Court
says Vermilion police brutality lawsuit can go forward
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ELYRIA
— An appeals court has upheld a county judge’s decision to allow a jury to
decide a lawsuit accusing two Vermilion police officers of brutality.
The
lawsuit centers on the Feb. 19, 2005, arrest of Jill Garvey on a charge of
wrongful entrustment after she and her husband, Richard Garvey, were stopped by
then-Vermilion police Officer Larry Miller, who knew Richard Garvey’s driver’s
license was suspended.
The
couple had been in a bar drinking and Miller smelled alcohol on Richard
Garvey’s breath during the stop. Both Garveys were asked to step out of the
vehicle, according to court documents.
Police
said both of the Garveys were intoxicated.
Officer
Craig Howell arrived after the initial stop and placed Jill Garvey in the back
of his police cruiser. He reported that when she was told her vehicle would be
towed from the scene, she became “agitated” and “defiant” and refused to sign
the wrongful entrustment citation so she could be released.
Police
then decided to arrest her and asked her to get out of the car so she could be
handcuffed. Jill Garvey, who eventually pleaded the case down to disorderly
conduct, refused, and Officer Richard Grassnig removed her from the vehicle,
forcing her to the ground where she landed on her chest and face and was
handcuffed, according to the decision from the 9th District Court of Appeals.
The
impact broke the bone around her eye, fractured one of her sinuses, and caused
bruising and other injuries, the appeals court wrote.
Both
Howell and Grassnig have denied they used excessive force, and according to
court documents, argued “they were reasonable in their actions to extract
Garvey from the cruiser because she was resisting arrest.”
They
contend that Garvey lunged forward as she was being taken out, something Garvey
and her expert witnesses argue didn’t happen.
The
officers and the city of Vermilion had argued that the case should be thrown
out because Garvey’s version of events wasn’t backed up by the facts as the
officers saw them, and even if the officers had been wrong they were immune
from civil liability.
But
the appeals court ruled that there were disputes over what happened and, since
the facts were in dispute, it was enough for Lorain County Common Pleas Judge
Edward Zaleski to allow the case to go to a jury.
“The
facts could demonstrate that the acts were done with a malicious purpose,
particularly if Officer Grassnig is found to have pulled Garvey out of the cruiser
by the hair, slammed her face into the pavement and told her, ‘Now you’re going
to listen to us,’” the appeals court wrote.
The
appeals court also ruled that Howell’s role in Garvey’s injuries, specifically
whether he assisted Grassnig in removing her from the back of the patrol car,
remains in dispute.
Former
Vermilion Police Chief Robert Kish previously has said the officers involved in
Garvey’s arrest were cleared of wrongdoing following an internal review.
But
Garvey’s lawsuit also contends that a proper investigation wasn’t done or even
documented and that Grassnig had a history of using excessive force.
Garvey’s
attorney contends that Grassnig had a use of force rate per number of arrests
of 13.24 percent between 2004 and 2006, well above the average of the Vermilion
Police Department’s average of 2.21 percent.
Grassnig
also received an unsatisfactory performance evaluation in 2004 in which his
superiors noted that he needed “to tone down aggression.”
The
appeals court did toss out part of Garvey’s lawsuit, saying that she couldn’t
sue the city over intentional infliction of emotional distress.
Mark
Petroff, Garvey’s attorney, said the case will now move to trial, unless
Vermilion’s attorneys appeal to the state Supreme Court.
“Our
opinion is that based on the criteria the city generally uses for apprehending
individuals, excessive force was used,” Petroff said Tuesday.
A
call to attorneys representing Vermilion wasn’t returned Tuesday.
