December 28th, 2012

Virginia Judge Denies Qualified Immunity to Deputy Caught on Video Attacking Citizen 35

By Carlos Miller

 

In a typical display of law enforcement aggression and fabrication, a Virginia sheriff’s deputy came charging up behind an unsuspecting citizen who had his hands in the air, ramming his elbow into the back of his head and sending him sprawling to the pavement, rendering him unconscious, only to later claim that the man was about to attack another deputy.

The citizen, Carlos Garcia, who said he was left with permanent brain damage, was charged with assaulting an officer and ended up pleading guilty to a lesser charge.

The Loudoun County sheriff’s deputy, Terry Daniel, probably didn’t think much of the incident after filing his report in November 2009, even receiving a promotion to “training officer” the following year.

But then Garcia’s attorney obtained the dash cam video from Daniel’s car that night, posting it on Youtube in 2011 and using it as the basis for a lawsuit against the deputy.

Daniel, who quickly resigned and was hired by a police department in Alabama, didn’t waste any time in demanding qualified immunity against the suit, obviously believing he was above the law.

Last week, a Virginia judged denied Daniel’s motion for summary judgement, allowing Garcia to proceed with his lawsuit.

According to Courthouse News:

After reviewing the video footage from Daniel’s patrol car, U.S. District Judge Liam O’Grady refused to grant his motion for summary judgment.

“Defendant’s actions were unreasonable given the circumstances at the scene, as he knew them to be. Mr. Garcia was not engaged in any criminal activity at the time. While two members of his party were scuffling with deputies, Mr. Garcia appeared to be calmly standing in front of an officer and his K-9 with his hands raised in a submissive position. Defendant claims that Mr. Garcia posed an immediate threat to the safety of officers at the scene, but that claim is without merit,” the judge said.

In addition, a third officer at the scene testified that he saw no need for aggressive action against Garcia, and would have only verbally directed Garcia to the ground.

O’Grady continued: “Law enforcement officers play a critical role protecting all member of a community and may be afforded qualified immunity in order to protect themselves from lawsuits brought against an officer acting reasonably. … Had Defendant conducted himself in the manner of a reasonable officer, he could have more appropriately matched the level of force used with the level of threat presented.”

 


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  • Mike

    Video?

    I don’t see one.

  • Tim in SF

    This blog post appears to be truncated.

  • http://www.facebook.com/profile.php?id=647684635 Carlos Miller

    Sorry, guys, I posted this accidentally while still writing it.

    • RaymondbyEllis

      You’re forgiven.

  • SFCRetired

    I live in Alabama and I’d love to know what police department down here hired this excuse for a human being.

    • RaymondbyEllis

      Pick any PD throughout the USA. Likely you’ll find the same, especially where Police Unions have sway. I forget the private Union leader that said that Government Unions were much more dangerous than private, but I think he had insight.

  • http://www.facebook.com/profile.php?id=1486181184 John Hoog

    I wish you had not started the article with “In a typical display of law enforcement aggression and fabrication”. Please, please do not use such judgmental/loaded words as typical. The article with without that one word is excellent. Please consider removing it and and not writing in such a fashion in the future. The video speaks volumes all by itself.

    • John Smith

      Looks like the Word Police are out on patrol. LE aggression IS typical. Fabricated police reports are also typical. So…what’s the problem?

    • Art clark

      John, I’ll give you the benefit of the doubt by assuming you obviously haven’t spent much time on this site nor have you followed the growing pandemic of authoritarian abuse nationwide. On the other hand, if I am wrong and you are a long time reader and do follow this growing trend, then stop ringing your hands when someone calls what is typical, “typical”. Grow a pair.

      • http://www.facebook.com/profile.php?id=1486181184 John Hoog

        Growing pandemic? You didn’t grow up in the South, did ya boy?

    • Difdi

      Have you considered that if the negative media treatment of police is “typical” it might be for a reason? After all, police typically treat habitual criminals rather negatively — are they wrong to do so?

    • RaymondbyEllis

      First, judgement is necessary in this area to avoid the usual phrase “isolated incident” as used by PD’s. All these incidents are “isolated” according to them. They ignore that these incidents are actually a normal occurrence for a subset of their officers, or in some PDs the majority of their officers.

      Had a talk with my aunt, she supervises 200+ Officers, and she said she has days where she wants to beat her head on her desk just for clarity. She said, interestingly enough, that it wasn’t the younger officers -I didn’t seek a definition of younger- but the older officers (that could mean in their 30s or over) that do things for which she just can’t see a reason. I explained at the onset that I was visiting sites she might consider anti-cop; sites that showed conclusively that cops lie in reports, lie on the stand, and commit brutality, or simply escalate violence unnecessarily.

      Management can have it’s hands tied too. Good people can want good things, but can find their path replete with obstacles. They find the best course possible. It isn’t always satisfying to the rest of us.

    • scruffylookingnerfherder

      John is right, whether it’s “typical” or not. A good news editor would immediately remove such loaded statements. Carlos is both writer and editor, and cannot take a 3rd party view of it and I believe is letting his emotions sabotage his otherwise good, factual articles.

      When such words and phrases are used, it injects unnecessary bias — all the readers here already know what’s typical and what isn’t. But when a new reader comes here, the only thing they see is “The sole purpose of this site is to state that cops are thugs”.

      Carlos, please get back to your roots about photography, laws, and LE treatment of photographers. Get off the “cops are thugs” bent, but continue to post articles like this (but worded more professionally). When a reasonable person is presented with reasonable facts, they will draw the conclusion you want without you having to sound like a wingnut.

      You will win — you will come across as more professional, your viewers will take away the same message, and you’ll get more links by photojournalism sites, especially from the moderate journals that won’t otherwise link to what looks like a fringe political site.

    • hazy

      Yet if you just think critically about the situation for a minute you find it is even more nefarious than Carlos Miller’s article investigates. Someone is clothes lined from behind with their hands raised. This cop just jumps into the situation without assessing what’s going on and to cover his ass he charges the guy with assault? “Typical” is a good word to use, when a cop tries to obfuscate his criminal behavior then he’s probably been doing that for years and therefore it is typical.

    • http://www.facebook.com/profile.php?id=1486181184 John Hoog

      Hmm, where to start? 1) Been here quite awhile, thanks. 2) I have a family *I* fathered. I do have a pair, thanks. 3) I know all (many?) cops are not as white as the driven snow. How do you think I got here, duh.
      The word “typical” is loaded and dilutes the strength of this website and what I hope it intends to accomplish; better LEO training and accountability. The video stands on it’s own strength and needs no help. I stand by my post and thank those that responded thoughtfully, instead of a knee jerk insult which added nothing to the discussion but made the poster look foolish.

    • Ward Walker

      “Typical” seems a logical deduction when the facts of this case are considered in their entirety. Although another officer on the scene attests that they felt the use of force was beyond necessary, not one of the officers present found it within their duty to arrest and charge the officer that was acting well outside SOP and the law. To them, it is apparent, this is a “typical” situation that requires no response nor inquiry as to its legitimacy as lawful conduct. Reporting on this matter and using the term “typical” is duly noting a fact, not inserting any hyperbole or editorial.

    • defjeff

      I love tools who think they can educate everyone else on how to write their blogs… If you can do better, do it on your own blog!

  • Difdi

    The first thought through my head, watching that, was “Oh look, the other guys are having fun without me! I WANT TO PLAY TOO!”

  • John Howard

    Ramming elbow? Not in THIS video.

    • Jefft90

      John you are being pedantic.
      Would you have preferred the Judges description?

      “..delivered an elbow strike to the back-right side of Mr.
      Garcia’s head while at a full sprint”

      • John Howard

        What I see is the cop (needlessly, still) wrapping his arm around the guy’s neck and flinging him to the ground.

        • Jefft90

          Understand, video is not perfect; we still need to interpret with our eyes and be given context from those actually there. In fact Officer Daniel’s claims he was aiming for Garcia’s spine not his head. The Judge did not seem to think that made much of a difference since police training defines the head and spine as a “Red Zone” to be avoided where possible.

          • RaymondbyEllis

            Going for any part of brain and spinal-column only increases the chance of permanent neurological damage. In self-defense cases, non-police: someone saying that they are going to “break your back” or “crush your skull” or any other permutation of permanent injury usually gives justification for extreme force to protect; a fear for your safety allowing deadly force because permanent injury has been assured by your assailant. Witnesses’ help, boy do they.

            In Police situations, “fear for their safety” is usually sufficient, if only the threat of bludgeoning by cellphone, or shot by cellphone. I’m contrasting the level to which citizens have to prove threat of permanent injury, a high level, to the very low level Police use to justify deadly force by way of “feared for my safety”, with a high burden of proof on others that the Officer was unjustified where the Dept., the Union, even the DA use low level justification. If that burden of proof is met, seldom, the Officer will likely get a much lower level of punishment than an in equal situation of that of a citizen who has been an outstanding contributor to society, let alone those citizens who haven’t been. There’s a disconnect in all this…

          • Difdi

            Yeah, the disconnect being that those who are sworn to uphold the law and entrusted with greater authority because of the oath are held to a lesser standard of obedience to the law than those who have not sworn any such oath and are not entrusted with such immense public trust.

            The disconnect gets even worse when those sworn and trusted individuals, even when proven to have betrayed both oath and trust, are almost invariably punished far more lightly than non-betrayers who commit the same acts.

        • defjeff

          you can see clearly at 14 seconds into the video the officer raised his right arm and attacked the victim with his arm, and then continuing the assault once upon the ground… did you wear your glasses when viewing?

          • John Howard

            Why, yes. I did.

        • Art clark

          John Howard, I must say I don’t know which video you’re watching. At the 13 second mark, the officer is running with his elbow (not his arm) extended; at the fourteen second mark, the officer strikes the victim on the back of the head with his elbow (not his arm) still extended. In the fifteen second mark the victim is going down like a rag before the officer’s forward motion has ended. All these actions would proclude his “arm being around the guy’s neck”, as would the injuries he sustained in the course of the action. If this aspect of the case was even questionable, it would have been addressed by the defense and the court. Instead, the necessity of the officer’s aggression was argued over the actions and intent of the victim.

  • JdL

    Cops: the scum of the earth. Oh, I’m sorry, did I offend John Hoog and other cop apologists? Try, JH, just for a moment, to enter reality, U.S.A., 2012. Dirty cops are everywhere. And even cops who aren’t total criminal A**H***s themselves are at the very least covering up for other cops who are. So, in my book, they’re all the scum of the earth.

    • Clark

      As the descendent of a Sheriff who was murdered in the line of duty, I find your remarks HIGHLY insulting. What’s almost as insulting however, is that there are enough bad cops out there, insulting the memory and honor of my great-grandfather, that it’s impossible to intrinsically trust a law enforcement officer these days. All must be viewed with reasonable suspicion, until they can prove otherwise. It sounds like a double standard with us wanting innocent until proven guilty, but us citizens do not have the ability to destroy lives that law enforcement officers have, we can only alter our interactions as the situation warrants. But there are still good police officers out there that uphold the spirit of true law enforcement like my ancestor did, and your comments insult them, and all past officers who actually did a good job!

    • http://www.facebook.com/profile.php?id=1486181184 John Hoog

      A cop apologist, really? People like you make the folks who call for IQ testing mandatory to access the internet look sane.

  • http://twitter.com/DrLindaShelton Linda Shelton

    How many times are we abused by our poorly trained and poorly supervised officers in the U.S. when there is no video available! Then the corrupt cop wins.

  • Art clark

    Earlier, Difdi wrote: “The disconnect gets even worse when those sworn and trusted individuals,
    even when proven to have betrayed both oath and trust, are almost invariably punished far more lightly than non-betrayers who commit the same acts.”

    That was concisely and accurately well said. It is the source of the deep, hot, slow burning anger I feel as I read not only of the acts of aggression by these officers, but also of the complicity of their superiors, the government bodies they answer to, and the courts that adjudicate them.

    These “brothers and sisters” all quickly gather around the perpetrating officer to deny, to deflect, to whitewash, to absolve, to exonerate, and if necessary to mitigate the punishment of the officer and the fallout upon the department or agency. It is a fraternity that has long forgotten who they have sworn an oath to and who they are to defend. Rather than hold each other accountable to the law, they now hold each other inviolable from the law, and above common society.

    To be clear, I am talking about law officers, the police departments and other law agencies, unions, City Hall, County seats, state governments, politicians, and judges at the local, state, and federal levels. Not all, to be sure, but no longer just an isolated few and in some cases a majority who would perjure, cheat, and obfuscate justice to protect “one of their own”. At the very least, there are many who become complicit by their silence in the face of the injustice of the others.

    Meanwhile there are citizens, many guilty of crime but also many of the innocent, who through
    acts of authoritative overreaching and abuse, or aggression, or outright barbarity, are permanently hurt or destroyed physically, financially, and legally. Their lives are altered forever by someone who swore an oath to protect us from the wolves, only to discover that they have become a wolf
    themselves.

    We should have laws in place that double the punishment of crimes committed by law officers.
    We should have judges who levy the heaviest sentence allowed by law. We should have local and state government bodies that have their finger on the pulse of their police agencies’ weltanschauung while demanding transparency. And we should have police departments who are training their officers in Constitutional law and creating an internal culture of accountability. You have been given a higher authority and greater power; you must be held to an exacting standard with harsher consequences.

    As I read of more and more of these injustices, I feel the same helpless indignation and anger
    that all of us feel when we walk to our car and find the door open and our stereo missing, or the front door broken open and our house ransacked, or a phone call from 911 telling us our daughter has been assaulted. Only it’s much worse; in those cases we expect the worst of evil people in a dangerous world. In these cases it is a betrayal by people we have placed there to protect us
    and have been led to believe we should trust.

  • G I Joe

    Keep you eyes on every cop you see…these people are very,very sick,almost inhuman,if not entirely so.

  • http://www.facebook.com/people/Robin-Thomas/1797454054 Robin Thomas

    I hope that man gets a good settlement. Are the cops on drugs? Could they be dipping into steroids again? I guess eyes on the back of your head or a really good helmet is needed.

  • BadgeAbuse

    Get rid or the police unions….good start…

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