The Olmsted County attorney's office Thursday declined to charge two St. Paul police officers with felony assault for spraying a man with chemical irritant and kicking him during an August arrest.
There isn't enough proof beyond a reasonable doubt that officers Jesse Zilge and Matthew Gorans used unreasonable force in the arrest of Eric R. Hightower, the attorney's office said. The arrest was captured on video by a bystander and posted to YouTube, where it ignited concern among community members and Police Chief Thomas Smith.
"Minnesota law authorizes law enforcement officers to use reasonable force when attempting to arrest a person," read the statement from County Attorney Mark Ostrem. "In this, Officer Zilge had probable cause to arrest Hightower for making threats to kill his ex-girlfriend."
Jeff Martin, president of the St. Paul NAACP, said he hopes that the officers' actions will be further scrutinized.
The officers' use of force should have scaled down after Hightower was sprayed with a chemical irritant, said Martin, who is also an attorney.
"It doesn't give you that I-can-do-whatever-I-want-to-do pass," Martin said of an officer's discretion. "What's kicking him going to do?"
Zilge and Gorans were placed on administrative leave and an internal affairs investigation was launched.
"I want to know what happened from start to finish in this instance, and the biggest piece, the public has a right to know," Smith said in August.
The internal investigation is ongoing, and the officers have returned to non-patrol jobs. Police spokesman Howie Padilla said the department's investigation will look at policies and procedures and will not be influenced by the Olmsted County attorney's decision.
The five-minute YouTube video showed Hightower lying on his side on the sidewalk propped up on an elbow. Zilge kicked him once in the chest as bystanders watched.
Zilge rolled Hightower onto his stomach and handcuffed him. A second officer helped Zilge lift Hightower to his feet and walk him to a squad car. The officers appeared to slam Hightower's head and upper body on the hood.
According to the county attorney's office: Hightower, 30, initially walked away from Zilge while being arrested on Aug. 28 for allegedly threatening to kill his ex-girlfriend earlier in the day. He allegedly had broken the woman's bedroom window earlier.
Thursday's statement said Hightower ignored several commands to lie on his stomach and Zilge used chemical spray on Hightower twice because the first time was ineffective. He activated but did not deploy his Tazer. Hightower got on the ground, but not on his stomach, and yelled at Zilge.
The officers said that when they lifted him up, Hightower turned as if to head-butt Zilge.
"The courts have stated that to encourage responsible law enforcement, police officers are afforded a wide degree of discretion precisely because a more stringent standard could inhibit action," the statement said. "The law is designed to prevent after-the-fact second guessing about the actions of officers on the streets who may have to make the decision to act quickly."
Gorans helped Zilge and the other officer place Hightower in the back of a squad car, the news release said. His feet were outside of the car when Gorans reached in from the opposite end and pulled him in by his upper body. Gorans sprayed Mace into Hightower's face and right ear.
"Great physical effort was being used without success to get Hightower into the squad, escalating the degree of force necessary to subdue Eric Hightower," the statement said.
St. Paul Police Federation President Dave Titus said the decision shows that officers acted in "good faith and according to their training."
Hightower's attorney could not be reached for comment.
Hightower was charged with aggravated stalking, terroristic threats and property damage in the case with his ex-girlfriend. He also pleaded guilty to third-degree assault in July for an unrelated assault in which he punched a man, knocking out his two front teeth.
Staff writer Nicole Norfleet contributed to this report. Chao Xiong • 612-270-4708 Twitter: @ChaoStrib