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Judge allows excessive force suit against Manchester by man tackled for taunting police horse

New Hampshire Union Leader

July 20. 2012 9:16PM

CONCORD - A lawsuit filed by a Manchester man, injured when a police officer allegedly tackled him from behind and slammed his head into the ground after he swore at police horses, may continue against police and the city on excessive force and assault and battery claims, a federal judge ruled Tuesday.

The court action stemmed from an incident nearly three years ago in downtown Manchester during which Sebastian Castro, 25, suffered a serious head injury.

Castro and three of his friends were asked to leave the Black Brimmer, a bar and restaurant on Elm Street, around midnight on Aug. 15, 2009, after a dispute with a bouncer.

Castro maintains he did nothing wrong, although in his deposition, portions of which were filed in court, he says he cannot remember much of what happened. His blood-alcohol level, taken at Catholic Medical Center, was twice the legal limit for intoxication, according to court records.

The four friends were escorted out of the bar. A large crowd of people were already outside and at least five police officers, including two on horseback, were trying to disperse them, according to a 16-page ruling issued Tuesday by U.S. District Court Judge Paul Barbadoro.

The judge said Castro and his friends began to walk away but as they passed several officers, they began making fun of the horses. Castro swore at them, upsetting the officers. Officer Marc M. Lachance, who was on a horse, said in his sworn affidavit he heard one man call the horses a derogatory name and heard someone else yell something about 'slicing' the horse.

Castro led his group of friends in a slow walk away from the bar, heading east on Lowell Street. Alejandro Marin, a friend who graduated from Plymouth University where he studied criminal justice, heard an officer say, 'you're arrested for disorderly conduct,' but he did not know who he meant.

'Officer Charles Panica then sprinted toward Castro and tackled him from behind at full speed in a football-style maneuver, slamming Castro's head on the pavement,' the judge wrote. 'Castro was immediately rendered unconscious.'

Officer Steven Flynn arrived to help Panica handcuff the unconscious Castro, while one of Castro's friends urged them to call for an ambulance.

As officers were handcuffing Castro, Lachance approached on horse. The horse, however, lost its footing trying to climb onto the sidewalk and hit Panica in the forehead, the judge wrote.

Police speculated the horse also hit Castro and maintained Castro was conscious and resisting when Panica 'transitioned him to the ground.'

As the incident was unfolding, another Castro friend, Nicholas Jubrey, 25, was using a Flip camera to record what was happening. He was arrested and the camera was either knocked out of his hand by an officer or fell to the ground during the arrest, according to witnesses' accounts. No video of the event was retrievable from the damaged camera.

Only after the horse hit Panica did the officers notice Castro's head injury, the judge said in a footnote.

Castro was taken to Catholic Medical Center where he received four staples to close a four-inch cut. Castro says he suffered a concussion.

The next morning he was released into police custody and charged with disorderly conduct, resisting detention and resisting arrest. The charges were later dismissed when Panica did not show for trial. He says in a sworn affidavit he never received a subpoena and on the day of the trial a sergeant called him and said he would drive him to court, but as they were on their way they got a message the case was dropped.

Prosecutor Greg Muller, in a sworn statement, said he dismissed the case because he did not believe he would get a conviction without Panica's testimony that Castro disobeyed his commands.

The police officers and city asked the court to dismiss the case. Panica argued the force he used was reasonable and, even if it were not, he was entitled to qualified immunity.

'Neither argument is persuasive in light of Castro's version of the events,' wrote Barbadoro in ruling against the officer.

Barbadoro explained in a summary judgment case, a judge has to accept as true the witness testimony produced by the non-moving party - in this case, Castro - and must draw all reasonable inferences in his favor.

The judge said that, for the most part, the defendants argued the force Panica used was reasonable in light of the police officers' version of events: The officers said Castro began a 'slow run' after Panica told him to stop several times; that Panica 'transitioned' Castro to the ground without injuring his head; and that Castro then resisted arrest.

Barbadoro explained that determining whether the force used in an arrest is reasonable requires a fact-specific inquiry of the total circumstances in a case including what's known as the three Graham factors: the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others and whether he is actively resisting arrest or attempting to evade arrest by flight.

The judge said viewing the facts from the perspective of a reasonable officer, a 'jury could find that Panica's use of force was unreasonable.' According to Castro's witnesses, Panica used substantial force to arrest Castro and caused him significant injury. He sprinted toward Castro, who was merely walking away, and tackled him from behind at full speed in a football-style maneuver that hurled Castro from the sidewalk onto the street. Castro's head hit the pavement with sufficient force to render him unconscious.

The judge said while Castro may have been disobeying the officer's orders, 'a reasonable officer would hardly consider Castro's slow walk away from a group of police officers as an earnest attempt to flee. Accordingly, a jury could conclude that Panica's high-speed tackle was excessive force, especially in light of the significant injury that Castro suffered as a result.'

The judge also disagreed with Panica's claim that even if the force was excessive, that he was entitled to qualified immunity.

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