Man who loses eye after being pepper-sprayed sues City of St. George, 3 officers

Local News

ST. GEORGE, Utah (ABC4 News) — A St. George man has filed a federal civil rights lawsuit alleging police used excessive force on him by pepper-spraying him while he was suffering from a mental health emergency, resulting in the surgical removal of his right eye and severe post-traumatic stress disorder.

Benjamin Joseph “Joey” Herold, 41, and his attorneys, Robert Sykes and Peter Sorensen, announced the lawsuit Monday against St. George Police Sgt. Michael Christensen, officers Pace Truman, and Gage Gardiner, and the city of St. George. Sykes also released body camera footage from the officers involved.

On March 13, 2019, Joey’s sister, Emily Tomer, called the St. George Police Department asking for an officer’s assistance due to Joey’s mental health issues. According to the lawsuit, Tomer explained that Joey was in a “delusional state” demanding guns and yelling at his mother, although she also reported that their mother was safe. Tomer told dispatchers that Joey had dumped some of his medication down the drain and needed mental health services.

Officer Truman arrived on scene first, speaking with Cheryl at her front door, who told him that her son is bipolar and needs to be taken to the hospital. Cheryl explained that her son has never tried to physically harm her, allowing the officer into the home.

Truman makes his way towards Herold’s bedroom and can be heard in the footage asking the 41-year-old how he can help him, expressing concern about him having a weapon. An angry Herold responds by dropping his pants and underwear to the ground around his ankles and spinning around in a circle several times.

“This demonstrated that Joey was not only unarmed but that he was mentally ill by exposing himself in this manner,” the lawsuit states. “Joey demonstrated that he would have lucid moments of understanding and then agitated moments of mental illness.”

Officers arrived as backup on the scene a short time after Truman responded, and the conversation moved to the garage. Police calmly explain that he won’t be allowed to sleep at his mother’s house that night and ask him if he would like to go to the emergency room.

“What do we need to do to get you taken care of tonight? Because your mom is not comfortable right now,” one officer explains.

Herold declines the ER visit and asks the officers to drive him to the Uinta mountains. He speaks about wanting to move to Seattle, Washington, stating, “I would rather be shot by a Seattle cop than a Utah cop,” and describes “preparing for zombies and the end of the world.” Joey states that he has no intentions to hurt his mother nor anyone else.

“I’m going to bed. I’ve already taken my meds,” he states. “All I want to do is to kiss my mom goodnight and go to sleep.”

The situation appears to escalate as Herold walks towards a refrigerator and opens it. Christensen orders him to “stay out of the fridge” and “stop right there.” Herold appears immediately flustered and defensive, yelling, “do not push me.”

Christensen tells Herold he is being detained, at which point he throws a can of soda on the garage floor. Christensen then tells Herold he is under arrest. He places his hands behind his back, screaming expletives.

“Christensen, for no apparent reason, then took Joey forcefully to the ground where Truman and Gardiner also pounced on him,” the lawsuit alleges. “The officers then commanded Joey to roll on to his stomach and place his hands behind his back, to which an officer present on scene advised, ‘He can’t.'”

The lawsuit alleges Heorld was unable to perform the commands due to the hands-on restraint and body weight of the defendants on his body.

“Roll on your back or I will shoot you in the face,” Christensen said. The officer explains that “this is OC,” meaning oleoresin capsicum, commonly known as pepper spray.

Herold tells the officers, “Go ahead! Shoot! I hope it kills me.” Within seconds, Christensen shoots Herold in the face with the pepper spray gun.

The lawsuit alleges the shot was discharged from an estimated six to 12 inches away from Herold’s eye, calling it an “extreme use of force and a violation of Joey’s rights.” Attorneys allege that the manufacturer’s recommendations are to not discharge the spray closer than four to five feet from an individual.

After the shot is fired, Herold appears to be subdued and blood is seen on the ground.

“This is not what we wanted to happen,” one officer tells him.

Herold explained he has undergone three surgeries due to complications and had to have his eye surgically removed and replaced with a glass eye.

“Christensen used force as a punitive measure to get back at Joey for allegedly not responding to his demands,” the lawsuit states. “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.”

Court records show that Herold was charged in Washington County with criminal mischief and interfering with a police officer one day after the incident, but the charges were dismissed.

Skyes said that he sent a notice of claim to St. George in March that Herold would be filing a lawsuit.

“Just one day after receiving the above-referenced notice of claim, defendants caused prosecutors in the Fifth District Court to charge Joey with five different criminal misdemeanor counts,” the lawsuit alleges, adding that the charges “were clearly in retaliation.”

Herold was since charged with three counts of assault against a police officer, one count of interference with an arresting officer, and criminal mischief.

“After this incident, I felt like I was living in a nightmare, like a skipping record,” Herold told ABC4 News. “Short and sweet, I was in hell for the past couple of years. That night was hell for me.”

Herold said he believes the officers had no right to detain him because he showed he was unarmed and was not aggressive.

“I did see the round because it was close enough to my eye,” Herold said. “The last color I saw out of my eye was a maroon color pepper ball, JPX round, and with me being able to see that round down the barrel, it’s not good.”

Cheryl told ABC4 News there are “no words to describe” the frustration and pain she felt when the officers told her to “go back inside” during the incident in the garage. She said that for the first time in her life, she questioned the actions of the police.

“Are they there to protect? There are police that are good, but now I don’t know anymore. I felt very frustrated because mental health did not come,” Cheryl said. “I was not afraid of my son. I tried to explain to them, and they just did not listen.”

The St. George Police Department directed all media inquires to the city. City spokesman David Cordero said the city had not been served with the lawsuit as of late Monday afternoon, declining to comment.

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