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Man can't sue police under plea agreement

January 19, 2006|by PEPPER BALLARD

pepperb@herald-mail.com

HAGERSTOWN - After a break from attorney arguments Wednesday in Washington County juvenile court about the language of his charges, the case against an 18-year-old man in connection with his Oct. 11 arrest was placed on an inactive docket under an agreement he will not sue the Hagerstown Police Department.

The man, who was 17 at the time of his arrest, had denied involvement - the juvenile equivalent of pleading not guilty - to resisting arrest, making a false statement to police and possession of alcohol by consumption in connection with his Oct. 11 arrest in the 400 block of West Franklin Street.

He was stunned with a taser gun four times after he struggled with police, refusing to comply with officer orders to place his hands behind his back, Officer Tom Kelley testified Wednesday during the man's adjudicatory hearing. Circuit Judge Donald E. Beachley, sitting in juvenile court, presided.

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The Herald-Mail does not print the names of juveniles charged with delinquent activity.

After a break from his hearing, during which three officers testified about what led to the arrest and the struggle, the man's attorney, Assistant Public Defender Brian Hutchison, announced that he reached an agreement with Assistant State's Attorney Michelle Flores to place the man's case on the stet, or inactive, docket if he does not file suit against the police department.

Advising the man, Hutchison said, "If you did institute a lawsuit against the police department, the state would bring it (the case) back. It's the only reason it would be brought back" to court.

The boy's father agreed not to sue, adding that he had begun searching for a lawyer to help him file a lawsuit. One attorney talked to him about suing the taser gun company, but he was interested in also suing "the police department," he said.

Beachley said the agreement "sounds to be a reasonable solution. What appeared to be a fairly innocuous case grew a legal head of its own. It sounds like it's a fair compromise for both sides."

After three police officers testified in the hearing Wednesday, Hutchison questioned whether police correctly matched the numbered statutory sections of Maryland law with the charges they intended to place against his client.

After some research and a few minutes in which Hutchison, Flores and Beachley argued the location and numbering of Maryland law sections, it was discovered that the boy was charged with obstructing and hindering under the wrong section - a charge that would have meant he allegedly was blocking or hindering someone from moving in a public place. Kelley testified he intended to charge the boy with obstructing and hindering his investigation because the boy repeatedly gave him a false name, subsequently leading to his arrest.

Sgt. Fred Wolford, who had tried to help Kelley place handcuffs on the boy, testified that he believed the boy was being arrested for being a minor in possession of alcohol.

Kelley had responded to the rear of 430 W. Franklin St. to assist now-retired Sgt. George Knight with a traffic stop involving "a possible road-rage incident," Kelley testified Wednesday. He said he was told the "occupants were possibly possessing a firearm."

He approached two people, one of whom was the boy, he saw walking away from the vehicle that had been stopped, he testified. The boy, who had "a strong odor of alcohol" on his breath, gave him his name and birth date, which officers later determined to be false. Kelley testified he wrote an alcohol citation for the boy, who at that point was cited as an adult because of the birth date he gave. A woman overhearing their conversation told Kelley the name the boy gave was the name of his older brother, he testified.

Kelley confronted the boy with his suspicions and walked him back to his cruiser, he testified. Kelley requested his identity again, but he gave the same false name, so he decided to "place him under arrest and book him until his identity is confirmed," he testified.

As Kelley went to place him under arrest, he testified the boy clenched his arms close to his body and leaned against the cruiser, preventing him from cuffing him. He said he had a hold of one of the boy's wrists and Wolford held his other arm.

"He attempted to flee the area by running between me and the fence," Kelley testified.

Wolford testified that at one point during the struggle, the boy grabbed his wrist and, with the other hand, clenched the top of the chain-link fence.

"He continued to kick and flail his arms," Kelley testified. "He would not comply with any demands."

At one point, Officer Brian Barnhart, who responded to assist, grabbed the man's legs "as he was trying to flail around," Kelley testified.

Kelley testified that the struggle lasted what "seemed like an hour," but might have lasted five minutes before the boy was stunned with a taser. He said Knight was "going to use the pepper spray, but it would have hit the officers, too, and made it more difficult" to arrest him.

"We advised if he did not comply, he would be tased," Kelley testified.

He testified that after the fourth stun, the boy complied.

Charles Summers, acting chief of the Hagerstown Police Department, did not return messages seeking comment by Wednesday evening.

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