Civil rights lawsuit against deputy Hand goes to appeals court
BERRYVILLE -- An appeals court is set to consider whether a Carroll County sheriff's deputy accused of civil rights abuses two years ago should be immune from prosecution.
Cpl. Joel Hand is accused of falsely arresting and imprisoning Edward "Blue John" Chevalier. Hand is also accused of using excessive force in making the arrest.
Hand filed a motion for summary judgment of the first two claims earlier this summer. In his motion, Hand argued he had probable cause when arresting Chevalier and, thus, should be protected under state immunity laws.
The motion was denied by U.S. District Judge P.K. Holmes on Aug. 6, and Hand filed his appeal one week later. The next step in the case is for Hand to file a brief in support of his appeal. The document is due to the 8th Circuit Court of Appeals by Oct. 2. Chevalier will then have 30 days from that date to file a response.
The consideration of the legitimacy of Chevalier's claim of excessive force has been delayed until the issue of immunity is resolved, according to court documents.
In ordering the delay, Holmes wrote the move was appropriate "to avoid piecemeal litigation and preserve the court's and parties' resources."
Chevalier's attorney, Doug Norwood, said he agreed.
The original lawsuit stemmed from an Aug. 16, 2010, encounter at the mobile home park owned by Chevalier.
On the day of the incident, Hand had responded to a 911 call from one of the tenants, who claimed Chevalier had taunted him and tried to goad him into a fight.
Deputies had responded before to disputes between the two men and had ordered Chevalier to stay away from the tenant.
On the day of the last call, Hand and Sheriff's Deputy Billy Floyd found the 81-year-old Chevalier in his garden tying up sagging tomato bushes and holding a pair of scissors.
Accounts of what happened next differ, court depositions show. What is clear from the documents is that Hand pepper-sprayed Chevalier and placed him under arrest. Chevalier was booked into the Carroll County Jail on charges of disorderly conduct, harassment, criminal trespassing, and refusal to submit to arrest. All the charges against Chevalier were later dropped.
In his deposition, Hand claimed he did not use the pepper spray until Chevalier refused to put down his scissors. Chevalier has disputed this, however. In his deposition, he said he was sprayed after laying the scissors down and did not immediately submit to arrest only because he wanted to put his dog in its pen before leaving.
Chevalier also said his face was forcibly pressed into the ground, leading to minor injuries, and that the deputies refused to loosen his handcuffs when he complained that they were cutting into his wrists.
He filed suit against both Hand and Floyd on July 7, 2011, alleging violations of the Civil Rights Act and the Fourth and 14th Amendments.
Floyd was later dismissed from the case.
In denying Hand's earlier motion for a summary judgment, Judge Holmes wrote that the "key issue" in determining whether Hand was eligible for qualified immunity was whether he had probable cause in making the arrest.
"If defendant had probable cause to arrest, under the circumstances," Holmes wrote, "his actions would receive qualified immunity."
Holmes ruled, however, that Hand had failed to meet his burden of proof, noting that Hand did not himself witness Chevalier commit any crime. Instead, he had relied on the testimony of the alleged victim.
"(T)he lack of any corroboration strikes the court as an imprudent basis upon which to execute a warrantless arrest," Holmes wrote. " ... Because (Hand) has failed to meet his burden of proof, the court declines to dismiss (his) false arrest and imprisonment claims."
Now, the appeals court must decide whether to uphold that decision. However, Norwood said it would likely be a year before the appeal is resolved. Only then can the remaining claims be considered.
"Like all federal courts, the 8th Circuit Court is just overrun with federal criminal cases," Norwood said. "This thing could literally go on for several years."
Hand's attorney, Jason Owens, did not return a request for comment.