Man who lost eye in pepper gun incident sues St. George Police

Screenshot from a St. George Police officer's body cam video shows Joey Herold talking with police inside a residential garage on March 13, 2019, moments before the confrontation that caused Herold to lose an eye. | Image courtesy of Sykes McAllister Law Offices, St. George News

ST. GEORGE — A man who was reportedly blinded in one eye after being shot with a pepper ball gun during a confrontation with police in March 2019 is now suing the police in federal court.

Attorneys representing Benjamin Joseph “Joey” Herold, 41, filed the lawsuit in U.S. District Court Dec. 17, claiming Herold’s civil rights were violated when three responding St. George Police officers used excessive force during their interactions with Herold, with the resultant injuries causing him to lose his right eye.

Attorney Robert Sykes of Sykes McAllister Law Offices said although the pepper ball gun is designed to be fired from no closer than five feet away, St. George Police Sgt. Michael Christensen was holding the device less than one foot away from Herold’s head as he deployed it.

“Sgt. Christensen held the gun at approximately 6-12 inches away from Joey’s face and fired it directly into his right eye,” Sykes said in a written statement sent to media outlets earlier this week. “The force of the blast so damaged Joey’s right eye that physicians later had to remove it.”

Video of the incident was captured by Christensen’s body camera, along with the cameras being worn by officers Pace Truman and Gage Gardiner, the other two police officers who responded to the call.

From the more than 110 minutes worth of body camera footage obtained and publicly released by Herold’s attorneys, The Salt Lake Tribune subsequently posted a four-and-half minute video clip on YouTube showing footage from one of the officer’s cameras as the incident unfolded inside the garage of the residence. Click here to view that clip.

Leading up to those moments on the evening of March 13, 2019, police had been dispatched to the St. George home of Joey Herold’s mother Cheryl, where Joey was also residing. Joey Herold’s sister Emily Tomer, who was not a resident of the home, had reportedly called police because her brother was experiencing some mental health problems. Tomer reported to police that “Joey was mentally ill and had dumped his medication down the drain,” according to the complaint.

Sykes said the videos clearly show the officers acting improperly by exacerbating the situation instead of attempting to de-escalate it. 

According to the law, Sykes told St. George News, officers “cannot provoke a situation and then use the action that comes out of their provocation as a justification for force. And that’s what happened here.”

In its 28-page complaint, the plaintiff’s lawsuit alleges that “St. George City, through the SGPD, failed to train officers in the correct use of force for mentally ill individuals and how to correctly respond to calls for people in a mental crisis.” The complaint also says the police department failed to train its officers on the correct use of CO2-powered pepper guns.

The lawsuit accuses the officers of using excessive force, exhibiting outrageous conduct, failing to intervene to protect a victim and falsifying an arrest warrant. Additionally, the city of St. George is accused of having unlawful or deficient policies or procedures and failing to properly train or supervise its officers. All of the defendants are collectively accused of violating the plaintiff’s civil rights.

The falsified arrest warrant accusation refers to when, a few days after the incident, Herold was subsequently charged with three counts of assault on a police officer, a class A misdemeanor, along with one count each of interfering with an arresting officer and criminal mischief, both class B misdemeanors. 

Although the plaintiff’s complaint acknowledges that probable cause “may or may not have existed” to support a lesser charge such as disorderly conduct, it claims Herold did nothing to deserve the charges of assault on a police officer. The document alleges those charges against Herold were a retaliatory attempt to justify the officers’ wrongful use of excessive force.

In addition to St. George City and the aforementioned three officers specifically named in the suit, 10 other members of SGPD are also included as defendants, although they are identified only as “John and Jane Does 1-10.”

The plaintiff’s lawsuit seeks a jury trial and makes an unspecified request for monetary damages to include compensatory and special damages, along with attorney’s fees and other relief “to be determined at trial.”

The city of St. George had not yet been formally served with the complaint as of Wednesday afternoon, according to city spokesman David Cordero, who declined to comment until after the city has seen the suit.

This report is based on information provided by legal counsel and/or law enforcement and may not contain the full scope of findings. 

Copyright St. George News, LLC, 2020, all rights reserved.

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