Federal judge throws out Hampton police search lawsuit
Ruling dismissed the case against Hampton because it wasn't filed on time
<!-- sphereit start -->NORFOLK — A federal judge on Monday threw out a lawsuit by a man who asserted that a Hampton police officer shoved a metal object up his rectum in a 2007 traffic stop on the side of the road.
U.S. District Judge Henry Coke Morgan granted a motion filed by attorneys for the city and former police officers to dismiss the $66 million lawsuit because it wasn't filed within the two-year statute of limitations.
Kirby Johnson, 20, of Hampton, asserted in the suit that police pulled him over on Mallory Street on July 7, 2007, leading to a futile attempt to find drugs. But the city had contended that three different official records on the stop — two from the city and one from the State Police — prove that Johnson was actually pulled over on June 6, 2007.
Because the lawsuit was filed on June 15, 2009, the actual date of the search was critical. Morgan sided with the city in saying the records prove that search took place in June.
"Despite the histrionics of the plaintiff to get within the statute of limitations, they're just not doing it," Morgan said. "I don't see how any reasonable jury could find that (Johnson and his cousin) were stopped on July 7."
After the hearing, City Attorney Cynthia Hudson said Morgan was "very meticulous" in his ruling, including that he didn't decide the issue at an initial motion hearing last month but held another hearing before making his ruling.
"This was very solid," Hudson said. "The judge was very meticulous and thorough. He gave (Johnson's attorney) every opportunity to present or discuss other evidence ... She simply wasn't able to do that."
Hudson said the city denies the main factual contention that Johnson had an object inserted into his rectum and had his rights violated. "We have denied that all along and we continue to deny that," she said.
Johnson's attorney, Verbena Askew, left the courtroom quickly after the ruling. She said she would likely appeal the ruling.
"I worked this case with the utmost diligence," Askew said. "I tried to fight for the person who was harmed. And I continue to believe him. It was a technicality today, but there is no question in my mind that Kirby Johnson was violated."
At Monday's hearing on the motion, Alan Rashkind, an attorney hired by Hampton to represent one of the police officers, said the records of the traffic stop occurring June 6 "have not been contradicted or rebutted in any way, shape or form."
Askew said Johnson and his passenger – his cousin – both say the incident took place after the July 4 holiday; they knew it occurred on a Saturday; and they knew it happened before the cousin's birthday of July 13, when he got a new car.
Askew had asserted that city records were "replete with error" and can't be trusted for their accuracy.
That includes, she said, a discrepancy in the time of the incident in one report; the fact that one officer was said to have begun work in March 2007 but was writing traffic tickets in January 2007; and the fact that Eric Hart, the officer who the city says pulled over Johnson's Cadillac, isn't listed on a daily roster as working on June 6, the date the city cites for the stop.
Askew said there could have been more than one search — the June search and another in July.
But Morgan didn't buy that. The judge pointed to Johnson's deposition last year in which he says he was stopped only once. At one point, Johnson hedged a bit when asked if he was searched another time, saying, "It is possible, but in my recollection no."
That's hardly proof of a second search, Morgan said. "The heart of the matter is that your client was stopped only once," and it was in June, he said. "You can't get around it."
Aside from being happy with the main ruling, Hudson said she was "just as pleased" with an off-handed statement from Morgan from the bench after the ruling, in which he said he didn't see sufficient evidence to prove that that there was a "custom" at the Hampton police division that accepted improper searches from police officers.
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A major federal lawsuit against the city of Hampton, Police Chief Charles Jordan and several police officers was dismissed Monday. A federal judge didn't rule on the factual allegations in the case, but ruled that the case wasn't filed within the two-year statute of limitations in the case.
The dismissal means the city won't have to pay any damages in the $66 million lawsuit.
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