Reasonable force? 

Sheriff's department clears deputy who broke man's legs

It's A-OK for a Fulton County sheriff's deputy to bash the knees of a restaurant customer until a bone is sticking out of his leg.

At least, that's what the Sheriff's Department internal affairs unit concluded after investigating Deputy Kelvin Smith's April 11 beating of northwest Atlanta resident Tim Peck.

The probe raises new questions about the department's ability to police its own deputies. In the past, internal affairs hesitated to support claims of physical abuse by deputies. And when the sheriff has fired a deputy after internal affairs found he misbehaved, the county Personnel Board has forced her to rehire him.

This time, the investigation itself was incomplete. Investigators failed, for example, to ask the 250-pound deputy why he wrote in an incident report that Peck was 6 feet, 200 pounds when he is 5-foot-9, 140 pounds. They interviewed only two witnesses -- both employees of the restaurant that employed Smith -- before the head of the internal affairs unit ruled Smith did nothing wrong. And statements from another two witnesses were supposed to be included in the 65-page report, but they weren't in the file handed over to Creative Loafing.

Investigators also decided there was no need to talk to Peck.

"I was the one who was raising doubts of the impropriety of [the deputy's] actions," says Peck, who may be permanently disabled as a result of the beating. "I should have the right to make my claim in any inquiry about him."

Six criminal charges are pending against the now-out-of-work computer programmer following his run-in with the deputy, who was working off-duty security at the Fox & Hounds restaurant. Peck is awaiting word from the restaurant's insurance agents, who may pay some of the $28,000 he owes after a six-day stay at Grady Hospital. And he's considering filing a lawsuit.

Investigators showed up in Peck's hospital room hours after the incident and shortly before he went into surgery. But Peck refused to be interviewed without a lawyer present.

"And we didn't really need him," Sheriff Jacquelyn Barrett says. "We quite frankly had the benefit of his comments -- however right or wrong they were -- in the [Creative Loafing] article."

If investigators did consider Peck's comments to CL, which were published in an Aug. 29 cover story, they had only a day to mull them over before deciding to clear the deputy. On Aug. 30, Maj. Berle S. Brereton, head of internal affairs, sent a letter to Smith, which said, "the final disposition of Exonerated has been made."

Despite that "final disposition," the department continued its probe for almost another month -- and found at least one more witness to back up Smith's version of the story.

Before the report was released, Barrett said she saw no problem in the way internal affairs handled any of its investigations. But she did point to the difficulty she's experienced in making past terminations stick. The Personnel Board has overturned at least two of them, ruling that there was insufficient evidence to fire the deputies.

In late September, she re-fired one of them, Herman Ingram, after CL reported that Ingram's state accreditation to serve as a peace officer had been revoked in December.

After the investigative report into Smith was released Oct. 3, Barrett spent weeks exploring her options.

"I really agonized over this case," she says. "Because of the extent of the injuries, we looked up and down in this case. And from everything we could find, the use of force and the amount of force used was appropriate."

Deputies are trained to respond with baton blows to the elbows, knees and abdomen of a suspect who resists arrest, as Smith says Peck did.

Even though the department found Smith didn't use excessive force, Barrett says she felt compelled to reprimand him -- especially considering his work history. Internal affairs investigated Smith for 10 previous complaints of physical abuse since 1997. All those claims were found unsubstantiated.

In the most extensive investigation, 10 witnesses verified the story of Frank Johnson, a detainee at the Fulton County jail where Smith then worked. Johnson alleged that Smith knocked his head into a wall, threw him to the ground and punched him in the head and face. Smith denied the abuse.

Both Smith and his accuser agreed to a lie detector test. Johnson passed. Smith failed. Internal affairs ruled in favor of Smith because "statements provided by ... witnesses showed some inconsistencies."

Although all of Smith's actions were found to be acceptable uses of force, Barrett decided he needs a psychological evaluation. An Oct. 2 letter to Smith from Chief Deputy Caudell Jones states that he'll be placed on monitoring status due to his "pattern of excessive complaints specifically involving physical abuse."

"Any further action of this nature," Jones wrote, "may result in your termination from this agency."

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