Ferguson Police Face Scrutiny of 8th Circuit

ST. LOUIS (CN) - A black man who claims he was charged with destruction of police property for bleeding on Ferguson police officers' uniforms during a brutal jailhouse assault asked a federal appeals court Thursday to revive his case.

It will be five years this summer since Henry Davis sued Ferguson and police officers Michael White, John Beaird and Kim Tihen, claiming that the officers used excessive force by attacking him in his jail cell and that Beaird then falsified affidavits to charge Davis with the destruction of property.

Urging the 8th Circuit to revive due-process claims, attorney James Schottel told the panel Thursday that Beaird changed his story about the blood on the police uniforms several times amid an investigation into the officers' affidavits.

The attorney explained in an interview after the hearing: "A couple days afterward, the officer filled out these affidavits saying my client bled on their officers' uniforms, which later he denied that that ever occurred."

"And as I stated at the argument in the trial he had a different story that he just filled out those affidavits at the instruction of a sergeant," Schottel said. "So he changed his story multiple times."

Peter Dunne, the attorney for Ferguson and the police officers, claimed that the due-process claim became moot when Davis accepted a plea deal.

"Regardless of what Officer Beaird personally saw ... none of that mattered," because of the guilty pleas Dunne told the court.

The 8th Circuit is also considering whether to revive the excessive-force claim based on the fact that the alleged assault occurred before Davis had been booked on charges.

Once a person is considered a pretrial detainee, he is subjected to an Eighth Amendment analysis, which gives more leeway to jail authorities to use force compared with a Fourth Amendment analysis, setting a tougher standard for the plaintiff.

Judge James Loken questioned Schottel about the line of demarcation.

"What case holds that booking is the line between the Fourth and Eighth Amendment," Loken asked.

Schottel said in an interview after the hearing that he would file a supplemental brief on this point.

"There is a case that states that a person becomes a pretrial detainee after the booking process and there's what's called a legal twilight in there," Schottel told Courthouse News.

Dunne, the attorney for Ferguson, meanwhile argued that the booking process had begun, and that Davis had already been transferred to a secure part of the jail when he refused to cooperate with a lawful order.

"The plaintiff, by his own admission, was given an order to enter a cell and refused to do it," Dunne told the court.

Because Davis ignored instructions, "the question of whether any force could be used disappears," Dunne added.

The case stems from an early morning traffic stop on Sept. 20, 2009.

Ferguson police claim they stopped Davis' vehicle going more than 100 mph, and that they smelled alcohol in the vehicle. They claim he refused to take a breathalyzer and became combative when told to enter a jail cell.

Davis, who now lives in Mississippi, claims it was raining hard and he missed his highway exit coming home from a friend's house and pulled off the road in Ferguson. He was allegedly never asked to take a sobriety test and told he was being arrested on an outstanding warrant. Denying that he was combative with police, Davis says he only raisd his arms over his head to protect himself.

The incident happened nearly five years before the Michael Brown shooting, which made Ferguson ground zero in the nationwide debate over racism and excessive police force. The Brown shooting prompted a scathing report from the U.S. Department of Justice outlining a pattern of racism within the Ferguson Police Department.

Schottel provided information to the DOJ for its investigation.

"Some of it was expected," Schottel told Courthouse News about the report. "It was interesting, but it didn't surprise me at all."

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