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Valley News Dispatch

DA: Elizabeth Borough police's use of force 'not inappropriate'

Ben Schmitt
| Thursday, Jan. 5, 2017, 4:18 p.m.

An Elizabeth Borough police officer did not use excessive force when he fought with and used a Taser on a drug suspect in his custody, the Allegheny County District Attorney's Office said Thursday.

The April 17, 2015, incident involving Officer Garrett Kimmell and the suspect, Joshua Brooks, was captured on police department video, which was released Wednesday as part of a federal lawsuit against Kimmell and the borough. A second officer, Dan Verno, also is named in the lawsuit for failing to intervene.

“In September 2016, our office reviewed the videotape concerning the arrest of Joshua Brooks and, after consulting with a use of force expert, determined that the actions of the arresting officer were not inappropriate given the circumstances,” Mike Manko, a spokesman for District Attorney Stephen A. Zappala Jr., said in a prepared statement.

After the altercation, officers filed 29 charges, including aggravated assault of a police officer, resisting arrest, obstructing administration of law and simple assault, among others, along with drug-related offenses.

Brooks, 21, of East Pittsburgh spent two months in jail with a $50,000 bond, said his defense attorney, Lena Bryan-Henderson.

All of the charges except drug possession were dismissed before a Dec. 13 trial in Allegheny County Common Pleas Court. Brooks pleaded guilty to the possession charge, which involved heroin, and was sentenced to six months' probation.

“Our office also determined in preparation for trial, which took place last month, that we could not sustain our burden of proof on the charges of assault that had been filed against Brooks, in part because the arresting officer did not sustain any serious bodily injury,” Manko said. “For that reason, all charges other than the drug possession charge were withdrawn.”

She said the district attorney's office had a copy of the videotape “from the beginning.”

“I wish that the DA's office would have looked at this case earlier and said, ‘We should withdraw the charges against this young man,'” Bryan-Henderson said. “I am thankful that they finally did do that. It would have been helpful had they done it earlier.”

Manko declined to comment further.

On Wednesday, Pittsburgh attorney Todd Hollis filed a federal civil rights lawsuit on behalf of Brooks against Kimmell, Verno and the borough. Hollis said he waited to release the video until Brooks' criminal matter was resolved.

Elizabeth Police Chief Timothy Butler declined comment Thursday. He referred the matter to borough Solicitor Krisha A. DiMascio, who did not return phone calls.

The initial incident began after Kimmell arrested Brooks on suspicion of heroin possession. Kimmell confronted Brooks, whose leg was shackled to a bench, at the police station. A surveillance video, which has no audio, captured the nearly three-minute scuffle.

Hollis wrote in his lawsuit that Kimmell “delivered multiple blows to Brooks, using his forearms, elbows and knees.”

The video shows Brooks fighting back. Hollis contended Brooks “lifted Kimmell and held him backward against the wall in an effort to restrain him and stop (Kimmell's) use of unnecessary force.”

During the video, a second officer enters the room and pulls Brooks off Kimmell.

“Kimmell then drew his Taser and Tasered Brooks,” Hollis wrote in the lawsuit.

The lawsuit alleges Brooks, who had one arm in a cast, stood up from the bench once while in police custody and refused to sit down, which precipitated the fight.

“When Brooks declined to sit back down, Kimmell began to come toward Brooks,” Hollis wrote in the lawsuit. “In the police report prepared by Kimmell, he justifies choking Brooks to get him to sit back down and to remove Brooks' hand from Kimmell's Taser.”

The video, Hollis said, shows that Brooks never reached for Kimmell's Taser.

Bryan-Henderson said her client was choking and responded in an attempt to save his life.

“It's obvious on tape that my client was attacked,” she said, “and he did not fight back until there was nothing else for him to do.”

Ben Schmitt is a Tribune-Review staff writer. Reach him at 412-320-7991 or bschmitt@tribweb.com.

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