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Homicide Without the Crime 

DA determines officer used justified force in fight that led to man's death

On Aug. 12, Jerry Nichols was not well.

The 64-year-old's severe heart problems had meant yet another visit to the emergency room at St. Charles Medical Center. His fifth in just a handful of months, according to his wife, Barbara Nichols.

The Vietnam veteran and former prisoner of war had mental health issues, too. A dementia diagnosis and post-traumatic stress disorder made him often erratic, angry and combative.

That day in the hospital, Nichols was particularly agitated. His wife recommended that he be restrained, but said she was brushed off by emergency room staff.

What happened next was two bouts of physical scuffles, first between Nichols and hospital staff and, second, between Nichols and a police officer. These encounters would ultimately lead to Nichols' death on Aug. 20, according to a state medical examiner who has ruled the was death a homicide at the hands of those who dealt with Nichols that day.

But though the medical examiner has ruled the death a homicide, Deschutes County District Attorney Patrick Flaherty announced Tuesday that he would not pursue charges against anyone involved, including Bend police officer Steve Craig.

"What physical force was used, was justified under the circumstances," said Flaherty Monday night.

Flaherty said that despite whatever mental illness Nichols may have had, this case is very unlike those in recent years from Portland. There, several people with mental illnesses have been killed by police. Just last month, the Department of Justice ordered the Portland Police Bureau to enact more effective police training around dealing with people experiencing mental illness.

"I am not specifically familiar with any of the Portland cases," said Flaherty. "[But] this did not involve the typical case coming out of Multnomah County."

For Barbara Nichols that sort of news is little consolation.

"I'm not real happy about it," said Nichols about the DA's announcement on Tuesday. "I'm actually kind of angry about it."


At the hospital on Aug. 12, Barbara Nichols had become frustrated with doctors and nurses whom she felt were not listening to her advice on how to handle her husband. She stepped into a hospital lobby to take a break from the tense situation in her husband's room.

On the other side of the doors to the ER, Jerry Nichols was becoming increasingly violent. He began to physically fight hospital staff, accelerating his heart rate and further exacerbating low oxygen levels in his blood.

St. Charles emergency room staff placed a call to 911, advising "available police officers that St. Charles Emergency Room had a patient who was out of control, had assaulted a nurse, was threatening to stab hospital staff and who claimed to be a professional fighter," the DA's report stated Tuesday.

St. Charles Medical Center officials declined to comment for this story.

By the time Officer Craig drove up to the emergency room drop off and pick up area, Nichols was outside sitting on a park bench.

As Craig got out of his car, Nichols became angry again and charged the office who tased the man. Still, Nichols kept coming and Craig hit him on the side of the head in a scuffle.

According to the state medical examiner, Nichols could not sustain the physiological stress of all the fighting—his heart seized up and he stopped breathing.

The lack of oxygen to his brain would leave Nichols with a brain injury, causing him to remain unconscious and to experience seizures for the next eight days, before he was removed from life support on Aug. 20, according to the state medical examiner Dr. Christopher Young.

It was this brain injury along with severe heart problems and other severe medical issues that caused Nichols death. But it was the fighting he engaged in with hospital staff and Officer Craig that the medical examiner ruled to be the manner of death—and why the death has been labeled a homicide.


It is not unusual for medical examiners to determine that officer-involved shootings or instances like Nichols case would be considered a homicide, said Young.

"Technically, it's the death at the hand of another. [But] this is simply saying that another person or other people played a role in his demise," said Young, who performed the autopsy of Nichols body in Portland shortly after the man's death.

Young said that a doctor performing an autopsy has only five choices for what to call deaths in the state of Oregon: accidental, homicide, suicide, natural or legal intervention.

When the examiner is filling out the electronic forms necessary to report the cause and manner of death, they simply pick one of these boxes.

"That's not saying anything about the legal implications," said Young.

But an attorney that Nichols' wife consulted in Bend said he's never, in more than 50 years of being a criminal and personal injury lawyer, seen a medical examiner label a death a homicide when police were involved.

"I've never seen a death certificate where somebody is tasered or dealing with police and dies in that instance and it's ruled a homicide," said Roy Dwyer of Dwyer, Williams, Potter Attorneys.

While Dwyer has declined to manage Barbara Nichols' ongoing legal affairs in this case, he has referred her to other counsel outside the area.

Barbara Nichols said she is unsure how she will proceed with any legal issues at this time but is extremely disappointed in the police department , St. Charles and now the district attorney.


The Bend Police Department conducted an internal investigation into the incident and contracted with Oregon State Police to conduct an independent review, said Lt. Chris Carney of the Bend Police Department.

While representatives from both organizations declined to comment on the findings of their reviews, what's happened since is a clear indication of how Officer Craig's actions have been interpreted.

"He is still here and he is on duty," said Carney.

OSP and BPD findings were referred to the district attorney, who concluded in his Tuesday report that Officer Craig used an appropriate degree of force considering the circumstances.

"Officer Craig reasonably believed Mr. Nichols was about to use unlawful physical force against him and the degree of force used by Officer Craig was commensurate with the threat he perceived," stated the DA's report on Tuesday.

Both Carney and Flaherty said that it seems Officer Craig was not informed of Nichols' medical history, but there is some indication from the DA's report that he knew Nichols was experiencing some dementia that day.

"He did know Mr. Nichols had been assaultive and threatening toward Emergency Room staff, [and] that Mr. Nichols claimed to be a professional fighter," the DA's report reads.

Even if no criminal activity occurred on the part of hospital staff or Officer Craig, for Barbara Nichols, the big question is whether hospital staff or the police could have responded better to her husband's issues that day.

She's not sure what she can do now, but said she believes one thing.

"I don't think anybody handled it well at all," she said. "If they had handled it differently he might still be alive."

In Oregon, once an autopsy is concluded a medical examiner has only a few options for what to consider the "manner of death." While the cause of death could be anything ranging from a heart attack to a gunshot wound, there are only five "manner of death" check box options on the forms filled out by a medical examiner. We describe them below.

Accidental: This is usually a pretty clear choice for a medical examiner. A fall off a ladder, a car accident or a slip on some ice would all lead to this designation.

Homicide: This is simply death at the hands of someone else, and does not imply any criminal intent. In the case of Jerry Nichols, a state ME ruled his death a homicide but the Deschutes County District Attorney said a police officer involved in the death used justifiable force under the circumstances and so no charges will be filed.

Natural: Deaths occurring where natural processes within the body caused a person to die. Most medical issues fall under this category.

Suicide: This is the classification used when someone takes their own life. This can become complicated when someone overdoses on pills or kills themselves playing Russian roulette. In both of those cases, the decision might also be labeled accidental.

Legal intervention: This pertains to circumstances such as when someone is put to death by the state.

Source: Forensic Admistrator Eugene Gray with the Oregon State Medical Examiner's Office.

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