A grainy but dramatic security video raises new questions about the actions of a Bastrop County deputy sheriff who used his Taser on a high school student, resulting in brain damage to the 17-year-old, and casts doubt on official statements about what happened that day last fall.
In the Nov. 20, 2013, video, Noe Niño De Rivera doesn’t appear to be displaying any aggressive physical behavior toward two deputies at Cedar Creek High School and might have been backing away when one of the two deputies fired his Taser, causing Rivera to fall backward and hit his head on the hallway floor.
Sheriff’s officials said at the time that deputies were trying to stop a fight between two girls and that Rivera tried to interfere and acted aggressively. But the video makes it clear that the fight had been over for at least several minutes when the deputy used his Taser on Rivera.
Several students who witnessed the incident testified in sworn statements – and the video seems to corroborate – that Rivera hadn’t pushed or hit either of two Bastrop County deputies involved in the confrontation, nor was he armed.
The video and statements, obtained jointly by the American-Statesman and KVUE-TV, provide the most complete account so far of what happened in a case that has rekindled debate about the use of Tasers by school police against students.
The footage and testimony are being used by Rivera’s family in alleging excessive force in a civil lawsuit against the school district, sheriff’s department and the deputy who fired. School officials have repeatedly declined to release records that could provide further evidence about why the deputy used force.
Last month, after the incident, seven civil rights and social justice groups urged the state Commission on Law Enforcement to ban the use of Tasers, stun guns and pepper spray on students at public schools in Texas, saying officers should use alternatives because of the potential consequences of using Tasers. Officials haven’t acted on that request.
“What did he do to justify getting Tased in a high school hallway?” said Adam Loewy, an Austin lawyer representing Rivera’s family. “We are very confident that any police practices expert who looks at this will say, ‘You don’t Tase someone in this situation.’”
Loewy said had the two deputies thought Rivera’s behavior required the use of physical force, the two men could have easily overpowered Rivera, who he said weighed 130 pounds. Rivera’s legal guardian said in a sworn statement that “Noe’s not too tall, and he’s a little short guy.”
School officials and a spokeswoman for the Bastrop County sheriff’s office declined to comment on the newly obtained evidence, citing the pending lawsuit and an ongoing investigation into what happened.
Deputy Randy McMillan, who fired his Taser, and Deputy Timothy Stalcup, who also was at the scene, couldn’t be reached for comment.
Immediately after the incident, authorities said the deputies were trying to stop a fight between two female students in the hallway. Rivera didn’t listen to the deputies, acted aggressively and “looked as though he was ready to fight,” sheriff’s spokeswoman Sissy Jones said at the time.
Officials on Tuesday declined to release an incident report describing the deputies’ version of the sequence of events.
Yet in a striking difference from previous accounts, the video shows that the fight had ended before the deputies arrived and entered the camera’s view.
A student testified that she had seen Rivera arguing with the deputies and that he removed his backpack shortly before he was shocked with the stun gun. Guadalupe Lopez, a person identified in court records as Rivera’s legal guardian, testified that a law enforcement officer who contacted her after the incident told her that Rivera had “thrown his backpack,” “went into a mode that he wanted to fight the officers” and “that they told him twice to back off and he didn’t listen.”
Officials also said soon after the incident that Rivera could be charged with crimes that include interference with public duties, resisting arrest and assault. No charges have been filed in the case.
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. Rivera spent 52 days in a medically induced coma, according to Loewy.
He said this week that Rivera’s condition was life-threatening, that he nearly died several times and that the family’s medical bills have topped $1.5 million. Rivera was out of the hospital briefly but was recently readmitted.
“He will have to deal with the effects of a traumatic injury the rest of his life,” Loewy said.
Rivera’s family filed their lawsuit seeking unspecified damages days after the incident.
The lawsuit also alleges school officials delayed calling for medical assistance, even though Rivera “was in an obvious emergency medical situation.” Witnesses later testified that Rivera had blood coming out of his ear.
Loewy obtained the video as part of the lawsuit and provided it to the American-Statesman and KVUE at the news outlets’ requests after officials declined to release it. The witness statements were taken by Loewy as part of the suit, but witnesses weren’t cross-examined as part of that process.
The video, taken from a camera mounted in the school’s hallway, shows the confrontation between Rivera and the deputies lasted about a minute.
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 Rivera’s hands at the moment the deputy deployed the weapon, although at least two witnesses testified that they were at his side.
In sworn statements last week, one of the girls involved in the fight testified that Rivera, who was her boyfriend, was helping remove her from the area where the fight occurred when the deputies arrived.
The deputies told her she needed to go with them, and, when Rivera told them that she hadn’t started the altercation, one of the deputies “touched him on the shoulder, and Noe told him, ‘Don’t touch me,’ and all the attention went to him.”
The female student said deputies instructed Rivera to move back, but that they moved back with him.
“And then Noe took off his backpack and they kept – they kept arguing for a while, or talking back and forth … and then out of nowhere, Noe just fell,” she said, referring to the moment McMillan used the Taser. “He fell to the ground, and it sounded really loud whenever he hit his head.”
Another student testified he saw Rivera’s hands “straight down” and didn’t hear the deputies issue any commands before using the Taser.
A third student testified that he saw Rivera backing away from the deputies moments before the use of the weapon.
“His hands were just by him (sic) side – just by his side,” the student said, according to a transcript.
The American-Statesman isn’t identifying the teens because they are minors and the newspaper didn’t independently interview them.
Lopez said in her statement that Rivera is “a quiet guy. I’ve never seen Noe in an angry mode or anything like that.”
“He’s a very sweet person,” Lopez said.
Statesman and KVUE
This story is reported in partnership with KVUE-TV. See more of Tony Plohetski’s exclusive and investigative reports online at MyStatesman.com and on air on KVUE.