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Verdict favors city, officer in excessive force suit
Published 7/25/2012 in Local News : Police
Jury determines use of police dog on subject wasn't excessive force.
By ANGIE HAFLICH
ahaflich@gctelegram.com
A Finney County jury determined on Tuesday that a Garden City police officer didn't use excessive force when he utilized a police dog to help subdue a combative subject during a traffic stop in February 2004.
The jury deliberated for 45 minutes before announcing its verdict in the two-day civil trial that came as the result of a lawsuit filed by former Garden City resident Jack Nemechek against the city of Garden City and Garden City police officer David Wheet.
Nemechek originally filed the suit in 2006. The suit was initially dismissed by Judge Michael Quint, but Nemechek won an appeal and more than eight years after the incident occurred, the trial began Monday in Finney County District Court.
The incident occurred on Feb. 27, 2004, when Garden City police officers Andrew Roush and Hailey Knoll pulled Nemechek over on a traffic stop.
Sgt. Wheet, who was an officer at the time, testified during the trial that he arrived on the scene as backup, at which point Roush began administering a sobriety test to Nemechek.
Wheet testified that while Roush was administering the test, it appeared Nemechek was looking for a way to escape.
"... He was also moving around a lot, clinching his fists, which indicated to me that he was getting ready to fight or flee," Wheet testified.
At this point, according to testimony, Roush informed Nemechek that he was being placed under arrest for transporting an open container of alcohol.
Wheet testified that at that point, Nemechek began fighting officers Roush and Knoll. Wheet said he initially was going to let Roush and Knoll handle the situation, but realized they didn't have the situation under control.
"When they were unable to gain control is when I stepped into the situation, knowing that one of the officers was still in training," Wheet said.
Wheet testified he tried to help subdue Nemechek, at which point Nemechek began swinging at him, striking him once in the jaw and once in the neck. The fight escalated to the point where all three officers were on the ground with Nemechek, according to Wheet.
Wheet said he then decided to release the police dog, which was in a kennel in his patrol vehicle, and the dog obeyed Wheet's command to grab and hold Nemechek. Wheet testified that he suggested that Roush get his Taser out of his vehicle. Roush then used the Taser on Nemechek, subduing him, Wheet said.
Nemechek's attorney, Caleb Boone, asked Wheet why the Taser wasn't used to begin with, and Wheet testified that at that time, officers didn't carry them, so it was in Roush's patrol car. Wheet also testified that pepper spray, a baton, a Taser or a K-9 are equivalent in terms of level of force used and that the choice of what to use is at the officer's discretion.
Nemechek, who now resides in Wichita and was not present during the two-day trial, gave a previous deposition to Kevin McMaster, counsel for the city.
Nemechek described the incident differently, saying he only became verbally aggressive prior to being attacked by the dog.
"The police dog then exited the vehicle and attacked the female officer. They then had a hold of me. This dog was then released upon me. At this point, there was a struggle with the dog. He was severely biting on my arm. I was just trying to get him to stop," said Nemechek, who denied striking Wheet.
Nemechek testified that when the officers first pulled him over, he had given them an alias because he had not complied with his probation requirements and knew that there was an outstanding warrant for his arrest.
Nemechek also testified that he had been arrested 10 times prior to the incident.
He testified that his injuries from the dog bites resulted in several problems, including no feeling in his left leg, severe numbness inside his right thigh, sharp pains up his leg and an occasional limp. He also said that, aside from being treated on the evening of the incident, he had never sought medical treatment for his symptoms.
Wheet testified that there are four scenarios in which use of a police dog is allowed: apprehension of a felony suspect, violent misdemeanor, protection of handler and crowd control.
"If you're struck by a suspect who knows you're a law enforcement officer, is that battery of a law enforcement officer and is that a violent misdemeanor?" McMaster asked Wheet, who replied yes to both questions.
Boone called Ernest Burwell, a retired Los Angeles sheriff's deputy with 20 years experience as a K-9 dog trainer, as a witness.
"I came to the conclusion that allowing a police dog to come out of the car resulted in excessive force on Mr. Nemechek," Burwell testified. "At no time did we train, and it was taught against, to let a dog be released from the car ... other than if we were on a search where we couldn't find a suspect."
McMaster objected to Burwell's expertise in the Midwest, after Wheet testified that most police dog-handling policies are determined regionally and according to state law.
Burwell said it was his opinion that use of a police dog is one of the most lethal uses of force.
Judge Philip Vieux explained that because it was a civil suit, the burden of proof was on the plaintiff. He instructed the jury that they would need to determine if Wheet acted out of negligence or wantonness. He also instructed the jury to assign a percentage of fault.
The jury determined Nemechek was 100 percent at fault in the incident.
City Attorney Randy Grisell said he was "just pleased with the verdict, and I think what the police department did was appropriate under the circumstances, and certainly excessive force was not used."
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