The Orlando Police May Have Over-Reacted?

Arelis Hernadez reports at the Orlando Sentinel, on the local man injured and in critical condition by the actions of a local police officer in an inexplicable response by the officer:

"An Orlando senior is in the hospital with life-threatening injuries after a confrontation with an Orlando police officer Saturday night on North Orange Avenue.  Police say Daniel J. Daley, (pic) 84, of Orlando was transported to Florida Hospital Orlando after he 'struck' an officer and the officer subdued him outside the Ivanhoe Grocery at 1820 North Orange Avenue about 11 p.m.

Daley's son, Greg Daley, said the World War II veteran was in critical condition with a broken neck. Two witnesses said the officer threw the man to the ground after he touched the officer during the dispute.  The conflict began when Daley confronted a tow truck driver trying to haul his car away from a parking lot across the street from the bar where he had been drinking.  The owners of Ivanhoe Grocery and The Caboose bar have clashed for months over use of parking spaces at the store. Signs recently were placed to discourage bar customers from occupying them.

Daley, a frequent patron of The Caboose, was arguing with the tow truck driver when the police were called.

Bar owner Tim Scott said the veteran 'had a few drinks but he wasn't out of control.'  Details were scarce on what happened next, but Scott said Daley touched the unidentified police officer one to three times in a non-threatening fashion. The officer responded by throwing the senior to the pavement, the bar owner said.  'I've never seen anything like it,'  Scott said. 'He hip-checked the guy and slammed his head into the pavement. He [Daley] is too old for that.'

Nicole Butler, a bartender at The Caboose, said the officer 'body-slammed' Daley to the ground after the veteran put his hands on the officer's shoulders.  Police left Daley on the ground once they realized he was injured and an ambulance arrived soon after.

'The officers looked at me with this look like they knew something had gone wrong,' Scott said.

Orlando Police Lt. C. Laboo, a watch commander on duty Sunday, said the information he had indicated that the person who was injured was drunk and belligerent when he 'struck' the officer. He said a report stated the man was arrested and listed in stable condition but did not indicate any serious injury. A full incident report is expected today.

Laboo said his information indicated that the man's injury was 'some sort of laceration to the face,' that sent Daley to the hospital.

Daley's said his father's condition was much worse. A photo taken at the hospital showed the veteran in a neck brace with a red welt on the left side of his forehead. His son said his father might not survive surgery to repair the severed vertebrae.  Hospital officials confirmed that the elder Daley was in critical condition and was being closely monitored.

'He's barely breathing and he might die. It's hard to understand how something like this happened,' said Greg Daley, who was supposed to have breakfast with his father Sunday morning. 'It wasn't like he was going to fight the officer. He's 84!'
Daley said Scott told him what happened to his father and that he had not talked to police.  The retired military veteran has been living in Orlando since 1969, after he served in both World War II and the Vietnam War. Daley has a birthday in November.

'He's never been arrested in all his life,' his son said, fighting back emotion.

Three or four witnesses saw the episode, according to Scott, who also was arguing that night with Ivanhoe's owner Faith Palermo. The store owner said she called the tow company to take Daley's car because bar patrons have been hurting her business.  Palermo said she left during the confrontation with the veteran and did not see him injured. 'This is not our nature, we are embarrassed about what happened,' she said."
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Having been a on the same end of a law enforcement reaction like the one experienced by the elder Mr. Daley, you can well imagine my perspective.  This is the sort of officer who would be better employed by the Iranian authorities.  No excuses. 

Now, as I've said many times, if this can happen to Mr. Daley, if it happens to me when I ask a Justice Center security guard about rude treatment of local citizens, then guess who it happens to--all the time?  And when the powerles say it happens to them, why do we shrug and act as if its not our concern?

Police Brutality, No Excuse!

Reporter Gary Haraki at the Charleston Gazette reports on the local man who had his ass kicked by a local cop apparently because this alleged bad outlaw did not hear the officer order him to get off of the ATV he was riding.  Having had my ass kicked and pepper-sprayed by OurCounty Sheriff's deputies while I was in handcuffs for the crime of being a smart-mouthed lawyer at the local courthouse, I immediately empathized with 80-year old, Bob McComb.  Haraki's account follows:

"An 80-year-old man spent three days in the hospital after he was dragged off his ATV and slammed to the concrete by a Cedar Grove police officer, witnesses say.

On Tuesday, Robert McComb was riding ATVs with his friends, Darrell Cole and Bobby Palmer, and was heading back to his house after coming out of the woods when he was stopped by a Cedar Grove police cruiser.   The police officer pulled up beside McComb's ATV and stopped.   'I think Bob thought he was trying to let us by, so he kept going,' said Palmer, who was riding an ATV behind McComb. 'I thought the same thing.'

But when McComb kept driving, the officer in the cruiser, Johnny Walls, chased McComb down.

McComb was ahead of Palmer and Cole. When both men caught up to McComb and Walls, the officer was picking a bloody McComb off the ground.   Carrie Balser said she watched what happened to McComb in horror as she sat in her truck with her husband, Bruce.  She said Walls grabbed McComb, pulled him off of the side of the ATV and slammed him to the concrete face-first.  She said she and her husband got out of their truck when they realized it was McComb.  'What he [Walls] did was very horrific,'  she said. 'He [McComb] hit so hard face-first in the concrete.'

Carrie Balser said she tried to give a statement about what she saw to Cedar Grove police, but they refused to take it. She said she was told she had to give her statement to the chief - Johnny Walls. Palmer said that when Walls stood McComb up, blood was dripping down McComb's face from a gash on his forehead.  'The skin was torn off his right arm and he was shaking like a leaf,' Palmer said. 'Bob didn't deserve what that cop did to him.'

By that time, a crowd of people had gathered, Palmer said. He said that when he tried to approach Walls, the officer threatened to Taser him. Cole said Walls threatened to Taser anyone in the crowd who approached him.  Cole said Walls handcuffed McComb and when he tried to get him into the police vehicle, McComb had a hard time.

'He's not real agile; he doesn't move too fast. He had both knees replaced, the last one about six months ago,' Cole said. 'When I watch TV with him, he turns it up to 100 to hear it - he's hard of hearing. ... So this police officer is trying to get him in the car and [McComb's] talking loud: 'I told you I can't move my legs.'

Cole said he thinks that McComb's difficulty hearing might have led to Walls pulling him off the ATV because McComb might not have responded to the officer.

McComb was taken to the police station, then released to his friends. Walls told him he would get a summons in the mail stating the charges against him.  McComb was taken to the hospital by ambulance with his daughter, Karen McComb, at his side.

'The reality is that it's totally unacceptable,' Karen McComb said. 'There is no reason ever to brutalize an 80-year-old man. He wasn't drinking. He wasn't drugging.'  She said she had her father's blood tested for alcohol at the hospital, to have as proof later. The tests came back negative. Robert McComb suffered a moderate to severe concussion, in addition to scrapes and bruises to his head, arms, legs and back, she said.  'He can't lift his right arm at all, unless he uses his other hand to pull it up,'  [Ms. McComb] said.

Robert McComb said he can't recall anything of the incident. He said the last thing he remembers is riding his ATV with his friends.  'When I came to my senses, I was in the emergency room, it was 4:30 a.m. My daughter was standing beside me,' he said. 'My mind is clear now. I remember everything before it all happened, no problem. It's just the matter of those hours in between - I couldn't say what happened.'

On Friday, when McComb returned home to Cedar Grove from the hospital, a summons from Walls to Kanawha County Magistrate Court was waiting.  Robert McComb said he is charged with speeding, resisting arrest, obstructing an officer and fleeing an officer.

Cole said they were driving about 50 feet on a small side road that used to be a parking lot. He said there was a 'Do Not Enter' sign, but that it was how all the ATVs in the area access that part of town - the alternative was to drive on the main road.  'It's like he was singled out,' Cole said of McComb.  Cedar Grove residents held a candlelight vigil for McComb Saturday evening.

On Friday, a resident called the Gazette-Mail to talk about what happened to McComb.

'I won't give you my name, I'm a widow and I'll probably be hassled,'  she said. 'I think it's terrible that this little town, [it's] one of just a hundred little towns that has such poor police protection. We're just tired of all this. He [Walls] is really bad, and the other two [Cedar Grove officers] aren't much better.'  Walls had been with three departments before going to Cedar Grove in April 2008, according to state records. His career started in Chesapeake in 2003. He was with the Lincoln County Sheriff's Department from August 2006 until January 2007. He worked at the Winfield Police Department from October 2007 to February 2008.

A message left for Walls at the Cedar Grove Police Department on Friday went unreturned.

McComb said he has been taking that road back to his house since he bought an ATV in 1999. 'I think it's a cheap act from the police officer,' McComb said. 'I think he's not very professional, and he shouldn't be on the police force, as far as I'm concerned.'"
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West Virginia is wild and wonderful as advertised.  It has this strange law enforcement system that crops up again and again at the local news websites, local cops with appalling disciplinary or criminal violence end up getting hired and rehired in small town or villages.  You see this perilous pattern in places other than West Virginia but it is strikingly the case in the great mountain state. 

Here's hoping the McComb family sue the town of Cedar Grove out of existence.

Cops Gone Wild!

A U.S. District Judge in Wisconsin appears to have given the City of Milwuakee some hope that they might avoid millions of dollars in potential liability to a victim of a brutal police beating, there.  This is John Diedrich's report from the Milwaukee-Wisconsin Journal-Sentinel:

"[A] federal judge has ruled that former police officer Joseph Schabel might not have been acting as an officer for a key moment at the scene where Frank Jude (before and after, pics) was beaten - even though Schabel was on duty, in uniform and arrived in a squad car.

U.S. District Judge Lynn Adelman wrote in an order that a jury might find Schabel was not acting 'under the scope of his employment,' but it also could find that Schabel was acting as a police officer at the time. Schabel lied for months about his actions when arresting Jude outside an off-duty police party in October 2004. He later admitted he joined in the beating with the drunken off-duty officers, 'stomping' Jude's head before arresting him. Schabel was convicted along with six other former officers in federal court.

Because there are facts in dispute, Adelman said, he must leave those issues to a jury, which may ultimately decide Jude's federal civil-rights lawsuit against the city, with millions riding on the outcome.  Adelman said Wisconsin law declares that just because a police officer is working doesn't mean that everything he or she does on duty is under the 'scope of employment' and therefore requires the city to defend it.

'A reasonable jury could conclude that while Schabel generally operated within his scope of employment, he 'stepped aside' from his employer's business in favor of his own desire for vengeance when he stomped on Jude's head, and that when he realized what he had done, he went back into 'police mode,''  Adelman wrote in the June 30 decision.

Jude's attorney, Jonathan Safran, had asked Adelman to rule that Schabel was acting as a police officer the whole time that he was on the scene where Jude was beaten. A ruling in Jude's favor could have prompted a settlement, shortened a trial or possibly required the city to pay legal fees for Jude, Schabel and others, which could top $1 million.  Safran said Adelman's decision means he would have to bring the issue of Schabel's role before a jury, if there is a trial.

'Those facts remain in dispute,' he said. 'It really doesn't change our case whatsoever.'

Schabel and his attorney say he was acting as an officer. But attorneys for the city argued Schabel wasn't acting as an officer because he broke the law and they don't have to defend him because he lied about what he did.

Officials from the city attorney's office declined to comment because the case is pending.  The lawsuit was filed 3½ years ago. There is no trial date, and no ongoing settlement negotiations. Jude was accused of stealing a police badge at an off-duty police party in October 2004. Drunken off-duty officers beat Jude, kicked him in the head, cut off his clothes and jammed pens in his ears. No badge was found."
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Any regular reader of Bad Lawyer  knows why this story is of interest to the Bad Lawyer, having had my encounter with law enforcemnet gone wild. 

A more interesting question is the application of the respondeat superior doctrine which holds that an employer is liable in certain circumstances for the wrongful acts of his employee.  This is particularly true under common law principles when the "master" owes a duty of care towards those the "servant" injured.  Recently, I re-related the story of the shoplifter who was raped by the armed security guard that my partner Nancy and I handled against the mega-supermarket chain.  A sitting local judge (now a US District Court Judge, herself) held that the actions of the supermarket in putting this guy in the supermarket's security officer uniform, their act in arming him, etcetera, constituted facts sufficient to convert his intentional acts into "their acts" under respondeat superior.

Certainly Judge Adelman is in a better position to adjudicate the common law of Wisoconsin as it relates to the application of the liability of the City of Milwuakee for the actions of Joseph Schnabel, but it's difficult to understand how a "legal duty" blinkers on and off in a way that only serves to exonerate financial liability.  How is the rule of law, ennobled by that sort of flash approach to rights and remedies?

Critical Mass Assault and Battery--You Be the Judge

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The defense of former NYPD rookie, Patrick Pogan is torn from the pages of every bad rape defense--the victim, had it coming because the victim is a bad person.  Oh, and even though the video shows Pogan clearly attacking the victim Christopher Long--Pogan and his lawyer are claiming that the jurors can't believe their "lying eyes (you know, the eyes that look at a video of a cop walking across the street to shove a cyclist off his bike onto the pavement.)"  This is because, according to Pogan's attorney Stuart London, Christopher Long is a dirtbag, pot-smoking, anit-government piece of shit.  In other words, he had it coming.  This is from the New York Post coverage of the story: 

" The cyclist came at me -- and I had to stop him from hurting me,' ex-NYPD rookie officer Patrick Pogan insisted to a Manhattan jury today, giving his own, eyebrow-raising account of a notorious, 2008 cop-on-biker take down for the first time publicly. 'I thought he ran through a red light. He had his hands in the air...He had up what I perceived to be a middle finger. I told him to stop,' the baby-faced Pogan remembered to jurors.  But Christopher Long -- a kooky Critical Mass activist who told jurors earlier this week that he gets stoned every day, believes bikes have more right to the roads than cars, and finds the NYPD 'beyond reform' -- did not stop, Pogan testified.

The collision of bodies and egos that came next would be caught on a snippet of video that became an instant YouTube classic -- and some of the prime evidence against Pogan in his ongoing trial on charges of misdemeanor assault and felony false filing of a police report against Long. Today on the stand, the 24-year-old former altar boy sat on the witness stand as the video played on a screen to his side, giving the footage his own novel -- bike activists called it "dumbfounding" -- personal narration.  'I saw him going toward the sidewalk,' Pogan remembered of Long.

'He's either going there to go around me or he's going there to stop. Iok a walk to the side,' Pogan remembered. 'I see him rise up on his bike. I see him crouch down his shoulder as he's coming toward me... at this point I know he's going to try to use that shoulder against me.' Long, in his own testimony, had told jurors that he'd turned his shoulder toward Pogan at the last minute, to brace himself and put something 'not steel' between him and the cop so as to minimize the inevitable impact for both of them.

But to Pogan, Long raised his shoulder, 'maybe to scare me or use that shoulder to come through me,' the ex-cop testified.  Pogan insisted that in the split second between seeing Long's shoulder come up and the moment of impact, he performed in his head a complicated, by-the-book computation of his "force' options...'I could have used my mace but that would have cost the city more than $65,000,' the cost of settling Long's federal lawsuit, Pogan told jurors. 'Maybe I'll use my baton,' Pogan said he then wondered. 'But the baton was useless at that point. There was no way I could have used any of the tools at my disposal.'

Finally, 'I prepared myself for a hit. He was coming toward me. I braced for impact. I lowered my shoulder. There was a collision. I used my arms to get that bicycle away from me.'

Pogan conceded to the defense lawyer examining him, Stuart London, that the account in Long's arrest report and criminal complaint -- in which Pogan claimed Long had knocked him to the ground in the impact -- was less than spot on.  'It's not true -- I did not go down at that moment. I went down two later times in that incident,' Pogan averred.  The ex-cop's testimony continues this afternoon.

'I was dumbfounded,' Barbara Ross, a spokeswoman for Times Up, the environmental group that promotes the Critical Mass ride, said at the lunch break of watching Pogan testify. 'It's clear on the video that Christopher Long is avoiding [Pogan], not coming toward him. He's flipping reality upside down.'"
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It's amazing how Pogan can perjure himself from the witness stand in the face of this video. 

In another forum, I offered the opinion that the defense on this case is built on the old--good offense=good defense theory as demonstrated recently by the acquittal in february of this year of a group of NYPD cops who were alleged to have shoved a flashlight into the backside of suspect.  Despite testimony of at least one other NYPD officer who witnessed the assault the defense attorneys in that case aggressively went after the victim for being a punk and these officers "walked."  There was no video evidence.

Let's hope the jurors in this case can keep their "lying" eyes open.

Police Brutality--When Is Enough, Enough?

The charming looking gent to the left is Springfield police officer Jeffrey M. Asher, an assaultive cop with a lengthy track record of being involved in incidents of alleged police brutality.  Here's the MassLive.com story on the complaints surrounding Asher:

"Even before the videotape surfaced of a Nov. 27 arrest which shows him striking a drug suspect with a flashlight, the record of police misconduct allegations involving patrolman Jeffrey M. Asher was coming under increased scrutiny.  Details of the Police Department’s handling of seven civilian complaints brought against Asher over the past 12 years will play a role in the defense of New York man accused of assaulting Asher during his arrest at a downtown club in October 2008. The Police Department internal investigations records about Asher were turned over in November by the city to a lawyer for Raymond Bessette, 34, of North Granville, N.Y.  Bessette is due to face trial on Jan. 22 in District Court where he has pleaded innocent to charges of assault and battery on a police officer and trespassing. He may claim self-defense, his lawyer Frank Flannery advised the court in filings.

Flannery was successful in seeking access to the Police Department internal investigations records for Asher, including those involving incidents in which the 16-year veteran was charged with using excessive force and inappropriate conduct.   Jeffrey M. Asher Asher is now among four officers under both internal and criminal investigations in connection with the Nov. 27 arrest of Melvin Jones III during a traffic stop on Rifle Street. Asher was identified in a police report of that incident as having struck Jones repeatedly during a scuffle which ensued when the suspect tried to flee the scene and then grabbed another officer’s gun.

According to a police report of the Oct. 19, 2008, incident, police were called to the Salty Dog club at 280 Bridge St. Asher and another officer were taking Bessette, who they said was drunk and disruptive, out of the club shortly after midnight when Bessette struck Asher open-handed in the chest, according to the report. The report states that as the police officers were escorting Bessette from the bar he lost his footing and fell in the parking lot outside, getting a minor scrape.

In preparation for trial, Flannery filed a motion asking that the city be ordered to provide all internal investigation records about Asher for seven different incidents, including the 1997 case in which Asher and the department drew national attention. In that case, Asher was also caught on videotape, kicking a suspect in the head while he was restrained by other officers.   District Court Judge Jacques C. Leroy ordered the city to provide the records. Only the defense can look at the records, and they are sealed from public review, according to the judge’s order. Flannery confirmed that he has seen the records but declined to comment further.

The defense filing states that Bessette says he never struck Asher. Bessette claims Asher struck him in the shoulder with his fist, shoved him down a hallway and then threw him through swinging doors, according to the court document. In the most recent incident involving Asher, the suspect, the 28-year-old Jones, according to his father, reportedly suffered fractures to the bones in his face and remains partially blind in one eye.

Among the incidents for which Flannery sought records are:

• The 1997 suspension of Asher without pay by the Police Commission for kicking Roy Parker, a drug suspect, who was restrained and being handcuffed by two officers. Asher was cleared of criminal wrongdoing, and an original year-long suspension was later overturned and reduced to six months.

• A 2004 incident in which Asher was among a group of officers who were the subjects of a brutality complaint by a black school principal injured by police while he was in the throes of a diabetic seizure in his car at a South End gas station. After a month-long review, the Police Commission voted 3-2 to exonerate the officers. The city paid a $180,000 settlement.

• A 1994 incident which did not come to light until after the Parker case in which the city paid $75,000 in 2000 to settle a brutality complaint against Asher and another officer, Daniel Brunton. Michael J. Cuzzone, of Springfield, claimed he was beaten unconscious by Asher on May 26, 1994, after Cuzzone’s friend had a dispute with Asher’s father, Michael Asher, a bartender at Donnie’s Cafe on Chestnut Street. The city made no admission of wrongdoing in paying the settlement, and neither Asher nor Brunton was disciplined by the Police Department.

• A 12-day suspension of Asher without pay for violation of departmental rules and regulations for an incident that occurred on Clyde Street on Jan. 29, 2001. A complaint was filed by a 12-year-old boy, Luis D. Soto, and his mother, Rosa M. Sepulveda, both of Springfield. They said the side mirror of Asher’s cruiser hit the boy’s right arm while the boy was walking with friends. The child required treatment at Baystate Medical Center.

• Asher’s reprimand in 2005 by then acting Police Commissioner William J. Fitchet for 'failing to show respectful treatment'  in connection with a resident’s complaint of mistreatment in April related to Asher’s response to a dog attack. Jerry A. Belair, of Nassau Drive, said his encounter with Asher occurred when he was attempting to take his injured dog to an animal hospital after the pet was attacked by a pit bull outside his home. Belair said that despite repeated pleas to take his bleeding dog to the hospital, Asher detained him for more than 90 minutes, stated he was under arrest, handcuffed him and placed him a cruiser, all without cause. Asher denied wrongdoing, but Fitchet issued the reprimand and it was about this time that Asher was transferred to inside duty in the department’s Records Division.

• A 1995 case which resulted in a civil lawsuit filed by a former Springfield man, Brent Whitley. The Whitley case was dismissed in 1999 after Whitley appeared to lose interest in the matter and failed to contact his lawyer or appear in U.S. District Court. Whitley had claimed he was doused with a chemical spray, clubbed, arrested and pushed down stairs by Asher and another officer during his arrest on charges for which he was later acquitted.

• A 2004 incident in which, Holly M. Marion, 24, filed a complaint with the Police Department, saying Asher punched her in the face and broke her left leg on Oct. 7 as emergency workers responded to a call about a drug overdose at 75 Avon Place. Marion admitted, according to police reports of the incident, that she threatened to “stab” Asher with a hypodermic needle if he “didn’t let go” but later told him she did not have a weapon.
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Who would employ a cop like this?  Are the authorities in Srpingfield, Mass out of their minds?  This guy would be in jail if he weren't a cop.  He is nothing but a violent thug.  Chilling