Vancouver police officers say pepper spraying Myles Gray, beating him with their fists and batons and putting him in neck restraints were all necessary levels of force in the violent struggle that left him dead.
Testimony from the officers to a coroner’s inquest Wednesday (April 19) began to piece together the moments – some of them contradictory – leading up to Gray’s death on Aug. 15, 2015.
The 33-year-old was confronted by police in the backyard of a home at 8375 Joffre Avenue after he reportedly sprayed a woman a few streets over with water from her garden hose and called her “hot.” The woman’s son and a neighbourhood friend called 911 and expressed their concern about Gray’s erratic behaviour, describing him as yelling and making random movements.
The inquest’s jury heard from Gray’s younger sister Melissa Gray on Monday that he was diagnosed with bipolar disorder in high school and that Melissa believed her brother was suffering a manic episode on the day of his death. The 911 callers told dispatchers they thought Gray may be intoxicated or high.
Officers testifying Tuesday and Wednesday offered varying accounts of their fatal interaction with Gray, with each remembering what occurred differently.
Const. Eric Birzneck, who was a crisis negotiator at the time and is now a use of force instructor, told the jury he made an effort to calm Gray down and communicate with him at first, suggesting some de-escalation techniques were used. Birzneck said he only pepper-sprayed Gray after he suddenly charged forward at Birzneck.
Neither of Birzneck’s two fellow officers, constables Hardeep Sahota and Kory Folkestad, remembered things the same way, though. Sahota told the jury Birzneck instructed Gray to get on the ground and then immediately pepper-sprayed him when he didn’t comply. Folkestad said Birzneck pepper-sprayed Gray after he “tensed his whole body and let out [a] huge primal roar.”
This variation in officers’ memories was cited by the B.C. Prosecution Service in 2020 when it announced it didn’t have enough evidence to prove beyond a reasonable doubt that officers used excessive force or committed criminal offences. They were the only witnesses to Gray’s death.
What was made clear in the officers’ testimony to the coroner’s inquest was the level of fear they felt and the degree of violence they inflicted on Gray.
Sahota and Folkestad told the jury they each felt like their lives were on the line that day. They and Birzneck expressed fear around Gray’s unpredictable behaviour, his well-built figure and his sudden bursts of seemingly “superhuman strength.”
After Birzneck pepper-sprayed Gray, Sahota and Folkestad said they tried to handcuff him but Gray broke free of them. Folkestad told the jury he was impacted by some of the pepper spray and that Gray threw him across the yard at one point and knocked him unconscious with a punch to the face at another point.
Folkestad said he continues to suffer from PTSD from that day.
Sahota and Birzneck said they both used their batons to beat Gray’s legs and Folkestad said he punched Gray in the face “as hard as I could as many times as I could.” The three were able to get Gray to the ground, where Birzneck said he kicked him once to keep him down.
More officers arrived, with one using a nylon strap known as a “hobble” to secure Gray’s ankles together and another striking him repeatedly with a baton.
Questioned by the jury to as why they continued to beat Gray when he was on the ground, the officers said it was because Gray was continuing to move and resist them. They said they couldn’t handcuff Gray because he was on his back and, thus, couldn’t gain full control of him.
Once officers were able to get Gray onto his side and stomach, Birzneck said he twice applied a kind of choke hold known as a “vascular neck restraint” to Gray to try and slow the flow of blood to his brain and make him pass out. Birzneck said he continued with the second choke hold until Gray was handcuffed.
He, Sahota and Folkestad said they had all walked away from the scene before Gray went into cardiac arrest and died.
An autopsy found Gray had been left with with numerous broken bones in his face, a broken rib, brain bleeding, a ruptured testicle and extensive bruising, but couldn’t determine the exact cause of his death.
The officers who were present when Gray died are scheduled to testify throughout the rest of the inquest, which is expected to last until April 28. The jury is tasked not with finding blame, but determining the circumstances of Gray’s death and how similar ones may be prevented in the future.
Editor’s Note: An earlier version of this story said a toxicology report detected Kratom in Gray’s system. A toxicologist has since testified that was a mistake and that upon review he found Kratom didn’t meet the criteria for detection. This part of the original story has been removed.