Seth Slabaugh

The Star Press

MUNCIE — A federal judge has dismissed a local hip-hop artist's claims accusing Ball State University police of false arrest and deleting a cellphone video he shot of the incident outside a near-campus bar.

However, the judge declined to throw out a claim of excessive force in the two-year-old civil rights complaint that has cost the university more than $80,000 in legal fees so far.

The plaintiff, Djuane McPhaul, aka Juan Da god, 35, whose criminal record includes an armed robbery conviction and being a felon in possession of body armor, has represented himself in the lawsuit from jail.

According to the American Civil Liberties Union, taking photographs and video of things that are plainly visible in public spaces, including police carrying out their duties, is a constitutional right. "It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records," the ACLU says. "The right of citizens to record the police is a critical check and balance. It creates an independent record of what took place … free from accusations of bias, lying or faulty memory."

U.S. District Judge Jane Magnus-Stinson's recent rulings, which means Ball State will now have to settle the McPhaul case or defend it at trial, were based on an evaluation of these undisputed facts:

McPhaul had been drinking with two friends at the Dill Street Bar on the night of April 19-20, 2013. The friends left in a car to get a carryout pizza, then pulled up on the street in front of the bar to pick up McPhaul around 2:50 a.m. The vehicle turned off its lights.

BSU police officer David Barnes had parked his police cruiser in the parking lot of the Ball State Federal Credit Union across the street from the bar, something he often did in the early morning hours to show a police presence when The Village bars were closing. Barnes flashed his spotlight at the vehicle several times, but it did not move. So he approached the vehicle on foot and smelled alcohol on the breath of the driver, Corey Kates, whose eyes were glassy and bloodshot.

As the officer asked Kates to get out of the vehicle for a field sobriety test, McPhaul emerged from the bar, saw Kates with the police and began yelling loudly that he was videotaping the event for the reason that police had stopped Kates because he was black. McPhaul's behavior attracted a crowd of bystanders emerging from the bar.

After McPhaul was "loudly argumentative" and "verbally belligerent" for 10 to 15 minutes, which distracted/prevented officers from administering a field sobriety test to Kates, McPhaul was arrested for disorderly conduct, public intoxication and resisting arrest. Officer Jordan Brand executed a "leg sweep" on McPhaul. Both McPhaul and the officer went down to the ground, and McPhaul's cellphone flew out of his hand.

The phone was set to turn off automatically after 10 or 15 seconds of inactivity, and a four-digit security code had to be entered to turn it back on. Officer Brad Clark collected the phone, which was not lit up, and placed it on the seat of Brand's patrol car. It was returned to McPhaul that night after he was released from jail.

McPhaul remained on the sidewalk throughout the incident, while the police were dealing with Kates in the middle of the street. A witness, Tyler Davidson, also video recorded the events on a cell phone. On that video, you can hear Davidson yelling to officers, in reference to McPhaul: "Leave him alone. He didn't do anything. He was just recording."

McPhaul claims that when the phone flew out of his hands, it was in recording mode, so Clark would not have needed a security code to activate it.

The plaintiff, who has lived on East Eighth Street in Muncie, is seeking $200,000 for damage to his character, emotional distress and physical injuries. The lawsuit also demands that the officers be fired. McPhaul claims the seizure of his phone and deleting the video violated his First Amendment rights, that police used excessive force, and that BSU police Sgt. Matt Gaither violated McPhaul's due process rights for failing to perform an adequate internal affairs investigation of his allegations. All but the excessive force claim have been dismissed.

Judge Magnus-Stinson ruled that McPhaul provided no evidence beyond mere speculation to support his proposition that police deleted the video on his phone.

McPhaul told Ball State attorneys that after he got the phone back when he was released from jail, he took it to the Geek Squad, which advised him it would cost $1,500 to retrieve the deleted video. McPhaul said he couldn't afford that. He also said he later gave the phone to his girlfriend, and now it can't be found.

The judge also ruled police had probable cause to arrest McPhaul for disorderly conduct and public intoxication because he admittedly had been drinking, officers smelled alcohol on his breath, and he continued to make unreasonable noise after being asked to stop.

But it's less clear that he resisted arrest. "Because the only evidence in the record is that McPhaul pulled away (when Brand grabbed McPhaul's wrist), there thus remains a dispute of fact whether he 'forcibly' resisted arrest …," the judge ruled. " … there is a dispute of fact regarding whether McPhaul was resisting arrest or merely trying to hold on to his phone …"

Officer Brand 's use of the "leg sweep" to take McPhaul down to the ground and handcuff him may have been excessive.

"Brand has not shown that the crime at issue was severe enough to warrant the use of force or that McPhaul was attempting to flee or evade arrest sufficient to warrant the use of force," the judge ruled. "In addition, Brand has provided no evidence that McPhaul's pulling or backing away posed a safety threat. Accordingly, Brand's request for summary judgment on McPhaul's excessive force claim must be denied."

McPhaul, who has been unable to convince the judge to give him a court-appointed attorney, says he has sought legal representation from more than 20 lawyers to no avail.

That is because attorneys know that Hoosier juries "are not inclined to give money to quote-unquote criminals," says Frances Lee Watson, a clinical professor of law at Indiana University and a former chief public defender in Marion County who directs the Criminal Defense Clinic and developed the Wrongful Conviction Clinic (a founding member of the Innocence Network) at IU. "Jurors in Indiana don't tend to take taxpayer dollars and pay a criminal."

Prior to Judge Magnus-Stinson's recent ruling, Watson told The Star Press the fact that McPhaul couldn't produce the phone he was carrying that night at Dill Street Bar was damaging to his lawsuit.

"That sounds iffy," Watson said. "It was deleted but I don't have it anymore. No, that won't fly in terms of proof. That's digging yourself a hole with the facts. It makes you out to be a nontruth teller. That part doesn't pass the laugh test. He's got some laugh tests to jump through. The excessive force aspect might have a better chance of surviving summary judgment than the deleted cellphone, because it sounds like they took him to the ground when he wasn't using physical force against the officers. But I would say the phone allegation defeats the excessive force because he doesn't look honest. No doubt he feels the police were excessive. He's not making that up, but he loses credibility on the cellphone."

In 2003, a Delaware County jury convicted McPhaul of armed robbery and felony intimidation, for which he was sentenced to 16 years in prison.

On Feb. 18, 2014, McPhaul was found guilty after a bench trial of disorderly conduct, public intoxication and resisting arrest in connection with the events at Dill Street Bar. McPhaul's petition for a new trial remains pending.

At 3:15 a.m. on Dec. 21, 2013, eight months after the Dill Street Bar incident, Ball State police again arrested McPhaul after a slow-speed chase (15 mph to 40 mph) for nearly a mile. Police said they stopped McPhaul's white, early-model Cadillac Seville for several traffic violations, including a right turn from the straight lane of traffic.

McPhaul was wearing body armor with trauma plates and carrying $245 in his pants pocket. A loaded, stolen Smith & Wesson 9-mm handgun was found in a console, and a safe containing $2,000 in cash was found in the trunk.

In January of this year, McPhaul was sentenced to 24 months in prison after a federal court jury found him guilty of being a felon in possession of body armor. The jury found him not guilty of being a felon in possession of the 9-mm pistol after a woman testified that the gun belonged to her. The woman testified she had borrowed McPhaul's car to travel to Detroit, left her gun in it and forgot to tell McPhaul when she returned his car. McPhaul is appealing that conviction as well.

This isn't the first federal lawsuit McPhaul has brought against law enforcement.

In 2005, while serving a prison sentence for armed robbery, McPhaul claimed he had been coerced by Muncie police and the Delaware County prosecutor's office to give false testimony in a murder trial. Four suspects were charged after 34 gunshots were fired into a crowded Muncie home when the four were denied admission to a late-night party near BSU. The lawsuit, which was unsuccessful, sought new trials for the four men and damages for years of duress suffered by McPhaul. "I want the truth to come out," he said.

McPhaul's federal lawsuit against New Castle Correctional Facility, alleging a correctional officer smashed McPhaul's face into a door, slammed him to the ground, kicked him in the head and put his boot on his head, was settled out of court.

In recent years, Ball State settled a federal lawsuit out of court that accused it of gender discrimination against a female instructor and another federal case complaining of a lack of control/supervision over its K-12 Burris Laboratory School, where elementary school boys molested/sodomized each other in a library, a classroom and a restroom after watching online porn on school computers.

Several months ago, Judge Magnus-Stinson dismissed Bronson Westbrook’s federal lawsuit against Ball State, which he accused of violating his rights when it suspended him from school after his arrest on charges of maintaining a common nuisance, possession of 24.5 grams of marijuana, and drunken driving.

Contact Seth Slabaugh at (765) 213-5834.