City and county sued for excessive use of force

[Click here for the KGW News report]

A Latino man who suffered a broken elbow and ribs after McMinnville Police Sgt. Tim Heidt threw him to the ground and punched him repeatedly during a DUII stop in which he was a passenger, is suing in federal district court. He is also naming the sheriff’s office because a deputy joined in.

Hipolito Aranda, 48, is asking for $1 million in punitive damages from each of seven defendants, plus compensatory damages and legal fees. He alleges his Fourth Amendment rights were violated because he was arrested without probable cause and subjected to excessive force.

A federal district judge dismissed some parts of the complaint with respect to the sheriff’s office, due to the limited nature of its backup role, but retained claims of battery, municipal liability and excessive use of force. Judge Michael Simon also refused a county bid to have a damning internal affairs report thrown out.

The case went to settlement talks in early May, but they foundered. City Attorney Candace Haines said no further talks are scheduled at this point.

A court scheduling conference, to determine a trial date and other timelines, is on the docket for May 24.

In addition to Heidt, the instigator and principal protagonist, the lawsuit names Chief Ron Noble and Sgt. Cully Desmond from the police department and Sheriff Jack Crabtree and deputy Rich Broyles from the sheriff’s office.

Heidt remains on active duty, despite drawing a strongly worded rebuke in the second of two internal affairs investigations conducted three years after the fact in February.

An internal affairs investigation was completed at the time, leading to issuance of a report in May 2010. A second one was completed in February of this year, after an additional portion of the videotape of the incident was belatedly discovered. The resulting report was highly critical of Heidt.

McMinnville Chief Ron Noble declined to indicate whether Heidt had been disciplined, either at the time or later, saying he could not discuss the issue while the case remained under active litigation. But he acknowledged, “What happened on that night is extremely troublesome.

“People want a resolution today, but our system doesn’t allow for that. It doesn’t allow for that in the civil system, the legal system or the administrative system,” Noble said.

“As we believe this incident is a matter of public concern, our intent is to be able to provide more information necessary to ensure the public’s trust in their police department when the litigation is complete and we are able to discuss this incident.” He called that “a long way of just asking for patience — for people’s trust that the end result will be the correct one.”

The incident occurred in February 2010, after a police office not named in the lawsuit stopped a car in which Aranda was a passenger. That officer and Desmond found the driver intoxicated, and attempted to take her into custody; however she struggled with them.

According to the lawsuit, about 20 minutes into the stop, Aranda got out of the vehicle to ask officers if he could walk home. They ordered him back into the car.

He was in the process of complying, according to the complaint, or had returned to the car and was standing beside it, according to the new internal affairs report, when the officers called for assistance and Heidt, who had briefly dropped by earlier, responded.

Desmond stated over the radio that he just needed Heidt to keep an eye on Aranda. But according to the internal affairs report, which the city was forced to turn over to Aranda’s attorney under discovery rules, Heidt approached Aranda and began to frisk him.

The report notes Aranda is “not in a threatening stance” in the video, “nor does he appear to taking any interest in the struggle to his left.” It concludes that Heidt “had no probable cause” to arrest Aranda, and “lacked any legal authority to initiate or escalate his efforts” to take Aranda into custody.

According to the report, supported by newly obtained patrol car video:

Heidt addressed Aranda as he approached. The Spanish-speaking plaintiff, who understands little English, responded by taking his hands out of his pockets.

After Heidt lifted Aranda’s arms, the plaintiff dropped them to a 45 degree angle. Heidt responded by grabbing him under the shoulder, spinning him around and throwing him to the ground so hard his body visibly bounced.

“This entire sequence of events took six seconds,” Federal Judge Michael Simon wrote, after reviewing the video.

Aranda tried to break his fall with his free hand, then pulled his other arm away from Heidt and put both hands under his chest, on the ground in what the internal review describes as “a pushup position.”

Heidt began striking him, first in the side, as he tried to pull Aranda’s arm behind him, and then in the head.

As this occurred, deputy Broyles arrived. He ran up and began punching Aranda in the head and shoulder, then kneed him in the side while trying to get hold of his arm to handcuff him.

As Aranda tried to shield his head with a hand and arm, Desmond approached and tased him two or three times in the legs. Heidt then issued a call for medics over the radio, saying, “I had a subject combatively resist.”

The McMinnville Police Department’s internal affairs team concluded it should have been obvious that Aranda was trying to defend himself from being hit, rather than fighting back. It went on to conclude Heidt’s later written report contained “significant inconsistencies” from the newly surfaced video, and called it a matter “of great concern.”

Capt. Dennis Marks, who served on that team, said, “We … were unwilling to ascribe intentional deception or lying to Sgt. Heidt’s statements.” But he said, “We did note that the poor credibility of his testimony in this case is extremely troubling, even if not deceitful. This inconsistency of observation may warrant an additional investigation to determine whether the employee retains credibility to provide courtroom testimony.”

Marks said the second review was “based on the discovery of a video recording that had not been utilized or available” for the first review three years earlier.

The only video available for the initial review began at a point where Aranda was already on the ground. The new video captured Heidt’s actions from the moment he exited his vehicle.

Heidt, a 42-year-old McMinnville High graduate, joined the department in 1997. He was promoted to sergeant in 2009.

He was also involved in an incident in February 2012 — a drunken early-morning brawl outside a bar in Seaside. He left the scene before Seaside police arrived, but they later located and interviewed him.

The McMinnville Police Department placed him on administrative leave pending an internal investigation, but later returned him to duty. The chief declined to say whether any disciplinary action had been taken against him in connection with the off-duty fracas.

The Yamhill County Sheriff’s Office also conducted an internal review of the 2010 incident. Crabtree said in a deposition that he did so because Broyles’ actions raised concerns for him.

He said he ultimately concluded Broyles’ actions fell “within policy.” But federal Judge Michael Simon wrote in his ruling that the sheriff’s department considers the type of repeated blows Broyles delivered as “the most serious category of force short of deadly force,” and noted that “Broyles also acknowledged that he never heard Aranda utter any threats” and that “a jury could find that a reasonable officer should have determined that Aranda did not pose an immediate or serious threat.”

He wrote that “a reasonable jury could find that Aranda was given no opportunity to comply before Heidt and Broyles escalated the confrontation.”

He also noted that Aranda speaks Spanish “although he also understands some English.”

Aranda was charged with resisting arrest, and spent five days in jail. A jury acquitted him of all charges.