Insult & Injury 

Tim Peck was picking up a cheeseburger when he met up with Kelvin Smith, an off-duty cop with a hefty personnel file and an expandable baton

Tim Peck was splayed outside Fox & Hounds restaurant and pub, his legs oozing blood. The streams had started to form little pools in the pavement. Set after set of headlights rounded the bend of Collier Road, interrupting the darkness and disappearing. The ambulance seemed to be taking a long time.

"My sense of time was a little bit skewed at that point," Peck recalls. "I guess when you're in an excited state, the clock is ticking slowly. I was calling out for somebody in the restaurant to come over and help me."

Police responding to a 911 call about an unruly customer paid Peck little mind. He wasn't unruly as he sat there with two broken legs. Waitresses in crisp white shirts were hurrying about the patio, tapping orders into handheld electronic notepads. The crowd returned to sipping import drafts.

A well-heeled woman walked up. The bleeding man was blocking her car. An officer dragged Peck to the middle of the lot, so the woman could drive away.

Finally, the ambulance turned the corner.

Medics wrapped Peck's disfigured left kneecap in gauze to stop the bleeding. On his right leg, where a gash exposed broken bone, they placed a splint. They lifted him onto a stretcher and loaded him into the back of the ambulance.

Peck was rolled into Grady Memorial Hospital's emergency room at 10:30 p.m. and was classified as high-priority. Fifteen minutes later, he was under an X-ray machine. Nurses injected him with morphine and extracted vials of blood. They gave the vials to the deputy who had smashed Peck's knees and who had followed the ambulance to the hospital.

Just before 2 a.m., Peck went into surgery. He awoke, 10 hours later, his right wrist handcuffed to a bed frame.

While Peck was being prepared for his operation, Fulton County Sheriff's Deputy Kelvin Smith was writing his version of what had happened at Fox & Hounds. In the box marked "incident type" the deputy wrote "obstruction, terroristic threats, simple battery on a peace officer." In the box marked "charges" he wrote "disorderly conduct, public drunkenness, profane and abusive language."

In Smith's version of the incident, Peck stood 6 feet tall and weighed 200 pounds -- even though Peck's driver's license, and a cursory look at him, shows him to be 5-foot-9, 140 pounds.

In Smith's version, Peck hit, pushed, grabbed and threatened the 6-foot-4, 250-pound deputy, who was working off-duty as a Fox & Hounds security guard. Smith writes that he had no choice but to pull his expandable baton and strike Peck several times in the knees and shins.

"There's nothing unusual I remember about it," the deputy told CL before declining further comment. "Everything is in my report."

Given Smith's track record of on-the-job confrontations, there may be little unusual about the incident. Over the past four years, 10 complaints of his aggression have reached the sheriff's internal affairs office. The complaints, all of them filed by inmates Smith supervised, allege that the deputy hit, choked, dragged, bloodied or bruised them.

Yet all of the complaints -- even the one where Smith's accuser passed a lie detector test and Smith didn't -- were marked "unsubstantiated."

That doesn't come as a surprise to Maj. Berle Brereton, head of internal affairs, which is formally called the Office of Professional Standards.

"The sheriff's philosophy is, we try to give the deputy the benefit of the doubt," Brereton says.

Peck had crafted his world with few surprises, and that's the way it remained until April. For instance, he started most mornings with an espresso and a Haydn symphony. He had grown used to the comfort of programming databases from home, back when he could work. He spent evenings learning JavaScript techniques in online newsgroups or pondering spiritual development in e-mail discussion forums.

These were the ordinary events that Peck expected in his small, orderly apartment. He's lived there, off Collier Road in Northwest Atlanta, for 13 years. It is the same zip code in which the 45-year-old went to grade school.

On the morning of April 11, Peck got out of bed, showered, dressed in khaki shorts and a T-shirt, fixed a cup of espresso and put Haydn in the CD player. Throughout the late morning and afternoon, he sifted through waves of e-mail, skimmed his library of computer manuals and talked with his boss about their next Web development project. He recalls that he ate a late lunch and poured himself a scotch over ice in time for the 5 p.m. news. He poured two more drinks over the next three hours.

At about 9 p.m., he flipped through a pile of take-out menus. He pulled one from Fox & Hounds and called in a to-go order for a burger with Swiss cheese, cooked medium. Fifteen minutes later, he put on sandals and a baseball cap and walked a block up Collier Road.

As he cleared the uphill parking lot and stepped into the restaurant's brick-walled patio, he noticed a security guard sitting to the left of the double wood doors. Peck says he entered the restaurant foyer and heard someone call from behind him, "Hey, Mr. Smug!" Peck spun around. "Let me see your ID," the off-duty deputy said.

In the half dozen times Peck had visited Fox & Hounds, nobody had asked for his ID. He handed his driver's license to the deputy. "What if I didn't have it?" he asked.

"Then I couldn't let you in," the deputy answered, handing the license back.

The row of bar stools, flanked by a fireplace and a deer head and lit by brass chandeliers, stood empty except, Peck recalls, for a woman with shoulder-length hair. He paid for his burger and waited.

The deputy walked by, toward the back of the restaurant. A minute later, he passed again, heading toward the front door. Peck called to him two times: "Officer!"

The deputy stopped and turned.

"Don't ever call me Mr. Smug again," Peck said.

That's where the two versions of the incident begin to differ.

Smith wrote in his report that he heard someone call out, "Officer." He walked over to the customer whose ID he just checked. "Don't you ever call me smug man again," Peck said, loudly and aggressively. Smith wrote that Peck's breath smelled like alcohol.

"What's my fucking name?" Peck allegedly asked. The manager walked up. "If he keeps that up he has to leave," the manager said to Smith. Peck allegedly repeated, "What's my fucking name?"

Smith's report states he then ordered Peck out of the restaurant.

"I'm not going any fucking where," Peck replied, according to Smith. "Who the fuck are you?"

Smith wrote that he placed his hand on Peck's right arm and started walking him toward the door. Peck allegedly snatched his arm away and grabbed the deputy's chest. Smith then pulled his baton and pushed Peck out the door, according to his report.

Peck says that immediately after he told the deputy not to call him Mr. Smug, the deputy told him to leave. He says he never cursed Smith, and that the two of them walked outside, shoulder to shoulder. There was no pushing.

"Didn't you call me Mr. Smug?" Peck remembers asking as they walked toward the parking lot. He says the deputy didn't answer. "What's my name?" Peck then asked. "I don't know, sir," he remembers the deputy saying. "But you're going to have to leave."

Peck says that once he was outside, he told the manager, who was standing in the patio doorway, "I paid for some food and I need to get either my meal or get my money back."

Peck recalls that the manager replied, "I don't have a problem with that" and walked inside.

He says the deputy again told him to leave. Peck, still in the parking lot, repeated that he wouldn't -- not without his meal or his money.

Smith then leaned forward, Peck says. He reached behind his back and pulled his expandable baton. He told Peck to get on the ground. Peck says he turned to walk away. Before he could, the deputy was swinging at his knees.

The deputy's report states that after Peck crossed the parking lot, he turned and walked back to Smith, saying, "You motherfucker. Fucking fuck-up. You son of a bitch."

Smith wrote that he ordered Peck to put his hands on the patio wall. He allegedly refused and grabbed Smith's chest, trying to punch him.

"I then struck the subject with my [baton] about the knee area and gave the subject loud verbal commands to stop fighting, get on the ground," Smith wrote.

Peck wouldn't let up, according to the deputy's report. He kept grabbing the deputy and pulling him. All the while, Smith was hitting Peck's knees with his baton and telling him between each blow to get on the ground, according to his report. "About this time," Smith writes, "the subject fell to the ground."

Smith tried to get Peck into handcuffs. But according to his report, Peck wouldn't give him his left hand. So a Fox & Hounds employee helped Smith handcuff the customer, the deputy wrote.

Smith's report ends with him pulling Peck's driver's license and frisking him for weapons. He found none. "Mr. Peck was then charged accordingly and was transported to Grady Hospital for treatment," Smith wrote.

Paul Spizzirri worked late at his Peachtree Street law office on the night Peck was beaten. He stopped by Fox & Hounds for dinner. He arrived after the ambulance did and saw Peck sitting on the pavement, his legs bleeding.

Spizzirri, a tax attorney who used to practice criminal law, says he asked the manager if this was some kind of police brutality. Spizzirri says the manager told him it wasn't. The security guard had to use a baton to restrain a customer who was cursing and combative, the manager told him.

"He couldn't Mace him because the place of the altercation was right by the patio, close to all the people who had rushed nearby to watch," Spizzirri recalls the manager saying. He was the only customer from that night whom CL could track down.

A spokesman for Derek Lawford Pubs, an Atlanta-based restaurant chain that owns Fox & Hounds, says no employees are allowed to talk to the press about what happened that night. Furthermore, says Robert McDonald, customers, waitresses and other staff members did not witness the actual beating because it took place in the parking lot.

When asked what could have prompted the Peck incident, McDonald points to a Grady Hospital evaluation sheet that states Peck is a "heavy drinker." The form, from Grady's rehabilitation department, lists Peck as a heavy drinker under a category marked "social history." (Peck says he told the nurse he drinks two to three drinks -- usually scotch -- every day.)

McDonald says the restaurant manager and the bartender both back up the deputy's version of the events preceding the violence -- basically, that Peck was cursing and trying to fight the deputy.

Whether Peck is a heavy drinker or not, there's little to indicate that he's violent. Aside from 1996, when he was arrested for driving with an expired license and without insurance, Peck had no prior problems with the law, according to Fulton jail officials.

McDonald says the restaurant expects to get professionals when it hires security guards from law enforcement agencies. Smith, he adds, is still on the restaurant's rotation of security guards.

"We hire police and sheriff's deputies because they work for the city and county," McDonald says. "We don't hire hooligans with flashlights."

Nonetheless, McDonald stresses that when the injury occurred, Smith was working in his capacity as a law enforcement officer and was no longer acting as an employee of Derek Lawford Pubs.

"This is an issue with the sheriff's department," he says. "It's not an issue with us as a company."

In 1996, Smith, then 27, filled out an application for a job as a deputy with the Fulton County Sheriff's Department. Question 19 asked his reason for seeking employment.

"This position is one that I will take great pride in, and [I] will always maintain a positive image, not only on duty, but off duty as well," he wrote. "Law enforcement has been my career goal since graduating from college. ... My goal is to maintain an excellent service record."

He was hired that December at a starting salary of $25,000 and was sworn in April 4, 1997.

Six weeks later, an inmate filed a complaint against Smith alleging physical abuse. In the next month, three more complaints of physical abuse would be filed against Smith, one involving verifiable injuries.

Smith denied each allegation, and internal affairs ruled that the four incidents either did not occur or could not be proven.

Smith went almost a year before his next complaint, which also was dropped. But after that one, then-Chief Deputy Gregory Henderson spoke to Smith. "I explained he should be careful and follow jail policy when dealing with inmates," Henderson wrote at the bottom of Smith's fifth complaint.

Smith got another warning after his sixth complaint, which was the first one for which investigators brought in a polygraph test and conducted a series of witness interviews.

On the morning of May 24, 1998, Frank Johnson cursed Smith for not feeding him and some other inmates. According to Johnson's complaint, this is what followed: Smith dragged Johnson out of his cell, knocked his head into the door, hit him in the face, pulled him into another part of the jail and beat him in the head and chest. Johnson told investigators that when he returned to his cell, his nose was swollen and his mouth bleeding.

Smith responded to the complaint in a written statement: "I did not physically abuse this inmate, nor did I hit this inmate. Inmate Johnson was escorted, by his arm.

"He was cursing at me over a situation that I had no knowledge of."

During an interview with internal affairs, Smith said the inmate "didn't have to curse me out like that in front of everyone."

In the course of that interview, internal affairs Lt. T.M. Williams told Smith that other inmates were backing up Johnson's story. "Can you explain why 10 witnesses would have the same version that is consistent with this grievance?" she asked.

"I really can't," Smith answered. "I don't know. I really can't tell you that. ... I try to run that floor like it's supposed to be ran [sic]. That floor was out of control until me coming in there. ... And I guess the guys had, you know, they had a little something against me."

Williams concluded the interview by asking Smith if he would take a lie detector test. He agreed. So did his accuser.

Johnson was asked if deputy Smith had grabbed his shirt, hit him in the face, thrown him on the floor and knocked him into a door frame. To each question, Johnson answered yes. The polygraph noted no signs of deception, according to Lt. Williams' investigative report.

The interviewer then asked Smith if he did any of these things to the inmate. Smith denied each allegation. The polygraph showed his answers were deceptive.

Nonetheless, internal affairs ruled that Johnson's complaint was unsubstantiated. "Statements provided by ... witnesses showed some inconsistencies," Lt. Williams determined. "However, it is likely that some degree of physical contact did occur."

She recommended that disciplinary action be taken against Smith and added this caveat to the bottom of her investigative file: "It should be noted that since his employment in 1996, four out of four complaints (there actually were five) filed against Deputy Kelvin Smith involve allegations of inmate abuse. ... It is recommended that Deputy Smith's behavior be closely monitored during the performance of his duties, particularly where inmates are concerned."

Smith received his second verbal warning.

But the complaints continued. In April 1999, inmate Hank Logan filed a complaint against Smith for allegedly hitting him in the chest, knocking him backward onto metal steps and injuring his back. Logan was treated at the jail clinic.

The case was closed three months later, when Logan said he did not want to take a lie detector test. He instead filed suit against Smith in Fulton County court. The lawsuit, which seeks an unspecified amount of damages for Logan's injuries, is pending.

The following spring, after another physical abuse complaint, Smith got a letter from Chief Deputy Henderson.

Henderson wrote in the May 2000 letter that "based on the information currently available to me, this is to notify you that I am giving you a WRITTEN WARNING." He noted that Smith had broken a sheriff department rule of conduct that states: "Employees of this department shall not act in an official or private capacity in such a manner as to bring discredit upon the department or upon themselves."

Henderson died last year, but internal affairs Maj. Brereton says such a letter would be placed in a deputy's personnel file after the chief deputy or the sheriff noticed a significant number of complaints.

A track record like Smith's might only show that "some deputies are a little more forceful or follow the rules a little more stringently," Brereton says. Inmates tend to rebel against such deputies, and therefore file more complaints against them, according to Brereton. He admits, however, that some complaints are settled unfairly in the deputy's favor. "All these folks can't be wrong," he says of inmates who file grievances.

Brereton says that in the absence of concrete observations -- witnesses and visible wounds -- "unsubstantiated" is sometimes the only conclusion to draw.

But he says if the injuries are serious enough, they may be grounds for termination.

"If a guy's eyes are all blacked up, his nose and lips are busted, he's got body bruises or something like that, and we felt it was serious enough, we would go ahead and terminate" an abusive deputy, he says.

Given the injuries, witnesses and polygraph test results tied to the complaints against Smith, however, it's not at all clear that the department always follows such principles. In fact, neither Brereton nor current Chief Deputy Caudell Jones could name the last Fulton County deputy to be suspended or fired over a physical abuse complaint. Sheriff's department officials say they don't keep statistics on the number of suspensions and terminations resulting from physical abuse complaints.

And then there's the related issue of screening deputies for unsupervised, off-duty security work at private establishments.

"If a person's been disciplined a whole lot, we don't let them work [secondary jobs]," Chief Deputy Jones says.

When asked if Smith, after 10 complaints, two verbal warnings, one written warning and the Peck incident, should be allowed to continue working off-duty security, Jones says yes.

"If the complaints are unsubstantiated, and if he worked secondary jobs for five years and had no citizen complaints on the outside, then we can't deny him," he says.

Since 1997, Smith has worked 20 off-duty security jobs. Since his written warning last year, internal affairs and the chief deputy have approved him for five jobs.

The chief deputy points out that Smith requested a transfer from working in the jail to working in the courthouse -- not because of run-ins with inmates, but because the courthouse schedule allows a deputy to pick up more off-duty work. With nights and weekends off, a deputy can rack up restaurant and bar security gigs, which almost always pay more per hour than the county does, according to Jones.

"He had a good record," he says. "So we didn't hold him up."

At almost noon on April 12, Peck opened his eyes. His left leg was swallowed by a full-length brace. His right leg was buried under bandages. His hand was cuffed to the bed rail, presumably to prevent his leaving. As if he could walk.

Within the hour, a nurse walked in, filled his bedside pitcher with water and checked his IV. Then a deputy stepped inside the room to make sure Peck's handcuff was secure. A deputy was appointed to remain outside Peck's door for as long as Peck remained in the hospital, which turned out to be six days.

That first morning, Peck remembers asking the guard one question: Can I make a phone call? No, he said. Peck had not been formally booked on his charges and wouldn't be until he left the hospital. Until then, no phone calls.

That was Thursday. By late Friday, Peck had a roommate. By Sunday, the roommate was willing to pass Peck the phone from his side of the room. Before Peck dialed, he dropped a towel in the metal trashcan next to his bed. That way, he could toss the phone in the trash and noiselessly hide it, should the guard or nurse walk in.

He called his boss first, to let him know where he was and what was going on. Then he called a friend, who wasn't home. Then his parents, who live in Smyrna; no answer there, either. He hung up and waited a few hours, drafting in his head the message he planned to leave. He called his parents back and explained where he was to the answering machine.

"Nobody was called at all," says Peck's sister, Patty. "Nobody even called when he went through surgery."

Peck, during another sneaked phone call, told his sister to come to his room and bring a camera. She visited Monday, Peck's sixth day in the hospital.

"Having known what happened to him before we got there and then seeing the actual damage to his legs, I was hurt," she says. "And I was appalled."

Two days later, Peck left the hospital and went to jail. He was booked and fingerprinted, still lying on the stretcher. The hospital did not provide a wheelchair. His family paid his $4,800 bail and waited outside for the jailers to wheel him out. Peck's father helped him from the stretcher into the back seat of his sister's minivan.

He spent three days at his parents' house, carrying his urine bottle with him, trying to get around in his rented wheelchair. "My primary psychological state was one of frustration," he says in a detached way. "I had to discover a new routine based on my physical constraints."

He underestimated those constraints. Three days out of the hospital, he thought he was strong enough to jump up from a seated position onto crutches. He wasn't. He collapsed into his chair, his leg brace fell apart and the wound on his left leg reopened. Blood was streaming. The kneecap was broken again. His mother got home 10 minutes later and called an ambulance. He went back to Grady for two days.

By the time Peck was back in his apartment, nearly two weeks had passed since he walked out the door to pick up his cheeseburger. He couldn't get into his bathroom. The door wasn't wide enough for the wheelchair. So he took sponge baths over the kitchen sink. He couldn't stand over the stove, so he lived on canned soup and frozen dinners.

For a month, he was either in bed, in the wheelchair or on the couch. His sister did his shopping and laundry. "He was so depressed, and I didn't even realize it for a couple of weeks," Patty says. "One day, he just said, 'I'm here all day and this [injury] is all I have to think about.' He didn't have work to do. He couldn't go anywhere."

About two weeks after he returned home, he wedged a secretary chair into his bathroom. That way, he could lift himself from his wheelchair onto the secretary chair and roll to the bathtub. In the middle of the tub sat a metal folding chair. He took sitting showers.

To break the monotony, Peck started bending his right leg a little, putting some weight on it. "I would put my wheelchair in front of the desk and would stand between [the desk and the wheelchair], walk a little bit, get to the end and turn around and walk back a few steps," Peck says. "And then I'd take another four- or five-hour rest."

That was as close he got to the physical therapy that Grady had recommended. Without health insurance, he couldn't afford to see a doctor. Peck had tried to resume work, but prospects at GeoSouth, a small Web development firm, were nil.

"It was about the last week of May when [my boss] wrote to me and said, 'Well, it looks like this is going to have to be it,'" Peck says. "We were flush with money at one point, and we just dried up."

In June, he started collecting unemployment.

Three months after his injury, Peck walks across the living room like a newborn foal, wobbly-kneed and unsure of himself. Under slanted ceilings remindful of a monk's study, he lowers himself into a navy velour armchair. He must go easy on the legs.

The right one's got three small, pink scars, crisscrossed like railroad tracks from where the staples were. He pulled them out himself. The biggest scar, six inches along the shin, is where the bone had popped through the skin. The left leg is disfigured only at the knee. An S-shaped scar covers the cap.

He scans the Internet for jobs and tries not to think about getting angry.

"The emotional situation would have been too confounding," he says. "I had to deal with surviving, so therefore I had to narrow my concerns."

He hasn't touched his hospital bill, which tops $28,000. He's taken out loans to pay $2,000 to his attorney and $3,000 to a private investigator hired to find witnesses.

"Potential witnesses forget things or move away," Peck says. "Even if you're in the right, if you can't prove it with facts and evidence and corroboration and so on, it doesn't do you a whole lot of good."

Fulton County Sheriff Jacquelyn Barrett says she'll look into past and current allegations of Smith's abuse once internal affairs wraps up its investigation of the Fox & Hounds incident. Although Barrett isn't familiar with complaints against Smith and has yet to read the file on his confrontation with Peck, she says injuries like Peck's could lead to a deputy's termination.

"I know that if both legs were broken," Barrett says, "that would be serious."

Internal affairs is awaiting the outcome of the criminal charges filed against Peck, according to the sheriff.

In July, Magistrate Judge Craig Schwall tried to get Peck's attorney and a Fulton County prosecutor to settle the criminal charges without a trial. That approach didn't work. After 45 minutes in a conference room, the two parties returned to the courtroom.

Schwall then postponed until October the pre-trial hearing on Peck's criminal charges -- six of them, including felony obstruction and battery on a peace officer.

"A civil suit is not this court's concern," Schwall said. "But is that where this is heading, ultimately?"

"I don't know," Peck's attorney John Husser answered.

According to Peck, the answer is yes.

"I don't know if I'm going to have permanent damage to my legs," he says. "What kind of expenses am I going to incur in the future, just to keep me able to walk? Forget running or doing anything athletic."

Right now, Peck can't even make the short walk to Fox & Hounds -- the walk that cost him six criminal charges and more than half a year's salary, as well as two legs deformed by staples, scars and metal rods.

"And," he says, "I never did get my cheeseburger."

mara.shalhoup@creativeloafing.com

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