Police offer $250,000 in excessive force lawsuit
Excessive force claims reinstated
Police offer $250,000 in excessive force lawsuit
June 26, 2007
Brian Haynes
By BRIAN HAYNES
REVIEW-JOURNAL
he Metropolitan Police Department will offer $250,000 to end a federal excessive force lawsuit filed by a man who suffered a broken neck during his 2001 arrest.
The department's Committee on Fiscal Affairs approved the offer Monday morning with a 3-0 vote. Department leaders hope the offer will persuade Frankie Davis to drop his lawsuit.
"We're making an offer of judgment. If they don't accept it, we're going to trial," said Carla Alston, a department spokeswoman.
But Davis' lawyer, Barry Levinson, said he wouldn't accept the offer.
"They're out of their minds," Levinson said. "This case is worth a lot more than that."
Davis' medical bills total close to $200,000, he said.
Davis suffered a broken neck in the November 2001 run-in with officer David D. Miller, who arrested the then-33-year-old after security guards at the Las Vegas Club found him reading a magazine in an employees-only area.
The lawsuit alleges Miller slammed Davis into a wall and punched him in the face when he was handcuffed and on the ground. County prosecutors declined to press criminal charges against the officer, saying his actions were in response to Davis resisting arrest.
But an internal affairs investigation found Miller used more force than necessary and suspended him for 10 hours and ordered him to undergo use-of-force training.
Trial is scheduled to begin Sept. 10.
Excessive force claims reinstated
By CARRI GEER THEVENOT
Las Vegas Review Journal
A federal appeals court has reinstated claims of battery and excessive force against a Las Vegas police officer accused of breaking a handcuffed suspect's neck during a 2001 arrest at a downtown casino.
"Here, we have no question that any reasonable officer would have known that the force used was excessive, from an elementary understanding of the obligations of law enforcement officers toward all individuals in the community they serve as well as from a review of the well-established law," the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco notes.
The court made the ruling Wednesday in a 2002 case brought by former Las Vegas resident Frankie Davis, who now lives in New York. Davis was 33 when he filed the case.
According to the lawsuit, officer David D. Miller used excessive force, in violation of the Fourth Amendment, when he arrested Davis on Nov. 7, 2001, at the Las Vegas Club, at Fremont and Main streets. Davis also brought a claim against Miller under Nevada's battery statute.
U.S. District Judge James Mahan dismissed the claims against Miller and his supervisor, Sgt. Leonard Marshall, in 2004 after ruling that the officers were entitled to immunity.
The appeals court reversed Mahan's decision regarding the claims against Miller and remanded the case for trial.
"Justice is finally served," said Las Vegas attorney Barry Levinson, who represents Davis.
Levinson said his client has recovered from his injuries.
Las Vegas attorney Robert McPeak, who represents Miller, said he had not read the decision and could not comment on it without his client's permission.
According to the decision, the Metropolitan Police Department's internal affairs bureau conducted an investigation of the incident and issued a report in which it concluded that Miller "did not use the minimal amount of force necessary and had options other than punching the suspect in the face" while the suspect was on the ground in handcuffs.
The department suspended Miller for 10 hours and ordered him to participate in use-of-force training.
The appeals court's decision also notes that "Miller had been called before internal affairs on at least four prior occasions, twice for complaints alleging excessive use of force."
Also named as defendants in the lawsuit were the Metropolitan Police Department and the Las Vegas Club. Levinson said his client reached a confidential settlement with the casino "years ago."
The police department currently employs two officers whose names match those of the officers named in the lawsuit. David D. Miller works in the robbery and homicide bureau and has been with the department since entering the police academy in 2000.
Leonard Marshall is a sergeant with the crimes against youth and family bureau and has been with the department since entering the police academy in 1994.
Sgt. John Loretto, a spokesman for the department, said he could not confirm that the two officers were the same as those named in the lawsuit.
According to Davis' lawsuit, two Las Vegas Club security officers went to the 15th floor around 12:30 a.m. and took him into custody for prowling.
The ruling by the appellate court says Davis was reading a magazine in an area of the casino that was not open to the public.
Davis' lawsuit alleges that security officers later watched as Miller slammed Davis against a wall in the security room. The police officer then took Davis into the hallway, according to the document.
Miller "then proceeded to forcefully slam plaintiff Frankie Davis' head at least twice against the wall of the hallway with such force that a mark was left in the wall," the complaint alleges.
The incident involving Davis and Miller was captured on video by surveillance cameras at the Las Vegas Club. Levinson played the videotape for the Review-Journal in December 2001.
On the tape, Davis is shown handcuffed in a security room when Miller arrives. A slight struggle ensues before the camera jumps to another scene.
Moments later, the camera returns to Davis and the officer, who are in a hallway. Davis is on his belly, hands still behind his back, and is being searched by Miller when the officer throws a right jab to Davis' head. Davis was only partially visible in this portion of the videotape.
The appeals court's opinion, which was authored by Judge Stephen Reinhardt, stated that "the force used by officer Miller was severe, the crime Davis had committed was minor, the danger to officer Miller was minimal as was any risk of flight, and there were many less abusive means through which Miller could have accomplished his objective."
"Thus, weighing the severity of the force used against the governmental interests at stake, we have no difficulty in concluding that the facts here at issue, viewed in the light most favorable to Davis, demonstrate that officer Miller's actions were unreasonable and that Davis' Fourth Amendment rights were violated."
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