Opinion
Criminal Action CR-16-3882 CR-16-3884
05-16-2017
STATE OF MAINE v. MICHELLE GADSON Defendant and STATE OF MAINE v. ISAIAH GADSON Defendant
ORDER ON MOTIONS TO DISMISS
NANCY MILLS, JUSTICE SUPERIOR COURT
Before the court are defendants' motions to dismiss the complaints against them because of alleged police misconduct. Hearing was held on March 16, 2017. Briefs were filed on April 3, 2017, The court has considered the evidence and arguments of counsel. For the following reasons, The motions are denied.
FACTS
Brent Abbott has been employed by the Portland Police Department For more than five years. On July 4, 2016, he responded before 9:00 p.m. to a report of an assault on a security guard at Bayside Village, a large apartment complex in Portland. He had also been instructed to "criminal trespass" defendant Michelle Gadson, and had told her to leave the premises.
Officer Abbott was watching security video footage with two other security officers behind the counter in the lobby of Bayside Village. Defendant Isaiah Gadson, who lived at Bayside Village, entered the lobby. Mr. Gadson is nineteen year's old, is 6*5", weighs 250 pounds, and works in the Old Port as a bouncer. He expected to meet his mother, Ms. Gadson, at Bayside Village after the fireworks that evening.
There were four people and the officers in the lobby at Bayside Village. (St.'s Ex. 14.) Mr. Gadson walked into the lobby quickly and stopped at the counter. His arms were raised, consistent with making an inquiry. (St.'s Ex, 14.) He asked who had criminal trespassed his mother.
Officer Abbott immediately walked around the counter and approached Mr. Gadson, who did not move and who had his arms pointed down in front of him. (St.'s Ex. 14.) Officer Abbott pushed Mr. Gadson with both hands, pointed to the door, and told Mr. Gadson to leave. (St.'s Ex. 14.) Officer Abbott continued to speak to Mr. Gadson, who did not move and kept his arms down in front of him, (St.'s Ex, 14, ) Officer Abbott was saying, "go." (St.'s Ex. 14.) Mr. Gadson responded that he lived there and did not have to leave.
Officer Abbott then pulled his taser, pointed it directly in Mr. Gadson's face, and "dotted his forehead." (St.'s Ex, 14.) Mr. Gadson reacted and stepped back but remained standing where he was with his arms down in front of him. (St.'s Ex. 14.) Officer Abbott raised the taser again and continued to point to the door and to order Mr. Gadson to leave. (St.'s Ex. 14.) Officer Abbott then looked away from Mr. Gadson and spoke on his radio. (St.'s Ex. 14.) Mr. Gadson turned and walked toward the door. Officer Abbott shoved the taser into Mr. Gadson's back and kept the taser pointed at Mr. Gadson's back as Officer Abbott followed Mr. Gadson to the door. (St.'s Ex. 14.) Officer Abbott pushed Mr. Gadson out of the lobby toward the outside and followed him with the taser still in Officer Abbott's hand. (St.'s Ex. 14.) Mr. Gadson did not use force. (St.'s Ex. 14.) At this point, Mr. Gadson had not committed a crime.
Outside, five people and another officer were present initially but those numbers increased. (St.'s Ex. 14.) Officer Abbott continued to speak in an aggressive manner to Mr. Gadson. (St.'s Ex. 14.) Mr. Gadson's brother stepped toward Mr. Gadson and Office Abbott, and the brother extended his arm between the two. (St.'s Ex. 14.) Mr. Gadson continued to stand with his arms down in front of him. (St.'s Ex. 14.) Officer Abbott moved closer to Mr. Gadson, who backed up, and his brother moved his body between Officer Abbott and Mr. Gadson. (St.'s Ex. 14.) Mr. Gadson backed up again as Officer Abbott approached. (St.'s Ex. 14.)
Officer Abbott then walked off the porch and shoved with both hands another spectator who was speaking but not acting aggressively. (St.'s Ex. 14.) Officer Abbott then engaged in a conversation with that person and approached the person closely. (St.'s Ex. 14.) The other officers stood by. (St.'s Ex. 14.) The potential for this situation to deteriorate was great.
Officer Bennis, a Portland Police Department officer of thirteen years, was dispatched to Bayside Village as additional back up. Officer Bennis was concerned about the crowd, which remained excited because of the previous incident, and tried to contain the crowd.
Officer Bennis called for additional police back up. Members of the crowd were yelling and there was significant commotion. (Defs.' Ex. 1.) Sergeant Noyes arrived at Bayside Village at 9:06 p.m. in response to the call for additional help, and spoke to Ms. Gadson. She was standing in the road because she was not allowed on the property. Sergeant Noyes asked her to step out of the road because traffic was passing very close to her. (Defs.' Ex. 1.) She continued filming the scene. (Defs.' Ex. 1.) Officer Bennis asked her again to move and told her she was obstructing a public way. She did not move, ignored Officer Bennis's requests, and continued filming. (Def.'s Ex. 1.)
Sergeant Noyes placed Ms. Gadson's arm behind her back to arrest her and tried to put handcuffs on her. Members of the crowd, including Mr. Gadson, moved quickly toward Sergeant Noyes and Ms. Gadson. Mr. Gadson yelled, "do not touch my mother."
The ensuing events are difficult to identify on the video, the beginning of which the court has viewed many times, partly because a car passed between the camera and the scene at a critical time. (Defs.' Ex. 1, Stream 1.) At least three civilians were between Mr. Gadson, Sergeant Noyes and Ms. Gadson as the civilians approached Sergeant Noyes and Ms. Gadson. It does not appear that another officer was between Sergeant Noyes, Ms. Gadson, and the approaching crowd. (Defs.'Ex. 1.)
Three officers followed Mr. Gadson as he approached Ms. Gadson. Mr. Gadson was facing toward Ms. Gadson. He was taken down from behind to prevent him from reaching Sergeant Noyes and Ms. Gadson. Two other officers ran to the scene of the struggle. (Defs.' Ex. 1.)
Officer Matt Pavlis, who is 5'9" and weighs 180 pounds, arrived at 9:05 p.m. in response to the call for additional backup. Based on the testimony, there is no dispute that Mr. Gadson and Officer Pavlis were primarily involved in the altercation. Mr. Gadson was beneath Officer Pavlis. Mr. Gadson's arms were flailing as he tried to punch Officer Pavlis. Officer Pavlis punched Mr. Gadson seven or eight times in his side.
During the altercation, Ms. Gadson attempted to walk toward her son. Portland Police Department Officer Graham Hults, Sergeant Noyes, and Lieutenant Hutcheson stepped in front of her at various times.
Officer Abbott grabbed his baton and pushed it multiple times into the back of Mr. Gadson's leg. Sergeant Noyes yelled "spray" one or two times and then used pepper spray on Mr. Gadson. Mr, Gadson stopped resisting and was handcuffed.
The officers poured water on Mr. Gadson's eyes and contacted Med Cue. (St.'s Exs. 10-12.) Paramedics arrived at the scene and evaluated Mr. Gadson. There was no visible injury to him except for the effect of the spray. Mr. Gadson reported to Med Cue that his back was injured. Officer Pavlis sustained scratches and abrasions to his hands, arms, face, and neck and a bite mark on his hand, which he believed was caused by Mr. Gadson. (St.'s Exs, 1-9.)
Mr. Gadson was arrested and charged with assault on an officer, refusing to submit to arrest, and carrying a concealed weapon. Officer Bennis conducted a search incident to arrest of Mr. Gadson and found a switchblade in his front pants pocket. Mr. Gadson was taken to the jail. He did not request treatment at the jail. He posted bail immediately.
Ms. Gadson was arrested by Lieutenant Hutcheson, a twenty-eight-year veteran of the Portland Police Department, with assistance from Sergeant Noyes and charged with obstructing a public way, obstructing government administration, and disorderly conduct. (St.'s Ex. 13.) She was placed against a vehicle and each officer took one of her arms and applied the handcuffs. (Def.'s Ex.1.)
Lieutenant Hutcheson picked up Ms. Gadson's phone from the ground and gave it to Officer Abbott. Ms. Gadson and her phone, with which she videotaped what had occurred, were taken to the jail by Officer Abbott. She declined Officer Titcomb's request to allow the footage to be downloaded. The phone was taken from Ms. Gadson because she was not allowed to have a phone at the jail.
CONCLUSIONS
In situations where the conduct of law enforcement agents is outrageous, due process principles absolutely bar the government from invoking judicial processes to obtain a conviction. United States v. Russell. 411 U.S. 423, 431-32 (1973) (undercover agent's supplying of an essential chemical for the manufacture of methamphetamine was not a due process violation). "This is conduct that shocks the conscience." Rochin v. California, 342 U.S. 165, 172 (1952) (illegal entry, struggle to obtain capsules defendant swallowed, and forced stomach pumping constituted a due process violation); see Olmstead v. United States, 277 U.S. 438, 468 (1928) (courts do not have the discretion to exclude evidence unethically secured); United States v. McClelland. 72 F.3d 717, 721 (9th Cir. 1995) ("For a due process dismissal, the Government's conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice."); Roberts v. Maine, 48 F, 3d 1287, 1291 (1st Cir. 1995) ("The Due Process Clause of the Constitution prohibits deprivations of life, liberty, or property without 'fundamental fairness' through governmental conduct that offends the community's sense of justice, decency and fair play."); Hueuez v. United States, 406 F.2d 366, 381-82 (9th Cir. 1968) (forced drinking of an emetic and forced rectal exam "conducted violently, unhygienically, without medical propriety and with laughter and jokes" constituted a due process violation); State v. Stade, 683 A.2d 164, 166 (Me. 1996) (admission of blood alcohol test would be fundamentally unfair because the officer failed to read an implied consent form and provided false information to defendant.)
1. Michelle Gadson
There is no evidence on this record to support defendant's claim that the video on Ms. Gadson's phone was erased while she was in police custody. (Mot. Dism. ¶ 6.) Further, there is no evidence that the officers' actions with regard to Ms. Gadson were "so offensive as to shock the conscience."1 (Mot. Dism. ¶ 7.)
2. Isaiah Gads on
The court does not conclude that the officers were "completely out of control" or that their conduct was "so offensive as to shock the conscience, " as Mr. Gadson alleges. (Mot. Dism, ¶ 5, 7.) This was a volatile situation on a dark July 4th evening. The police were outnumbered by people still unhappy about an incident that occurred earlier in the evening, As Mr. Gadson and other civilians approached Sergeant Noyes as he attempted to arrest Ms, Gadson, the officers intervened and a struggle ensued until they gained control of Mr. Gadson. See 17-A M.R.S. § 107(1) (2016), The entry is:
The Defendants' Motions to Dismiss are DENIED.