:: Deaf man shot with beanbags at traffic stop sues Modesto police | The Modesto Bee ::

Forceful Complaint

Last Updated: April 22, 2007

One rainy night last spring, a swarm of Modesto police cars descended on a truck that was heading north on McHenry Avenue. The pickup stopped and the officers ordered the driver to get out with his hands up.

Modestan Harry “Dan” Tessien sat in his truck, waiting.

Officer Daniel Starr repeated his order several times.

Tessien sat in his truck, waiting.

Starr gave his order in Spanish.

Tessien sat in his truck, waiting.

Officer Yair Oaxaca fired a beanbag shotgun at the pickup’s back window, sending a spray of shattered glass throughout the cab.

Tessien leapt out of his seat, and Oaxaca fired a beanbag into his abdomen. Officer Rodney Garcia delivered two more rounds because Tessien still had not raised his hands.

Oaxaca and Garcia delivered six more rounds, according to their reports, hitting the man in the torso and legs as he ran for cover and ducked under the front bumper of his truck.

Tessien — who has sued the city in federal court alleging the officers violated his civil rights by using excessive force — said he was screaming the whole time.

“I am deaf,” he recalls shouting. “I am deaf.”

Months after the incident, Tessien pleaded no contest to a misdemeanor charge of driving under the influence of alcohol, but police reports show he was pulled over in a case of mistaken identity.

Just before 1 a.m. on March 11, 2006, Starr spotted Tessien’s 2004 black Nissan Frontier and believed he might have an armed suspect in sight.

The police were looking for a late-model red Toyota truck that might have been heading toward the Five Points intersection after an incident downtown in which shots may have been fired.

In his report, which Tessien’s lawyer provided to The Bee, Starr said he noticed Tessien’s truck because its lights weren’t on, and it bumped a concrete gutter twice. Tessien denies those allegations.

Starr made a U-turn, advised dispatchers of his location and waited until other patrol cars arrived to back him up. Tessien was driving about 30 mph.

One unit sped in front of Tessien to put stop sticks in the road and block traffic coming from the north on McHenry. Other units blocked traffic coming from the south, shutting the road down.

40 grams of lead shot

Tessien, a pizza deliveryman who has been deaf for 25 years, saw flashing police lights. He pulled over in front of City Tire Sales, after a pursuit that lasted eight-tenths of a mile.

Then he was pelted with nylon beanbags, which contain 40 grams of lead shot and are meant to stun a suspect. Officer Michael Hicks deployed his Taser as well, but its prongs fell 2 feet short.

“The police opened fire on me,” said Tessien, 45, who was heading home after a few beers at The Fat Cat nightclub. “I was unarmed and I put my hands out in front, saying over and over, ‘I’m deaf, stop shooting.'”

Tessien, who spoke to The Bee through his lawyer and a telephone-relay device, said the police started shooting no more than 60 seconds after he was pulled over. continued

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  1. Lee

    There are too many problem with traffic law should be abolish cuz of constitutional rights. Most government dont care cuz they need money to collect it from tickets, not safetly.So you must protect your constitution rights says 4th and 5 amdendment rights. Thanks, Lee

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