The FBI has opened an investigation into a Bastrop deputy sheriff’s use of a Taser stun gun on a high school student last year that resulted in brain damage to the 17-year-old, officials confirmed Thursday to the American-Statesman and KVUE-TV.
FBI officials said their inquiry will look into whether Deputy Randy McMillan, who used his Taser, and Deputy Timothy Stalcup, who was at the scene, used excessive force on Noe Niño de Rivera or whether they misused their power during the Nov. 20 incident at Cedar Creek High School.
Niño de Rivera fell backward after he was shocked with the weapon, hitting his head on the hallway floor. He spent nearly two months in a medically induced coma.
FBI spokeswoman Michelle Lee told the news outlets that the bureau recently received a complaint about the deputy’s actions and a request that the incident receive a federal review.
“The FBI has reviewed the material, and we are opening an official investigation,” Lee said.
The incident had already raised questions about how police officers in schools use force, including Tasers and pepper spray.
Last week, the ACLU of Texas and six other civil rights and social justice groups asked Texas Education Commissioner Michael Williams to ban Tasers, pepper spray and other weapons in schools. A similar group had asked the state agency that licensed Texas police officers to prohibit Tasers in schools, but that matter hasn’t yet been addressed.
The case is being investigated by the Bastrop County sheriff’s office and the county’s district attorney, who is expected to present the case to a grand jury next month. Sheriff Terry Pickering and District Attorney Bryan Goertz could not be reached Thursday night.
“My clients and I welcome this investigation and are hopeful there will be an indictment,” said Austin attorney Adam Loewy, who is representing Niño de Rivera and his family.
What happened in the moments leading up to McMillan’s use of force has been in dispute.
Bastrop County officials said immediately after the incident that the deputies were trying to stop a fight between two female students, one of whom was Niño de Rivera’s girlfriend, in the hallway. They said Niño de Rivera did not comply with deputies, acted aggressively and “looked as though he was ready to fight,” sheriff’s spokeswoman Sissy Jones said at the time.
But an attorney representing Niño de Rivera has said the fight had already ended before McMillan and Stalcup arrived. Loewy said that Niño de Rivera had stepped in to break up the fight and that, by the time the deputies arrived, he had already defused the situation.
Last month, Loewy made public a grainy hallway security camera video that shows that the confrontation between Niño de Rivera and the deputies lasted about a minute.
Niño de Rivera, wearing a pink shirt, moved from one side of the hallway to the other, and he can be seen falling backward after being shocked by the Taser. Because of the quality of the video and the angle from which the footage was taken, it is difficult to determine the placement of Niño de Rivera’s hands at the moment the deputy used the weapon.
Two witnesses later testified, however, in sworn statements taken by Loewy that Niño de Rivera’s hands were at his side.
Niño de Rivera was initially taken to a hospital in Bastrop, but when his condition worsened, he was airlifted to Austin, where he was taken into emergency surgery to repair a severe brain hemorrhage. Niño de Rivera spent 52 days in a medically induced coma, Loewy has said.
Loewy has said that Niño de Rivera’s condition was life-threatening, that he nearly died several times and that the family’s medical bills have topped $1.5 million. The teen’s mother said at a news conference last month that her son is now “totally dependent on me.”
Niño de Rivera’s family has filed a lawsuit in federal court against the school district, sheriff’s office and McMillan seeking unspecified damages.
What we reported
Investigative reporter Tony Plohetski, working for the American-Statesman and KVUE-TV, previously reported on security camera video of the Taser incident that raised questions about the police version of events. In the video, the student doesn’t appear to be behaving aggressively toward deputies and might have been backing away when one of them fired the stun gun.