BRATTLEBORO -- The law firm that reached an out-of-court settlement in a 2005 case of excessive force by law enforcement agents is representing a two men who were allegedly assaulted over a stolen canoe by a former Vermont State Trooper.
Devin McLaughlin, of Langrock, Sperry & Wool in Middlebury, told the Reformer that Aton Pike, 21, of Wilmington, and Mark Ellison, 21, of West Wardsboro, are now his clients.
According to court documents, on April 8, former Vermont State Trooper Eric Howley, 40, of West Dover, allegedly assaulted the two men while he was on duty because he believed they had stolen his $125 canoe.
"Neither of them have continuing physical injuries," said McLaughlin. "Mark had to go to the hospital for medical treatment but Aton did not. Both of them have since recovered."
In 2005, Howley and three other officers, responding to an altercation during a wedding reception in Arlington, allegedly assaulted a New York man, Kevin Farnan, with a flashlight, punched him, and used pepper spray and a Taser on him while he was restrained. He sustained a concussion, a fractured sinus cavity and five broken teeth. He was originally cited for resisting arrest, disorderly conduct and felony assault on police, but the prosecutor declined to pursue the case.
Farnan, represented by Langrock, Sperry & Wool, filed a civil suit that was eventually settled out of court for $135,000.
According to court documents,
Vermont State Trooper Genevra Cushman went to the lake after Howley told her he saw the men bring the canoe up from the lake. In court documents, Cushman told investigators she wanted to keep Howley from dealing with the two individuals because "she knows how he is about thieves."
Cushman also stated Howley yelled at the two men and pushed the face of one of them into the trunk of the cruiser. Even though the man smelled of marijuana, he was "not being threatening in nature," she stated.
Howley also allegedly grabbed the other man by his jacket, shook him and pushed him down toward a large rock, cutting the back of his head.
The former state trooper told a Wilmington police officer "he didn't intend to cause (the victim) physical injury, that he wanted him to stop smirking and shut his mouth," according to the affidavit.
Howley then left the scene. He resigned on May 16, and was charged with two counts of simple assault on June 12. He pleaded not guilty and is scheduled to appear in court at a later date.
If and when a lawsuit is filed against Howley and what the suit will consist of, said McLaughlin, probably won't be determined until after the criminal case against Howley plays out.
"More than likely, the suit will be against Trooper Howley and only against Trooper Howley," he said. "But we don't know for certain. Typically, the suit is against the individual that committed the assault. But in my experience, the state has been responsible for actions undertaken by state agents. Subsequent termination doesn't affect that."
In the Farnan lawsuit, the state settled out of court, even though it admitted no fault.
McLaughlin also said a qualified immunity defense probably won't turn out to be a factor if the suit eventually makes it to court. Usually that arises in the context of a violation of constitutional rights or a deprivation of due process, he said.
"If an officer uses more force than is necessary, he's not going to be entitled to a qualified immunity defense," said McLaughlin. "Our perspective is Howley clearly used excessive force."
McLaughlin said whether the settlement reached between the state and Farnan could be introduced in a court can only be determined during the due process of any pre-trial proceedings.
"I don't know if a prior bad act can be admitted," he said. "If it meets certain criteria, it can come in."
The Vermont Attorney General's Office is prosecuting the case because Windham County State's Attorney Tracy Shriver had worked with Howley on a number of cases.
Assistant Attorney General Matthew Levine said the AG's office won't be filing any charges against either of the victims for the alleged theft of the canoe or possession of marijuana.
Bob Audette can be reached at email@example.com, or at 802-254-2311, ext. 160.