Worthington police attorney files response to what ACLU claims was extremely excessive force on city man during arrest
WORTHINGTON, Minn. — The defense attorney for the city of Worthington and Worthington Police Department has filed an answer to a complaint from the American Civil Liberties Union alleging the department's officers used excessive force on a city man and violated his Fourth Amendment rights.
In a document filed Friday in U.S. District Court in Minnesota, attorney Jason Hiveley denied each and every one of the ACLU's charges and asked that the case be dismissed with prejudice. He argued all injuries or damages sustained by Anthony Promvongsa were "caused by, due to and the result of the careless, negligent and unlawful conduct on the part of plaintiff, and plaintiff's fault was greater than any fault of any other person."
The charges, filed in November, stem from a July 2016 traffic stop and subsequent arrest in which Promvongsa was punched, kneed and dragged out of his car by Buffalo Ridge Drug Task Force Agent Joe Joswiak while Worthington police Sgt. Tim Gaul looked on. The ACLU obtained footage of the incident and released it in June.
The response rejects allegations that Promvongsa's civil rights were violated during the incident. It denies the officers were improperly trained, supervised or disciplined, and that the city or WPD were negligent in their hiring and supervision. It rejects the charge that Joswiak used excessive force and the allegation that Gaul, along with officer Dan Brouillet, failed to intervene to protect Promvongsa.
Promvongsa pleaded guilty in August to two counts of misdemeanor fifth-degree assault and driving after revocation, charges brought forth after the incident. However, the two sides offer very different accounts of what happened leading up to the traffic stop.
ACLU attorneys say Promvongsa was driving to get his GED when he came up behind an unmarked, slow-moving car, which he later learned was being driven by off-duty Worthington police officer Colby Palmersheim, accompanied by off-duty officer Mark Riley.
When Promvongsa attempted to pass the car, the complaint alleges Palmersheim sped up to prevent him. The complaint then says the two officers stopped in the road and exited the vehicle, preventing Promvongsa from proceeding. It alleges Palmersheim exited his car with a gun in hand.
When Promvongsa turned his car around to "get away," the complaint alleges Riley used his personal cell phone to call Joswiak and inform him to stop Promvongsa for a driving violation, but did not call WPD to report an incident. The complaint says the BRDTF does not investigate traffic incidents.
In defense, the Worthington police say Promvongsa approached Palmersheim at high speed and tailgated him at a distance of one to three feet. It alleges Promvongsa gestured at Palmersheim and swerved around his vehicle.
The document says Palmersheim pulled over where Riley had parked his own vehicle. Promvongsa then allegedly told the two to stay where they were because "he was going to get his boys and come back to get them."
The defense says Riley informed dispatch that Promvongsa's driving privileges were revoked, and that Joswiak was notified of the incident when he saw Promvongsa's vehicle approaching him. The defense alleges Promvongsa swerved at Joswiak's vehicle, forcing Joswiak to swerve out of the way, then turn on his emergency lights and pursue Promvongsa.
With his plea agreement, Promvongsa admitted to driving his vehicle without a license and attempting to cause fear or harm to Palmersheim and Riley, but not Joswiak. Charges of fleeing a peace officer in a motor vehicle and possessing a small amount of marijuana were dismissed.
The traffic stop, recorded by Gaul's dashcam, is on video for all to see, but both sides still have different interpretations of its content. The ACLU argues Promvongsa had no time to respond to what it found to be unusual and confusing orders from Joswiak, while WPD's defense says Promvongsa resisted orders.
The defense argues Promvongsa's damages were caused by his own behavior leading up to the incident. ACLU lawyer Ian Bratlie argued none of Promvongsa's conduct justified Joswiak's actions.
As of now, the case is in very early stages. Hiveley will seek to have the case dismissed through a motion for summary judgment.