Rights suit filed against town, BPD

BENNINGTON — A Pownal man claims he was injured and his civil rights violated by Bennington Police Department officers following a 2015 arrest for driving while under the influence of drugs.

Andrew Clyde, 39, has filed suit in U.S. District Court against the town, BPD Officers James Gulley, Nicholas Cervero and other officers or department personnel as yet unidentified.

The allegations stem from an arrest following a motor vehicle accident on Jan. 6, 2015, in which Clyde subsequently was charged with DUI-drugs, felony attempted escape and disorderly conduct.

According to the suit, Clyde was found guilty by a jury in Vermont Superior Court Bennington Criminal Division of the DUI charge, but not guilty of the other two charges.

The complaint, filed by his attorney, Mark Furlan, of Furlan & Associates of Rutland, states that following Clyde's arrest under suspicion of DUI-drugs, he was held for five hours at the police department and processed on that charge.

After being told he would be taken to Southwestern Vermont Medical Center in Bennington to have a blood sample drawn, the complaint alleges that Gulley grabbed Clyde by the back of his neck and "threw him against a corner of a wall or a door jamb or possibly a pipe, which the back of [Clyde's] head impacted."

The officer allegedly "grabbed [Clyde] by his arms and shoulders and threw him on the ground face-first Gulley then drove his knee into, and a considerable amount of his body weight into, [Clyde's] back," according to the suit.

Gulley then "handcuffed the plaintiff in again, and in so doing, fractured a bone in plaintiff's wrist," the suit claims.

Cervero is named in the complaint for allegedly not intervening or taking any action to hinder Gulley or protect Clyde.

The suit also claims that at the hospital that day he complained to Gulley and others about pain in his wrist but received no medical attention.

Three days later, the suit contends, Clyde went to the SVMC emergency department, "where he was diagnosed with a concussion and fractured wrist," according to the complaint, which continues: "He continues to experience sharp, throbbing, aching pain in his neck, and sharp aching pain in his back. His range of motion in turning his head has been significantly diminished."

Clyde also allegedly "experienced chronic anxiety, chronic depression, and post-traumatic stress disorder" as a result of the incidents, the suit claims.

The town of Bennington is represented by Nancy Sheahan, of McNeil, Leddy & Sheahan, of Burlington, who has filed a motion seeking to have the town removed as a defendant and the suit dismissed.

"The town denies the allegations in the complaint and is requesting that the complaint against the town be dismissed," she said Friday.

The named officers are represented by Kaveh Shahi, of Cleary, Shahi & Aicher, of Rutland, who could not be reached for comment. However, his response to the complaint filed with the court denies the allegations and also seeks dismissal of the suit.

Among broad allegations in the complaint are that the town failed to supervise its officers and employees prior to Clyde's arrest on proper use of force on suspects in custody; failed to enforce a system by which officers could be held accountable for excessive use of force; failed to meaningfully discipline its officers and employees following incidents of excessive force against arrested persons; and that a combination of those factors "created a custom in which the constitutional rights of persons situated similarly to plaintiff Clyde on January 6, 2015, were and would be violated."

In a motion to dismiss the suit against the town and the officers acting in their official capacity, Sheahan contends the suit fails to state legal grounds upon which relief could be granted.

She argues that the suit also fails to state any specific deficiency of training for BPD officers prior to the incident nor cite any "meritorious" complaints against any department officer.

Shahi argues in his response to the suit that the "plaintiff's injuries were the result of his own unreasonable conduct," and that "plaintiff was not deprived of any rights, statutory or otherwise."

He also cites an alleged failure by the plaintiff to exhaust any administrative remedies.

Town Manager Stuart Hurd said Friday: "We cannot comment on the suit at this time. We do have counsel and are pursuing appropriate resolution."

Prior to the current suit, filed in January 2018, the plaintiff filed a pre-action discovery motion that initiated in Superior Court and sought any recordings relating to the alleged incidents. In June 2015, three DVDs relating to the incident were forwarded to Clyde's attorney, according to suit papers.

The suit seeks "real, actual, compensatory, consequential, special, and punitive damages" of not less than $75,000 plus attorney's fees.

The suit is the second rights complaint in federal court stemming from alleged actions of BPD officers during an arrest. Shamel Alexander, who is African American, filed suit in 2016 alleging officers profiled him on the basis of race and violated his right to be free from unreasonable searches in a suit that is pending.

Furlan said Friday that there is no racial component to Clyde's suit and that his client is Caucasian.

Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. Email: jtherrien@benningtonbanner.com. @BB_therrien on Twitter.


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