A homeless veteran alleges city police used excessive force when they arrested him Aug. 4, 2012, at the Bread of Life Veterans Shelter in Augusta after he allegedly refused several requests to leave.

A federal judge ruled Wednesday in favor of the Augusta police on two counts, but the case will continue to trial to determine whether excessive force was used against the veteran, Michael J. Albert Sr.

In an affidavit dated Oct. 1, 2015, Albert said he had agreed to depart the premises on Hospital Street and was getting up to do so when he was taken to the ground and arrested by several officers.

He said he suffered a torn rotator cuff that was repaired in surgery on July 17, 2014, in Bangor.

Albert, now 59, had been living at the Bread of Life’s JTG House, designated for homeless veterans, when the incident occurred after 9 p.m. on Aug. 4, 2012, as he was sitting outside at a picnic table.

“I was trying to think of everything I needed to throw a barbecue for the residents of JTG House when I saw a resident named William Harris talking on his cellphone,” Albert said in the deposition.

Albert said Harris was becoming agitated and shaking his fist in Albert’s direction, so Albert told him to go away. Albert said he was then told by Christopher Carson, a staff member at the home, to quiet down or he would have to leave.

Albert said Harris came toward him, and Albert told him that if he came “any closer with a clenched fist,” he would kick him.

Carson then asked Albert to leave, and when Albert refused and sought a reason, Carson called police.

Officers Benjamin Murtiff, Sgt. Vicente Morris and others arrived, and that’s when Albert said he was ordered to leave by Murtiff rather than simply asked to do so.

“Ultimately, I responded saying, ‘Fine, I’ll leave,'” Albert said in the deposition.

He said as he got up, one officer grabbed his right arm and he was led from a grassy area to a paved area.

“I did not lunge towards or approach Christopher Carson, though the officers and Mr. Carson have said so,” Albert said.

Albert said he was dragged to the ground and used his left arm to partially break his fall. He said another officer raised his left arm up, causing a sudden pain, which he says resulted in the rotator cuff tear.

Albert also alleges that an officer knelt on his head until he was in handcuffs.

He said pictures taken afterward at the VA Maine Healthcare Systems hospital at Togus showed scrapes from the tarmac.

Albert filed his lawsuit in federal court on Oct. 31, 2014, charging false arrest and use of excessive force. Initially, the defendants included Murtiff, Morris, two other Augusta officers referred to as “John Doe,” Chief of Police Robert Gregoire and the city of Augusta.

However, Murtiff and Morris are the only defendants remaining.

Murtiff’s deposition said he thought Albert was going to assault Carson because Albert yelled at the worker and clenched his fist at him, so Murtiff moved between the two men.

Murtiff said that when Albert refused to leave after being ordered to do so by Morris, he was arrested.

Murtiff said the handcuffing took place on grass, not pavement as Albert alleges.

In a ruling issued Wednesday in U.S. District Court in Bangor, Magistrate Judge John C. Nivison concluded that police did not violate Albert’s Fourth Amendment rights against unreasonable searches and seizures.

However, Nivison refused to grant summary judgment for the police defendants on the basis of qualified immunity on the excessive force claim.

“At a minimum, the record contains factual disputes as to whether plaintiff posed a threat, whether plaintiff had resisted or continued to resist, and the degree of force employed,” Nivison wrote. Albert is seeking punitive damages.

 

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