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Charges against plaintiff in lawsuit dismissed
by Jule Hubbard
Misdemeanor charges filed against a man with a $20 million lawsuit pending against local law enforcement officers in federal court were dismissed in Wilkes Superior Court on Wednesday.
Judge Carl R. Fox of Chapel Hill granted a defense attorney's motion to dismiss charges of assault on a government officer and resisting a public official filed by the Wilkes Sheriff's Department against Paul Douglas Absher, 27. Fox also dismissed Georgia L. Minton's charge of resisting a public official. Absher and Ms. Minton listed the same address on Russell Gap Road in Boomer.
The lawsuit and charges filed against Ms. Minton, 40, and Absher resulted from a struggle between Absher and officers after Deputy Harold Martin approached Absher near the intersection of N.C. 18, Russell Gap Road and Boomer Road in Boomer about 10:40 p.m. Sept. 19, 2007.
Absher sued Martin, Deputy Harper Hartley, Deputy Gene Wyatt and Wilkesboro Officer Rocky Moore in U.S. District Court in Statesville in 2008.
The suit claims they violated Absher's constitutional rights by using severe and excessive force, delaying his medical treatment, denying him due process of law and falsely arresting and imprisoning him. Four unnamed deputies and N.C. Highway Patrol Trooper Brandon Stokes were also sued.
Stokes was dropped as a defendant and Wilkes Sheriff Dane Mastin was added in an amended suit, although Mastin wasn't present when the incident occurred.
The lawsuit seeks $10 million in compensation and another $10 million in punitive damages for violation of Absher's constitutional rights, violation of state law and his pain and injuries. It was determined later that Absher had taken the drug Xanax about 11 hours earlier and that he had another drug, Flexeril, in his system from the previous day.
Contradicting claims
In the lawsuit, Absher claimed he was sitting in grass near the intersection waiting for Ms. Minton to pick him up and doing nothing to be detained or charged when Martin shined a flashlight in his face and accused him of being drunk. The suit said Absher denied this and offered to take a breathalyzer test. The suit said Absher smoked a small amount of marijuana over eight hours earlier.
Martin, a sheriff's department lieutenant, reported that he found Absher lying in Boomer Road. Absher then walked to the back of the deputy's patrol car and urinated before he opened the patrol car's front passenger door and tried to climb in, said Martin.
Fox said a recording of Martin's radio conversation with the Wilkes Communication Center soon after the incident in Boomer disturbed him. On the recording, played in court, Martin identified Absher with a profanity instead of by name and apparently laughed as he said he "slammed" Absher five times.
Noting that Martin said he found Absher lying in Boomer Road, Fox said the fact that he didn't then block Boomer Road with his car and turn on his blue light for Absher's safety was disturbing.
Mastin said in an interview that an internal investigation of the incident, which he authorized, found no wrongdoing by officers.
Mastin said that according to testimony when Absher was tried in Wilkes District Court in July 2008, Absher's head was injured and he received other injuries in a fight with his brother earlier on Sept. 19, 2007. Martin stated in his deposition for the lawsuit that when officers struggled with Absher, Ms. Minton told them Absher had injured his head earlier that day in a fight with his brother.
Absher and Ms. Minton denied that Absher was injured in a fight with his brother.
Absher pleaded not guilty when his case went to Wilkes District Court and appealed to Wilkes Superior Court when Chief District Court Judge Mitchell McLean convicted Absher and sentenced him to 210 days in jail.
Parts of video lost
Attorney John C. Vermitsky of Winston-Salem, representing Absher and Ms. Minton in court this week, argued for dismissal of the charges by saying his clients' constitutional rights to due process were violated when Wilkes officials provided him and his clients with only part of the security video showing Absher at the intake center after he was arrested.
Assistant District Attorney Leigh Bricker unsuccessfully counter-argued that Vermitsky should have filed a motion to compel. This motion asks a judge to order a party to produce the thing being requested or answer the question being asked.
Vermitsky sent the sheriff's department a subpoena and a letter seeking a copy of the entire video 11 days after it was filmed. At that time, said Wilkes Sheriff Dane Mastin, he and his officers could view video security images on cameras at the intake center and other areas of the courthouse but weren't authorized and lacked a password to see them online or download and save portions.
Mastin said Wilkes Emergency Management Director Suzanne Hamby had this authority and the password because her department received Homeland Security funds for the courthouse video security system. Hickory-based Griffith Security sold the system to the county and provided maintenance.
Vermitsky sent Mrs. Hamby a subpoena and a letter seeking the entire video after County Attorney Tony Triplett said it had to come from her.
Because downloading the entire video segment showing Absher at the intake center could have caused the county computer system to crash by overloading it, said county officials, they decided only portions with Absher and deputies together should be saved. The cost of the request also was noted.
Triplett said Brian Griffith of Griffith Security, who downloaded and saved the video images at Mrs. Hamby's request, omitted portions showing Absher sitting alone at the intake center and after being put on a stretcher with wheeled legs. According to testimony, the stretcher tipped over and Absher fell out while struggling with officers.
Absher was then rolled out of the intake center on the stretcher and taken in a Wilkes Emergency Medical Service ambulance to Wilkes Regional Medical Center. According to Martin's report, a WRMC emergency room physician put Absher in a self-induced coma because he was out of control and endangering himself. He was later transported to Baptist Hospital in Winston-Salem. He was in intensive care for nine out of 14 days at Baptist.
According to testimony, 22 minutes of the 57-minute video of Absher at the intake center weren't downloaded and so were lost. Unless a portion of video is saved due to a request or other reason, newer video images continually replace older ones as capacity is reached. Mastin said keeping copies of video for long periods is too costly.
Triplett said the county's position was that county officials and Griffith acted in good faith and tried to preserve all relevant portions of video. He said the portion with Absher sitting alone provided nothing in addition to what was on saved portions. Triplett said there were enough witnesses, including Wilkes EMS personnel, to determine what happened after Absher was put on the stretcher.
About a month ago, Triplett added, Wilkes County Manager John Yates issued a memo saying that from that point forward, the sheriff's department would have full authority - including access - over the courthouse video security system instead of Wilkes Emergency Management.
Martin's account
The lawsuit's account of what occurred the night of Sept. 19, 2007, and what law enforcement officers contend differ greatly. Answers denying Absher's accusations were filed in U.S. District Court and attorneys for both sides are taking depositions from people involved in the case.
Martin said in his report that Absher resisted and forced him back by kicking his thigh when he tried to remove him from his patrol car.
Martin said he removed Absher and had him on the ground when Ms. Minton, who drove up while Martin was exiting his patrol car, put her hands on the deputy's back and began yelling. Martin said that after she did this at least three times, he told her to get away from him because he was trying to calm down Absher.
Martin said he got one handcuff on Absher and gave him a full burst of pepper spray as Absher swung the other one at him. He said Absher was running in circles around him when he got Absher on the ground again and put the loose handcuff around his other wrist.
Martin said he got off Absher and Absher was running off when Hartley arrived, caught him and applied an electrical charge to Absher with a Taser. Martin said Absher caused prongs of the Taser to come out of his skin by twisting. After Moore arrived and used a Taser on Absher, he was put in the back of Wyatt's patrol car and taken to the intake center before going to WRMC.
$20 million sought
Absher claimed in the suit that he opened the front passenger door of Martin's car and was trying to enter at Martin's direction to "talk about it" when Martin grabbed and forced him face down to the ground, with Martin's knee in his back. Absher initially resisted and a struggle followed, the suit stated.
It said Martin got one handcuff on Absher but not the other. When Martin couldn't get the second handcuff on, he gave Absher a full burst of pepper spray in his face, the suit stated.
The suit said both men staggered and tried to clear pepper spray in their eyes, with Absher walking to the nearby Boomer Post Office and Martin following. Martin then got the other handcuff on Absher. "Absher wandered at an unhurried pace" about 20 yards, still handcuffed, as other officers arrived.
The suit said that according to Hartley and electronic records, Hartley applied a Taser 10 times on Absher. The suit said this violated sheriff's department and Wilkesboro police policies since Absher was handcuffed behind his back, posed no threat to officers and wasn't fleeing.
Absher was incapacitated from Taser shots while beaten and kicked in the head and torso with flashlights and asp-batons by Martin, Hartley, Wyatt, Moore and other officers, the suit stated. Officers delayed medical treatment for Absher after first responders and Wilkes EMS arrived, the suit said.
It said Martin, Hartley, Wyatt and two unidentified officers beat Absher and that he wasn't taken to WRMC until about 75 minutes after arriving at the intake center, despite his injuries. It was noted at WRMC that Absher had black eyes, bloody nose and abrasions on his face, head and elsewhere, as well as Taser wounds and swelling, the suit stated.
The suit said Absher had severe cranial fractures at the base of his skull, severe brain injury from bleeding and two rib fractures. It said the injuries damaged Absher's short and long term memory and ability to process information and caused a permanent decrease in cognative abilities, headaches and an inability to taste or smell. |
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