Benjamin Joseph “Joey” Herold was having a bad day that Tuesday in March 2019 when his sister called police to get help for him during a mental health crisis.
He was experiencing side effects from a new medication that made him feel confused and was quick to anger. He said when officers responded, they didn’t help him. They only made things worse. He said they taunted him, goading him to get angry and lash out.
And when he did, they arrested him. Herold lost his right eye after one of the officers shot him in the face with a pepper spray gun. On Saturday, Herold’s attorneys released body camera footage of the confrontation.
Now, Herold is suing St. George city and three officers who responded that night, alleging they used excessive force to arrest him. The lawsuit also accuses the police department of not having adequate training and policies for using pepper spray.
St. George city spokesperson David Cordero said they had not yet been served with the lawsuit and wouldn’t comment until they were.
Herold is currently facing five misdemeanor counts from that night, including allegations of assault on a police officer. He has pleaded not guilty.
On March 13, 2019, Herold’s sister called police to report that Herold, who lived with his mother, was yelling at his mom, Cheryl, and was “delusional” and demanding guns, according to a complaint filed Thursday by Herold in Utah’s U.S. District Court.
His sister had told police that their mother was OK, but that her brother was in mental crisis and needed help, according to the complaint.
Herold admits he got mad that day. He told reporters during a Monday news conference that he wasn’t proud of the person he saw in body camera footage of the arrest.
“Whatever is on that film is not me. I am not the one who goes out looking for fights,” Herold said. “I felt like I was just taken advantage of at the moment. I just felt like I was being taunted.”
But he never struck anyone or tried to, he said. Herold did throw a can of root beer, but not at anyone or anything in particular, his attorney Bob Sykes said.
Body camera footage of the confrontation shows Herold and three officers speaking in the garage. Everything appears OK — albeit sometimes tense — until Herold opened a refrigerator to grab a can of root beer.
Sgt. Michael Christensen and officers Pace Truman and Gage Gardiner responded to the sister’s call that night and are named in the lawsuit.
Video shows Christensen tell Herold, “Stay out of the fridge,” and touch Herold’s shoulder.
“Do not push me,” Herold responds.
Christensen tells him to be calm and that he’s detained, and Herold grabs a soda can and throws it on the ground. That’s when Christensen says Herold is under arrest.
Video shows Herold yelling, but he puts his hands behind his back. An officer tells him to “stop” and “calm down,” and in the next second, the officers take him to the ground. He lands on his back with his hands behind him.
On the ground, Herold struggles with officers, who tell him to stop. Christensen threatens to shoot him in the face with pepper spray if he doesn’t comply.
“Go for it,” Herold says, “I hope it kills me.”
Christensen then orders Herold, who is being restrained by two other officers, to roll onto his stomach. One of the officers can be heard in the video saying, “He can’t.”
Moments later, Christensen fires the pepper spray gun into Herold’s face. Body camera footage shows Herold writhing on the ground with his hand over his face. Officers later say he is bleeding from his eye.
Once Herold is in handcuffs and sitting on the ground, an officer tells Herold, “You know, that’s not what we wanted to happen.”
Sykes told reporters on Monday that Christensen should have been much farther away — 5 feet instead of the alleged 6 to 12 inches — when he fired the gun, noting the pepper spray is “pretty potent stuff.”
He also argued that while Herold was yelling, he wasn’t resisting. Sykes called the force used that night “grossly excessive and a significant violation of Joey’s constitutional rights.”
Herold, who now has a glass eye and sometimes uses an eye patch, said that recovering from the injury has been brutal. He’s had multiple surgeries to fight infections and said it has been difficult to read and he often gets tired.
He described the last nearly two years as “living in hell.”
Salt Lake Tribune Reporter Sara Tabin contributed to this report.
