After authorities arrested Anthony Waller in September 2012 on suspicion of a crime but without an arrest warrant, Waller appeared before a county judge at the Van Cise-Simonet Detention Center and questioned the legality of his arrest. Brady Lovingier, then an officer with the Denver Sheriff's Department, responded by slamming Waller’s head into a metal wall beam, causing a deep head laceration and left orbital blowout fracture.
A video of the incident found its way to YouTube.
Waller sued in 2014, and in May 2015 the Office of the Independent Monitor (OIM) released a report detailing weaknesses in the internal investigation and disciplinary process. Third-party investigator Hillard Heintze also released a report on the Denver Police Department that year.
The department suspended Lovingier for 30 days over the incident.
While some of the observations in these reports may have supported Waller’s case, the judge hearing the lawsuit declined to review them and granted the City and County of Denver’s motion to dismiss the case. The judge found Waller lacked evidence to show Lovingier’s actions were part of a widespread practice and overall culture of tolerance for the use of excessive force at the department.
On appeal before a 10th Circuit panel on Tuesday, Waller’s attorney Kenneth Padilla of the Denver firm Padilla & Padilla said without discovery the procedures and policies of the Denver Sheriff's Department couldn’t be probed, making the trial court’s dismissal premature.
“Let’s focus on causation,” U.S. Circuit Judge Nancy Moritz interjected. “Where is the causation that what appears to be an unprovoked attack against a shackled prisoner, where is the claim that this was caused by a lack of training?”
Padilla said Lovingier was recognized as a trainer in use of force, and noted “in his defense Lovingier said that was how he was trained.”
He added: “Now you set a culture that makes deputy sheriffs think they can get away with it, even when cameras are rolling. In fact, Lovingier did get away with it – he didn’t lose his job,” Padilla said. “This is the kind of thing that happens in totalitarian countries: you beat a man for speaking out in the court room.”
Arguing for Denvery, attorney David Cooperstein said Waller and his attorneys should have filed an amended complaint with references to the independent investigations compiled on the Denver Sheriff's Department and the city's police force rather than an appeal.
U.S. Circuit Judge Monroe G. McKay instead asked Cooperstein about Lovingier’s statements in the case.
“Is it true, as the counsel said, that the deputy said on this occasion that this was the way he was trained? Could it reasonably be construed to say he was trained to behave that way on that occasion?”
Cooperstein denied the accusation.
“Absolutely not,” Cooperstein said. “Plaintiff says there was a culture of ignoring complaints and lists seven cases in seven years, but in each of these cases an investigation was carried out and discipline issued.”
Cooperstein also noted the investigation by Denver’s independent police monitor “enables it to criticize itself and show that all internal affairs complaints are investigated.”
The panel took the case under submission and did not indicate when or how it would rule.
After a 10-day trial in May 2017, a jury found Lovingier liable for using excessive force against Waller and awarded Waller $50,000.
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