ROTTERDAM Police brutality settlement eyed Couple claimed injury during drug raid BY JUSTIN MASON Gazette Reporter
Rotterdam will likely pay $18,000 to settle a police brutality case lodged by a Waterford couple who claimed offi cers unlawfully roused them from a camper and caused them injuries during a drug raid on a Van Dyke Avenue residence in 2005. Robert Berard and Gail Hudson fi led the federal lawsuit naming the town and more than a dozen Rotterdam police offi cers in July 2006, claiming their constitutional rights were violated during the early-morning raid. Among other claims in the case, they said police caused them injuries and unlawfully searched their camper while it was parked in the driveway of John and Dina Franze, Hudson’s daughter. Members of the Town Board will decide whether to settle the case during their meeting Wednesday. Town Attorney Michael Godlewski said the $18,000 settlement will be covered by Rotterdam’s municipal insurance carrier if it is approved by the board. “The [insurance] carrier has recommended this settlement, as has the attorney,” he said Friday. ...............>>>>.......................>>>>............http://www.dailygazette.net/De.....r00103&AppName=1
Couple filed claim after being wrongly detained in 2005 drug raid
The town has reached a settlement with a couple who tipped police off about suspected drug activity and found themselves swept up in the raid.
The Rotterdam Town Board on Wednesday, July 14, approved an $18,000 settlement in a case stemming from an incident five years ago in which a couple staying in a camper in the driveway of a home at 2627 Van Dyke Ave. were detained during a search of the house.
The settlement in the 2006 federal lawsuit Berard et al. v Town of Rotterdam was accepted Wednesday, July 21.
In the summer of 2005, Rotterdam police were investigating drug activity at the Van Dyke Avenue address and had the home under surveillance. Confidential informants had three times made drug purchases at the residence.
After police obtained a search warrant, the Emergency Response Team conducted an early-morning raid and proceeded to the second floor and detained the suspects in question. Once the house was cleared, police knocked on the door of Robert Berard and Gail Hudson’s camper, located in the driveway of the residence.
Berard exited the camper first, followed by Hudson, and both were taken into custody and arrested. A police officer pepper-sprayed their St. Bernard dog while removing the couple.
“[Berard and Hudson] had alerted the police to the drug activity in the house,” said the couple’s attorney Youel “Trey” Smith. “Even withstanding those facts, the police had the right to clear the camper to conduct the search of the house without any threat from the camper.”
According to court documents, police officers charged in the lawsuit were told Berard and Hudson were not suspected in the trafficking of illegal drugs, and the camper wasn’t within the “scope of the warrant.”
All charges were eventually dropped against Berard and Hudson on a recommendation from the Schenectady County District Attorney’s Office. Shortly afterwards, the couple filed claims of assault, battery, false arrest, false imprisonment, defamation, malicious prosecution, intentional infliction of emotional distress and violating rights guaranteed by the first, fourth, fifth, eighth and 14th amendments.
“It took a long time to sort through what actually happened in this very short period of time,” said Smith.
There were multiple versions of what happened, said Smith, and it took a couple of years to identify all the defendants. The couple previously hadn’t seen or talked to any of the officers conducting the raid. Also, “SWAT-like gear” was worn, so the plaintiffs couldn’t easily identify the officers, said Smith.
“Many of the police offers really didn’t agree with each other on what happened,” said Smith. “Once the discovery process was complete, a motion was made by the defense for some re-judgment.”
Hudson contended the burden of proof for probable cause to arrest her was inaccurately stated at the trial and affected the jury’s verdict, so motions for a retrial were filed. On June 11, U.S. District Court Judge Lawrence Kahn granted a retrial for the claim of false arrest involving Hudson because of the error in explaining probable cause.
“It is actually kind of bizarre. The judge is the one who gives the jury instruction, and the judge instructed them that the plaintiffs had the burden of proof of demonstrating the arrest is unlawful,” said Rotterdam Assistant Town Attorney Michael Godlewski. “You don’t see it a lot were a judge ultimately makes a ruling and goes back on their ruling.”
Kahn encouraged both parties to try to resolve their differences, which resulted in a settlement being reached so both parties could move on from the incident.
“Everybody recommended that we settle, so that we didn’t face worse penalties,” said Town Attorney Michael Godlewski. “[We paid] $18,000 to make it go away … it was just a way of resolving the claim.”..................>>>>..................>>>>...............................http://www.spotlightnews.com/news/view_news.php?news_id=1280414076
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