Brett Kahn

5. The Respondent, Police Officer Brett Kahn, Star No. 17785, charged herein, is guilty of violating Rule 2, Rule 6, and Rule 8 in that the Superintendent proved by a preponderance of the evidence the following charges:
On or about June 5, 2014, at approximately 10:25 p.m., at or near 1425 South Ridgeway Avenue, in Chicago, Officer Brett Kahn, without justification, used objectively unreasonable force by punching and/or striking Lamont Powell on or about his face one or more times. Officer Kahn thereby violated:

a. Rule 2, which prohibits any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department;

b. Rule 6, which prohibits disobedience of an order or directive, whether written or oral, in that Officer Kahn disobeyed General Orders 03-02-01 and 03-02-02; and

c. Rule 8, which prohibits disrespect to or maltreatment of any person, while on or off duty.

See the findings set forth in paragraph no. 4 above, which are incorporated herein by reference.

It is undisputed that Respondent struck Mr. Powell around his face and head while Mr. Powell was on the ground on his back. It is undisputed that as a result of Respondent’s strikes, Mr. Powell sustained two black eyes, a swollen lip, facial abrasions and swelling, and a fracture to his nasal area. The Superintendent presented Mr. Powell’s medical records and multiple pictures that were taken of Mr. Powell directly after his arrest that clearly show his injuries. Respondent did not deny striking Mr. Powell, but he testified that he used open-hand strikes that are consistent and permissible when trying to obtain compliance from an active resister like Mr. Powell. The Board finds not credible the testimony by Respondent that he used open-hand strikes.

According to General Order G03-02-02 (effective May 16, 2012), an active resister is defined as: “a person whose actions attempt to created distance between that person and the member’s reach with intent to avoid physical control and/or defeat the arrest.” (Emphasis in the original.) One of the options identified that can be used in relation to an active resister is “stunning,” which is defined as: “diffused-pressure striking or slapping and is an attempt to increase control by disorienting the subject and interfering with the subject’s ability to resist.” It would have been permissible for Respondent to use an open-hand strike or a slap to disorient Mr. Powell so that he would stop resisting arrest. However, the evidence presented shows that it is more likely than not that Respondent did not use an open-hand strike. Mr. Powell testified credibly that Respondent punched him with a closed hand multiple times, and the Superintendent’s medical expert, Dr. Donald Steiner, opined that the injuries sustained by Mr. Powell were consistent with blunt force trauma caused by a fist.

The Board finds the testimony and opinions of Dr. Steiner to be credible and persuasive. Dr. Steiner has been an emergency physician licensed in Illinois for 40 years, and he is board-certified in emergency medicine. He has seen and treated numerous patients who have been in fights and who have been punched with fists. He reviewed the emergency room medical records of Mr. Powell, photographs of Mr. Powell, the arrest reports, Chicago Police Department Policies on Use of Force, and transcripts of statements by Respondent and Mr. Powell. In reviewing the photographs of Mr. Powell taken after the incident, Dr. Steiner testified that he noted bruises on Mr. Powell’s forehead, swelling of the eye and eye brow, swelling of the lip and swelling in the jaw. He further testified that based on his experience in emergency medicine, these injuries could not have been caused by open palm strikes. In particular, there is an injury between the eye and nose (non-displaced fracture) that an open palm strike would not be able to reach. He further opined that Mr. Powell’s injuries were caused by closed fists with concentrated force.

According to the General Order G03-02-02, striking movements such as punching is a permissible use of force for an assailant defined as, “a subject who is using or threatening the imminent use of force against himself/herself or another person.” Although Respondent and his partner Officer Escanio testified that Mr. Powell was flailing his arms and legs, and that he was combative in resisting arrest, they also both testified that neither of them was harmed in any way by Mr. Powell. We find it significant that after then-Lieutenant Giltmier spoke with Mr. Powell and observed his injuries, she decided that all six of the charges listed by Respondent in the police report would be dropped.1 The Board concludes that Mr. Powell was an active resister and not an assailant. The Board finds that Respondent used unreasonable force by punching and/or striking Mr. Powell on or about his face multiple times, and that he unjustly mistreated Mr. Powell. The Superintendent has met the burden to show that Officer Kahn violated Rules 2, 6, and 8.

6. The Respondent, Police Officer Brett Kahn, Star No. 17785, charged herein, is guilty of violating Rule 2, Rule 3, and Rule 14 in that the Superintendent proved by a preponderance of the evidence the following charges:
On or about June 8, 2015, Officer Brett Kahn provided a false or misleading written statement to 10th District Commander Frank Valadez by stating that “Complainant/offender Powell was never tasered by R/O” [Reporting Officer], or words to that effect. Officer Kahn thereby violated:

a. Rule 2, which prohibits any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department;

b. Rule 3, which prohibits any failure to promote the Department’s efforts to implement its policy or accomplish its goals; and

c. Rule 14, which prohibits making a false report, written or oral.

See the findings set forth in paragraph nos. 4 and 5 above, which are incorporated herein by reference.

Officer Blanco and Officer Kasper both testified that when they arrived at the scene they observed Respondent struggling with Mr. Powell. Respondent asked if either of them had a taser, and Officer Blanco gave Respondent his taser. Respondent testified that he did not use the taser on Mr. Powell, and in his report of the incident dated June 8, 2015, to 10th District Commander Frank Valadez, Respondent reported that, “Complainant/offender Powell was never tasered by R/O, nor did R/O place my knee on the offender’s stomach.”

Footnote: 1 Mr. Powell was charged with one count of criminal damage to property, two counts of aggravated assault, two counts of resisting arrest, one count of possession of cannabis of less than 2.5 grams.

The Superintendent presented Officer Paul Gerrard, who has been a member of the Chicago Police Department for 18 years. Since 2011, Officer Gerrard has been assigned to the Department’s Educational and Training Division, which provides taser instruction and taser use certifications. Officer Gerrard explained that according to Uniform and Property directive U4-02-04—Taser Devices (effective June 14, 2012), a taser is defined as, “a device used to control and subdue a subject through the application of electrical impulses that override the central nervous system and cause uncontrollable muscle contractions.” He testified that there are three ways an officer can use a taser: (1) spark display (also referred to as a warning arc), which is used as a warning only—the taser does not make contact with the offender, and the point is for the offender to actually see the taser; (2) drive stun (also referred to as a dry stun), which involves physical contact with the offender’s body; and (3) a probe discharge, in which two probes that are connected to wires of the taser are deployed into the offender’s body. If the officer chooses to use either a drive stun or a probe discharge, the officer must first alert a supervisor that the taser will be used, and request emergency medical personnel to come to the scene. The supervisor is required to take the taser and investigate that it was deployed properly.

Respondent testified that he arced the taser to scare Mr. Powell so he would stop resisting arrest; Respondent has maintained that he did not place the taser on Mr. Powell’s body. This testimony by the Respondent is not credible. Mr. Powell credibly testified that Respondent placed the taser on his stomach and that he felt an electrical shock that went through his entire body. Both Officer Blanco and Officer Kasper testified that Respondent employed a dry stun, placing the taser on Mr. Powell’s body. Officer Blanco testified that he heard Mr. Powell cry out and then lay still. Both Officer Blanco and Officer Kasper testified that they understood that a supervisor was supposed to be called if a taser is used and that medical emergency personnel were also supposed to be requested. They did not see either a supervisor nor medical-emergency personnel at the scene before or after Respondent pressed the taser against Mr. Powell’s body. Then-Lieutenant Beth Giltmier who was first person Respondent reported the incident to about his struggle with Mr. Powell, testified that it was odd that Respondent reported that he arced the taser and Mr. Powell stopped moving. In her experience, when someone is resisting or fighting, they don’t stop because they see a taser. Captain Giltmier also testified that Respondent did not notify a supervisor or request emergency personnel to the scene. The Board finds that the evidence is sufficient to show that Respondent did in fact place the taser on Mr. Powell’s body and that he falsely reported that he arced the taser. We therefore conclude that Respondent intentionally made a false statement in his memo to District Commander Frank Valadez, when he reported that he never tasered Mr. Powell.

The Superintendent also presented the testimony of Deputy Chief Eric Washington of the Bureau of Internal Affairs, which is the unit that investigates complaints against officers and conducts confidential investigations. He is familiar with the disciplinary process for police officers, and he is familiar with Rule 14 which prohibits members from making false oral or written reports. Deputy Chief Washington testified that the Department is required to report to other entities they partner with, such as the Cook County State’s Attorney’s Office and the United States Attorney’s Office that an officer has a sustained Rule 14 violation. A sustained violation of Rule 14 impedes the ability of officers to do their jobs, they won’t be able to be assigned to special teams, and they cannot testify in any case. He also testified that the Department cannot put police officers on the streets who are not truthful or are dishonest, because that inhibits citizen trust, which the Department needs in order to do its job.

7. The Respondent, Police Officer Brett Kahn, Star No. 17785, charged herein, is guilty of violating Rule 2, Rule 3, and Rule 14 in that the Superintendent proved by a preponderance of the evidence the following charges:
On or about October 13, 2015, Officer Brett Kahn provided a false or misleading oral statement to the Independent Police Review Authority by stating that “he did not drive stun Mr. Powell” with a Taser, or words to that effect. Officer Kahn thereby violated:

a. Rule 2, which prohibits any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department;

b. Rule 3, which prohibits any failure to promote the Department’s efforts to implement its policy or accomplish its goals; and

c. Rule 14, which prohibits making a false report, written or oral.
See the findings set forth in paragraph nos. 4, 5 and 6 above, which are incorporated herein by reference.

On October 13, 2015, Respondent was interviewed by the Independent Police Review Authority about the incident with Mr. Powell. In explaining what happened in terms of his use of the taser, Respondent made the following statement: “I noticed that one of the assisting units had a taser. I requested the taser from that assisting unit and I displayed the arc of the taser to Mr. Powell and ordered to deter him from further combative nature.” Later in the interview, Respondent is asked, “And you arc’d it?” and he responded by saying, “Yes, ma’am I did not discharge any prongs. And I did not dry stun Mr. Powell.”

As stated above, the evidence presented shows that Respondent did in fact press the taser to the body of Mr. Powell resulting in an electrical shock. Accordingly, the Board finds that Respondent intentionally made a false statement to the Independent Police Review Authority when he stated that he did not dry stun Mr. Powell.