Deputy used chokehold on man

The man who died last week following a confrontation with Spokane County sheriff’s deputies outside a South Hill gym stopped breathing after being put into a chokehold, according to new details released Thursday.

The deputy who used the hold, technically referred to as a lateral vascular neck restraint, did so only after 34-year-old William Berger kept struggling despite three shocks with a Taser, investigators said. During that struggle, Berger also reportedly grabbed a Taser and tried to use it on one of the deputies, according to Washington State Patrol Trooper Jeff Sevigney.

Deputies Steve Paynter and Shawn Audie were dispatched to Oz Fitness, 5501 S. Regal St., after a report of a man being disorderly and increasingly violent.

“The first deputy (Paynter) arrived and contacted Berger in the middle of the street,” Sevigney wrote. “Berger began striking the deputy’s vehicle. The deputy attempted to calm Berger but Berger took a fighting stance. (Paynter) deployed his Taser, causing Berger to fall to the ground.”

Berger stood up, pulled out the barbed Taser probes and ran a short distance, then apparently saw Audie arriving at the scene.

“Both deputies engaged Berger at which point Berger continued to be confrontational with deputies,” Sevigney wrote.

The deputies shocked Berger two more times, and he again fell to the ground.

“The Taser effect was not long lasting, and Berger continued to fight,” Sevigney wrote.

Audie then put Berger in what Sevigney called a “lateral vascular neck restraint,” commonly referred to as a sleeper hold, in which someone wraps their arm around the neck to restrict blood supply to the brain.

Berger, who had martial arts training, was able to pull Audie’s arm away “as they fought,” according to Sevigney. “During the fight, Berger got control of one of the Tasers and attempted to use it against one of the deputies.”

As the struggle continued, Audie was able to regain control of Berger by applying a second chokehold.

“Berger stopped resisting, at which time deputies noticed that he had stopped breathing,” Sevigney wrote. Medics had already arrived and helped revive Berger, who was then taken to Providence Sacred Heart Medical Center.

Sheriff’s Sgt. Richard Gere, who is the department’s defensive tactics and use-of-force expert, said he is not aware of any deaths attributed to the lateral-vascular neck restraint, or LVNR, “if it’s applied correctly.”

The use of the “carotid restraint hold,” as it’s referred to in a search warrant filed Thursday in Berger’s case, has long been a source of controversy. Some of the largest civil settlements with police in Las Vegas have come from use of chokeholds during arrests, according to a 2011 report in the Las Vegas Sun about a $1 million settlement to a family for the death of a man who died after officers used the LVNR.

The Los Angeles Police Department discontinued the use of the holds after several deaths in the 1980s, the Sun report noted.

Gere said deputies are trained only to use the neck holds during times when suspects are actively resisting or assaulting the arresting officer, as is also true with their Tasers or batons.

Audie, who used the chokehold on Berger, is a certified LVNR instructor, Gere said.

“They are trained to use it by positioning the arm around the subject’s neck, making sure to stay off the front of the neck to avoid damaging the trachea or larynx,” he said. “They are also taught to apply equal compression to both sides of the neck … until the person goes unconscious. Once they go unconscious, they are taught to release the hold and placed them in restraints as soon as possible, so when the person wakes up to 5 to 20 seconds, they are in restraints.”

The Spokane County medical examiner has not yet determined the cause of Berger’s death, but sources indicated last week that he had recently suffered a head injury for which he had been hospitalized.

Berger also had a similar encounter on June 4 at a central Spokane gym when he showed up for a Brazilian Jiu-jitsu group session. Owner Bart Smith said in an earlier interview that Berger acted “quirky” before striking his grappling partner. Berger also toppled a trash can before barricading himself in the gym’s bathroom, he said.

Joe Bornstein was working out at the Oz Fitness on South Regal when he noticed Berger’s behavior change from normal to irrational.

Bornstein previously told The Spokesman-Review that he saw the first deputy walk up without conversation and shoot Berger with a Taser.

But on Thursday, Bornstein said he may not have seen the entire confrontation and has not been contacted by investigators. Bornstein said he helped Oz staff get Berger out of the gym. Bornstein then returned to the locker room to get dressed. When he walked outside, he heard a loud noise as if Berger had been struck by a car. But another witness said it was Berger striking a car.

It’s then Bornstein saw Berger near the corner of an un-finished parking lot across the street from the gym. “He was kind of bent over, legs wide a little bit, but he was very strangely jumping,” Bornstein said. “I watched (the deputy) walk from the car. He walked straight up to him and Tased the guy.” Sheriff Ozzie Knezovich said based on his understanding of the incident, he believes Bornstein missed key details described by other witnesses.

Based on Bornstein’s published statement last week, Knezovich said he personally asked WSP detectives, who are handling the investigation, to contact Bornstein.