La. court overturns firing of cop in beating case
By Brendan McCarthy
NEW ORLEANS — A state appeals court has overruled the New Orleans Police Department's decision to terminate an officer involved in a high-profile, videotaped altercation weeks after Hurricane Katrina in which he and another officer allegedly beat a 64-year-old retired teacher on Bourbon Street.
The court ruling essentially paves the way for former officer Robert Evangelist to return to duty, with full back pay, barring a further appeal by the city to the state Supreme Court.
The incident received international attention after parts of the altercation between several law enforcement officers and Robert Davis were captured by two cameramen and broadcast around the world.
Evangelist and officer Lance Schilling were fired after the incident by NOPD Superintendent Warren Riley, who called their actions unreasonable. Evangelist appealed his termination to the city's Civil Service Commission, which upheld Riley's action.
But Evangelist appealed to the 4th Circuit Court of Appeal, which overturned the earlier rulings Wednesday.
The mayor's office and the city attorney's office, which handled the legal aspects of the case, did not respond to a request for comment. Nor did the Police Department.
Questions of evidence
In issuing its decision, the 4th Circuit Court criticized the commission's ruling, saying the panel relied on facts unsupported by evidence. The NOPD's own investigation also came under fire. The court also noted that numerous pieces of evidence are missing or were not handed over to them.
Footage from two separate videographers were key factors in the NOPD and Civil Service Commission decisions, yet the appeals court said it was given only a brief video segment without any audio, as well as three still photographs.
The court also cited the NOPD's disciplinary letter, which said Evangelist hit Davis in the torso, and contrasted it with the testimony of expert witnesses who defended Evangelist's actions by saying such blows are in line with police protocol.
"They could never deduce that Evangelist struck him in the head," Evangelist's attorney, Eric Hessler, said Wednesday.
Hessler said the ruling shows that "police need to be allowed to do their job" without political pressure or administrative second-guessing.
In a separate legal matter, a federal civil lawsuit was settled between the city and Davis last month for an undisclosed amount of money.
Davis had said he was walking on Bourbon Street about 8 p.m. and was confused about the post-Katrina curfew hours. He asked some nearby officers about the rules. When they didn't respond, Davis said, he called them "ignorant, unprofessional and rude."
Davis said an officer then ran up behind him, threw him against a wall and punched him.
The officers said they stopped Davis on suspicion of being drunk and violating the city curfew, after which he became hostile. Davis was booked with public intoxication but never charged. He needed several stitches to his face after his arrest that night and suffered a broken nose and face bone.
Evangelist was later booked on criminal charges. During his July 2007 trial before Criminal District Judge Frank Marullo, both the defense and prosecution repeatedly returned to the videotape of Evangelist and Schilling, along with two FBI agents, grappling with Davis. After being pushed against a wall by the two NOPD officers, Davis was pushed to the ground, with the four men trying to grab different parts of his body, the video shows.
Officer commits suicide
Marullo agreed with the defense interpretation, saying the video showed a man who would not submit to handcuffing by officers, who used appropriate force. Schilling, who also had faced criminal charges in the beating, committed suicide a month before Evangelist went to trial.
A third officer, Stuart Smith, was suspended for 120 days and accused of simple battery for allegedly jabbing his finger in the face of an Associated Press producer whose crew was recording the incident. The simple battery charge was later dropped.
Last month, days before the start of a federal civil trial, the city and Davis reached a financial settlement. In a ruling in that case, U.S. District Judge Martin Feldman called the video of the incident "chilling" and wrote that "the video at best is clear on a central point: Davis was kicked an (sic) beaten by one or more police officers."
Davis' attorney, Stephen Bruno, said Wednesday he was surprised by the appellate court's recent ruling.
"He is not fit to be a school crossing guard," Bruno said of Evangelist. "He does not have the moral character to be police officer, and have the power and the force to have a gun and a Taser."
Whether the city will appeal the case to the Supreme Court was unclear.