© 2014 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
(March 21) – A former Houston Astros pitcher and 11 other guests attending a South Texas wedding party in 2008 go to trial next week on their allegations that Galveston police violently and viciously beat them without any provocation.
The plaintiffs, including former major league baseball pitcher Brandon Backe, claim that about 20 Galveston police officers violated their federal civil rights as they celebrated the marriage of a friend at the H2o bar in the San Luis Resort.
Backe and the other plaintiffs allege that City of Galveston leaders knew their law enforcement agency had a growing problem with police brutality but did nothing about it. In addition, city officials failed to investigate the allegations made by Backe and others at the 2008 wedding event.
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The federal jury trial, which begins Monday in Houston, is an anomaly because municipalities, such as Galveston, enjoy significant legal protections, including sovereign immunity, that almost always safeguard them from being sued.
But U.S. District Judge Keith Ellison ruled that the case presents a “truly extreme factual scenario” due to the number of acts of alleged police brutality the plaintiffs’ claim happened in one night.
“The H2o incident, while in some sense a single ‘episode’ – is properly conceived of as a laboratory for evaluating how pervasively and recklessly constitutional norms were disregarded by a sizeable portion of the Galveston police force,” Judge Ellison wrote in a March 5 order.
“With 13 alleged victims, 20 alleged perpetrators, or accomplices, and 49 separate alleged acts of police brutality, Plaintiffs have identified a constellation of evidence from which a jury may divine a pattern,” the judge wrote in allowing the case to go to trial.
The plaintiffs claim their Fourth Amendment constitutional rights were violated when at least 20 members of the Galveston Police Department abused their power through acts of brutality. The plaintiffs also claim that the City of Galveston is liable because the city manager and police chief were obligated to investigate the abuse of power but turned a blind eye to it instead, despite knowing the police department’s long history of abusing its authority.
The plaintiffs say the history includes police brutality, excessive use of force, intimidation and false reports.
By failing to substantially investigate the officers (including false reporting of the night’s events), the plaintiffs claim Galveston city manager Steven LeBlanc and police chief Charles Wiley may have given tacit approval of what happened, the complaint says.
They also claim the city officials failed to properly train, supervise and hire their law enforcement officers, which directly led to the plaintiffs’ injuries.
The city and police officers deny the allegations, stating in their reply brief that they were simply attempting to “restore order” at the San Luis, which required some reasonable force.
Houston partner Charlie Parker of Yetter Coleman is the lead lawyer representing the plaintiffs. Fellow Yetter Coleman partners James Zucker and Dori Kornfeld Goldman are also playing key roles in the case.
Bill Helfand of Chamberlain Hrdlicka leads the defense for the City of Galveston and the police officers, along with Chamberlain associate Norman Ray Giles. Helfand could not be reached for comment.
Parker said even prominent plaintiff firms turned down the case due to the difficult legal barriers associated with cases against municipalities, but that Yetter Coleman found the facts too appalling to pass it up and saw the potential to make a significant difference in protecting the rights of citizens.
“This is a wrong that needs to be righted,” said Parker, who focuses his practice on complex commercial and personal injury litigation. “You have an avenue to make the policy of effect for what is the right conduct by police officers who are sworn to protect the public, not injure them.”
The Story
The incident occurred on the night of Oct. 4, 2008 after the wedding ceremony and reception of plaintiff Gil O’Balle’s daughter, which took place at the Galveston Island Convention Center at the San Luis Resort Spa and Conference Center. After the wedding, O’Balle drove with his 19-year-old son, Cole, to the hotel’s adjacent H2o Pool Bar, where he dropped Cole off while he looked for parking.
When Cole O’Balle entered the H2o bar, Galveston police officer and hotel security guard Christopher Sanderson approached him after Carlos Gonzalez, a fellow security guard, told Sanderson that O’Balle had been belligerent with Gonzalez earlier in the night during the wedding reception, Ellison’s memorandum opinion said. The underage 19-year-old had also allegedly brought a can of beer into the bar, according to the defendants’ reply brief.
According to the plaintiffs’ complaint, Sanderson and Gonzalez approached O’Balle and escorted him near the bar’s restrooms to arrest him. Even though O’Balle “at no point” physically or verbally threatened the officers, the police struck him with a baton and beat him to the ground by delivering “repeated close-hand strikes to O’Balle’s face and head,” the complaint says.
The officers also pepper sprayed two wedding guests, Joseph and Shannon Belluomini, who had approached and pleaded with the officers not to arrest O’Balle. Mrs. Belluomini tried to shield O’Balle from the beatings because he was on the ground, defenseless. Officer Sanderson grabbed her “by the hair, pulled her backwards off of O’Balle, pepper-sprayed her directly in the face, and then tossed her to the side.”
Meanwhile, “more than 30 police officers” responded to a call Sanderson had made for assistance in O’Balle’s arrest and crowd control. The officers arrived at the scene. They began evacuating the H2o bar and escorting people off the San Luis property.
Officers began screaming at the crowd, telling them to “back the fuck up,” the complaint says. Backe, the former Astros pitcher and a groomsman in the wedding, was at the front of the crowd and told Officer Nicholas McDermott to calm down and that he had no room to back up.
McDermott then grabbed Backe by the shirt and threw him face first against a wall, according to court documents. The officer brought Backe’s hands back as if to handcuff them, but then caused “a shearing blow to Backe’s right shoulder” when he slammed Backe to the ground and his shoulder hit the curb “with the full force of Backe’s and McDermott’s combined body weight.” Two other officers assisted McDermott in attacking Backe, with some blows “delivered after Backe had been handcuffed.”
The officers beat other wedding guests and bar patrons even though the guests were following police instructions, according to the complaint, which adds that many of the attacks had no justification.
Court documents say that one victim was a pregnant woman who officers deliberately pushed despite her husband’s repeated pleas with police to stop.
Charles Young, an out of state contractor who was in Galveston to assist in cleanup from Hurricane Ike, which had occurred three weeks before the wedding, is also suing.
According to the complaint, as Young was following instructions to exit the bar, Officer Robert Tovar bumped into Young, grabbed and handcuffed him, and threw him to a sidewalk outside the bar. Tovar and another officer then punched Young in the ribs and head, which caused the handcuffs to come off one of Young’s hands.
When Young realized this, he placed his hands on his knees, and Officer Pheneria Manuell immediately screamed “Stop resisting!” to Young before kicking him in the face and breaking his nose. Several other officers dog-piled Young, continuing to hit him until he blacked out.
When Gil O’Balle finally arrived after finding parking, he approached officers to figure out why they arrested his son and why he was in such critical condition. While attempting to ask them, officers tased, pepper sprayed, kicked to the ground, and handcuffed O’Balle, and proceeded to drag him “by his feet, face first across the concrete, all while already handcuffed,” the complaint says.
The police arrested more than 10 individuals that night – some wedding guests, some simply patrons of the hotel or bar.
Permanent Injuries Resulted
When Officer McDermott threw Backe to the ground, the impact sheared off a piece of cartilage in his shoulder. His injury caused the Astros to release him in 2009 and has since prevented him from pitching at the major-league level. Despite two surgeries, Backe’s shoulder is now permanently arthritic. Although he is 35, “the condition of his shoulder has been compared to that of a 78-year old man,” and he will eventually need a shoulder replacement, the complaint says. He also can no longer sleep through the night and is unable to perform certain daily tasks with his right arm, such as carry his two-year-old son.
Parker said Backe’s manager, Brian Grieper, will testify at trial to prove to the jury the substantial monetary damages Backe deserves. Grieper will tell jurors that Backe would have signed another three-to-four year contract with the Astros in 2010 and would have been paid between $4 million and $5 million a year. That equates to damages at stake ranging from $12 million and $20 million.
After being arrested, Cole O’Balle was transported by helicopter to Hermann Memorial Hospital in Houston due to the severity of his injuries. Doctors at Memorial diagnosed that he suffered multiple traumas, including a five-inch laceration on his head and hemorrhagic contusion on the left frontal cortex of his brain as a result of the bleeding, the complaint said.
In the immediate aftermath of the incident, O’Balle experienced several symptoms, including slurred speech, blurred vision, dizziness and spinning, and mild hearing loss. To this day, he still has migraine headaches he never experienced before the police beating, according to the complaint.
Damages sought from the 12 plaintiffs include constitutional deprivations, expenses incurred for medial treatment, future medical expenses and injury treatment, past and future physical pain and mental anguish and lost earnings.
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