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May 12, 1998

Mobile Man Sues USA and City Police for Violating His Civil Rights

John Boone stands on the very spot where a bizarre incident began, eventually involving both USA campus police and officers of a Mobile SWAT team.
Photo by L. D. Fletcher
by Edmund Tsang

John Anthony Boone filed a complaint in the U.S. District Court in Mobile on April 25, 1998 against four police officers of the University of South Alabama (USA), seven police officers of the City of Mobile including the Police Chief, and the City of Mobile for violating his civil rights stemming from a bizarre incident that occurred on April 26, 1996. After three trials, of which two were declared mistrials because the jurors were unable to reach a verdict, Boone was found guilty of menacing the USA police officers during the April 1996 incident, but found innocent of the charges filed against him by the USA police of disorderly conduct and resisting arrest. Another charge, that of giving a false name, was dismissed.

Regarding his determined but seemingly quixotic effort, Boone says he is "not seeking publicity," but "seeking a forum whereby I might obtain redress of the wrongs that were done to me," and "to hold the responsible officers and agencies accountable for their actions and omissions toward me on the evening of April 26, 1996, and the following morning."

Boone said the evening of April 26, 1996 started out innocently when he rode his bicycle about 0.1 mile from his home down West Drive in west Mobile to deliver a typed term-paper to a USA student, meeting her in the parking lot of Anders Book Store. It turned into a nightmare caused by the USA police officers who ignored his constitutional rights, Boone claims in his lawsuit, and ended when Mobile's SWAT team lobbed tear gas into his house, put him in handcuffs and delivered him to the USA police, who charged him with disorderly conduct, resisting arrest, menacing, and giving false information to a police officer.

The eyewitness' account of the April 26 incident corroborates Boone's description of the events and disputed the USA police records and the officers' court testimonies.

Officer Cathy McDonald of the USA Police, a defendant in Boone's complaint to the federal court, said "I don't wish to speak about that," when contacted last week to comment on the lawsuit. Efforts to reach officers Gerald Malone and Brian Gulsby of USA Police, who were involved in the April 26, 1996 incident and were named in the lawsuit, for comments were unsuccessful by press time. Gulsby is no longer an USA police officer, according to an operator at the USA Police Department.

Kafkaesque Incident

According to the Alabama Uniform Incident/Offense Report filed by Officer McDonald of USA Police, she was on her regular patrol on the evening of April 26, 1996 when she "approached Anders Book Store, I observed a beige 4 door compact car, occupied by 2 subjects, parked in the lot. Outside driver's door was a white male on a bike. I observed him lean into the car and pass something into the car. The activity appeared highly suspicious due to the area and business closed for the night."

So Officer McDonald turned around her car and returned to investigate, because "it appeared that a possible drug transaction may be taking place or subject was attempting to rob persons in the car."

According to Officer McDonald's report, "[B]efore I stopped, the subject [Boone] immediately rode the bike to my patrol car, close enough that I had to stop. Subject immediately became belligerent shouting at me 'What do you want.'" In her report, McDonald says that Boone "appeared highly agitated and nervous" when she asked for identification, and shouted at her, saying, "You're not police. Leave me alone. This is private property and you can't be here."

McDonald continued in the incident report: "I then calmly asked him to calm down as I explained why I was there. The female driver (Hill) was cooperative with me (present I.D.) and said she understood why I was checking them. Hill stated that male 'Steve' types papers for her and met him there to pick them up. During this time, male continued shouting and cursing me and told female 'Jerlyn if she bothers you, let me know.' "

"I asked subject if he was Steve, subject stated 'Yes,' but refused to give last name, date birth, social security. Subject asked if he was under arrest, I said "No" I want to see your I.D. Subject again moved a hand to his waist band and moved the bike towards me as if to strike me with the bike."

McDonald stated that Boone continued to shout at her. "'What are you going to do, put me in jail?' I advised that I would for disorderly conduct if he didn't calm down, stop shouting and cursing me. He continued shouting and cursing me as I attempted to place him under arrest. Subject got on the bike and left the scene at a rapid pace and refused to stop after my repeated orders for him to stop."

The events described by Officer McDonald in her police report are described by Boone in his court filing with the U.S. District Court as follows: "An officer, later identified as defendant McDonald, stepped from the patrol car and spoke into her portable radio...As McDonald stepped from the patrol car Plaintiff [Boone] asked her, 'Is there something I can help you with,' McDonald replied 'No.'

"McDonald then approached Ms. Hill's car and demanded Ms. Hill's driver license and automobile registration. Ms. Hill retrieved and then gave the license and registration to McDonald. Ms. Hill asked McDonald 'Have we done anything wrong?' McDonald responded, 'Your car looks suspicious.' Ms. Hill then explained to McDonald that she was a University of South Alabama student and that [Boone] had typed a paper for her. Ms. Hill gave the term paper to McDonald, which defendant [McDonald] fondled, looked at, and then returned to Ms. Hill."

In his court pleading, Boone said McDonald "demanded that Plaintiff [Boone] produce identification. Plaintiff explained that he did not have any identification to which McDonald responded that if Plaintiff didn't produce some I.D. he'd 'find his butt sitting in the back of that patrol car until he did.'"

"Plaintiff asked McDonald if he had done anything wrong to which McDonald replied 'No.' Plaintiff asked defendant McDonald if he had committed or was violating any laws to which McDonald replied 'No.' Plaintiff further asked McDonald 'Am I under arrest?' Defendant McDonald replied 'No.'" Boone then stated that McDonald returned to the patrol car and spoke into her radio.

Boone continues in his court pleading: "Plaintiff, having determined that he had not violated any laws, was not violating any laws, and was not under arrest, told Ms. Hill in the presence of defendant McDonald that he was going home and that he would correct any typographical errors in the term paper as necessary. Defendant McDonald at no time advised Plaintiff that he was not free to leave. Plaintiff peddled out of the parking lot and toward his home which is located approximately seventy-five yards from the Ander's Book store parking lot."

Eyewitness Account

In an interview last week, Mrs. Jerlyn Hill, an African-American student at USA, said she did not know how to type and had called Boone to type her term paper. Being a woman, Hill said she picked Anders Book Store to meet Boone to pick up the paper because it was a well-lit public place, and she brought along her 12-year-old daughter with her. Hill said as she got ready to pay Boone for the typing services, she noticed a USA patrol car pulling into Ander's parking lot.

Mrs. Hill said Boone was not behaving disorderly, nor shouting or cursing at Officer McDonald. Hill also confirmed that Boone had told McDonald that he did not have an I.D. with him, when the USA police officer asked for identification. "He might not have an I.D. with him since he lives only 100 feet away from Anders," Mrs. Hill said in an interview with the Harbinger last week. "I often go to the corner convenient store without my I.D., either to pick up some eggs or other items I need."

Hill said she showed her student I.D., driver's license, and car registration to McDonald. "After they know I am an USA student, they still don't treat me right," Mrs. Hill said. "So I asked the officer [McDonald] to call the police if there is a problem, and she replied, 'I'm a state police.'

"Then Boone told me he's leaving because the situation is getting out of hand," Mrs. Hill said. "Boone called me later that night several times to relate what happened to him, I couldn't believe it -- I thought he was joking."

Situation Escalated

USA Police Officer Brian Gulsby, who is also named a defendant in Boone's federal complaint, stated in a USA Police Department report that "On April 26, 1996, at approximately 9:15 p.m. I heard, over the police radio, Cpl. McDonald state that she was going to check a suspicious vehicle and a suspicious white male on a red bicycle. She stated that she was in the parking lot of Ander's Book Store. I started to drive toward her location. As I was approaching her location I heard her over the radio again. She stated that the subject on the bicycle was being disorderly. At that point I had arrived on the scene. I saw the white male on the bicycle look toward my patrol car and began to ride away. At that time Cpl. McDonald advised me, over the radio, to attempt to stop the subject. I had already activated the blue lights on my vehicle. I used the Public Address System in my vehicle and ordered the subject to stop. He did not. At that point I activated my siren and again ordered him to stop. I pursued the subject south on West Dr. for approximately 100 feet. I then accelerated past the subject and attempted to block his path of travel. He rode his bicycle up on to the grass and around my vehicle. I again ordered the subject to stop. He continued south on West Dr. and then entered a driveway to a residence. I followed him into the driveway. He stopped and got off his bicycle in the front yard. He'd kept his back to me. I stopped my vehicle and began to exit. I observed him reach toward his front waist-band area and remove a small black or dark colored object that appeared to be a weapon. At that point, using my vehicle door for cover, I drew my duty weapon and ordered him to stop and raise his hands. He walked toward the front door, continuing to keep his back toward me. I again ordered him to stop and raise his hands, and he again ignored the order. He unlocked the door to the residence, entered, and closed the door. I holstered my weapon and continued to take cover behind my vehicle. At that point Cpl. McDonald arrived and I advised her of what had happened. We waited on the Shift Supervisor, Sgt. Malone, to arrive. When he arrived we left the residence and returned to Anders Book Store."

Here is how Boone describes the same events in his federal court pleading: "Plaintiff [Boone], bicycling on West Drive, noticed a second University of South Alabama patrol car traversing the parking lot at a high rate of speed. The driver of this second car later identified as defendant Gulsby, made three attempts at striking Plaintiff with the patrol car. The first two involved Gulsby's positioning the car alongside and to the right of Plaintiff and violently turning the car toward Plaintiff forcing Plaintiff into the curb. In the third instance Gulsby accelerated and then slammed on the brakes violently turning the car directly into the path of Plaintiff. Plaintiff was able to avoid being struck by Defendant by negotiating the curbed right of way. Plaintiff extremely frightened then peddled into his yard.

"While Plaintiff was opening the front door to his house defendant Gulsby drove the patrol car onto Plaintiff's front lawn. Gulsby then opened the driver's side door pulling his service pistol and pointing it at Plaintiff. Gulsby then asked Plaintiff what he had in his hand. Plaintiff responded that he had his house keys in his hand and while showing them to Gulsby told Gulsby that he was going inside. Defendant Gulsby never advised Plaintiff that he was under arrest or not otherwise free to exercise his right to go about his business. Gulsby said nothing further to Plaintiff and Plaintiff entered his home locking the door behind him."

Concerning whether Gulsby received a request from McDonald to arrest Boone, the following exchange between Gulsby and Boone's attorney took place during cross-examination in a trial in May, 1996 --

Q: That's all? Disorderly? That's all she said to you?
A: That's it.
Q: On the radio, nothing else?
A: That's it.
Q: You're sure?
A: I'm positive.
Q: So she never told you about that she put him under arrest, didn't she?
A: No, she didn't.
Q: She didn't say she was going to arrest him or that he was under arrest?
A: No, she didn't.

Concerning the chase down West Drive, Gulsby responded to Boone's attorney on cross- examination --

Q: Did you come through that parking lot at a high rate of speed?
A: No, sir.
Q: A low rate of speed?
A: I'd say twenty miles an hour.
Q: And you pull up in front of him on his bicycle and run him into a curb, don't you?
A: Not in the parking lot, no, sir.
Q: This is when he gets out on the street.
A: I attempted to stop him, yes, I did.
Q: Attempted to stop your car -- you attempt to stop someone on a bicycle with your car?
A: Yes, sir.

Boone's attorney also cross-examined Gulsby about what happened at Boone's front yard:

Q: Did he get off his bicycle?
A: Yes.
Q: Did he walk towards the front door of his residence?
A: Yes.
Q: Did you tell him he was under arrest?
A: No.

Concerning what "appeared to be a weapon" to Officer Gulsby but what Boone said was his house key, there was this exchange between Gulsby and the attorney representing Boone --

Q: He showed you he had his house key, didn't he?
A: No, he didn't.
Q: He didn't tell you these are my -- didn't you ask him what's in his hand and he said my key?
A: He said that, but I did not see them.
Q: But he told you what was in his hand, his key, and then he walked up to the door and he unlocked the door and walked into his house, didn't he?
A: He unlocked it and went in, yes, sir.

Suspicion of Weapon To "Real" Gun

Sgt. Gerald Malone was the Shift Supervisor that night of April 26, 1996, and he stated in the supervisor's case report that he overheard McDonald's first radio message at 9:15 p.m. that "she was going to check out on a suspicious situation in the Anders Book Store parking lot....Within approximately 30 seconds after her initial call, Cpl. McDonald radioed that she had a disorderly person and requested immediately back up. I then left the office to respond...As I was en route, I overheard Officer Gulsby radio that he was pursuing a white male that was riding a bicycle south on West Drive. Officer Gulsby then radioed that the suspect had entered the residence at 74 West Drive and prior to entering the residence, had pulled a gun on him."

After meeting McDonald and Gulsby at Boone's residence and briefed by the two officers, Sgt. Malone led the group back to Anders Book Store parking lot because McDonald had told Mrs. Hill and her daughter to wait for her return. Malone wrote in his report that Mrs. Hill explained to him that Boone had typed a term paper for her, and she was meeting him in Anders Book Store parking lot to pick up the paper and to pay for the service. According to Malone, both he and McDonald thanked Hill, and she departed at approximately 9:45 p.m. Malone stated that a radio dispatch informed him around 10 p.m. that someone from 74 West Drive had called 911: "The person at that location wanted to report this incident to them (MPD - Mobile Police Department)...I advised dispatch to telephone 911 and tell them to have the responding officer meet us in the Anders parking lot."

Malone later testified that when Mobile police officer Mark Tunstall arrived, "I briefed him on what I know, supposed to be a man in the house with a gun." Malone said Tunstall told him that he had to respond to the 911 call and requested the USA officers to back him up.

Malone testified that Boone was also un-cooperative with Officer Tunstall when they arrived, refusing to answer any of the officer's questions.

"At this point, Officer Tunstall stepped back and said he won't do anything," Malone testified. "I don't have any charges against him. Do you have any charges. I said, yes, we do, right now disorderly and resisting arrest. At this point he said, okay, I'm going to step back then. He said, you can handle it from here on in, because 911 -- it's not an emergency."

At this point, Malone told Boone that "if you don't tell us who you are, we're going to have to place you under arrest." Malone testified that after the three USA police officers were inside Boone's residence "about two feet, three feet tops...At this point he threw the telephone down, up comes the shotgun."

But according to Boone's court pleading with the U.S. District Court, "[W]ithout an arrest or search warrant, exigent circumstances or Plaintiff's permission defendants McDonald, Malone, Gulsby, and Tunstall entered Plaintiff's home and began walking toward Plaintiff who was still on the phone with the 911 operator. About halfway between front door and Plaintiff's location in the kitchen, defendants McDonald and Malone drew their service pistols and directed them toward Plaintiff. In fear of grave bodily injury and in his own self-defense Plaintiff picked up a 12-guage shotgun located behind an easy chair and pointed it in the defendants' direction. Defendants then hastily exited Plaintiff's home."

This resulted in the Mobile SWAT team as well as a hostage negotiator. Malone obtained an arrest warrant signed by Judge Herman Thomas around 3 a.m., and around 5 a.m., the SWAT team launched tear gas into Boone's house, and he surrendered and was arrested.

In Perspective

Mrs. Hill told The Harbinger last week that she was glad to tell her side of the story of what had happened on April 26, 1996. She said the treatment she received at the hands of the USA police was hurtful, but when she complained to the USA student services office and was told an inquiry would be made, she has not heard anything back.

"I think the USA police is not treating him [Boone] fairly. They missed the facts and blew things out of proportion. They over-reacted," Mrs. added. "It is as if you are guilty until proven innocent.

"Perhaps Mr. Boone knows his constitutional rights too much for the USA police officer," Mrs. Hill concluded.

See the latest update in an article published October 20, 1998.

The Harbinger, Mobile, AL