Hulstedt v Scottsdale: Cops lied; Scottsdale/MCAO still prosecuting innocence

On N0vember 7, 2008 Scottsdale cops shot, brutally dragged, and permanently paralyzed a seriously mentally ill man who called them to ask for the Attorney General to come to his home. They had a come SWAT team help him out instead of allowing his family to talk him down from an agitated, distressed state, and he was holding his baby girl in his arms who was consequently injured when he was shot. 

Sound familiar?

Another Scottsdale cop, James Peters, just retired with full disability pension after shooting and killing John Loxas while he held his grandchild in his arms...sure am glad I don't live in Scottsdale these days.

Here's the original post on David's shooting: 

PROSECUTING INNOCENCE: The shooting of David Hulstedt

A year later a grand jury returned an indictment of David, alleging he had kidnapped and abused his child himself the day the cops shot him. Unfortunately, it appears as if David is still being prosecuted for the alleged crimes that "justified" his shooting. That despite his serious mental illness (he was very delusional when the cops attacked him in his yard), and the findings yesterday by federal judge G. Murray Snow that the cops lied repeatedly in order to justify their shooting, which was all screwed up to begin with (thank god for the video of the whole thing). 

Why is David still being prosecuted? From the file I just read, the cops who shot him are the ones who should be facing prosecution.

David's guardian sued on his behalf, and yesterday was a hearing on several motions re: Hulstedt v Scottsdale. News on that front is mostly good; below are some excerpts from the court record. Read the whole thing if you can - it's fascinating and the arguments apply to not only police brutality/ excessive force cases, but also searches.

First, these are the civil claims for damages that were filed on David's behalf:

"Plaintiffs’ complaint contains nine claims for relief under 42 U.S.C. § 1983 and seven supplemental claims under Arizona state law.3 (Doc. 28).

In Claim One, Plaintiffs allege that Officer Dorer and Officer Slavin violated David Hulstedt’s Fourth Amendment rights by using excessive force against him when they shot him.

In Claim Two, they allege that Officer Fellows and Officer Garcia violated David Hulstedt’s Fourth Amendment rights by using excessive force when they handcuffed him and dragged him across the asphalt, that Sgt. Dorer is liable for ordering that David be handcuffed, and that Sgt. Slavin is liable for ordering the officers to drag David to the ambulance.

Counts Three through Six, along with certain allegations in Count Seven, have already been dismissed on the pleadings by the original judge in this matter. (Doc.182).4

In the remaining portions of Claim Seven, Plaintiffs allege that officers searched the Hulstedt home in violation of the Fourth Amendment after the shooting, and that Det. Lockerby procured a search warrant for the home through judicial deception.

In Claim Eight, Plaintiffs allege that Lt. O’Halloran, Sergeant Scott Smith, Sergeant Dorer, and Sergeant Slavin bear supervisory responsibility under 42 U.S.C. § 1983 for directing their subordinates to act in ways that deprived Plaintiffs of their constitutional rights.

Claim Nine(a) argues that the City is liable based on two theories of municipal liability: a failure to train officers and a ratification of the officers’ decisions by the Chief of Police.

The remaining claims arise under Arizona state tort law.

Claim Nine(b) is for Battery against Sgt. Slavin, Sgt. Dorer, Officer Fellows, Officer Garcia, and the City.

Claim Ten is for Negligence by Sgt. Dorer, Sgt. Slavin, Det. Lockerby, and the City.

Claim Eleven is for Negligence against Operator Trott and the City of Scottsdale.

Claim Twelve is for Defamation against Officer Greene, Det. Lockerby, Officer Scritchfield, and the City.

Claim Thirteen is for Intentional Infliction of Emotional Distress (“IIED”) against Sgt. Slavin, Officer Scritchfield, Officer Clark, Officer Greene, Det. Lockerby, Officer Fellows, Officer Garcia and others.

Claim Fourteen is for Negligent Infliction of Emotional Distress against Sgt. Slavin and Sgt. Dorer, and

Claim Fifteen is for Loss of Consortium against Sgt. Slavin and Sgt. Dorer.

Defendants move for summary judgment on every claim. (Doc. 271). Plaintiffs move for summary judgment on Claim One, Claim Two, the remaining portion of Claim Seven, Claim Nine(a), Claim Nine(b), and Claim Ten. (Doc. 265)."

Now, some remarks and observations made by the judge in reflecting on these claims (DH refers to David's 3 year old daughter): 

"One cannot pay “careful attention to the facts and circumstances of [this] particular case” and still conclude that the officers were free to fire at David and D.H. as soon the negotiators had coaxed him out of his front door. Graham, 490 U.S. at 396; (Doc. 313-2, Ex. L-1 at 6)...."

"Once the family members’ cell phones had been confiscated, Officer Antrim continued to speak to David over the telephone, stating that “we’re working on getting your brother but you do know as well as I do that this is not a real common practice to send someone into a home like that.” (Doc. 313-2, Ex. L-2 at 5). After fifteen minutes of negotiation, David apparently once again expressed concern that the police were there to shoot him. Officer Antrim continued to negotiate, and learned more about David’s anxiety and his medication. (Doc. 313-2, Ex. L-2 at 8).

Five minutes later, David told the negotiation team that he was ready to leave the house. (Doc. 313-2, Ex. L-2 at 14). When Sgt. Slavin, who was still putting on his SWAT team gear, heard over the radio that the subject was going to leave the house, he “started running down towards the command post.” (Doc. 269, Ex. PP at 144). When Sgt. Slavin reached the command post, he told the officers there that he wanted to go to the scene, obtained directions from them, and continued running towards the house. (Id.). Sgt. Slavin
had heard the previous radio transmissions, but was not aware of any operational plan, did not know how many officers were on the scene, and did not know if any officers had firearms at the ready or deployed. (Doc. 266-3, Ex. L-3 at 169–70). He made the decision to go to the scene on his own, passing through residential yards containing vegetation and cacti to reachthe house. (Id.)..."

"Neither Sgt. Slavin nor Sgt. Dorer warned David that they would shoot him if he did not comply with their commands, and both of them shot him in the back as he was walking away from them and towards the house. (Doc. 313-1, Ex. B at 57, Pospisil video). Sgt. Dorer, when asked if he ever perceived at any particular moment that David was going to “piledrive” D.H., responded, “I did not.” (Doc. 267, Ex. S at 44). Instead, he shot David “to prevent him from going back into the house.” (Id. at 43). When David was shot, he released D.H. as he collapsed and she fell forward onto the concrete walkway from a height of approximately six feet. (Pospisil video).

After David fell, officers converged on D.H. and David. (Pospisil video). Sgt. Dorer and Sgt. Slavin approached David on the ground; Sgt. Dorer ordered him handcuffed and Sgt. Slavin “ordered him to be dragged away from the scene.” (Doc. 269, Ex. PP at 145). Officer Deven Fellows and Officer Marcos Garcia handcuffed David and dragged him approximately 400 feet to where the medics were stationed. (Doc. 266-2, Ex. E at 136). The officers held David under his arms with his face pointed downward, so that his bare knees were in contact with the asphalt and gravel. The dragging resulted in “gaping wounds in David’s knees” that required extensive medical attention."

"The Ninth Circuit has written that summary judgment is rare in cases of police misconduct, because “police misconduct cases almost always turn on a jury’s credibility determinations.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (emphasis added). This case is an exception to that general caution. Almost everything the officers heard was recorded and transcribed, and the shooting itself was recorded on video. The officers fired at an unarmed man who was walking away from them. Although he had issued threats against D.H. earlier, nothing he did after walking outside would suggest to a reasonable officer that he was placing D.H. in imminent danger of suffering any more harm than falling to the ground. By shooting David, the officers caused the very harm that a reasonable officer could believe that David posed to D.H. Considering “the totality of the facts and circumstances in the particular case,” no reasonable officer could have believed that shooting David without warning, while he calmly walked back towards his house with D.H. over his head, was a proper means of protecting D.H.’s safety. Blanford, 406 F.3d at1115...."

And the judge's order: 

IT IS THEREFORE ORDERED:

1. Plaintiffs’ Motion for Partial Summary Judgment (Doc. 265) is granted in part and denied in part.

2. Defendants’ Motion for Partial Summary Judgment (Doc. 271) is granted in part and denied in part.

3. The remaining claims are as follows:

A. On Claim One, summary judgment is entered for Plaintiffs.

B. On Claim Two, summary judgment is entered for Defendants on thehandcuffing claim and denied to both parties on the dragging claim.

C. On Claim Seven, summary judgment is entered for Plaintiffs on the warrantless search allegations. (Doc. 28 ¶¶ 290–296). Summary judgment is entered for Defendants on the judicial deception claim. (Doc. 28 ¶¶ 297–301).

D. On Claim Eight, summary judgment is entered for Defendant on the claims against Sgt. Slavin, and Lt. O’Halloran, and for Sgt. Dorer regarding the handcuffing. Summary judgment is entered for Plaintiffs against Sgt. Dorer regarding the warrantless search. Summary judgment is denied to both parties with regards to the dragging claims. Summary judgement is denied to both parties with regards to Sgt. Slavin.

E. Claim Nine(a) survives only with regards to the ratification claim (Doc. 28 ¶308) and is otherwise dismissed.

F. On Claim Nine(b), summary judgment is entered for Plaintiffs against Dorer and Slavin regarding the shooting. Summary judgment is denied to both parties regarding Officer Fellows’ and Garcia’s dragging David to the ambulance.

G. Claim Ten is dismissed.

H. Claim Eleven survives.

I. Claim Twelve survives

J. Claim Thirteen survives only with regards to Officer Greene and Sgt. Slavin, and is otherwise dismissed.

K. Claim Fourteen is dismissed.

L. Claim Fifteen survives.

4. Plaintiffs’ Motion for Reconsideration (Doc. 333) and Motion for Certification of Issue for Interlocutory Appeal (Doc. 333-34) are both denied.

DATED this 6th day of August, 2012.

-------------

If David's family is out there reading this now, please get in touch with me - I want to connect you with folks who have been advocating for the mentally ill in the criminal justice system for awhile. They want to offer your family support. My name is Peggy Plews; my number is 480-580-6807; my email is arizonaprisonwatch@gmail.com

Risking prison rape for graffiti fame: counter-revolutionary.

This was released today by the Maricopa County Attorney's office (they kicked my own felony down to 3 misdemeanors, apparently. I hope that's all I'm facing, anyway). This 18-year-old is on his way to prison, and he's bragging about being a "king". 

King of what, exactly? 

He has no idea what he's really facing if he ends up in an Arizona state prison. Guys who are masters at beating, raping and killing cocky youth like him - not writing on church walls - are running the yards. They're going to eat him alive in there - he'll be candy for them. That's why so many others are just killing themselves once they arrive.

I hope not all the young taggers out there are really this naive'...please respect our hoods and find a way to express yourselves legally, people. I get some of what you're doing, guys, but don't go to prison for this kind of shit. Come Occupy Phoenix or protest police brutality with us and just bring chalk - or a piece of cardboard with your paint. Teach me some new techniques - I learn a lot from real writers and artists. Think of it as a challenge....I dare you to drop your cans for one day. Then we'll talk revolution, if that's what you're really all about.

-----------------from the MCAO---------------------

Graffiti Tagger “Shaggy” Faces Criminal Damage Charges

PHOENIX, AZ (October 12, 2011) – A Maricopa County Grand Jury has charged Daniel Alexander Lopez (D.O.B. 5/13/1993) with one class 6 felony count of Aggravated Criminal Damage and one class 5 felony count of Criminal Damage for allegedly committing multiple acts of graffiti that defaced property and structures throughout the Phoenix metro area over a three year period. He is believed to be one of the most prolific graffiti vandals currently in Maricopa County.

“Graffiti is not a harmless form of creative expression. It’s a destructive crime that victimizes entire communities by creating blight and encouraging additional criminal activity,” said Maricopa County Attorney Bill Montgomery. “In conjunction with the diligent efforts of Phoenix Police and the Phoenix Graffiti Busters program, my office will continue to aggressively pursue graffiti vandals and hold them accountable for their destructive actions,” he added.

On May 10, 2011 Phoenix Police Officers spotted Lopez trespassing on State property near an onramp to State Route 51 at McDowell Road. This area is near multiple freeway overpasses that are frequently targeted by graffiti vandals. Lopez was found in possession of a tip to an aerosol spray paint can and had white paint on his hands that matched the paint on the spray tip. Officers also found fresh graffiti tags in white paint on structures near the location where Lopez was apprehended.

Lopez later admitted to investigators that he had been “tagging” throughout the Phoenix area since 2006 using the name “Shag,” “Shaggy” and “Shagone.” The current indictment lists more than 30 victims who suffered damages in excess of $5,500. Victims include Family Dollar Stores, Sears, Arizona Department of Transportation, New Hope in Christ Church, and multiple private citizens.

Lopez told investigators he was well aware of the risk he was taking by engaging in graffiti vandalism, adding that he had no plans to stop until he was caught. “If you become a King you will get caught eventually and that’s the risk you have to take,” he said.

Referrals of juvenile graffiti cases to the Maricopa County Attorney’s Office have spiked 46% in the last five years, while referrals of cases involving possession of graffiti tools have more than tripled. The County Attorney’s Office typically files formal charges on roughly 90% of criminal damage case submittals (ARS §13-1604), with resulting sentences ranging from probation to two years in prison or longer.

The indictment and information announced today is not evidence of guilt. Mr. Lopez is presumed innocent until proven guilty.

Cop-Court Watch: Montgomery on Gerster & Keesee

"Indict Arpaio" Rally - Wells Fargo,
June 7, 2011 (Phoenix)

For those of you following the cases of the MCSO detention officers (Kevin Gerster and Alan Keesee) who assaulted their prisoners in the psychiatric unit of Lower Buckeye Jail, I'm writing to try to set the prosecutor's side of the story straight - or at least give you a piece of it. I guess it's more a clarification than a correction, so I didn't rewrite my earlier posts - just redirected folks here. I wrote to County Attorney Bill Montgomery last week because it appeared from court records as if the assault case against Alan Keesee had been dropped at the initiative of his office. My confusion, I guess. Montgomery got back to me pretty quickly asserting that the prosecution is moving forward nonetheless, and re-iterated the reason he didn't proceed with prosecuting either of those guys for abusing "vulnerable adults," as I'd been urging.

Frankly, I think if this had occurred in any other kind of institution treating psychiatric patients, the vulnerable adult statute would be invoked to raise the felony level and broaden the sentencing possibilities. But I honestly don't know the law well enough to ferret this all out myself, so I figured it was best to just let you hear the explanation straight from the county attorney.

My apologies for attributing anything less than professionalism to the folks working hard on these detention officer's prosecutions.

--email from Bill Montgomery's office, Thursday September 8, 2011--

From Bill Montgomery:

We were able to resolve the case by filing a Direct Complaint/Plea proceeding without having to go through the entire Preliminary Hearing/Trial process. So, while it looks like charges were dropped, we still proceeded with prosecution.

I can assure you that the resolution leads to the defendant no longer working in law enforcement, let alone detention.

I would also appreciate it if you would acknowledge that the goal of holding people in positions of responsibility for safely and securing handling inmates accountable when they break the law is being met. We may disagree about the best way to accomplish that but my commitment to that goal remains. Also, I previously explained to you that the basis for the crimes committed was not the mental status of the victim but the fact that he was restrained. That was the direct set of facts. If we had charged the Class 2 Felonies there is a high likelihood that we would have failed to secure convictions. It was more important to me to charge the appropriate crime so we could ensure convictions.

Thank you for your continued advocacy,

Bill Montgomery

Maricopa County Attorney

301 W. Jefferson, 8th Floor

Phoenix, AZ 85003

602-506-1260

Brutalizing the mentally ill: Gerster's Sentencing.

CORRECTIONS/CLARIFICATION HERE

Maricopa County Courthouse (W. Jefferson / 3rd Ave)
March 2011

Went to Kevin Gerster's pre-trial this AM, only to learn that he entered a plea last week to three counts: a misdemeanor for tampering with criminal records (he gave a buddy the address of a guy his ex-girlfriend was dating, and the buddy stalked and assaulted them both), as well as two aggravated assault charges for beating up his mentally ill prisoners (both are just class 6 felonies, though - charging him for assaulting "vulnerable adults", as I strongly urged the prosecutors to do, would have made it a class 2 felony).


Here's what really troubles me, though: even though he's a repeat offender of violent crimes against vulnerable persons, they let him off the hook with "non-dangerous/ non-repetitive" designations on his assaults - how can aggravated assault be "non-dangerous"????


That favor may well be what helps him avoid prison for all this. It sure minimizes his responsibility for hurting people repeatedly - the only reason he can't keep doing so is because he got caught, not because he found God or something. That's one sign of a sociopath - that and the sheer absence of a conscience.


This is all so disappointing - I really thought Prichard and her boss Bill Montgomery had what it took to really get justice in this case. That guy's going to walk with probation and community service, no doubt - despite violating all of our trust, as well as the welfare of his prisoners. God only knows how traumatized his victims still are - they'd have every reason to be afraid of the uniform of the state, now, too - as do the rest of us.


Here's Gerster's sentencing date; be there if you can:

10/21/2011 at 10:30 a.m.,
Judge William Brotherton Jr.
201 W. Jefferson St, PHX
Maricopa County Superior Court

Look for this provision to be pulled out at sentencing, so he has a chance of getting out of there without any felony charges at all (and could therefore become a rent-a-cop at your local high school or mall)

Shame on the MCAO for not prosecuting him for abusing vulnerable adults...

-------------------------

13-604. Class 6 felony; designation

A. Notwithstanding any other provision of this title, if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. The offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor. This subsection does not apply to any person who stands convicted of a class 6 felony and who has previously been convicted of two or more felonies.

B. If a crime or public offense is punishable in the discretion of the court by a sentence as a class 6 felony or a class 1 misdemeanor, the offense shall be deemed a misdemeanor if the prosecuting attorney files any of the following:

1. An information in superior court designating the offense as a misdemeanor.

2. A complaint in justice court or municipal court designating the offense as a misdemeanor within the jurisdiction of the respective court.

3. A complaint, with the consent of the defendant, before or during the preliminary hearing amending the complaint to charge a misdemeanor.

Tough on Crime MCAO prosecutes William Franklin Hughes III.

UPDATE (10/21/11):
Gerster's Sentencing

Maricopa County Superior Court House (March 11, 2011)

Just so folks know, William Franklin Hughes III plead guilty last week to one misdemeanor charge of indecent exposure and one misdemeanor charge of criminal damage. He was originally up on 5 misdemeanors and 2 felonies, so I guess you could say that they cut him a deal. Considering that William was assaulted repeatedly in custody and has evidence of a serious mental illness, though, I think the Maricopa County Attorney's Office should have cut the guy loose after he took that beating. This stuff can accumulate on one's record and come back around again to haunt you, so it's never really a "favor" when they pursue prosecutions of people for the symptoms of their mental illness instead of divert them out of the CJ system altogether, though. They really stick it to people with a mental illness in this town, and they do it with a smile.


The folks I saw ten or fifteen years ago cycling in and out of county jails and shelters are now going to prison because they didn't get adequate public mental health care and they racked up such a record of misdemeanors living on the streets, not because they became more hardened criminals. That's how they end up doing 27 months for prostitution, like Marcia Powell, in the first place. That's pretty pathetic; hardly a sign of an evolved society.


That's $20,000 a year we're willing to put into incarcerating each mentally ill citizen - more, since we tend to put them in high security settings - but we aren't willing to invest it in keeping them from suffering from the symptoms for their illness and poverty. William was having such a rough time the night before he was even assaulted that his judge didn't think he was competent to stand trial, though - if he had been, she probably would have released him on bail at that time. I have no idea why the MCAO thinks he was criminally competent the night he was arrested; I don't think people with mental illness are really getting due process in this place.


William, if you're out there, please sue the hell out of the Maricopa County Sheriff's Office, or they'll keep doing to others what they did to you. I wish I had the satisfaction of at least knowing that you managed to moon the cops or something while you were being taken down, too.


Let's see if the MCAO is really "tough on crime" or just on the people: will they let MCSO Detention Officer Kevin Gerster walk with misdemeanors now, after beating Hughes up? They already let the guy slide by not charging him with class 6 felonies under ARS 13-3623, which is supposed to protect vulnerable adults. And will Alan Keesee even get charged for his assaultive behavior? As far as I know, he's still on paid leave from the MCSO.


Stay tuned...Gerster's final pre-trial management conference is May 18 at 8:45am, in front of Judge Verdin. Trial is on May 25 at 8am.

Police Brutality Watch: Gerster February update.

UPDATED UPDATE (see links to minute entries below):
Here's the record of Gerster's Feb 10 court appearance.

There's a Comprehensive Pre-trial Conference on March 11, 8:15am,
Maricopa County Superior Courthouse (W. Washington St.)

Been taking care of my family today and didn't make it to Kevin Gerster's pretrial conference as planned. There doesn't appear to be any news coverage on him from the past week, and the notes from today's proceedings aren't posted to the Superior Court website yet, so if anyone else out there knows what may have transpired this AM, let me know. I'll post the time/date of his next hearing once it shows in the record.

No news yet on the charging of officer Alan Keesee for his assault on a prisoner in the psychiatric unit. As far as I know, he's still on paid leave with the Maricopa County Sheriff's Office.

What I can tell you is that - much to my surprise - the Maricopa County Attorney's Office has not only not swept this under the rug, but they've been hitting Gerster with allegations about historical priors and multiple counts for offenses committed on separate occasions - they filed those last week, apparently (see here, here and here). I still think class 6 felonies are too low for what he did (below is the Arizona Revised Statutes 13-1204 description of aggravated assault). But kudos to Montgomery and crew for going after him on allegations as doggedly as they go after the rest of us...

Damn. I shouldn't be encouraging vindictiveness or prosecutorial excess; this is really a perfect opportunity to talk about what transformative justice could look like when applied to state agents like Gerster and Arpaio - the people I really want most to see get punished. I'll work on that and get back to folks once it perks for awhile. Send me your thoughts.

------------------------------------------

MARCH 17, 2011 Current Court Minute Entries.

Clerk of the Superior Court Minute Entries

Search again

Case Number	Def Id	Name	Entry Date	Judicial Officer Name
CR2010008062	(001)	GERSTER, KEVIN MICHAEL	03/11/2011	COMMISSIONER LISA M. ROBERTS	View Minute Entry
CR2010008065	(001)	GERSTER, KEVIN MICHAEL	03/11/2011	COMMISSIONER LISA M. ROBERTS	View Minute Entry
CR2010008073	(001)	GERSTER, KEVIN MICHAEL	03/11/2011	COMMISSIONER LISA M. ROBERTS	View Minute Entry
CR2010008062	(001)	GERSTER, KEVIN MICHAEL	02/15/2011	HONORABLE MARIA DEL MAR VERDIN	View Minute Entry
CR2010008065	(001)	GERSTER, KEVIN MICHAEL	02/15/2011	HONORABLE MARIA DEL MAR VERDIN	View Minute Entry
CR2010008073	(001)	GERSTER, KEVIN MICHAEL	02/15/2011	HONORABLE MARIA DEL MAR VERDIN	View Minute Entry
CR2010008062	(001)	GERSTER, KEVIN MICHAEL	02/10/2011	COMMISSIONER LISA M. ROBERTS	View Minute Entry
CR2010008065	(001)	GERSTER, KEVIN MICHAEL	02/10/2011	COMMISSIONER LISA M. ROBERTS	View Minute Entry
CR2010008073	(001)	GERSTER, KEVIN MICHAEL	02/10/2011	COMMISSIONER LISA M. ROBERTS	View Minute Entry
CR2010008062	(001)	GERSTER, KEVIN MICHAEL	12/23/2010	COMMISSIONER STEVEN P. LYNCH	View Minute Entry
CR2010008065	(001)	GERSTER, KEVIN MICHAEL	12/23/2010	COMMISSIONER STEVEN P. LYNCH	View Minute Entry
CR2010008073	(001)	GERSTER, KEVIN MICHAEL	12/23/2010	COMMISSIONER STEVEN P. LYNCH	View Minute Entry

----------------------------------------

ARS 13-1204. Aggravated assault; classification; definition

(L10, Ch. 241, sec. 1 & Ch. 276, sec. 2)

A. A person commits aggravated assault if the person commits assault as prescribed by section 13-1203 under any of the following circumstances:

1. If the person causes serious physical injury to another.

2. If the person uses a deadly weapon or dangerous instrument.

3. If the person commits the assault by any means of force that causes temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part.

4. If the person commits the assault while the victim is bound or otherwise physically restrained or while the victim's capacity to resist is substantially impaired.

5. If the person commits the assault after entering the private home of another with the intent to commit the assault.

6. If the person is eighteen years of age or older and commits the assault on a child who is fifteen years of age or under.

7. If the person commits assault as prescribed by section 13-1203, subsection A, paragraph 1 or 3 and the person is in violation of an order of protection issued against the person pursuant to section 13-3602 or 13-3624.

8. If the person commits the assault knowing or having reason to know that the victim is any of the following:

(a) A peace officer, or a person summoned and directed by the officer while engaged in the execution of any official duties.

(b) A constable, or a person summoned and directed by the constable while engaged in the execution of any official duties.

(c) A firefighter, fire investigator, fire inspector, emergency medical technician or paramedic engaged in the execution of any official duties, or a person summoned and directed by such individual while engaged in the execution of any official duties.

(d) A teacher or other person employed by any school and the teacher or other employee is on the grounds of a school or grounds adjacent to the school or is in any part of a building or vehicle used for school purposes, any teacher or school nurse visiting a private home in the course of the teacher's or nurse's professional duties or any teacher engaged in any authorized and organized classroom activity held on other than school grounds.

(e) A health care practitioner who is certified or licensed pursuant to title 32, chapter 13, 15, 17 or 25, or a person summoned and directed by the licensed health care practitioner while engaged in the person's professional duties. This subdivision does not apply if the person who commits the assault is seriously mentally ill, as defined in section 36-550, or is afflicted with alzheimer's disease or related dementia.

(f) A prosecutor.

(g) A code enforcement officer as defined in section 39-123.

(h) A state or municipal park ranger.

9. If the person knowingly takes or attempts to exercise control over any of the following:

(a) A peace officer's or other officer's firearm and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection and is engaged in the execution of any official duties.

(b) Any weapon other than a firearm that is being used by a peace officer or other officer or that the officer is attempting to use, and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection and is engaged in the execution of any official duties.

(c) Any implement that is being used by a peace officer or other officer or that the officer is attempting to use, and the person knows or has reason to know that the victim is a peace officer or other officer employed by one of the agencies listed in paragraph 10, subdivision (a), item (i), (ii), (iii), (iv) or (v) of this subsection and is engaged in the execution of any official duties. For the purposes of this subdivision, "implement" means an object that is designed for or that is capable of restraining or injuring an individual. Implement does not include handcuffs.

10. If the person meets both of the following conditions:

(a) Is imprisoned or otherwise subject to the custody of any of the following:

(i) The state department of corrections.

(ii) The department of juvenile corrections.

(iii) A law enforcement agency.

(iv) A county or city jail or an adult or juvenile detention facility of a city or county.

(v) Any other entity that is contracting with the state department of corrections, the department of juvenile corrections, a law enforcement agency, another state, any private correctional facility, a county, a city or the federal bureau of prisons or other federal agency that has responsibility for sentenced or unsentenced prisoners.

(b) Commits an assault knowing or having reason to know that the victim is acting in an official capacity as an employee of any of the entities listed in subdivision (a) of this paragraph.

B. A person commits aggravated assault if the person commits assault by either intentionally, knowingly or recklessly causing any physical injury to another person, intentionally placing another person in reasonable apprehension of imminent physical injury or knowingly touching another person with the intent to injure the person, and both of the following occur:

1. The person intentionally or knowingly impedes the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth either manually or through the use of an instrument.

2. Any of the circumstances exists that are set forth in section 13-3601, subsection A, paragraph 1, 2, 3, 4, 5 or 6.

C. Except pursuant to subsections D and E of this section, aggravated assault pursuant to subsection A, paragraph 1 or 2 or paragraph 9, subdivision (a) of this section is a class 3 felony except if the victim is under fifteen years of age in which case it is a class 2 felony punishable pursuant to section 13-705. Aggravated assault pursuant to subsection A, paragraph 3 or subsection B of this section is a class 4 felony. Aggravated assault pursuant to subsection A, paragraph 9, subdivision (b) or paragraph 10 of this section is a class 5 felony. Aggravated assault pursuant to subsection A, paragraph 4, 5, 6, 7 or 8 or paragraph 9, subdivision (c) of this section is a class 6 felony.

D. Aggravated assault pursuant to subsection A, paragraph 1 or 2 of this section committed on a peace officer while the officer is engaged in the execution of any official duties is a class 2 felony. Aggravated assault pursuant to subsection A, paragraph 3 of this section committed on a peace officer while the officer is engaged in the execution of any official duties is a class 3 felony. Aggravated assault pursuant to subsection A, paragraph 8, subdivision (a) of this section resulting in any physical injury to a peace officer while the officer is engaged in the execution of any official duties is a class 5 felony.

E. Aggravated assault pursuant to:

1. Subsection A, paragraph 1 or 2 of this section is a class 2 felony if committed on a prosecutor.

2. Subsection A, paragraph 3 of this section is a class 3 felony if committed on a prosecutor.

3. Subsection A, paragraph 8, subdivision (f) of this section is a class 5 felony if the assault results in physical injury to a prosecutor.

F. For the purposes of this section, "prosecutor" means a county attorney, a municipal prosecutor or the attorney general and includes an assistant or deputy county attorney, municipal prosecutor or attorney general.

Kevin Gerster's Arraignment

UPDATE (10/21/11): Gerster's Sentencing



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UPDATE/CORRECTIONS
HERE

(september 2011)

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I made it down to the Maricopa County Courthouse this morning where Kevin Gerster was arraigned. The courtroom was late opening up, though, and there were 67 people on the morning's docket - the first half of whom were in custody and appearing from jail via video-camera. It was interesting to see that the only defendant not being represented by a public defender of some kind was Gerster - who is being very well-represented, no doubt, by David Cantor.

Before court commenced, the prosecuting attorney asked if any victims were present. None stepped forward, so I got up and introduced myself as representing the interests of families of people with serious mental illness, explaining that I was there to observe Gerster's indictment. I don't know if she was aware of my communication with Maricopa County Attorney Bill Montgomery or not, but she seemed somewhat annoyed with that, saying "it is what it is," then turned back to her table, effectively dismissing me.

Gerster entered the courtroom when I did, along with 3 companions - one of whom looked like he could be his brother. While hanging out in the lobby before the doors opened, Gerster looked relaxed, chatting and even laughing aloud with his lawyer. All I could think of was him assaulting those two mentally impaired, physically restrained prisoners for what appeared to be no reason but sadistic pleasure, and how much I wanted to see that guy sweating this out in chains and stripes with a court-appointed attorney, instead. That's not very abolitionist of me, I must confess, but honest.

As court commenced and Commissioner Lynch began to work his way through the prisoners in the order they were listed, I thought I was in for another hour or so, and ran out to drop more change in my meter. Big mistake. Needless to say, by the time I made it back through security and up to the 8th floor of the East Court House, Gerster was done and gone. No surprise, I guess - since his attorney was there only for him, my bet is that the judge called him up soon after I stepped out so Cantor could make it to his next appearance.

Privilege has its perks.

Fortunately KPHO was paying attention. Gerster plead "not guilty" to all charges and it was probably over in less than 2 minutes. He isn't due in court again until his pretrial conference on February 10 at 8:15am.

I'll post any updates here, but there likely won't be much more news on him unless the MCAO decides to drop one or more charges. I've decided to place a widget near the top of this page, too, with upcoming court dates of interest - a lot of cops here are criminals, it seems. This could drag on for a year before there's any trial or resolution, so I'll take more responsibility for organizing people to attend hearings.


William Hughes, one of Gerster's victims, is better-represented now, by the way - I believe through the Homeless Legal Assistance Project, where Craig Logdson mentors law students, and Ian Fischer is also somehow affiliated with. They appear to have sprung him even though he's facing a Rule 11 competency hearing in January. I don't know his current circumstances, but at least the kid won't spend Christmas in Joe Arpaio's cold, abusive jail. Frankly, I think his judge should just throw the charges out now and let him get on with his life; that guy has already endured enough.


No news on when/if William's other assailant, Alan Keesee, will be prosecuted. Millions of people have probably viewed that video by now, but as far as I know they're still "investigating" - and he's still on "paid administrative leave" (i.e. extended vacation).