Cops who Tasered and sprayed 92-year-old are cleared of assault
Two police officers who Tasered, pepper-sprayed and hit a 92-year-old amputee with a baton have been cleared of assault by a jury.
Police were called to the Park Beck Residential Care Home in St Leonards-on-Sea, East Sussex, after Donald Burgess prodded a worker in the stomach with a butter knife.
PC Rachel Comotto, 36, was said to have assaulted Mr Burgess with her Taser while her Sussex colleague PC Stephen Smith, 51, struck him with his baton and used his Pava spray on him.
Mr Burgess was hospitalised after the incident on 21 June 2022 and died 22 days later after contracting Covid-19.
St Leonard’s specializes in caring for people with dementia, but Mr Burgess did not himself suffer from the disease.
PC Smith said he did not know Mr Burgess was in a wheelchair and claimed he was holding the utensil with ‘an immensely tight grip.’
PC Comotto denied claims she failed to treat Mr Burgess with tolerance, respect and courtesy.
‘He had a knife in his right hand in a particularly strong grip which ultimately took the combined efforts of two police officers to remove from his grip,’ she said.
‘The blade was serrated several inches long.’
Smith and Comotto both denied they used ‘unreasonable and disproportionate force’ on the pensioner.
PC Smith denied and were cleared by the jury at Southwark Crown Court of two counts of assault causing actual bodily harm using his PAVA spray and baton.
Comotto was cleared of one charge of assault causing actual bodily harm with her Taser.
The jury took less than two hours to reach its verdicts and Judge Christopher Hehir thanked them for their efforts in this ‘very emotional and sad case’ over the last six days and said:
‘It is clear you followed all the evidence in this case. I am very grateful to you on a personal level and the court is grateful.’
Judge Hehir also thanked members of Mr Burgess’s family for their ‘quiet dignity’ while listening to the evidence, adding: ‘It can’t have been easy for them.’
Paul Jarvis, prosecuting, had said Mr Burgess was experiencing difficulties following a urinary tract infection.
‘He was struck with a police baton and tasered while sitting in a wheelchair in his room in a care home for people with dementia.
‘He only had one leg, hence the reason he used a wheelchair.
‘At the time of the event Mr Burgess was holding a small cutlery knife, a similar size and shape to a butter knife.
‘Mr Burgess was taken to hospital and, sadly, while he was there, contracted Covid, and passed away on the morning of 13 July that year.
‘He was an elderly gentleman, he was unwell. He died as the result of an infection, not as a result of what they did to him.’
Mr Burgess, who was on antibiotics for his infection, started flicking food at members of staff.
He was asked to hand the knife over, but he refused, and poked a staff member in the stomach with the knife, the court heard.
‘He tried to lash out at staff with the knife he had, but they were able to avoid his swipe.’
‘After thirty minutes or so care home staff made the decision to call the police.’
PC Smith and PC Comotto were called to the scene and tried to persuade Mr Burgess to put the knife down.
In police bodyworn footage shown to the jury, PC Smith can be heard saying to Mr Burgess:
‘Put it down mate. Come on, Donald, don’t be silly. We can solve it without having to resort to this…Do as you’re told. Put it on the floor. You’re now going to be sprayed.;
Mr Jarvis added: ‘It appears that PC Smith emptied all or almost all of his canister in Mr Burgess’ face.
‘The prosecution say that the force the defendants used was unjustified and unlawful.’
Care home manager Alison O’Donoghue had said in her statement that colleague Anna Maslowska asked Donald to drop the knife.
‘He moved the knife towards her and made contact with her abdomen area.
‘The skin wasn’t broken but she did have a bit of redness around that area. It was the intention of what he wanted to do that we found scary.
‘We wanted to move Donald away from other residents because of his behaviour. We did not want him to cause harm to other residents.
‘Donald was saying things like he wanted to stab us. He was very angry. His face was different to how he normally looks. He looked very aggressive. He had anger in his eyes.
‘He was saying ‘I’m going to get you. I’m going to get great pleasure from this’.’
‘Donald kept saying ‘I’m going to get you. I’m going to stab you. I’m going to get great pleasure from it’.’
‘I said to him that if he dropped the knife I would get him a pudding.’
Another care home worker, Donna Lahmouddi, told the jury he had been suffering from a urine infection and that this could have affected his mental state.
‘It could have made him confused, lethargic, just like you or I.’
In a 999 call played to jurors Ms Lahmouddi told the operator: ‘He is stating that he wants to murder and that it will give him a great deal of pleasure… [The knife] has a serrated edge and it could cause damage if he was to use it.’
Smith, who joined Sussex Police 22 years ago, was asked by his barrister Dennis Barry how tightly the pensioner was clutching the butter knife.
‘I described white knuckles,’ he said.
‘That indicated that he had an immensely tight grip on the knife.’
Mr Barry asked: ‘What did you perceive your function to be when you went into that care home?’
Smith replied: ‘To make sure no one was injured. Mr Burgess had to put the knife down’, Smith replied.
Mr Barry asked: ‘Looking back now, what were you trying to do with the baton at that time as we have seen on the screen?’
‘To knock the knife out of Mr Burgess’ hand,’ the officer replied.
In her statement Comotto had said joining the force in October 2014 was the ‘realisation of a life-long dream come true.’
She had receed awards, commendations and national recognition working for the Sussex police.
Comotto told the court: ‘I treated Mr Burgess with the utmost respect, even though he tried to stab PC Smith earlier that did not negatively affect my treatment of Mr Burgess.’
‘I do not believe in conscience that my use of the taser was disproportionate, excessive or unreasonable – that is my honestly held belief.
‘He had a knife in his right hand in a particularly strong grip which ultimately took the combined efforts of two police officers to remove from his grip.
‘The blade was serrated several inches long.’
Giving evidence as a character witness Robert Megit, a professional development assessor with Sussex police,described PC Comotto as a ‘one in a million’ officer.
He told the jury: ‘She is incredibly calm, patient and committed. She was an outstanding mentor. She would sit students down and take them through step at a time. She would give them as much help, guidance and support as they need.
‘I have never seen PC Comotto use excessive force…I will challenge excessive force. I have never seen Ms Comotto use excessive force. She is very, very good at talking people down.’
In his closing speech Mr Barry said: ‘What happened to Mr Burgess is obviously very sad. We all have parents. Some of them are elderly. You would not want that to be your elderly father.’
But he reminded the jury that Mr Burgess had threatened care home staff, and that they had been concerned enough to call the police.
‘It is important to look at this case in context.
‘The job of these officers is, bluntly, to get the knife out of Mr Burgess’s hand. That is why they asked him to drop the knife almost twenty times.’
Colin Banham, defending PC Comotto, said she had told Mr Burgess: ‘We don’t want to hurt you’.
‘She was showing the taser which is bright yellow for a reason. So that it’s obvious to all.
‘The PAVA had been tried and had failed. The baton had been tried and had failed.
Mr Banham said that doing nothing was not an option.
‘That would be contrary to the duty that police officers have. They can’t just walk away.
‘It would be a case of damned if you do, damned if you don’t.’
Mr Burgess was born and lived in nearby Battle for most of his life. He married his wife, Ethel in 1955 but they did not have children. Ethel died in 2015.
PC Comotto denied one charge of assault causing actual bodily harm with her Taser while PC Smith denied two counts of ABH using a PAVA spray and baton.
