October 20, 1998
by Edmund Tsang
U.S. District Judge Richard W. Vollmer, Jr. ruled last month against the defendants' motion to dismiss the lawsuit filed against them by John Anthony Boone, who alleged that his civil rights were violated by police officers from the University of South Alabama (USA) and the City of Mobile stemming from a bizarre incident two-and-one-half years ago. In his ruling, Judge Vollmer also ordered the discovery process to proceed. According to Boone, a report that he obtained through the discovery process shows the police officers from USA tried to fool the police from City of Mobile on the night of April 26, 1996.
On the evening of April 26, 1996, Boone said he rode his bicycle to the parking lot of Anders Book Store on Old Shell Road across from the USA campus to deliver a term paper that he had typed for Jerlyn Hill, a student at USA. Boone said Officer Cathy McDonald of USA Police drove up in her patrol car just after he met Hill and demanded to see Ms. Hill's driver's license and automobile registration. After Hill produced the documents, informed Officer McDonald that she is a USA student who was meeting Boone to pick up a term paper, and showed McDonald the term paper, Boone said McDonald then demanded that Boone also produce identification.
Boone said he told McDonald that he did not have any identification with him since he lived only about a tenth of a mile from Anders Book Store, McDonald then said he'd "find his butt sitting in the back of that patrol car" until he did produce an I.D. Boone said he asked McDonald if he had done anything wrong or was violating any laws, and McDonald replied both times that he had not. Boone also claimed that he asked McDonald if he was under arrest to which McDonald also replied "No."
Boone said he then told Jerlyn Hill in front of McDonald that he was leaving to go home, but he was chased down West Drive by a patrol car driven by Officer Brian Gulsby of USA Police, who attempted to strike his bicycle three times.
In the official incident report, Officer McDonald said Boone was acting in a disorderly manner, shouting and cursing at her, and "got on the bike and left the scene at a rapid pace and refused to stop after my repeated orders for him to stop."
According to Jerlyn Hill, who was an eyewitness, Boone was not being disorderly or shouting or cursing at Officer McDonald. Hill also confirmed that Boone had told McDonald that he did not have an I.D. with him, saying "he might not have an I.D. with him since he lives only 100 feet away from Anders." Hill also said Boone told her that he was leaving because the situation was "getting out of hand."
In an interview with The Harbinger last May, Hill said "the USA Police is not treating Boone fairly. They missed the facts and blew things out of proportion. They over-reacted. It is as if you are guilty until proven innocent. Perhaps Mr. Boone knows his constitutional rights too much for the USA Police officer." ("Mobile Man Sues USA & City Police For Violating His Civil Rights," The Harbinger, May 12, 1998.)
Gulsby , who is no longer an USA police officer, said in his report that he responded to McDonald's call for backup and "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." After he drove his patrol car onto Boone's front yard, Gulsby said he observed "Boone got off his bicycle in the front yard. He'd kept his back to me... 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 his residence, entered, and closed the door."
According to Boone, when Gulsby drew his gun and asked him what he had in his hand, he told Gulsby that he had his house keys in his hand and showed them to Gulsby. Boone said he informed Gulsby that he was going inside and that Gulsby never told him he was under arrest. Boone also said Gulsby said nothing to him so he entered his home, locking the door behind him.
Sgt. Gerald Malone, the USA Shift Supervisor on the evening of April 26, 1996, stated in his case report that Gulsby radioed "the suspect had entered the residence at 74 West Drive and prior to entering the residence, had pulled a gun on him." When he arrived at Boone's residence, Malone said officers McDonald and Gulsby briefed him of the situation and they went back to the Anders Book Store parking Lot because McDonald "had told Mrs. Hill and her daughter to wait for her return."
Malone said in his report that Hill explained to him that Boone had typed a term paper for her, and she was meeting Boone in the parking of Anders Book Store to pick up the paper and to pay him for the service.
After Hill departed around 9:45 p.m., Malone said a radio dispatch informed him around 10 p.m. that someone from 74 West Drive had called 911, asking for the help of the Mobile Police Department. In his case report Malone stated that "I advised dispatch to telephone 911 and tell them to have the responding officer meet us in the Anders parking lot."
Malone said in his police report that Mark Tunstall from the City of Mobile Police arrived in respond to the 911 call and "requested the USA officers to back him up." Malone said Boone was also uncooperative with Tunstall, refusing to answer any of Tunstall's questions.
Malone stated in his report: "At this point, Officer Tunstall stepped back and said he won't do anything. '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 [Tunstall] 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."
Malone then stated he told Boone that "if you don't tell us who you are, we're going to place you under arrest." Malone also stated that the three USA police officers then entered inside Boone's house, "about two feet, three feet tops...At this point he [Boone] threw the telephone down, up comes the shotgun."
Boone said he called 911 to report a police officer from USA had tried to strike him with a car while he was riding home on his bicycle and that the person also pointed a gun at him in his front yard. When he saw Tunstall showed up with the same USA police officers who had threatened his life earlier, he called 911 again to request another police officer for help. And when the USA police officers entered his home and McDonald and Malone drew their guns and directed them at him, Boone said he picked up a 12- gauge shotgun in self-defense.
The police officers then retreated outside and called in the SWAT team and a hostage negotiator. After an arrest warrant signed by Judge Herman Thomas was obtained, the SWAT lobbed tear gas into Boone's house and Boone surrendered and was handcuffed and placed under arrest.
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 officer during the April, 1996 incident, but was found innocent of the charges of disorderly conduct and resisting arrest. Another charge, that of giving a false name, was dismissed. Boone is now suing the police officers from USA and the City of Mobile in federal court for violating his civil rights.
According to the report filed on May 3, 1996 (one week after the April 26 incident) by then Deputy Chief Lester Hargrove, Commander of Field Operations of the City of Mobile Police, "At approximately 2245 hours Lieutenant Robertson advised Sergeant Malone was to complete the proper paperwork and obtain warrants on the suspect, John Anthony Boone. At 0318 hours, USA officers returned with a proposed warrant for Mr. Boone's arrest. The warrants were produced to the MPD was [sic] affixed with the signature of Judge Herman Thomas, however, the signature did appear to be authentic, and when Lieutenant Robertson inquired if it was indeed Judge Thomas' signature, Sergeant Malone stated that it was not, but that the judge had given him phone authorization to sign the warrant. Lieutenant Robertson reponding [sic] in the following manner according to his written statement:
Lieutenant Robertson: "You men [sic] to tell me that this is not the judges [sic] signature!"
Sergeant Malone: "No, it's not. I was told to sign it for the judge,...we can use it to trick him out."
The Lieutenant then told Sergeant Malone that there would be no tricks on the subject or his family, and that we would need Judge Thomas' signature on the warrant or it was not any good. Sergeant Malone then replied, 'Well it will take another fifteen minutes.' I replied, 'Well it will be fifteen minutes well invested.' USA officers then left in route to get the warrant signed by District Court Judge Herman Thomas."