Last week, a Fulton County judge said there was no excuse for the baton-wielding deputy's behavior.
"I'm a huge, huge, huge fan of law enforcement," Magistrate Judge Craig Schwall said Jan. 11, as he dismissed criminal charges against beating victim Tim Peck. "But there's no trace of facts, no matter how you slice it, spread it and lay it on the table, none whatsoever, that should result in this end."
The "end" he was referring to came April 11 at the Fox & Hounds restaurant, where Deputy Kelvin Smith was working off-duty security. Peck, who came in to pick up a to-go cheeseburger, allegedly cursed the deputy and resisted arrest. The deputy eventually delivered at least five baton blows to Peck's legs, shattering his left kneecap and splintering his right shinbone, which popped through his skin.
Smith charged Peck with felony obstruction, felony terroristic threats on a peace officer, public drunkenness, disorderly conduct, battery, and profane and abusive language.
The incident prompted a Creative Loafing investigation, which unearthed 10 past allegations of physical abuse by Smith -- each judged "unsubstantiated" by Barrett's internal affairs unit. An additional search of sheriff's records uncovered dozens of abuses by eight other Fulton County deputies, which were met with little or no disciplinary action.
Fulton County Commissioner Bob Fulton responded to the investigation by suggesting the sheriff's department be abolished and the jail be privatized. In Friday's hearing, Schwall became the second local elected official to raise questions about aggression by the Fulton County sheriff's force.
"I think Mr. Peck went there that evening with an attitude, looking for trouble ...," the judge said. "And then what ensued thereafter was egregious ... and unfortunate and something that the law just cannot condone."
Part of the problem with the criminal case against Peck was that there were discrepancies between Deputy Smith's story and the stories of two Fox & Hounds employees, all of whom testified for the prosecution.
Bartender Craig Zeiss said Peck neither threatened nor fought Smith. But in response to questions from the clearly frustrated judge, Zeiss still testified that the baton bashing was justified.
When Schwall asked if the deputy had used excessive force, Zeiss asked for a definition of excessive force.
"Do you think that eight to 10 blows from the officer [were too many], when one would have brought you down?" the judge asked. He noted that Peck, like Zeiss himself, is about 5-foot-8 and less than 200 pounds, while Smith is almost 6-foot-4 and over 250 pounds.
"Knowing what friends in law enforcement tell me ... ," Zeiss started to answer.
"You're not answering my question," the judge snapped.
"Judging from what I saw, the officer was not [out of line] in the least," Zeiss answered.
Later, restaurant manager Robert "Lance" Long testified that he could remember few details. At one point, Schwall warned Long he was losing credibility because he was skirting some questions.
Long told the judge he'd been told by Fox & Hounds attorneys not to discuss certain portions of the case. He testified that the lawyers spoke with him, Zeiss and Smith prior to their testimonies.
Friday's events could give a boost to a lawsuit Peck hopes to file against Fox & Hounds. Peck's attorneys say Smith was acting as a Fox & Hounds employee at the time of the beating.
One of the few times Long's testimony matched Zeiss' was when he said he and Zeiss weren't giving an order to a Fox & Hounds employee when they told Smith he ought to get Peck off the restaurant premises. They merely were voicing an observation to a Fulton County deputy.
Later, Peck's attorney, John Husser, asked Smith: "Did you consider yourself an employee of Fox & Hounds?"
"Did I consider myself an employee?" Smith repeated, grinning, his head propped in his left hand. "No, I did not."
Unlike Zeiss, who said he never saw Peck try to fight the deputy, and Long, who said he didn't remember whether Peck threw punches, Deputy Smith testified that Peck fought him just before and during the beating. "Between blows," the deputy said, "he lunged at me."
Moments before he dismissed Peck's charges, Schwall called the case "the toughest ... I've had in six years as a judge."
"Those of us who are peace officers ... are expected to behave to a higher standard ... with due care, with caution, with deliberation and without arbitrariness or capriciousness," Schwall said.
"The spotlight of public review should be beaming on this case ... ," he continued. "The public deserves answers ... . And the sheriff should be personally interested."
In September, Barrett cleared Smith after an investigation marked by some curious holes. For example, internal affairs didn't bother interviewing Peck. "From everything we could find," Barrett said then, "the use of force and the amount of force used was appropriate."
Afer she was informed of Schwall's decision, she changed her tune, however. "We will now commence with discipline against the employee," she said Monday.
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