iPhone Photo Leads To Settlement Against Sheriff’s Deputy

Sept. 07--Although the settlement language allows him to claim no fault, a Sebastian County sheriff's deputy recently accepted an almost $40,000 judgment against him instead of going to trial in a federal civil rights lawsuit.

Braden Purcell was taking a walk Feb. 7, 2013, when he saw the 12th Judicial District Drug Task Force executing a search warrant at a home in the 4100 block of Park Avenue and decided to take a picture with his iPhone, from across the street.

Cpl. Brian Fuller, Sebastian County Sheriff's Office, was in front of the home being searched after conducting surveillance before task force members executing the search warrant arrived.

A confrontation occurred between Purcell and Fuller.

While those facts appear undisputed, what happened after that differs dramatically depending on which man you ask, according to documents in Purcell's lawsuit against Fuller.

Differing Accounts

Both men claim the other was immediately aggressive; both men claim the other tried to hit him. Neither Purcell's nor Fuller's account was 100 percent corroborated by other law enforcement at the scene.

In his initial incident report, Fuller claimed Purcell walked past the residence twice, taking video with his cellphone.

"It appeared he was targeting undercover officers and prosecutors on the scene," Fuller wrote. "Not knowing if the man was associated with the residence and possibly gathering intelligence for the organization being searched, I requested identification from the man."

Fuller wrote that Purcell started yelling "I know my rights" and "attempted to flee," refused to stop, refused to produce identification, refused to submit to arrest, actively resisted, had to be "physically placed in handcuffs," and was taken into custody for obstruction of governmental operations and resisting arrest.

In a supplement to the initial report, Fuller wrote that he observed a man who looked "very similar" to Purcell leaving the residence before the warrant was served, which "raised my suspicion" about Purcell.

During an internal Sheriff's Office investigation, Fuller said he was "highly confident" he saw Purcell leaving the residence before the warrant was served, according to a report detailing the findings of the investigation. While being deposed for the lawsuit more than a year later, Fuller said Purcell first came to his attention when he walked out of the target house and got in a vehicle.

Fuller had no evidence to corroborate that Purcell was seen leaving the residence and Purcell denied ever being there in his deposition and an interview with the Times Record.

Although Fuller described Purcell as immediately "belligerent" when he asked for identification, Purcell claims Fuller was immediately aggressive and demanded his phone and identification, according to Purcell's deposition.

When Purcell refused and told Fuller he was recording him, Purcell said Fuller swung at the iPhone -- trying to grab it or knock it out of his hand -- and then grabbed his other arm, threw him to the ground, other officers responded to the situation, and Fuller yelled at them to get the phone.

Lavaca police officer Dale Teague, who was working with the drug task force and approached Purcell with Fuller, contradicted Purcell in an interview with Cpl. Phillip Pevehouse, who conducted the Sheriff's Office investigation.

Teague told Pevehouse that Fuller wasn't belligerent, but Purcell was belligerent, which he denies. Teague said Fuller never swung at Purcell and Purcell tripped while backing up. Once Purcell tripped, according to Teague, officers did get on top of him.

Sheriff's deputy Matthew Walter described Purcell as being taken to the ground once other deputies arrived, according to a report dated April 9, 2013.

Neither Teague nor Walter described Purcell trying to hit Fuller with the iPhone, which Fuller claimed during the internal investigation, according to court documents; and while Fuller described Purcell as actively resisting in his initial report, Walter described Purcell as passively resisting.

Purcell was asked during his deposition why he didn't simply give Fuller his phone.

"Because I didn't commit a crime. It's my phone and there was no reason to give it to him. I had a right to take that picture," Purcell said, according to a deposition transcript.

Following his arrest, Purcell bonded out of jail and appeared in Fort Smith District Court twice before being told Sebastian County Chief Deputy Prosecutor Linda Ward declined to file charges. Ward told Pevehouse she declined based on the information Fuller provided and her belief there wasn't a good case to be made against Purcell.

Purcell said he then went to the Sheriff's Office to recover his iPhone, which Fuller initially told him was returned to him, before he told Purcell he lost it after Purcell had returned to the Sheriff's Office several times.

The phone was never documented as being among Purcell's belongings when he was arrested or logged in as evidence of Purcell potentially using it to target police and prosecutors at the Park Avenue location.

Purcell said the Sheriff's Office eventually offered to reimburse him the amount he paid when the iPhone was purchased as part of a two-year contract, despite being provided information he wasn't eligible for the contract price and it would cost about $1,000 to replace the phone and case.

After Purcell contacted Rogers attorney Bruce Mulkey and a lawsuit against Fuller was being prepared, the Sheriff's Office offered to pay the replacement price, but at that point Purcell said it was too late.

Lawsuit Filed

The lawsuit claimed Purcell was arrested for taking photographs/video of law enforcement activity in a public place and Fuller seized the iPhone to suppress the video of his confrontation with Purcell.

In his deposition, Fuller said Purcell's arrest had nothing to do with him taking pictures or video, and that he approached Purcell because he saw him leaving a dope house earlier with a "small gym bag," which made him a suspect in a crime who then refused to cooperate when asked for identification. Fuller denied ever demanding Purcell's phone.

Fuller, in his deposition, said the last time he saw Purcell's phone, it was in Purcell's baseball hat sitting between Purcell's legs.

Purcell leaving the Park Avenue house with a small gym bag wasn't mentioned in Fuller's initial report, arrest warrant affidavit or Pevehouse's report on the internal investigation into Purcell's missing phone.

Sheriff's deputy Michael Grosskreuz contradicted Fuller's claim that Purcell's arrest had nothing to do with him taking video or pictures.

"I asked Cpl. Fuller what the situation was with the subject (Purcell) was and he related that he was under arrest for videotaping the swat (sic) raid with his cellphone," Grosskreuz wrote in a signed statement.

When asked about Grosskreuz's statement during his deposition, Fuller said Grosskreuz probably heard someone else nearby say that, because he didn't.

Settlement Reached

Two weeks before the matter was scheduled for a July 29 trial, Fuller's attorney offered a settlement of $40,000, plus attorney fees and costs and a judgment entered against Fuller. The county and Sheriff Bill Hollenbeck, who were also named in the complaint, were dismissed from the lawsuit ahead of judgment.

Mulkey said 90 percent of lawsuits disposed through settlement are confidential settlements, but Purcell wouldn't accept a settlement where the records were sealed or his silence was required.

Even though the language of the settlement didn't require Fuller to admit wrongdoing, Mulkey said the fact remains there is a judgment against Fuller in a civil-rights lawsuit where he's accused of wrongfully arresting a man and suppressing evidence.

Mulkey said he has no doubt Purcell's phone was "lost" because it contradicted Fuller's claims and law enforcement are very cognizant that videos of them behaving inappropriately can show up on YouTube.

"Had it (the video) been favorable to him (Fuller), this would've ended much differently," Mulkey said.

Fuller, through Pevehouse, declined comment for this report.

Mulkey also said he finds it hard to believe Fuller would be so careless to lose a phone he considered important evidence of a suspected criminal targeting law enforcement and prosecutors.

Purcell said he has two brothers in law enforcement, and if Fuller asked him to move on or even to delete the photo instead of becoming aggressive and demanding his phone, he would've moved on or possibly deleted the photo even though he was within his rights to take it.

Initially, Purcell said he just wanted his phone replaced, but ultimately, he said he thought Fuller needed to be held accountable and other officers need to be deterred from similar actions.

"A badge doesn't grant extra rights," Purcell said.

Purcell also wanted to emphasize that Grosskreuz, who transported him to the jail, and Capt. Chris Johnson and Maj. Kevin Nickson, both of the Sheriff's Office, were very professional in their dealings with him.

Mulkey said the settlement and attorney fees and costs total almost $90,000.

Pevehouse said the judgment and fees/costs were paid from the Arkansas Association of Counties risk management fund.

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