Was Mitchell a victim of a police officer's driving-while-texting?

File photo by Will Walker

Albemarle County Police Officer Gregory C. Davis Albemarle County Police Department 1

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For nearly four years, the dashcam video of a County police cruiser striking a wheelchair pedestrian in a crosswalk in broad daylight was the most shocking aspect of the case. Now, a new court filing drops additional bombshells– including one that may explain how it happened.

New information revealed in the course of the victim's civil lawsuit indicates that immediately before the incident, the Albemarle officer, Gregory C. Davis, was involved in "excessive texting." Furthermore, according to the document, Officer Davis may, under oath, have intentionally downplayed his texting.



"Members of the public who have seen this video probably wondered how in the world this officer could have missed this person in a wheelchair," says attorney Richard Armstrong. "This finally explains."

Messages left with Davis, his attorney, and the chief of police were not returned; and police spokesperson Darrell Byers says the ongoing litigation prevents comment.

The November 5, 2007 accident created widespread outrage, particularly after release of the dashcam video showing clear conditions at the intersection of West Main and Fourth Streets.

Feelings were already running high since the officer went uncharged while the injured man in the wheelchair, Gerry Mitchell, was served with a ticket in his UVA hospital bed. In the months following the accident, Mitchell– a longtime AIDS sufferer– alleged that he was hit not only by a police car but by a cascade of additional health woes.

After seeking a public apology from the officer who struck him and from the Charlottesville City police, Mitchell filed an $850,000 suit alleging negligence, malicious prosecution, and intentional infliction of emotional distress. (While the City was dropped from the suit last spring, Davis and ticketing City officer Steve Grissom remain as defendents.)

Attorney Armstrong, representing Mitchell, says the recent revelations about Davis' texting habits emerged during a deposition by County Police Sergeant Timothy Seitz, who headed an internal investigation, and add further outrage to the incident. Armstrong also blasts a recent motion by the County– which isn't a party to the suit– to quash a subpoena to obtain a recording of a statement given by Davis on the day of the incident.

"What interest does the county have in trying to keep the public from knowing about it?" asks Armstrong. "It sort of goes in conjunction with our belief that they're trying to protect police officers from liability resulting from acts that they may commit."

Assistant County Attorney Andrew Herrick did not return a reporter's call for comment by posting time.

Davis (who nearly 120,000 YouTube viewers know to have been rocking out to the song "My Humps" at the time of the incident) seems to have made some effort to conceal his texting activities that fateful day. Back in August 2009, when answering initial interogatories, he admitted that he twice faced disciplinary action, once for a "minor domestic matter brought by the ex-husband of my then-girlfriend" in which he was found to have used "unprofessional language." In the second disciplinary action, he answered, "On another occasion I was found to have used my cell phone excessively."

What Davis omitted, says Armstrong, is that the excessive cell phone use wasn't simply on "another occasion." It occurred the very day he struck Mitchell, prior to the accident. The recording of this interview could reveal whether Davis initially admitted his texting activity– something investigators might have taken into account when determining whom to ticket.

The case reached a veritable boiling point after Charlottesville Police Chief Timothy Longo sent City Council a statement alleging there were no witnesses. However, the dashcam video showed citizen Ben Gathright, clearly identified in a pre-statement Hook story, rushing to Mitchell's side. Gathright would later reveal evidence of official unwillingness to investigate as well as the sudden reappearance of parking tickets and an old bounced-check charge, a pattern he construed as police retribution.

"Had the officers undertaken a thorough investigation and had Officer Davis been honest," says Armstrong, "it's likely charges would have been brought against Officer Davis rather than Mr. Mitchell."

The charge against Mitchell– failure to obey a pedestrian signal– was eventually dropped after the Charlottesville Commonwealth's Attorney ruled that the signal of a big red hand placed it outside of the existing statute. Soon thereafter, State Delegate David Toscano sponsored a bill that changed the law– not to ensure punishment of errant officers, but to ensure that pedestrian infractions could be more easily enforced.

Today, Mitchell is again hospitalized, this time with nerve damage in his arms, an unhealing wound on his foot, and "a lot of pain." In his world of hurt, the texting revelations come as something of a relief.

"It helps explain why he ran me over," says Mitchell. "He wasn't looking."

A hearing on the County's motion to quash Mitchell's subpoenas takes place Wednesday, August 31, in Charlottesville Circuit Court, where the trial is scheduled for September 27 and 28.