," Brown said.

District Chief Judge James Boyd filed the order on the appeal Jan. 3. Boyd upheld Rifle Municipal Judge Victor Zerbi on four points regarding Rifle's legal authority to pass such



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an ordinance. Zerbi was reversed on one point, about whether one witness should have been allowed to testify.

Zerbi said, "I found (the ordinance) violated equal protection and due process rights, and the judge upheld my position. ... This case, for me, presented a unique issue in a criminal case of whether or not local municipalities can pass ordinances that define the issue of self-defense in a more strict manner than state law provides."

Brown said he took issue at trial with the ordinance eliminating the legal defense to a resisting arrest charge of self-defense.

Ed Sands, who prosecuted for Rifle at the trial, said, "Essentially, Rifle's code had previously defined self-defense, particularly when one can use self-defense against a police officer, a bit differently than what state law provided for."

He added, "Our provision wasn't just made up, it was a standard that is followed in several other states and jurisdictions. We felt as a home-rule municipality we had the right to define our own standard of self-defense."

Assistant city attorney Jim Neu said, "It's my understanding that those provisions are no longer in the code."

Sands said the Rifle City Council would have to decide whether to appeal Boyd's decision.

Rifle Police Chief Daryl Meisner said, "As far as (the ruling) changing anything, it really doesn't, and I'm sure the defense bar wants to paint a picture in a certain way that is most favorable to their clients and their business."



Leading to the arrests

Brown had accused police of Tasing Smith and Dice for all the wrong reasons. He said someone said something offensive to Dice, who became upset outside near a bar in downtown Rifle. Smith was holding onto Dice, trying to get him to calm down, when an officer arrived looking for a fight that was reported across the street that was no longer occurring, according to Brown.

An officer believed the two were fighting and commanded them to stop. Smith said he had it under control.

Sgt. Diego Piña's police report says Piña Tased Dice twice in the back. Before that, it states that the men refused to obey several verbal commands, and that Smith pushed Piña in the chest before the Taser was used, and later tried to punch Piña. Whether Piña was actually pushed and other alleged aggressive acts were disputed at trial.

Piña's report says he told Dice to stop and Dice said "no" and walked away. It says Piña Tased him in the back and Dice slowed down. Smith tried to swipe the Taser barbs out of Dice's skin, the report says, and Dice was Tased again in the back after continuing to walk away.

"I attached a new cartridge to my (Taser), which I fired at Travis Dice's back, both probes penetrating the skin: Travis Dice became stiff and fell to the ground first hitting his head on a rock wall and experienced an approximate seven-second application of the (Taser)," Piña's report states.

"A police officer does have the right to make what's called a temporary detention to investigate what appears to be a crime," Sands said. He added that his recollection is Tasers were used not only for Smith's move to pull out the barbs, but because of aggressive movements towards police.



Tased in the testicles

Brown said Chad Cooley, of Rifle, testified at the trial that during a separate incident Piña shot Cooley from behind with a Taser on Dec. 31, 2004. Cooley testified that one of two Taser probes hit him in the testicles while he was lying on the ground on his stomach, Brown said.

Said Smith, "I can't even fathom how bad that had to hurt, because I bruised up the size of cantaloupes where (the probes) hit me."

Cooley hadn't done anything wrong and wasn't arrested, Brown said, but police confused him with someone else.

Brown said he filed a lawsuit in federal court claiming Piña, Meisner and the city of Rifle violated Cooley's civil rights with the alleged excessive use of force and lack of supervision over Piña. The claim was settled in late 2006 for a "substantial" confidential sum, according to Brown.

Sands said he believed the lawsuit was filed but that he didn't know its disposition. Neu said the suit sounds familiar and he didn't know the specifics, as the matter would have been handled by the city's insurance carrier. Meisner said he couldn't discuss details of any specific civil case, but speaking generally, he said, "In America anybody can sue anybody for anything at any time."

He said civil suits of all kinds are often settled to avoid long and costly trials and the risk a jury might sympathize with the plaintiff on one issue, regardless of whether something inappropriate was actually done.

Meisner said Piña is employed with the Rifle Police Department and probably would not comment. He said he has no evidence or perception of Piña or anyone else repeatedly using inappropriate amounts of force, and all officers' uses of force are carefully monitored. The department reviewed the use of Tasers in these cases and found no violation of any policies or laws, he added.

"(Officers) always have to take each set of facts based on the information that they know at the time, and they have to make judgments on those things," he said. "The courts and attorneys often get the luxury of looking at them on Monday morning."

Monday morning or not, Smith said his arrest - in his opinion inappropriate - and the not-guilty verdict still cost him time and money.

"I didn't ever feel that I had done anything wrong," he said. "I kept pursuing it just to let them know that they couldn't get away with it. What they had done was wrong and it could have been handled differently."

He said police should have made more of an effort to ask questions and figure out what was going on instead of shouting orders and Tasing people.

Contact Pete Fowler: 384-9121pfowler@postindependent.com