Commonwealth Journal

September 29, 2012

Attorney is skeptical about McCoy’s indictment

By JEFF NEAL, CJ News Editor
Commonwealth Journal

Somerset —  

The attorney for a man suing Pulaski government for an alleged case of police brutality says he does not object to holding off on civil litigation pending criminal proceedings against his client.
But he also is skeptical about his client’s indictment.
Brandon J. Storm, the attorney for Kevin McCoy, said in a response filed in U.S. District Court last week that since a lengthy delay is not expected in the criminal proceedings, it’s OK to wait on the civil action.
McCoy was indicted on misdemeanor charges of reckless driving; driving on a suspended license; driving without a registration plate; and menacing, by intentionally placing another person in reasonable apprehension of imminent physical injury.
The indictment stems from an August 2011 arrest. McCoy later filed the lawsuit claiming that during the incident, he was roughed up by Pulaski County Sheriff’s Deputy Steve Molen.
In his response, Storm addressed McCoy’s indictment.
“Although the misdemeanor charges were just recently resurrected and initiated by the defendant, Steve Molen ... the court should note that the Pulaski County grand jury did not return an indictment against (McCoy) for fleeing or evading police, an allegation (Molen) had also previously levied against (McCoy),” Storm wrote.
Storm claimed that the indictment against his client stemmed from a conspiracy by members of Pulaski County government to “complicate an already complex litigation.”
“(McCoy) had been in pre-litigation discussions with the defendants’ claims adjuster prior to (Molen) resurrecting the dormant misdemeanor charges, which (McCoy) was under the impression were no longer pending as they had not been presented to the grand jury for months following (McCoy’s) preliminary hearing,” Storm wrote. “In fact, the defendants’ claims adjuster requested a settlement demand package be prepared and tendered in an effort to resolve this claim without the necessity of litigation. A demand packet was sent certified mail, return receipt, to the defendants’ claim adjuster on July 13, 2012, and was signed for by the defendant’s claim adjuster on July 17, 2012. Yet (Molen) deliberately elected to present (McCoy) to the grand jury after pre-litigation discussions were already taking place and after the defendants received (McCoy’s) demand packet; further evidence that all of the named defendants have engaged in much more than mere knowledge.
“To the contrary, it now appears that the defendants have, in concert with one another, actively participated in a scheme to have (McCoy) indicted as another effort to intimidate (McCoy), all in violation of his Civil Rights ...”
In his response, Storm also objected to a motion the Pulaski government’s attorney made asking for a partial dismissal of the case.
“(McCoy) does vehemently object to the defendant’s partial motion to dismiss being litigated if, in fact, the civil action is held in abeyance or stayed (pending criminal proceedings),” Storm wrote. “First and foremost, the defendants want to have their cake and eat it too ... they have sought relief from the court on one hand, to hold this litigation in abeyance, yet on the other hand, they ask the court to begin stripping away counts of (McCoy’s) complaint.”
McCoy’s lawsuit alleges that on Aug. 14, 2011, Molen rammed McCoy, who was operating a motorcycle on Ky. 70, with his cruiser. The lawsuit claims that a dispatch audio recording catches Molen saying he felt “enticed” by McCoy and that the plaintiff was “begging to be chased.”
“Molen utilized excessive force and performed an unnecessary, totally improper and potentially life-threatening ‘pit maneuver’ on McCoy, who was on his motorcycle,” the lawsuit reads.
The lawsuit alleges that after McCoy was knocked to the ground, “Molen proceeded to unjustifiably assault McCoy.”
“After placing handcuffs on McCoy, with no resistance or provocation from McCoy, Molen continued to use excessive force while placing McCoy into the police cruiser, causing McCoy to suffer severe bodily injury,” the lawsuit alleges.
The lawsuit claims McCoy had to be taken to the hospital for treatment as he “was entirely too bloody and injured to be accepted by the Pulaski County Detention Center until he had been cleared by medical professionals.”
The lawsuit states that McCoy “sustained blows to his head, face and jaw, as well as kicks to his ribs and side, all of which were inflicted by Molen.” It further states that Molen “cursed at McCoy and verbally degraded him.”
The lawsuit also alleges that Pulaski County Sheriff Todd Wood, Pulaski County Judge-executive  Barty Bullock and Pulaski Fiscal Court “were aware of Molen’s repeated use of excessive force as early as 2007 and they have individually and/or in a conspiracy with one another, participated or acquiesced in, contributed to, encouraged, implicitly authorized or approved the conduct ...”
The lawsuit claims that “the use of excessive force was a substantial factor in causing McCoy to sustain both physical and emotional injury. Some of McCoy’s injuries include, but are not limited to: Hand, wrist and shoulder pain; rib and abdominal pain, contusions and swelling; facial pain, swelling, contusions and lacerations; and oral pain, swelling and lacerations.”
McCoy is seeking a trial by jury and a monetary judgment.
Claims made in a civil lawsuit merely reflect the plaintiff’s account of the incident and do not indicate the defendants’ guilt or innocence.